BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 19/06/2008

Date of Order : 31/12/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 196/2008

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the case of the complainants is as follows :

The 1^st complainant is the husband of the deceased Mani @ Many and the complainants 2 to 5 are the children of the 1^st complainant and the late Many. The 5^th complainant is working in Cochin Port Trust. He has the benefit of availing E.S.I. Hospital on payment from his salary. The said Many had been suffering from back pain and pressure. On 06-09-2007, the late Many approached the E.S.I. Hospital for treatment. The 1^st and 2^nd opposite parties treated her, however, there was no relief of her back pain. On 09-09-2007, she had chest pain and her body weakened which showed pain while eating or drinking. The 1^st opposite party had administered a set of injections to her. On 11-09-2007, the 2^nd opposite party as well administered injections. In the mean time, she became paralyzed. Even then, the opposite parties did not advise the complainants to take her to a major hospital for better treatment. On 13-09-2009, as per the direction of the 1^st opposite party, she was taken to General Hospital, Ernakulam. The doctor at General Hospital opined that her condition was worsened due to defective treatment at E.S.I. Hospital. At that juncture, the complainants requested the 1^st opposite party to issue the chart of the treatment in E.S.I. Hospital, but they rejected the request. At the instance of the complainants, the Ernakulam Town North Police Station registered Crime No. 703/2007. On 24-09-2007, she succumbed to the injuries, the opposite parties had never applied their mind while treating the deceased without any diagnosis. The opposite parties had started antibiotic injection and applied steroids. Due to the impact of the above medicines, the condition of the deceased became critical, and thereafter, she passed away. At the time of death, she was aged only 55 years. Thus, the complainants are before us seeking compensation against the opposite parties to the tune of Rs. 4,90,000/-.

2. The version of the 1^st and 2^nd opposite parties :

The 1^st and 2^nd opposite parties are working as consultant physician and orthopedic surgeon respectively working in E.S.I. Hospital, Ernakulam North. The patient consulted the 2^nd opposite party on 15-08-2007 with complaints of low back pain, her disease was diagnosed as spondylolysthesis with severe sciatica and neurological deficit together with uncontrolled systemic hypertension. On examination by the 1^st opposite party, she was found to have very high B.P. Blood investigation revealed that she had dysilipidemia. The 1^st opposite party prescribed medicines for the diseases. The 1^st opposite party reviewed on 17-08-2007, 22-08-2007 and 25-08-2007. The patient was again admitted on 06-09-2007under the 1^st opposite party with complaint of giddiness and neck pain. On the next day, she complained of low backache. The 2^nd opposite party also examined the patient and prescribed medicines. On 13-09-2007, the patient suddenly developed chest pain and sweating. Since the E.C.G. machine was not working, the patient was referred to Government Hospital for obtaining E.C.G. Report. The bystanders did not bring her back for their own reasons. On 16-09-2007, the bystanders requested for a discharge summary immediately the 1^st opposite party issued the same. There is no negligence on the part of the 1^st and 2^nd opposite parties in treating the patient. The 1^st and 2^nd opposite parties are not liable to pay any compensation to the complainants.

3. The defense of the 3^rd opposite party :

The 3^rd opposite party raised the very same contentions of the 1^st and 2^nd opposite parties.

4. The 1^st complainant was examined as PW1 and Exts. A1 to A5 were marked on the side of the complainants. The 1^st opposite party was examined as DW1 and the 2^nd opposite party was examined as DW2. Exts. B1 and B2 were marked on their side. Neither oral nor documentary evidence was adduced by the 3^rd opposite party. Ext. X1 also was marked. Heard the counsel for the parties.

5. The only question that came up for consideration is whether the complainants are entitled to get a compensation of Rs. 4,90,000/- from the opposite parties?

6. During evidence, the 1^st complainant who was examined as PW1 categorically stated before the Forum that he was not aware of the nature of treatment adopted by the opposite parties on his wife. He further deposed that he had no occasion to verify the hospital records of his wife. So, the evidence of PW1 will not help this Forum for the adjudication of this complaint judicially. DW's 1 and 2 maintain that they have rendered their best service to the patient and there is no negligence or laches on their part in treating the patient. The complainants did not or have not adduced any expert evidence or produced any medical literature to substantiate their averments.

7. Admittedly, the Ernakulam Town North Police Station registered a Crime in connection with the death of the deceased. The postmortem was conducted and the report was marked as Ext. A3. As per Ext. A3, the reason for the cause of death reads as follows :

“Postmortem appearances are consistent with death due to Septicaemia following infected skin lesions. Additional report will follow the receipt of laboratory investigations.”

8. Nothing is on record to prove or establish that Septicaemia has developed on the patient due to the negligent treatment on the part of the opposite parties or due to the wrong administration of excessive dosage of medicines on the patient as alleged. Admittedly, the police submitted refer charge before the Court stating that there is no negligence on the part of the opposite parties. They came to the conclusion on the basis of Ext. X1 expert panel opinion rendered by the District Medical Officer of Health, Ernakulam, Forensic Professor, Medical College, Alappuzha, The Government Pleader, District Court, Ernakulam, Civil Surgeon, Deputy D.M.O., Ernakulam and Physician, THQH, North Paravoor. The opinion of the above experts is as follows :

“There is no lack of skill and care found on the part of the doctors and so there is no negligence seen by the expert panel. It is a drug allergy Steven Johnson syndrome.”

It is pertinent to note that Ext. X1 has been admitted in evidence without demur.

9. Nothing is again forthcoming on the part of the complainants to overcome the findings of the expert panel in Ext. X1. The Hon'ble National Consumer Disputes Redressal Commission in Mrs. Nalini Vs. The Chief Cardiac Surgeon, Manipal Hospital and Another 2011 (4) CPR 157 ( NC) has held that in complicated cases without support of any expert's opinion. The complainant's case of alleged medical negligence cannot be accepted only on the basis of his affidavit or some entries in Medical record. In the instant case, both are absent. The Hon'ble Supreme Court in Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and others AIR 2010 SC 1050:2010 (3) SCC 480  held in para 94 as follows:

“On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence.   While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view.

I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.  

II. Negligence is an essential ingredient of the offence.  The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.  

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.  

IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. 

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.  Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her  suffering which did not yield the desired result may not amount to negligence.   

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.  Merely because he doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.   

VIII.  It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX.  It is our bounden duty and obligation of the civil society to ensure that the medical processional are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. 

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation.  Such malicious proceedings deserve to be discarded against the medical practitioners.

XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients.  The interest and welfare of the patients have to be paramount for the medical professionals.”  

10. In the instant case, apart from the allegations, the complainants have failed to prove or establish the lack of skill, care or negligence on the part of the opposite parties for whatever reasons. For the reasons affirmed above and findings of the Supreme Court having been totally uncontroverted, we are coming to an inevitable conclusion to disallow this complaint. Ordered accordingly.

Pronounced in the open Forum on this the 31^st day of December 2011.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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