Andhra Pradesh

Nellore

CC/95/2013

Smt Dandu.Umamaheswari Wife of Ravikumar - Complainant(s)

Versus

Dr.P.Yasodhara M.D - Opp.Party(s)

C.P.Suresh

08 Jan 2016

ORDER

                                                             Date of filing       :  15-07-2013

                                                             Date of disposal  :   08-01-2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Friday, this the 8th day of JANUARY, 2016.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

        

                                 C.C.No.95/2013

Smt.Dandu Umamaheswari,

W/o.Ravikumar, Advocate,

Aged 26 years,

Hindu, R/o.1/964,

Mangali Street,

Nawabpet, Nellore SPSR Nellore (Dt.)A.P.                …         Complainant

 

                      Vs.                                                                           

                                                                       

Dr.P.Yasodhara M.D.

Regd.No.17372,

Obstetrician & Gynaecologist,

Sri Durga Hospital & Brain Center,

Brindavanam, Nellore  524 001.                          …            Opposite party

 

 

This matter coming on  05-01-2016  before us for final hearing in the presence of Sri C.P.Suresh, Advocate for the complainant and Sri S.Ramakrishna Prasad, Advocate for the opposite party and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                   (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

 

  This consumer is filed by the complainant against the opposite party to direct to pay a compensation of Rs.20,00,000/- towards the expenses incurred to the complainant; (Appollo Hospital charges Rs.3,27,680/- and another Rs.1,00,000/- towards other expenses + Rs.40,000/- at opposite party hospital plus Rs.15,60,232/-) for the mental agony and torture and loss of male child on account of the negligence act and deficiency in service on the part of opposite party, also to pay the costs of the proceedings and pass such other relief or reliefs as the Hon’ble Consumer Forum may deemed it and fit under the circumstances of the case.

The factual matrix leading to filing of this consumer case is as stated as hereunder:

 

I. a) The complainant had visited the opposite party’s hospital for a number of times since her confirmation of pregnancy.  The dates on 11-04-2012 and      16-07-2012 which the opposite party had performed a number of tests to the complainant to know about the hemoglobin count.  She has further submitted that in para-4 of her complaint that the discharge summary which was issued by the opposite party on 10-09-2012 that the opposite party had noted down the hemoglobin count that was 9.1 grams /d1.  In view of that on 8-9-2012, she had joined in the hospital of opposite party for discomfort in her upper abdomen and on the very same day itself, the opposite party had noticed that the complainant (patient) developed Abruptio placenta and so that the opposite party knows it pretty well that Abruptio placenta had occurred, then baby should not able to get food and oxygen from the mother (complainant).  It is an allegation against the opposite party that the doctor has not done the C-section on 8-9-2012 itself. 

b).  It is also further submitted by the complainant in paras 5 to 9 of her complaint that if the opposite party had done the C-section on 08-09-2012 itself then the baby should had been born with life. She had approached to opposite party on 8-9-2012 that she had heavy pain in her abdomen.  But the opposite party had not tested the condition of baby on 08-09-2012.  She told to opposite party that there were no movements of the baby in the womb.  When she told opposite party that why the doctor had not operated immediately after observing the conditions of unborn baby.  She had further told that her hemoglobin count on 8-9-2012 was 9.1 grams but on 9-9-2012, it was reduced to 7.1 grams but on 9-9-2012, it was reduced to 7.1.grams, why it was decreased of the hemoglobin count by 2 grams by one day.  So, it means that there shall be bleeding as admitted by the opposite party in the discharge summary and in a case why doctor had not done operation immediately.  On 10-09-2012,  the Bilirubin count was 5.1 mg/d1 which was very high and the opposite party had not taken any steps to reduce that count.  So, it means that liver junction was also greatly reduced.

( c ) It is also further submitted by the complainant that in paras 10 to 13 of her complaint that the opposite party had waited for two days for C-section and in the result the baby died in her womb and the condition of her, became very serious.  The opposite party had admitted the fact that the bilirubin levels were at very high in the circumstances.  It was clearly amounts to due to opposite party’s negligence, dereliction of duty and deficiency in service alone.  Without any mercy and humanity on the complainant, the opposite party had thrown away her from the hospital although she was in very serious condition.  Then, the opposite party had told that to her husband that it was not possible to save the life of complainant which was against to the ethics and medical profession.  Thereafter,  on 10-09-2012, the complainant’s husband and her relatives took an ambulance to proceed further with a heavy cost of Rs.8,000/- and joined her in the Apollo First Med Hospital, Chennai for better treatment to save her life.

(d) It is also further submitted by the complainant that in paras 14 to 16 of her complaint that the doctors at Apollo First Med Hospital, Chennai had opined that the condition of the complainant was very serious.  In view of their discharge summary the Apollo First Med Hospital’s doctors had categorically stated that 26 years old Patient delivered a still born baby by LSCS at 3.13 p.m. on 10-09-2012 and referred in septic shock on Dopamine drip with high serum bilirubin.  The doctors had tested the hemoglobin count and it was 4.5 grams/d1.  It means the opposite party had not noticed the considerable decrease in the hemoglobin levels which was the gross negligence on the part of opposite party.  The Nephrologists   of the Apollo First Med Hospital, Chennai had opined that the urine output of complainant was loss and advised dialysis.  So, because of opposite party’s negligence treatment of complainant’s kidneys and liver had been damaged which causes so much of discomfort to her.  It was a very serious condition of the complainant. That fortunately, the complainant’s condition had become bright on account of sincere treatment given by the said Apollo First Med Hospital’s doctors.

(e) It is also further submitted by the complainant in paras 17 to 20 of her complaint that after her health condition which attains the normal, the said Apollo First Med Hospital, Chennai, had sent her for further check-up to BRM Hospitals(P) Ltd., Nellore, because it was very difficult for her to visit the above said hospital because of her health condition.  Her husband had spent of Rs.2,054/- for investigations at BRM Hospitals, Nellore.  The husband of the complainant had already spent more than Rs.4,00,000/- to save his wife’s life.  All the relatives, her husband and the complainant were underwent a lot of mental strain and worry because of she had the first pregnancy after her marriage.  This was nothing but only deficiency in service but also dereliction of the duty on the part of opposite party.  The complainant had sent a legal notice to the opposite party dt.21-06-2013 by explaining all the above said facts.  The opposite party had also received the said notice personally on       22-6-2013.  But the counsel for the complainant had received a reply dt.       24-06-2013 that the opposite party went to abroad and requested her to wait for 20 days for the reply from the opposite party.  The entire episode was published in daily Sakshi news paper on 11-09-2012.

(f)  It is also further submitted by the complainant in paras 21 to 27 of her complaint that she had demanded a compensation of Rs.20,00,000/- from the opposite party on account of negligent treatment in not observing the condition of baby on 08-09-2012 itself causing so much of bodily injury to her.  She had undergone a lot of bodily injury and mental shock.  Therefore, still she is worrying about the loss of her baby in the opposite party’s hospital.  The opposite parties hospital had collected a fee of Rs.40,000/- from her, for treatment her husband had spent of Rs.4,27,680/- in the Apollo First Med Hospital, Chennai, including Rs.1,00,000/- towards other expenses to save the life of his wife.  On account of loss of male child, the complainant was demanded Rs.15,60,232/- towards compensation from the opposite party for her bodily injury and mental agony.  The complainant joined in the Apollo First Med Hospital, Chennai on 10-09-2012 and discharged on 20-09-2012.  There are causes of action for this complaint arose, explained in para-28 of her complaint and the particulars and details for the expenditure she had incurred for treatment as explained in paras 30 to 38 of complaint.  Hence, the complaint.

II.  DEFENCE:

(i) The opposite party was resisted the complaint and denied the allegations of the complainant in the complaint in the written version/counter filed by the doctor-opposite party.  The complaint is unjust and untenable either on the set of facts or on the points of law.

(ii) It is also submitted by the opposite party in para-7 of her written version/counter that the complainant was so irregular in ante-natal check-ups and negligent in following the prescribed medicines.  Every patient will be given a well designed file for follow-up on the further treatment from their visit.  The said file contains not only the prescriptions, but also tests conducted including the ultrasound images pinned to the file thoroughly to know the position of the fetus.  Here, in this case, the complainant mischievously and deliberately did not bring the file or raised any question on the basis of observations made in the file.  The complainant failed to understand that the concerned extra copies of the file, will be with the hospital and simply cannot misrepresent to the Hon’ble Forum on such illusions and exaggerations to suite their unjust claim.

(iii) It is also further submitted by the opposite party in para-8 of her written version/counter that the complainant had in fact admitted in the opposite party’s hospital with fever and chills and slightly discomfort owing to the feverish condition.  Tests which were conducted on the complainant has not shown any abnormality in the condition of the mother and fetus on 08-09-2012 except for the low levels of calcium.  Fetal condition was monitored by the Fetal Doppler and was found to be stable till 11 pm on 09-09-2012.  And that as per the case sheet her LMP (last Menstruation period) suggest that she would be expecting her date in the first week of October.  Team of doctors in the hospital under the guidance and attention of the opposite party, complainant was treated suitably.  On the intervening night of 9/10-09-2012 after 11pm and before blood coagulation test results are received condition was changed and fetus lost in no time due to Abruptio Placenta onset within no time.  As a result of such complainant was attended clinically and moved for C-section after getting her coagulation reports in avoiding the maternal loss, and there was no room for any negligence or dereliction of duty in attending the complainant.

(iv) It is also further submitted by the opposite party in paras-9 and 10 of her written version/counter that in the medical history no one can say what exactly causes the situation of Abruptio placenta and when it sets.  Abruptio placenta occur 1 in 150 pregnancies and still birth occurs 1 out of 800 pregnancies and in such situations saving of mother would be given priority.  Its onset is all of a sudden due to various factors and there are some symptoms to know the situations but in certain cases, blood accumulates between uterine wall and placenta, suggesting little cramping and sever pain giving no room for saving the fetus.  In observation complainant had no such condition and bleeding was normal.  In the complainant’s case abruption could have been due to viral fever.  Opposite party had further submits that there was no short of medical attendance on the complainant during her stay in the hospital, and that she was referred to the Super Specialty on the insists of complainant’s husband but not thrown away her from the hospital as in the given narration of this petition and it is evident from the well described discharge summary was given by this hospital to the complainant and her husband.  As no such deficiency of service or medical negligence in this case, complainant is not entitled to claim compensation and the opposite party is nothing to do with the further treatment rendered by the other hospitals on their charging costs which was purely on their request and insisting of the complainant’s husband in removing her to the other hospitals. 

(v) Finally, it is also further submitted by the opposite party in para 11 of her written version/counter that the hospital is having good reputation for the quality treatment and attention rendered by the team of dedicated doctors round the clock apart from the continuous supervision and attention by opposite party herself as being specialist in Obstetrics and Gynecology, and having motto to serve the people.  Complainant’s husband taking advantage of the situation did not pay the hospital bills for the treatment given to the complainant and created a tense situation in the hospital for no fault of the opposite party.  The behavior of the complainant’s husband was questionable as he was unruly in provoking the situation in his favour and went away without paying the bills to the hospital.  Therefore the claim of the complainant against this opposite party is not justified and they are bound to payback the hospital bills which are going to be submitted at the time of hearing of this petition and hence the petition shall be dismissed in the interest of justice.      

III.  The complainant had filed her chief affidavit evidence on 18-08-2014 and the documents were also filed and marked them as Exs.A1 to A17 on her behalf; whereas the opposite party had also filed her chief-affidavit on           07-10-2014 and marked the documents which were filed as Exs.B1 to B5.  Both the counsels for their respective parties had also filed written arguments in support of their case.

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    party towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

          (c) To what relief?

V.  POINTS 1 AND 2 :

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and documents filed herein.  It is nothing but repetition of them once again in his complaint.

Oral arguments of the learned counsel for the complainant:

         The learned counsel for the complainant Sri C.P.Suresh has vehemently argued that the complaint, her chief-affidavit (PW1) and her written arguments of the case may be read as part and parcel of her arguments.  During the course of his oral arguments of the case, he has brought that a detailed description of the case with a documentary evidence with proof (Exs.A1 to 17) of the allegations of the complainant, which are made against the opposite party, for the reliefs sought for in the complaint.  He has also further argued that the complainant had already lost male child in the opposite party’s hospital and further treatment rushed to Chennai for better treatment.  He has relied on a decision of our Hon’ble A.P.State Commission, Hyderabad, which is reported in II 2011 CPJ 73 for applicability of ratio to the facts of the case on hand. The said learned counsel for the complainant has further contended that the she got the first pregnancy after the marriage at the age of 26.  With regard to the consent letter which was filed by the opposite party, is not a valid document because the complainant’s name is not present on the said consent letter.  The father of the complainant had signed on the consent letter although the complainant was in a position to sign on it.  In this regard, the counsel for the complainant has further cited another decision of  Hon’ble Supreme Court of India, which is reported in I 2008(CPJ) 56(SC), held that patient when competent adult no question of someone else giving consent on her behalf  question of taking of mother’s consent does not arise in the absence of emergency-consent given by mother is not valid consent, to support of the allegations of complainant.  It is similar to the facts on hand, in a decision given by the Hon’ble National Commission, New Delhi, which was reported in IV(2014) CPJ 726(NC), held that medical negligence-Fatal Distress  delay in performing LSCS operation death of child duty to care  there was a delay of 2(two) hours from Artificial rupture of Hembrane (ARH) to performance of LSCS  it was inherent duty on treating doctor to operate patient immediately  with a paramount concern to save child opposite party hospital failed to counter such emergency”.    The opposite party has not seen the welfare of the child and his mother which was very fatal and the opposite party doctor has not followed the medical council ethics and rules which are amounts to gross negligence and deficiency in service on the part of the opposite party doctor.

Oral arguments of the learned counsel for the opposite party:

  On the other hand, Sri S.Ramakrishna Prasad, the learned counsel for the opposite party has also vehemently argued that the written version/counter, the chief-affidavit of opposite party and her written arguments may be read as part and parcel of his arguments of the case.  He has also further argued that the opposite party had treated the complainant with utmost care according to medical standards and there is no iota of doubt as such with regard to the said doctor’s capability and she is well qualified and sufficiently equipped with knowledge to do surgeries for the said ailment of the complainant.  But the patient-complainant did not turn up for following action in order to cure her disease and never cared about her health and now blaming the opposite party for deficiency in service.  The said learned counsel for the opposite party has further contended that the complainant was irregular in attending medical checkups and following the advices on her conceiving and for growth of the baby and suppressed other prescriptions with an ulterior motive to get wrongful gain.  He has  further alleged that during the course of his oral arguments that  Exs.B1 to B5 documents  are supported the case of the opposite party. The other details of the patient-complainant are explained in the written arguments of opposite party.  The complainant’s condition was stable till 1.40 am on the intervening night of 9/10-9-2012 and all the tests were conducted in the hospital and there was no movement of the baby in the womb of the complainant. Because of force of the relatives and husband of the complainant and they created an issue, so the opposite party had to discharge her.  Finally, he has further urged that the doctor’s from the Appollo Hospital, Chennai had not made any comments on the line of treatment either in their discharge summary dt. 20-09-2012 or given any specific opinion that the treatment was defective one.  Without proving the negligence on the part of the opposite party or on the line of treatment rendered to the complainant, it cannot be said that the complainant is entitled to claim compensation.  All the developments to the complainant, were purely due to her negligence in taking care during pregnancy and it was not due to medical treatment.  It is therefore prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint with costs.

Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of affidavits and produced their documentary evidence. This Consumer Case is lingering on since 2 years 4 months for a decision for one reason or other as the case may be.

      To appreciate the controversy, it would be an appropriate if we narrate all the circumstances of the case both on question of fact as well as question of law in detail.  The basic facts of the case are not disputed and their repetitions of them are here avoided.   Let us examine the scope of negligence and their (doctors) obligation to a patient.

    Reasons for the order:

    The notable point is to be discussed to find out a suitable solution in this consumer case is that whether the doctor has taken utmost care in treating the patient?  What type of tests are conducted on patient while she approached the doctor first time, are relevant to look into and to verify them and for conclusion of it.  Apparently, it is clearly not known to us.  The doctor-opposite party has not filed the reports at first instance before us for our scrutiny.  Diagnosis of a patient by conducting various tests by the doctor-opposite party should be performed on the patient before administering to treatment.  The necessary tests are not performed on the patient for the reasons best known to her.  The doctor-opposite party has to keep intact the patient’s history and line of her treatment to the patient.  The concerned hospital authorities and treating doctor alone, can able to say that by way of filing their chief-affidavits and disclosing evidence with clear facts coupled with documentary evidence.  Till then, suspicion will arise in the line of treatment of a doctor-opposite party.  No affidavits are filed by the concerned doctor or staff nurses before us, on the date of operation and there is no post-operative care has taken in the case of the complainant.   

       Why the complainant should have rushed to Chennai for treatment? Time is the deciding factor of the case.  All the documents which are marked from both of the parties, revealed to us, there is some sort of carelessness on the part of the doctor who had treated the complainant at first instance and it leads to much more attention of the doctors at the said hospital Chennai, in treatment of the complainant.  In the process of it, the complainant, her husband and relatives are put to irreparable loss and injury coupled with mental strain and financial loss.  No doctor will provide to the patient a fees certificate.  There are sufferings of many people in and around of the patient.  Anyhow, the complainant as alleged, lost male child in her womb.  She expects positively at the time of joining in the hospital for pregnancy.  Mental worry cannot be measured in terms of money.  The medical record is primarily, provides us, the line of treatment of a patient.  Much more attention to be drawn by the doctor-opposite party in the case of the complainant at initial stage and proof of everything must be by way of relevant documents to support it.  That has not been done by the opposite party for the reasons best known to the doctor.  Every step from the beginning of a treatment of a patient by the doctor should establish clear facts and its situation, to avoid unnecessary litigation in future. 

    In nutshell, it appears to be that, it is clear case of deficiency in service on the part of the opposite party towards the complainant. The complainant must establish the facts with documentary proof to arrive us for a decision.  Her claim in this complaint is totally exorbitant and too excessive.  Unjust enrichment by any one will not be allowed. No doubt, she must be adequately compensated for pain and suffering and it is writ at large in the case of the complainant. 

Documentary Evidence is produced by  both the parties:

Ex.A1 is the discharge summary of the opposite party dt.10-09-2012.  The date of admission of the complainant into opposite party’s hospital on 08-09-2012 and the date of her discharge by the opposite party on 10-09-2012.  Her condition is stable according to discharge summary, but it is noticed by the opposite party that the complainant is discomfort in the upper abdomen.  There are some corrections in the prescription and it is noted down that the investigations and report and also Radiology, miscellaneous etc in it. Dead male child was delivered at about 3.13 a.m. on 10-09-2012. The opposite party had not taken sufficient care and tests for causing that discomfort her abdomen.  Nothing is note down for post-operative care with regard to treatment advised at discharge.  It is a lapse on the part the opposite party.   There is no signature of the concerned doctor who examined the complainant; Exs.A2 to A4 are the laboratory report from the opposite party that prior to treatment of the patient; Ex.A5; is the letter dt.10-09-2012 from the opposite party stating that patient may be referred to higher centre; Exs.A6, 8 to 10 are relating to the treatment of the complainant at Chennai hospital and reports and bill amount of Rs.2,60,638-64; Ex.A11 is the legal notice dt.21-06-2013 issued  on behalf of the complainant to the opposite party by her counsel and other documents are relating to the bills except Ex.A12 is the letter                dt.24-06-2013 from the opposite party that the opposite party went to abroad and wait to till her arrival for giving reply notice. 

         Ex.B1  is bunch of reports of the complainant with regard to Blood bank; Exs.B2 to B4 are the test reports from the opposite parties laboratory; and Ex.B5 is the prescription of the opposite party and consent letter from complainant father and surgery date is 10-09-2012 and other particulars of health condition of the complainant from time to time noted therein.

     In view of the details of the health condition of the complainant which is noted down in the documents which referred above, it is crystal clear that the patient referred to higher centre for better treatment.  It is traced that the complainant has incurred further expenditure of her treatment at Chennai apart from all sorts of inconvenience suffered by her.  The concerned doctor-opposite party ought to have taken better steps in advance to save the life of male child of the complainant.  Why it had happened and root cause for it?  An appropriate explanation is to be furnished by the opposite party.  The burden of proof of the doctor and hospital is much more and no independent doctor or treating doctor, had not given any affidavit evidence.  The part played by nursing staff of the hospital is not known to us.  There is no affidavit from them also.  The doctor-opposite party had referred the case to higher centre after the event took place.  She had not discharged her burden.  It amounts to deficiency in service on the part of the opposite party towards the complainant.  It is purely negligence of the doctor and opposite party is liable for it.

The meaning of negligence :-

          ‘Negligence’ means that neglecting one’s duty of care owing to another person.  The mere negligence is not enough to accuse a medical man but gross-negligence-gross negligentia is needed.  But, the concept has undergone sea change and there is hardly any difference between negligence and gross-negligence, it is something with the addition of vituperative epithet. Medical negligence of  a doctor is actionable under Indian Contract, 1872 (section 73 – compensation for loss of damage caused by breach of contract).

      In nutshell, ‘medical negligence’ is a term attributed to an act or omission of a medical practitioner when he deviates from the required standard of duty.  To prove medical negligence on the part of a doctor or medical practitioner a high degree of probability is required.  There must be a direct connection between the ailment and the treatment given to the patient by the doctor.

The concept of Medical negligence:-

      The Hon’ble Supreme Court in the leading case of Jacob Mathew Vs.State of Punjab and another, III (2009) CPJ 9(SC) 2005 CrlJ, 3710) has interpreted the term ‘negligence’.  The Hon’ble Supreme Court observed that a professional may be held liable for negligence on one of the two findings either he was not possessed of the requisite skill which he professed to have possessed or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. 

The role of hospital and doctor:

    Burden lies on the hospital and the concerned doctor, who treated the patient to prove that there was no negligence involved in the treatment.  In both contingencies i.e., ‘contract of service’ and ‘contract for service’, courts have taken a view that the hospital is responsible for the acts of their permanent staff as well as for the staff, whose services are temporarily requisitioned for treatment of patients.  Therefore, hospital can discharge burden by producing the treating doctor in defence that all due care and caution was taken and despite that the patient died.  With this judgment, the entire burden cannot be placed on the complainant to prove negligence and it is the duty of the hospital also to satisfy that there was no lack of care of diligence.  The hospitals are institutions, people expect better and efficient services, if the hospital fails to discharge its duties through its doctors being employed on job basis or employed on contract basis, it is the hospital that has to justify and by not impleading a particular doctor will not absolve of its responsibility.    

      ‘Negligence’ in its acceptance includes acts of omissions as well as commissions. Each case has to be judged on its own facts.  The most of the consumers are unaware of whether the medicines prescribed to them are harmful or un-harmful or necessary or unnecessary.  Normally, the patient comes to private clinic/hospital with the hope that the hospital authorities would take proper care.  It is the duty of the hospital to satisfy that there was no lack of care or diligence.  People expects an efficient service from the hospital and if the hospital fails to discharge their duties through their doctors, it is the hospital which has the obligation to justify the treatment administered by the doctors who employed by it and the patient cannot be expected to know the particulars each and every doctor who treated him at the hospital.  In majority of the cases, the principle is upheld that the complainant has to discharge initial onus cast upon him and the next movement the onus shifts to the hospital or the treating doctor who have to satisfy that the Forum/Court that there was no lack of care or diligence.  Medical practitioner would be liable only where his conduct falls below that of a reasonably competent doctor.  Consumer Fora are not bound to refer each and every matter for expert opinion to a panel of doctors  2011 (2) CPR (NC) page no.7.    The Hon’ble Supreme Court had granted compensation of one crore rupees to victim of medical negligence. (The highest ever awarded against a hospital in medical negligence case in India  Nizam’s Institute of Medical Sciences Vs. Prasant.S.Dhananka II (2009) CPJ 61(SC).

Doctor should take reasonable care:

   The doctor should take due care in communicating to the patient, the risks involved, the exact prognosis after the operation and should explain clearly the complications involved. In several cases we see that the inherent risks of surgery is not properly explained to the complainant.  The doctor should follow the ethics of medical parlance and treatment and avoid unnecessary operation and negative defensive medicine in order to protect themselves against the possible litigations and thereby resort to various diagnostic investigations before prescribing a treatment.  The defensive medicine used should be positive in nature which is to benefit the patient.  The medical records and the case sheet should be clearly written in legible handwriting and handed over to the patient whenever the patient requests for it.  The doctor should avoid making correction in the case sheet and if necessary, instead of overwriting the corrections, should be made in clear handwriting.   Case-sheet is a matter of hospital record and should be maintained in a proper manner revealing the line of treatment given to the concerned.  ‘Medical Records’ are a doctor’s best friends and he should take the initiative to maintain them with integrity and consciousness. 

Patient  Doctor Relationship:

    By all means, day by day, the relationship between patient-doctor is deteriorating relations practically.  It is because of mistrust by the patient and expresses her dissatisfaction towards doctor.  The gap of mistrust between the patient and the doctor has been widening with the advent of technology and development of medical science.  The patient began to trust her fate than the treatment she undergoes in a corporate hospital.  The doctor as busy as a bee with the ever increasing number of patients visiting him and for various reasons showing scant attention towards the patient.

        Law recognizes of the dangers which are inherent is surgical operations and that mistakes will occur, on occasions, despite the exercise of reasonable skill and care.  Approach of the court is to require that professional men should possess a certain minimum degree of competence and that  they should exercise reasonable care in discharge of their duties A.S.Mittal Vs. State of A.P. (AIR 1989 SC1570) = (1989 (3) SCC223).

    Constituents of medical negligence is now well-established by a plethora of rulings of Hon’ble Supreme Court of India and Hon’ble National Commission, New Delhi. We rely upon the decisions of Hon’ble Supreme Court in V.P. Shantha’s case and Jacob Mathew’s case.

     Heavy burden cannot be placed on the patient or family members/relatives to implead all those treating doctors who treated the patient or nursing staff to be impleaded as parties.

Relevant case-law:

  In  Savitha Garg Vs. National Heart Institute reported in Supreme Court and National Commission on Medical Negligence and Insurance under Consumer Protection = IV, (2004) CPJ 40 (SC), it is held by the Hon’ble Apex Court that law regarding  non-joinder of necessary parties that Consumer Forum is Primarily meant to provide better protection in the interest of the consumers and not to short-circuit the matter or to defeat the claim on technical grounds.          

      In 1969, the Hon’ble Supreme Court of India had an occasion  to deal with the issue relating to medical negligence in Dr.Lakshman Balakrishna Joshi Vs. Dr.Trimbak Bapu Godbole, AIR 1969 SC 128 = 1969(1) SCR 206, considering the mater, the court observed that a medical practitioner when consulted by a patient owes him the duties, like (a) duty of care in deciding whether to undertake the case; (b) duty of care is deciding what treatment is to be given, and ( c ) duty of care in the administration of the treatment.  The breach of any of these duties gives to the patient a right to action for negligence.  Explaining the nature of the duty care, the Supreme Court expressed that  the petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a  reasonable degree of care, neither very high nor very low; to be judged in the light of the particular  circumstances of each case.

   The Supreme Court in its landmark judgment in Indian Medical Association Vs.V.P.Shantha (AIR 1996 SC 550 1995(3) CPR 412 (SC)), the first decision on the subject under C.P.Act, discussed at length the issues of medical services and the liability of medical professionals and hospitals.

1.Complainant must prove his claim by reliable evidence 2011 (3) CPR 449 (NC).

2.  One  who makes an allegation is required to prove it beyond doubt  2011 (2) CPR 46 (NC).

3.   Consumer For a can award  compensation as deemed proper, reasonable   and not as per   asking of complainant 2011 (2) CPR 282 (NC).

4.    Complaint is based on deficiency in service  must establish the same by leading cogent evidence   2011 (2) CPR 68 (NC).

5. In the case of consumer disputes redressal Forums, the judgments must set out the points in dispute and a decision on those points supported by some reasons  1995 (I) CPR 832 (NC).

6.  In a medical negligence case, the doctors and the concerned hospitals have a responsibility to correctly explain their conduct and their records should prove that there was no negligence on their part  2008 (3) CPR 265 (NC).

7. Repeated deficiency in service of the service provider amounts to gross deficiency in it’s service for which the consumer has to be adequately compensated by it which is reported in  2010 C.T.J. (N.C.) 1159.

8. A quasi – judicial authority must record reasons in support of its conclusions  - 2011 CTJ (SC) (CP) 128.

 

The concept of “compensation”:

 

    In Ghaziabad Development Authority Vs. Balbir Singh, “(2004) CPJ 12(SC) = 2004(5) SCC 65, the Supreme Court opined that under the Law, the Consumer Protection Act, 1986 has a wide reach and the Commission has jurisdiction even in cases of services rendered by statutory and public authorities, holding:

“…. The word compensation is of a very wide connotation.  It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss.  The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done.  The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him.  The Commission/Forum must determine that such sufferance is due to malafied or capricious or oppressive act.  It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers.  Such compensation is for vindicating the strength of Law….”

    Consumer For a can award compensation as deemed proper, reasonable and not as per asking of complainant  2011(2) CPR 282(NC).  With regard to deficiency in service, the relevant aspect to be remembered that – To bring  home an allegation of deficiency in service, the element of willful action  (or as the case may be, in action) needs to be established and the onus of proof of such action / inaction lies on the complainant   2010 (2) CPR 89 (NC).

       Compensation or damages can be  awarded only, if complainant has suffered loss or  damages due to negligence of manufacturer or service provider  2011 (2) CPR 101     (NC).

The Hon’ble Supreme Court’s decisions on the topic of compensation:-

1. More specifically, the Hon’ble Supreme court of India has dealt with the subject of award of compensation by Consumer Courts in the case of Ghaziabad Development Authority Vs. Balbir Singh, 2004 CTJ 605(SC)(CP) wherein it has been asserted that “ compensation is a compense for the loss or injury.  It, therefore, necessarily has to correlate with the amount of loss or injury.
2. The Hon’ble Supreme Court in State of Gujarath Vs. Shantilal Mangaladas, AIR 1969 SC 634  discussed about award of compensation.
3.  The compensation to be awarded is to be fair and reasonable, held by the Hon’ble Supreme Court in the case of Charansingh Vs. Healing Touch Hospital and others III(2000) CPJ 1(SC) and also stressed the need of balancing between the compensation awarded recompensing the consumer and the change it brings in the attitude of the service provider.

    These decisions (b) and (c) are referred by the Hon’ble A.P.State Commission in the case of Ramayanam Varun Kumar Vs.Gannavaram Technical Training centre and another which is reported in 1(2015) CPJ(AP)’ while awarding compensation to Appellant/complainant. 

    The complainant has to prove functional disability in order to claim compensation for medical negligence.  Here, the complainant has proved the case with documents proof.  The decisions of the cases are referred above by the said learned counsel for the complainant applicable to the facts of the case on hand.

  After scanning the entire material on record and after having considered a rival submissions in the light of well-settled legal principles, we are of the clear opinion that this Consumer Case is a fit case to award  Rs.1,00,000/- damages to the complainant.  Realization of justice is the ultimate function of law.  Consumer Forums should be wary of passing cryptic orders in the adjudication of complaints 2007 CTJ AP P6(SC).  Law assists those who are vigilant.  Justice is rendered in accordance with law.  Rules of procedure are intended to be a handmaid to the administration of justice. This case demonstrates the highly unethical and unscrupulous conduct of the opposite party.  The conduct of the opposite party is not only highly detestable but unpardonable also.  Such tendencies have to be curbed with heavy hands by compensating the victim adequately as a deterrent.  We are convinced with the arguments of the learned counsel for the complainant.  The opposite party is miserably failed in her attempt to convince us. We find that there is a deficiency in service and gross- negligence on the part of the opposite party. There is an ample evidence to establish the facts and proved them that the complainant is entitled to the reliefs as mentioned hereunder in point no.3.  These two points are held in favour of the complainant and against the opposite party, accordingly.

 

POINT NO.3   In the result, the complaint is allowed in part, ordering the opposite party to pay compensation of Rs.1,00,000/- (Rupees one lakh only) for deficiency in service and negligence on the part of the  opposite party to the complainant; to pay Rs.4,00,000/- (Rupees four lakhs only) towards expenses incurred by the complainant for treatment at Apollo First Med Hospitals, Chennai and also to pay Rs.25,000/- (Rupees  twenty five thousand only) towards damages and for complainant’s mental agony for sufferings and dis-comfort and also to pay costs of Rs.5,000/- (Rupees five thousand only) to the complainant, within one month from the date of receipt of the order.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 8th day of JANUARY,                             2016.    

 

              Sd/                                                                            Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

 

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

18-08-2014

:

Dandu Umamaheswari, W/o.Ravikumar, advocate, aged 26 years, Hindu, R/o.1/964, Mangali Street, Nawabpet, Nellore, SPSR Nellore (Dt.) A.P.

 

 

 

 

WITNESSES EXAMINED FOR OPPOSITE PARTY:

 

RW1

07-10-2014

:

Dr.Pallamreddy Yasodhara, M.D., Obstetrician & Gynecologist, Sri Durga Hospita, Brindavanam, Nellore.

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	10-09-2012	:	Discharge summary given by opposite party.
Ex.A2	11-04-2012	:	Laboratory report referred by opposite party.
Ex.A3	17-07-2012	:	Laboratory report referred by opposite party.
Ex.A4	16-07-2012	:	Laboratory report referred by opposite party.
Ex.A5   Ex.A6     Ex.A7     Ex.A8       Ex.A9     Ex.A10   Ex.A11     Ex.A12     Ex.A13     Ex.A14     Ex.A15     Ex.A16   Ex.A17	10-09-2012   20-09-2012     11-09-2012     20-09-2012       10-09-2012     20-09-2012   21-06-2013     24-06-2013     04-02-2013     16-03-2013     04-02-2013     09-02-2013   09-02-2013	:   :     :     :       :     :   :     :     :     :     :     :   :	Letter given by the opposite party.   Discharge summary given by Appollo first Med hospital.   Paper publication in original in Sakshi District  Edition.   Cash final bill for Rs.2,60,638/- given by the Appollo first Med hospital.     Registration fee receipt for Rs.100/- at Appollo First Med hospital.   Cash final bill for doctors fees Rs.23,850/-   Photostat copy of legal notice given by the complainant to the opposite party with ack.due.   Reply notice given by the advocate for the opposite party to the advocate for the complainant..   Receipt for Rs.500/- issued by Apollo first med hospital.   Receipt for Rs.300/- issued by Apollo first med hospital.   Receipt for Rs.300/- issued by Apollo first med hospital.   Receipt of High Tech Diagnostic center for Rs.800/-.   Receipt given by Appollo First Med Hospital for Rs.13,280/-.

 

EXHIBITS MARKED FOR OPPOSITE PARTY:                         

 

Ex.B1	10-09-2012	:	Photostat copies of set of 8 nos. compatibility certificate by blood bank IRCS, Nellore.
Ex.B2     Ex.B3     Ex.B4     Ex.B5	08-09-2012     09-09-2012     10-09-2012     08-09-2012	:     :     :     :	Photostat copy of Laboratory report of the respondent’s hospital.   Photostat copy of Laboratory reports of 2 nos. of respondent’s hospital.   Photostat copy of Laboratory reports 2 nos. of respondent’s hospital.   Photostat copies of case sheet of petitioner maintained by respondent’s hospital.

 

        Id/-                                                                                           PRESIDENT(FAC)

 

 

Copies to:

 

1. Sri  C.P.Suresh, Advocate, 27-5-42, 19^th X Road, Balaji Nagar, Nellore.

 

2. Sri S.Ramakrishna Prasad, Advocate, Nellore.          

 

 

Date when order copies are issued: