BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 351/2003

Dated: 15..05..2010

Complainant:

Raju alias Rajendran Nair, Rohini, Kizhuvilam – P.O., Mamom, Attingal. (By Adv. N. Chandrasekharan Nair)

Opposite party:

Dr. Raveendran Nair. M., Reg.No.8879, Ray Mayo Clinic, Near Sub Treasury, Attingal, Thiruvananthapuram – 695 201.

(By Adv. . Murlidharan Nair)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 27..11..2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 27..02..2010, the Forum on 15..05..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant was admitted in opposite party's hospital on 6/3/2003 for treating a small injury on his left leg which later detected as Post Traumatic Cellulitis, that while he was treated in the hospital opposite party administered various medicines, as a result of which, the complainant developed some sort of irritation and pain, that the opposite party assured that the wound will be heeled in a short time, that since there was no improvement in his condition the opposite party referred him to Medical College Hospital, Thiruvananthapuram along with a letter to the Department of Surgery, Medical College Hospital, Thiruvananthapuram, that the complainant was admitted in Medical College Hospital on 10/3/2003 and on examination it was revealed that the injury on the leg was aggrevated only because of wrong administration of medicines by the opposite party without conducting any test to him, that doctor who treated him at the Medical College Hospital told the complainant at the time of discharge that if his condition is not improved his left leg has to be amputated and he was advised to come to hospital after 3 weeks, that on 26/3/2003 complainant was admitted in Nirmala Hospital and on a thorough examination it was revealed that it was the case of Necrotising Fascites left lateral malleolus and he was treated from 26/3/2003 to 2/4/2003, again on 14/4/2003 he was admitted in Nirmala Hospital and treated till 25/4/2003, that during the treatment skin grafting was done removing flesh from his thigh portion and medicines prescribed. The report from the Medical College Hospital and Nirmala Hospital reveals that the injury was aggravated because of wrong administration of medicine to the complainant by the opposite party. Hence this complaint to direct opposite party to pay Rs.60,000/- as treatment and medical expenses and Rs. 40,000/- towards compensation.

2. Opposite party filed version contending that the complaint is not maintainable either in law or on facts, that complainant is a distant relative of the opposite party, that the complainant was admitted in Ray Mayo Clinic on 6/3/2003 with features of Post Traumatic Cellulitis on his left leg, that on admission, the patient was febrile, lower third of his leg swollen and oedematous with tense erythematous skin surrounding the wound and there was severe tenderness over the entire area, that the complainant was treated with medicines since there was not much improvement, the medicine was changed. Complainant had high normal blood sugar values, that considering the badly crushed nature of the complainant's injury, the complainant was advised surgical consultation for slough cutting and other needful measures including skin grafting on 9/3/2003. Complainant preferred to move to Medical College Hospital on 10/3/2003 he was referred to Surgery Department of Medical College Hospital, Thiruvananthapuram, that the complainant had a serious injury, with symptoms suggestive of spread of infection and its nature and seriousness was properly explained to the complainant and his wife (a hospital nurse), that the complainant was given proper and timely treatment. Opposite party had prescribed proper and standard medicines to the complainant which would have been normally administered to a patient under condition of Post Traumatic Cellulitis, the spreading of the Cellulitis have been arrested and surgical intervention of slough cutting was suggested to avoid the possibility of unhealthy skin, overlying the crushed tissues getting peeled off. The condition of the complainant had never worsened due to the administration of medicine prescribed by the opposite party, but had rather helped to tide over the toxemia and limit the spread of the the inflamatory process upwards, that the condition of the complainant was not severe at the time of discharge on 10/3/2003 so as to take necessary steps for his left leg to be amputed, complaint is highly ill motivated and lacks bonafides, the opposite party had exercised due diligence and care in treating the complainant and in prescribing the medication as expected from a reasonable medical practitioner. Hence opposite party prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is negligence and deficiency in service on the part of opposite party in giving treatment to complainant?

    

2. Whether the complainant is entitled to compensation, If so, at what amount?

In support of the complaint, complainant has filed proof affidavit in lief of examination in chief and has marked Exts. P1 to P8. In rebuttal, opposite party has filed proof affidavit in lieu of examination in chief and has marked Ext. D1. Complainant has been cross examined by opposite party.

4. Points (i) & (ii): There is no dispute on the point that complainant was admitted into opposite party's hospital on 6/3/03 with features of post traumatic Cellulitis on his left leg and treated therein as in-patient till 10/3/03. It has been the case of the complainant that when the complainant complained there was no improvement in his condition, opposite party referred him to Medical College Hospital, Thiruvananthapuram along with a letter to the Department of Surgery, Medical College Hospital dated 10/3/03. It has also been the case of the complainant that when he was admitted in Medical College Hospital, on 10/3/03 it was revealed on examination that the injury on the left leg was aggravated due to wrong administration of medicine by the opposite party without conducting any test to him, that he was treated therein from 10/3/03 to 18/3/03 as I.P.No. 218611. It has also been the case of the complainant that the doctor who treated at Medical College Hospital told him that if his condition is not improved his left leg has to be amputated and he was advised to come to Hospital after 3 weeks; that to avoid the amputation of his left leg he was sheltered at Nirmala Hospital on 26/03/03 and treated therein till 2/4/03 again he was admitted in the same hospital and treated therein till 25/4/03. It has also been the case of the complainant that it was due to negligence and deficiency in service on the part of the opposite party he had to incur Rs.60,000/- as medical expenses for his treatment at Medical College Hospital and Nirmala Hospital. It has been contended by the opposite party that there was no negligence or want of care in the treatment of the complainant in his hospital, that the complainant, a distant relative of the opposite party, had suffered a crush injury, following fall from a scooter, four days back which had been left unattended till 6/3/03, that he had history of diabetes millitus, that in the course of treatment in his hospital, the condition of the complainant was gradually improved, that the unhealthy tissue over the skin peeled off and cellulitis was arrested and he was advised slough cutting, skin grafting etc., that as he preferred to do the procedure at Medical College Hospital, he was referred thereto on 10/3/03 and that complainant was given the same treatment as was given in his hospital in the Medical College Hospital as well.

5. In his cross examination, complainant has deposed that his wife, who had been working as a nurse in PAN Hospital, was with him at the time of treatment in opposite party's hospital and she was aware of the medicines prescribed to him by the opposite party. Complainant has deposed in his cross examination that he got the knowledge regarding the alleged negligence of the opposite party from the doctors at the Medical College Hospital and at Nirmala Hospital. It is to be noted that though complainant cited two doctors as witnesses, no attempt was made by him to examine them, neither was he attempted to examine his wife as a witness nor was he cross examined the opposite party to controvert his affidavit. Ext. P1 is the copy of the letter dated 10/3/03 addressed to the Department of Surgery by the opposite party referring the complainant for further management of Post Traumatic Cellulitis on left leg. Ext. P2 is the copy of the Referal O.P card wherein findings stated is: post Traumatic Cellulitis – (L) leg. Ext. P3 is the copy of the Reference Card issued by Nirmala Hospital. Ext. P4 is the copy of advocate notice dated 15/5/03 addressed to opposite party. Ext. P5 is the acknowledgement card. Ext. D1 is the original O.P ticket and in-patient record at opposite party's hospital. History and findings are recorded in O.P ticket. It reveals "pain and swelling on left leg subsequent to an injury he sustained 4 days back while skidding his scooter. The injury which left unattended". It further reveals that "complainant was treated for post traumatic cellulitis". Daily progress, instructions and remarks are recorded in the In-patient record.

6. We have heard the complainant and as well as the opposite party and gone through the entire materials available on record. There is no dispute on the point that complainant was admitted in opposite party's hospital on 6/3/03 with features of post traumatic cellulitis on his left leg, treated therein till 10/3/03 and referred him to Medical College Hospital for further management of post traumatic cellulitis on his left leg. There is no dispute on the point that complainant was treated at Medical College Hospital and thereafter at Nirmala Hospital. According to complainant due to faulty administration of medicines, his injury was aggravated, which led to acute pain and worsening situation and the same was confirmed by the doctors in the Medical College Hospital as also in Nirmala Hospital.

7. Thus, in the facts and circumstances mentioned above, the question for consideration is whether the opposite party was negligent in giving treatment to the complainant. Before proceeding further something should be said on medical negligence. Negligence is defined as a tort which is a breach of legal duty to take care which results in damage undesired by the opposite party to the complainant. It would comprise existence of a legal duty, breach of legal duty and damage caused by the breach.

Existence of legal duty: Whenever a person approaches another trusting him to possess certain skill or special knowledge on a given problem and depends on him for service and dispensation of that skill, the second party is under an implied legal duty to exercise due deligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. Failure on the part of such a person to do something which is incumbent upon him to do so, that which would be just and reasonable tantamount to negligence. Everytime a patient visits a doctor for treatment of his ailment he does not enter into any written contract but there is a contract by implication and any lack of carelessness or proper care make the erring doctor liable for breach of professional duty.

Breach of legal duty: There is certainly a breach of legal duty if the person exercising the skill does something which an ordinary prudent man would not have done or fails to do that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be very high degree or a very low degree, but just the relative kind that is expected from an ordinary prudent man in the ordinary course of treatment.

Damage caused by breach: The wrong injury occasioned by such a negligence is liable to be compensated in terms of money and the courts apply the well settled principles for determination of the exact liquidated amount. In a complaint for damages on account of negligences, the onus lies on the complainant/patient to prove that the doctor was negligent and the said negligence resulted in the injury which is complained to be compensated. Basically medical negligence means such negligence resulting from the failure on the part of the doctor to act in accordance with medical standards or vogue which are being practised by an ordinary and reasonably competent man practicing the same art. Once the doctor accepts a patient this principle became applicable. It may be stated that to establish negligence on the part of the opposite party, the claimant must show (a) what is the standard care (b) on the facts of the case, that opposite party's conduct fell below that standard (c) that the same had resulted to some injury to the patient.

In the present case, doctor is the opposite party. Opposite party has filed affidavit and has produced case sheet (Ext.D1). Opposite party has not been cross examined by the complainant thereby the affidavit filed by the opposite party – Doctor remains uncontroverted. Complainant has been cross examined by the opposite party. Though complainant has cited two doctors as witnesses in his complaint, no attempt was made to examine them. Expert opinion is the basis for determining medical negligence. As regards treatment, opposite party had proved by positive satisfactory evidence that he had taken reasonable care and caution in giving treatment to the complainant to the best of his ability and knowledge of the subject and had acted in good faith in the interest of the health of the complainant. Complainant never adduced expert opinion to prove otherwise, thereby complainant failed to prove any negligence or deficiency on the part of opposite party. In view of the above, we find opposite party is not guilty of medical negligence. Complainant has no merits at all which deserves to be dismissed.

In the result, complaint is dismissed. Parties are directed to bear and suffer their respective costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of May, 2010.

G. SIVAPRASAD,

PRESIDENT

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER ad.

C.C.N0.351/2003

APPENDIX

I. Complainant's witness:

PW1 : Raju alias Rajendran Nair

II. Complainant's documents:

P1 : Copy of the letter dated 10/3/2003

P2 : " referal O.P

P3 : " reference card

P4 : " Advocate notice dated 15/5/2003

P5 : Acknowledgement card

P6 : Original notice dated 25/5/2003

P7 serie : Medical subscription

P8 : Original photographs

III. Opposite party's witness : NIL

IV. Opposite party's documents : NIL

PRESIDENT