BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 18/07/2008

Date of Order : 31/12/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 231/2008

Between

And

O R D E R

A. Rajesh, President.

1. Briefly stated, the facts of the complainant’s case are as follows :

On 19-07-2006, the complainant approached the 3^rd opposite party for treatment for piles (Haemorrhoids). After examining his anus, the 1^st and 2^nd opposite parties advised him to undergo Laser treatment on the very same day. Accordingly at about 10.30 a.m., the 1^st and 2^nd opposite parties administered Laser treatment on the complainant. He was discharged on the same day with a direction to take rest for 2 weeks and medicines also were prescribed. After one days rest in Ernakulam, he went to his native place Thalassery on the next day. On the third day, he felt acute pain on his anus. The complainant contacted the 2^nd opposite party over telephone. He advised to take ’voveran’ 50 tablets. Since there was no relief, he again contacted the 2^nd opposite party. The 2^nd opposite party prescribed voveran injection. Even after the administration of injection, the pain persisted. On 06-08-2006, the complainant was admitted at Indira Gandhi Co-operative Hospital, Thalassery due to severe pain on his anus. On examination by Dr. Sunil Kumar, it was found that the anus became in shrunken position because of the laser treatment. The doctor prescribed some medicines to heal the wound. He had to undergo inpatient treatment from 17-08-2006 to 21-08-2006. The complainant suffered injury on his anus because of the rash and negligent act of the 1^st and 2^nd opposite parties. The complainant is suffering from acute pain and intermittent bleeding at his anus. It is learnt that the 1^st opposite party is not having any degree in medicine. Thus, the complainant is before us seeking direction against the opposite parties to pay a compensation of Rs. 10 lakhs with interest and costs of the proceedings.

2. The version of the opposite parties :

The complainant approached the out patient wing of the 1^st opposite party on 18-07-2006 with complaints of bleeding PR due to haemorrhoids. The patient complained of bleeding which was persistent for the previous one week. He had the clinical history of cryosurgery done for haemorrhoids ten years back at a hospital at Thalassery. On diagnosis internal and external prolapsed masses were confirmed. Routine blood and urine examinations were conducted and the results were found normal. DRS could not be conducted due to complaint of pain the next day ie. on 19-07-2006, the patient was treated by laser and radio frequency under spinal anesthesia by the 2^nd opposite party with utmost care and skill. Prior to the treatment, the patient was well briefed regarding the complications involving cryosurgery as well as regarding the advantages of laser treatment. When compared to other surgical methods, laser being a non-surgical and non-invasive modern scientific method of treatment proved its efficiency for disease like hemorrhoids. The patient opted for laser treatment. He signed a letter of consent reflecting the instructions and advises given by the attending doctors. The patient was discharged on the very same day with advice to continue post operative medicines and ointments, sitz bath etc. as per prescription. On 26-07-2006, the patient contacted the hospital through phone and complained of pain in the operated area. The 2^nd opposite party responded to the telephone query of the complainant and was advised to apply ointments and voveran injection if the pain was severe. The patient was also advised to come to the hospital for further check up and examination if pain persisted. But the complainant has not come the hospital thereafter. Both doctors who attended the complainant are qualified and experienced hands. No negligence has occurred in this case. If the complainant has any complications, he could have come to this hospital for remedial measures. Since the complainant had not approached the opposite parties for follow up with alleged complications, these opposite parties are unable to give any explanation for the same. In this case, the opposite parties correctly diagnosed the disease and necessary treatments were given to the complainant with utmost care and without any negligence. The treatment adopted by the doctors are proper. The complainant was very well looked after as the situation warranted and all necessary medical assistances were given to him with required medical standards and there was never be an instance of negligence of deficiency of service on the side of the opposite parties. The opposite parties request to dismiss the complaint.

3. The complainant and his witness were examined as PW’s 1 and 2. Exts. A1 to A8 were marked on his side. The 2^nd opposite party was examined as DW1. Ext. B1 was marked on the part of the opposite parties. Exts. X1 and X2 were also marked. Both sides filed argument notes. Heard the counsel for the parties.

4. The points that came up for consideration are :-

1. Whether the complainant is entitled to get a compensation of Rs. 10 lakhs from the opposite parties?

2. Costs of the proceedings?

5. Point No. i. :- Admittedly, the complainant was suffering from haemorrhoids and on 19-07-2006, he underwent laser treatment at the 3^rd opposite party hospital.

6. Arguments of the complainant :

1. The 1^st and 2^nd opposite parties did not possess necessary qualifications to perform laser treatment and they are working against medical ethics and Medical Council Act.

2. As per Ext. X2 report of Medical Board, the complainant is having an anal stricture. This was caused due to the after effect of the laser haemorrhoidectomy performed by the 1^st and 2^nd opposite parties.

3. There has been lack of care and skill on the part of the opposite parties in conducting laser treatment.

4. PW2, the doctor who treated the complainant subsequently diagnosed the disease as septicemia, because there was living bacteria in the blood stream of the complainant. The complainant sustained injury on him anus because of the careless laser treatment performed by the 1^st and 2^nd opposite parties.

5. The complainant is entitled to get a compensation of Rs. 10 lakhs from the opposite parties for the deficiency in service on their part.

The learned counsel for the complainant relied on the decision rendered by the Hon’ble Apex Court in Poonam Verma Vs. Ashwin Patel & Ors. II (1996) CPJ 1 (SC), and the decision rendered by the Hon’ble National Commission in CPJ 1997 332. (The complainant has not produced the latter decision for our perusal and consideration)

7. The defense of the opposite parties :

1. The 1^st and 2^nd opposite parties who attended and treated the complainant are qualified doctors having sufficient training in doing laser treatment.

2. As per Ext. X2 report of the Medical Board, there is no residual pile mass, but the complainant has anal stricture which according to the Medical Board is an accepted complication of laser haemorrhoidectomy.

3. The opposite parties currectly diagnosed the disease of the complainant and necessary treatments were given without any negligence and with required medical standards. Delay in healing the wound depends upon various fractions and is not due to any negligence on the part of the opposite parties.

4. Despite utmost care and caution in laser treatment, the post-operative stricture may develop in some cases which is not due to any negligence on the part of the treating doctors but is an accepted complication in medical science.

5. The complainant was a chronic piles patient and had been suffering from the disease for the last 12 years and he had undergone cryosurgery 10 years back.

6. The learned counsel for the opposite parties relied on the following decisions rendered by the Higher Judiciary :

a) Dr. Mukhtiar Chand & Ors. Vs. The State of Punjab & Ors.

AIR 1999 SC 468.

b) 2009 (3) CPR 248 (NC).

c) 2009 (4) CPR 79 (NC)

d) 2009 (4) CPR 106 (NC)

e) 2009 (4) CPR 36 (S.C.D.R.C., Bhopal)

f) 2010 (1) CPR 49 (NC)

g) 2010 (3) CPR 16 (NC)

(The opposite parties have not produced the above judgments for our perusal and consideration except the 1^st one rendered by the Hon’ble Supreme Court.)

8. Findings :

At the instance of the complainant, the 1^st and 2^nd opposite parties produced the documents showing their qualifications and expenses. The 1^st opposite party is holding the following qualifications :-

1. Diploma in Homeopathic Medicine and surgery issued by Board of Government Examinations in Homeopathic Medicine and surgery, Government of Kerala.

2. Registration Certificate under the Travancore – Cochin Medical Practitioner Act 1953 from 08-07-1987.

3. Attended and successfully completed a surgical training in course on he Haemorrhoidal Artery Ligation Procedure to treat haemorrhoidal diseases and the use of the A.M.I HAL-Doppler Ultra sound Proctoscope lectured on 15^th and 16^th April 2004 at the Hospital of Bregenz, Austria.

4. Actively involved in the practice of proctology using the new found technique of radio frequency, worked as an observer with Dr. Pravin.J. Gupta of Nagpur who has pioneered in the field of proctology with radio frequency device Ellman Surgitron FFPF EMC.

9. The 2^nd opposite party is holding degree of Master of Surgery from University of Kerala and he is also a certified modern medicine practitioner since 25-03-1970.

10. In Poonam Verma’s case (Supra), the Hon’ble Supreme court held that a homeopathic practitioner is supposed to practice in homeopathy only and the practice in a different system is a breach of duty of care on the part of the doctor. The Hon’ble Supreme Court in Dr. Mukhtiar Chand & Ors. Vs. The State of Punjab & Ors. (Supra) held that, “The upshot of the above discussion is that Rule 2 (ee) (iii) as effected from May 14, 1960 is valid and does not suffer from the vice of want of legislative competence and the notifications issued by the State Governments thereunder are not ultra vires the said rule and are legal. However, after sub-section (2) in Section 15 of the 1956 Act occupied the field vide Central Act 24 of 1964 with effect from June 16, 1964, the benefit of the said rule and the notifications issued thereunder would be available only in those States where the privilege of such right to practise any system of medicine is conferred by the State Law under which practitioners of Indian Medicine are registered in the State, which is for the time being in force. The position with regard to Medical Practitioners of Indian Medicine holding degrees in integrated courses is on the same plain in as much as if any State Act recognizes their qualification as sufficient for registration in the State Medical Register, the prohibition contained in Section 15 (2) (b) of the 1956 Act will not apply.” Appreciation of law of the land, we are of the opinion that the 1^st and 2^nd opposite parties are competent enough to administer laser treatment to their patients.

11. Both sides vehemently rely on the report of the Medical Board which was issued at the behest of the complainant and marked as Ext. X2. The Medical Boards Report reads as follows :

“He has undergone Laser Haemorrhoidectomy on July 2006. Followed that he developed pain that may be due to infection. He underwent Lords dialation for post surgical stricture in August 2006. Now, he complaint of increased urge for defecation and increased frequency with occasional pain.

On Examination P/R examination, we can introduce one finger and has anal stricture.

Proctoscopy No residual pile mass.

Openion : He is having anal stricture which in an accepted complication of Laser Haemorrhoidectomy.”

12. During evidence, the complainant admitted that he is suffering from haemorrhoids for the last 12 years and about 10 years back, he had undergone cryosurgery at Santhosh Hospital, Thalassery. PW2, the doctor who treated the complainant subsequent to the treatment of the opposite parties deposed that the anal stricture of the complainant which was caused due to the laser treatment and the consequent infection. However, nothing is on record to show that the anal stricture of the complainant was caused due to the procedure adopted by the 1^st and 2^nd opposite parties especially when he had undergone surgical procedure 10 years back. PW2 during cross-examination admitted that post-operative infection can be caused due to various reasons but not necessarily due to negligence on the part of the treating doctor. Moreover in Ext. X2, the Medical Board has opined that anal stricture is an accepted complication of laser haemorrhoidectomy.

13. Apart from the allegations, the complainant has failed to prove or to establish the lack of skill or care on the part of the opposite parties in whatever reasons. We would also refer to the decision of the Hon’ble Apex Court in this context Kusum Sharma and Others Vs. Batra Hospital and Medical Research Centre and other 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.”  

14. In view of the above principles laid down by the Hon’ble Supreme Court and on a perusal of evidence, no documentary or evidence otherwise has been established against the opposite parties, which goes to show that no deficiency in service or negligence is proved against them. Hence the prayer for compensation declined. The prayer for costs as well is declined since confirmed judicially.

15. In the result, the complaint being devoid of merits as explained above is disallowed. However, the complainant is free to approach the higher authorities if aggrieved by this order.

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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