BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 25/05/2010

Date of Order : 30/06/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 313/2010

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :

Lured by the advertisements of the opposite parties, on 14-10-2007 the complainant approached the opposite parties for treatment for fistula. At the instance of the opposite parties, the complainant obtained opinion of a neurologist to administer spinal anesthesia. For which he had to shuttle from Alappuzha to Ernakulam on 3 occasions. On the first date of consultation itself, the complainant intimated the opposite parties about his allergy towards aspirin and sulpha and the same has been recorded in the health card issued by the opposite parties on 15-12-2007. On 15-12-2007, the complainant had undergone treatment at the opposite parties and he was discharged on the same day. The complainant duly applied with the application of the medicines prescribed by the opposite parties. However, he had to suffer severe itching and he approached the opposite parties, they prescribed another medicine. Since there was no relief, the complainant again approached the opposite parties, but it was of no one. Later, the opposite parties directed the complainant to consult a dermatologist and the complainant did so. Subsequently, the opposite parties directed to continue with the medicines prescribed by them, the situation again became worse. At that juncture, it was noticed that the ointment by name Silverex prescribed by the opposite parties and used by him contains 'Sulpha'. Thereafter, the complainant had to undergo prolonged treatment at various hospitals and had to suffer lot of inconveniences and to incur expenses for the same only due to the negligence and deficiency in service on the part of the opposite parties. He estimates the compensation at Rs. 1 lakh. The complainant preferred to file this complaint for the same together with costs of the proceedings.

2. The version of the opposite parties :-

On 11-10-2007, the complainant approached the opposite parties with hard feeling on sitting. He had a history of fistula one year back for which he look ayurvedic treatment at a hospital at Alappuzha. The complainant gives a history of diabetics and hypertension which were being controlled with drugs. He has also numbness of shoulder and back of neck and shoulder dislocation. He was under the treatment of a neurologist for his ailments in a hospital at Alappuzha. On examination, it was diagnosed that we has internal and external hemorrhoids and multiple fistula in both sides. PR Proctoscopy and digital rectal scan diagnosed to have internal and external hemorrhoids and multiple fistula in both sides. The opposite parties advised the complainant to get a fitness certificate from his neurologist. On 15-12-2007, the opposite parties cut open the fistula with radio frequency. The complainant was discharged on the same day with advise to use post-operative medicine. The complainant had not disclosed his allergy for the medicines containing Sulpha and aspirin till 30-01-2008. Though the complainant made a call to the hospital on 19-12-2007 to inquire whether medicines were to be continued or not, he had no complaint of itching on that day. He had not disclosed the factum of allergy on 25-01-2008. On 30-01-2008 only, the complainant reported that he is allergic to Sulpha and aspirin. On that day, he was directed to stop the medicines and to consult a skin specialist. The treatments adopted by the doctors of the opposite parties were proper with utmost care and without any negligence.

3. At the threshold, this complaint has been filed before the Hon'ble Consumer Disputes Redressal Forum, Alappuzha. The learned Consumer Disputes Redressal Forum, Alappuzha vide order in I.A. 39/2010 in C.C. No. 277/2009 dated 20-04-2010 found that the complaint is not maintainable there and is maintainable only in this Forum. Accordingly, the complainant filed this complaint in this Forum. The complainant was examined as PW1 and Exts. A1 to A13 were marked on his side. The 1^st opposite party was examined as DW1 and Ext. B1 was marked on the side of the opposite parties. Heard the learned counsel for the parties.

4. The only question that arises for consideration is whether the complainant is entitled to get a compensation of Rs. one lakh and the costs of the proceedings from the opposite parties or not?

5. The crux of the matter involved in this complaint is at what point of time the complainant had disclosed his allergy of medicines to the opposite parties. According to the complainant, at the very outset that is on 14-10-2007, the date of his maiden consultation he disclosed his allergy of medicines to the opposite parties. It is stated that in spite of that the opposite parties prescribed medicines which contains Sulpha and aspirin and due to the same the complainant had to suffer untold miseries which forced him to knock at the doors of this Forum. The learned counsel for the complainant relied on the following decisions of the Higher Judiciary :

1. Shailesh A. Shah (Dr.) Vs. Khodabhai Ganeshdas Patel 2011 (1) CPR 52 (NC).

2. R.V. Fathima Mohammed. Vs. New India Assurance Company & Ors. 2011 (1) CPR 56 (NC).

3. Ram Avthar Sharma Vs. Dr. Nabin K. Pattanaik (Dr. Pattanaik Laser Eye Institute) 2012 (1) CPR 217 (NC).

4. Gowri Gopal Hospital (A unit of Sree Janapriya Hospitals Pvt. Ltd.) & Ors. Vs. Sri. P. Sudhakar & Anr. 2011 (4) CPR 495 (NC).

5. Dr. (Smt.) Prabha Agarwal & Anr. Vs. Kamkhya Singh & Anr. 2011 (4) CPR 420 (NC).

6. Asok Kumar Upadhya & Anr. Vs. D.N. Misra & Ors. 2011 (2) CPR 213 (NC).

6. Per contra, the opposite parties maintain that the complainant did report his allergy to Sulpha and aspirin only on 30-01-2008, the opposite parties advised him to stop the ointment already been given to him. According to them, there is no negligence laches or deficiency in service on their part in treating the complainant. The learned counsel for the opposite parties relied on the following decisions reported in :

1. 1994 (1) CPR P 6.

2. 2009 (3) CPR 248 NC.

3. 2010 (4) CPR 74 NC.

4. 2010 (1) CPR 167 SC.

5. 2009 (4) CPR 237 NC.

6. (2009) 3 SACC 240, 1-A.

7. 2012 (1) CPR 390.

(Full text not produced, hence cannot be relied upon and so denounced).

7. Admittedly, primarily the complainant approached the opposite parties on 11-10-2007 for the treatment of fistula. Ext. B1 is the case sheet of the complainant maintained in the opposite parties. The opposite parties chronologically stated the events in Ext. B1 from 11-10-2007 to 23-04-2008. On 30-01-2008, it is recorded in Ext. B1 that 'allergic to Sulfa and Aspirin'. Moreover, at the top of the 1^st page, it is recorded that 'allergic to Sulfa and Aspirin' and the recording is underlined.

8. Ext. A1 is the health card admittedly issued by the opposite parties to the complainant on 15-12-2007 in which it is stated in page No. 4 that “patient allergic to Sulpha and aspirin” and the same has been put it in a box, not disproved. The above endorsement in Ext. A1 categorically goes to show that the complainant duly intimated his allergy to Sulpha and Aspirin to the opposite parties on 15-12-2007 which they failed to notice. In spite of that the opposite parties prescribed medicines, which contains molecules of Sulpha and aspirin to the complainant which according to the complainant led to complications on account of which he had to undergo treatment and to incur expenses for the same. It is pertinent to note that DW1 during evidence deposed that he had not treated the complainant, and one Dr. Sujatha and Dr. P.C. Joseph treated the complainant. Neither they mounted the box for their own reasons not stated to disprove the contentions raised. At this juncture, it is to be noted that the recording in Ext. B1 on 30-01-2008 regarding allergy of the complainant. The said recording is in a different hand writing than the other recording on the said day which calls for explanation, but which has not been explained. The doctrine of 'res ipso liquitor' squarely applies in this case especially so, because Ext. A1 clearly speaks volumes regarding the negligence on the part of the opposite parties. The Hon'ble Apex Court in Savita Garg (Smt.) Vs. Director, National Heart Institute IV 2004 (CPJ 40 (SC), held that 'in fact once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient that there was no negligence involved in the treatment.'

9. In the instant case, the complainant has prima-facie proved the negligence of the opposite parties, but the opposite parties failed to disprove the same beyond the shadow of reasonable doubt that they had taken due care and caution in prescribing medicines and in treating the complainant. The opposite parties collected the amounts as per Exts. A8 to A11 from the complainant towards treatment expenses uncontrovertedly. So, the opposite parties are to legally liable to refund the amounts as per Exts. A8 to A11 with 12% interest from the date of complaint till realization which alone would substantiate remedies in law. However, the agony of the complainant is not substantially abated unless he is compensated for future treatment expenses to meet the ends of justice, this Forum is firmly of the view to allow the cost for future treatment claimed by the complainant as per Exts. A12 and A13 which are considered less it should go against justice and rule of law.

10. Accordingly, we partly allow the complaint and direct that,

1. the opposite parties shall refund the amounts as per Exts. A8 to A11 to the complainant with 12% interest p.a. from the date of complaint till payment.

2. the opposite parties shall also pay the amounts as per Exts. A12 and A13 to the complainant with interest @ 12% p.a. from the date fixed for compliance of this order till realisation.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 30^th day of June 2012.

Forwarded/By Order,

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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