BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 21st MAY 2012
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.229/2010
(Admitted on 28.8.2010 )
1. Triveni T.S., Aged about 50 years,
2. Gayathri T.S., Aged about 47 years,
3. Suchithra T.S., Aged about 45 years,
4. Vinaya T.S., Aged about 42 years,
5. Chandrakantha T.S., Aged about 38 years,
All are children of Late Smt Meera,
Ro Guruprasad Compound,
Gorigudda,
Mangalore. …….. COMPLAINANTS
(Advocate for Complainants: Sri Anil Bekal)
VERSUS
1. Dr.Sushanth Kumar.B,
Nephrologists,
Sanjivini Building,
Falnir, Mangalore.
2. The Authorized Signatory,
Hospital Authority,
Omega Hospital, Pumpwell,
Mangalore.
3. The Authorized Signatory,
Hospital authority,
Yenopoya Hospital,
Kodialbail,
Mangalore. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri Deenanath Shetty)
(Advocate for the Opposite Party No.2: Sri P.P.Hegde)
(Opposite party No.3: Exparte.)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging Medical Negligence against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainants stated that, their mother Smt. Meera had been admitted to Omega hospital on 7.3.2008 with an ailment of vomiting after taking any kind of food more over she was unable to take any food. The Opposite Party No.1 had diagnosed that their mother having a kidney problem and both the kidneys are not working for which the Opposite party No.1 had recommended and conducted and carried out the treatment, then discharged from the hospital on 15.3.2008.
It is stated that, the treatment given by the Opposite Party No.1 to their mother was deteriorating day by day. Thereafter, their mother Smt.Meera had a swelling in her gums and contacted the opposite party No.1 over the telephone, opposite party No.1 advised Smt.Meera to admit in Omega hospital i.e. Opposite Party No.2 once again. Accordingly, on 29.4.2008, Smt.Meera admitted as per the advice of the Opposite Party No.1. It is stated that, Opposite Party No.1 who advised to go in for extraction of tooth and stated that there is infection in the gums. On 3.5.2008 i.e. after the tooth extraction, the Opposite party No.1 informed the complainants that the patient was fine and discharged from the hospital. But at the time of discharge there was slight bleeding from the gums and again on 5.5.2008 there was severe bleeding from the gums and the opposite party No.1 advised to get admitted once again to Omega Hospital. On 6.5.2008 Smt.Meera was once again admitted to the above said hospital in critical condition with severe nonstop bleeding from her gums. After examination opposite party No.1 informed the complainant that the Meera was suffering from Chronic Kidney failure and she has to undergo 3 dialysis immediately and told that bleeding would stop. Due to the tooth extraction there was severe bleeding from her gums. It is stated that, even though there is a bleeding, the Opposite Party had advised and carried out dialysis for chronic kidney failure at Omega Hospital. Even after continuing treatment Smt.Meera did not improve. It is stated that many bottles of bleeding in the form of fresh frozen plasma and packed cells the bleeding from the gums did not stop. It is further stated that, the Opposite Party No.1 told the complainants that the bleeding in the gums was due to kidney failure and advised the complainant for atleast 3 dialysis sessions. To carry out the dialysis a femoral catheter was inserted at the thigh. Inspite of that the condition of Smt. Meera become worst and the bleeding did not stop and the Opposite Party No.1 once again suggested Meera to continue three more Dialysis sessions and after that complainants mother would be fine. Inspite of the dialysis and administering many units of blood there was continued bleeding from the gums of Smt.Meera and her condition become critical. And also stated that Opposite Party No.1 told the complainants that if the dialysis was not done or stopped the patient will die within 1 week.
It is further stated that, opposite party No.1 or the hospital not given any clear details. Opposite party No.1 always stated that to stop the bleeding dialysis was being done and medicines given. It is stated that, no doctors will put a person on dialysis if he is aged about 60 years in the event of the persons body not being able to take it and Smt. Meera was a person who was in a fragile state as her hemoglobin count was very low. She was a diabetic patient since past more than 10 years. Therefore, she should not have been put on dialysis at all. It is further alleged that, the Opposite Party No.1 advised for dialysis had inserted a fistula to Smt. Meera’s right arm, thereafter the Opposite Party No.1 informed that the same had failed and therefore the Opposite party No.1 wanted to do another surgery to Smt.Meera’s left hand/shoulder for the purpose of permanent dialysis. The complainants informed the opposite party No.1 not to go in for any experimentation on Smt.Meera and her condition was visibly critical and not allowed to carry out any more surgery without the permission.
It is further stated that, thereafter the Complainants went for second opinion during which time complainant contacted many doctors who on hearing the case history and investigating the reports opined that Smt.Meera was being wrongly diagnosed and that the symptoms were that of liver problem. The doctors then suggested to shift the patient to Yenopoya Hospital to carry out further investigation. On 28.5.2008 discharged Smt.Meera from Opposite Party No.2 hospital i.e. Omega Hospital and took her over to Yenepoya Hospital i.e. Opposite Party No.3 and got her admitted in the said hospital. It is stated that, at the time of discharging that opposite party No.2 hospital her condition was critical with a severe bleeding from the gums. In the Opposite Party No.3 hospital the bleeding from the gums had stopped because of their treatment and later they given to understand that the Opposite Party No.1 had wrongly diagnosed Smt.Meera’s ailments. It is stated that, after treatment in Opposite Party No.3 hospital the condition of the patient was improved.
It is alleged that, the act of the commission and omission as costs Smt.Meera’s medical expenses of more than Rs.2,00,000/- apart from she made to suffer great physical and mental pain and had even reduced Smt.Meera’s life expectancy. It is stated that, till the time Smt.Meera came over to Opposite Party No.1 treatment she was only suffering from Diabetes and she also doing all her day to day work on her own. The opposite party No.1 treatment had totally rendered Smt.Meera like a vegetable and she subsequently died on 18.7.2008 and contended that the death of their mother was entirely due to the negligence and incompetency of opposite party No.1 because of the wrong diagnosis and treatment provided to Smt.Meera who could surviving otherwise and she would not have undergone the pain and suffering that she was made to undergone pain and suffering. The Opposite party No.1 have conducted himself without even a reasonable degree of care, knowledge and skills required for a professional and that of a doctor in diagnosing to administering medicine to the mother of the complainants. Hence the complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay a sum of Rs.5,00,000/- to the complainants and pay compensation and costs of the proceedings.
II. 1. Version notice served to the Opposite Parties No.1 to 3 by R.P.A.D. Opposite Parties No.1 and 2 appeared through their counsel filed separate versions.
Opposite Party No.3 inspite of receiving version notice neither appeared nor contested the case till this date before this FORA. Hence, we have proceeded exparte as against the Opposite Party No.3. The acknowledgement marked as Court Doc. No.1.
The Opposite Party No.1 is a Nephrologist appeared through their counsel denied the entire allegations alleged in the complaint and stated that the mother of the complainants late Mrs.Meera approached Dr.Ramadas Rai for the first time and got admitted to Omega Hospital and the said doctor had referred the case of the patient to Dr.EVS Maben, a physician for evaluation of Hepatosplenomegaly. It is stated that, the patient was 69 years who got admitted to the above said hospital as inpatient on 7.3.2008 and taken treatment up to 15.3.2008. The complainant came with a history of distention abdomen and diabetes mellitus, anaemia and hepatosplenomagaly. In the above said hospital Nephrology opinion of the Opposite Party No.1 was sought, the above patient was referred by Dr.Ebnezer, Vivek Suranjan Maben who has diagnosed initially the problem which the patient was afflicted with DM2 for the last eight years, Arthoplasty (R) Femur 1/08, severe Anaemia, Chronic Renal failure. The Opposite Party No.2 seen the patient personally and advised for blood investigation, on 9.3.2008 advised to refer the case to Dr.Upadhyaya for Bone marrow test and advised to give tablet. On 10.3.2008 the patient had personally seen by the Opposite Party No.1 who advised blood investigation as also for chest X-Ray on 11.3.2008 he advised to do examination of stool for occult Blood at 4 p.m., and on 12.3.2008 seen by the Opposite Party No.1 and prescribed certain medicine and referred the case to Dr.Jayaram Shetty. It is stated that the patient was under the treatment of Dr.Ramadas Rai, Dr.E.V.S.Maben, Dr.Jayaram Shetty, and Dr.Upadayaya not exclusively under the Opposite Party No.1. It is stated that, the patient being afflicted with Diabetes Mellitus, Chronic Kidney Disease, Anaemia, Artholpasty Femur 3 months ago. And it is a case of known Diabetes Mellitus, the patient was suffering from chronic kidney disease and the opposite party No.1 having addressed as a Nephrologists to the problem of Chronic Kidney Disease to the patient. The patient got admitted to the hospital on 29.4.2008 with the complaint of Diabetes Mellitus and Chronic Kidney disease for the 2nd time and got discharged against medical advise. On 29.4.2008 the opposite Party No.1 had personally attended on the patient and treated the patient and administered I.V and other treatment and referred the case to Dr.Padmaraj Hegde. On 30.4.2008 the patient had personally attended by Dr.Padmaraj and prescribed certain medicines and also treated by some other doctors for the different reasons. It is further stated that the patient was admitted with the above said problems and on 29.4.2008 blood urea level and the condition of the patient was better on discharge. That the tooth exclusion have been advised by Dr.Padmaraj Hegde whom the patient referred by the Opposite party No.1. The Opposite Party No.1 neither advised for and carried out dialysis suring the aforementioned period of hospitalization of the patient. It is stated that the patient had never ever been subjected to dialysis during the above admission in the hospital as inpatient.
It is stated that, the complainant’s mother was admitted to the Yenopoya Hospital for the period from 12.7.2008 to18.7.2008, she had admitted to the above said hospital after lapse of two months of the discharge of the patient from the Omega Hospital. It is also stated that the complainants filed a false case against the Opposite party No.1. It is further stated that the patient once again admitted on 6.5.2008 as an inpatient under Dr.Padmaraj Hedge with a compliant of bleeding and the patient was referred to Opposite Party No.1. The Opposite Party No.1 advised several tests and prescribed medicines and also advised dialysis to the patient. It is stated that, dialysis is the medically recommended and recognized treatment for kidney failure and dialysis can be done at any age. It is stated that there is no negligent whatsoever as stated in the complaint and prayed for dismissal of the complaint.
Opposite Party No.2 i.e. Omega Hospital stated that there is no consumer dispute and opposite party No.2 is a unnecessary party to the complaint and there is no negligence/deficiency in service whatsoever, prayed for dismissal of the complaint.
III. 1. In support of the complaint, the Complainant No.4– Sri Vinay T.S. (CW1) filed his affidavit reiterating what has been stated in the complaint on behalf of other Complainants and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainant. One Dr.Sushanth Kumar B. Opposite Party No.1 (RW1), Nephrologists and Mr.S.L.Bharadwaj, Administrator, Omega Hospital Opposite Party No.2 (RW2) and Dr.H. Sudarshan Ballal, Senior Most Nephrolositst of Manipal Hospital, Bangalore (RW3) filed counter affidavits. On behalf of Opposite Parties no documents have been marked. Both the parties have filed notes of arguments and rulings in support their case.
In view of the controversy between the parties the points that arise for our consideration in this case are as follows:
- Whether the Complainants proved that the Opposite Parties No. 1 to 3 committed medical negligence in this case?
- If so, whether the complainants entitled for the reliefs claimed in the complaint?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. Points No. (i) to (iii):
In the instant case, the CW-4 filed affidavit on behalf of all the other Complainants contended as follows:- That their mother Smt. Meera had been admitted to Omega hospital on 7.3.2008 with an ailment of vomiting after taking any kind of food more over she was unable to take any food. It is stated that, the Opposite Party No.1 diagnosed their mother Smt.Meera that she is suffering from kidney problem and both the kidneys are not working for which the Opposite party No.1 had recommended and carried out the treatment, then discharged their mother from the hospital on 15.3.2008.
However, It is alleged that, inspite of Opposite Party No.1 treatment the condition of their mother deteriorating day by day. It is further alleged that, their mother Smt.Meera had a swelling in her gums. When she contacted the opposite party No.1 on telephone, opposite party No.1 advised Smt.Meera to admit in Omega hospital i.e. Opposite Party No.2. Accordingly, on 29.4.2008, Smt.Meera admitted as per the advice of the Opposite Party No.1. It is stated that, Opposite Party No.1 who advised to go in for extraction of tooth due to infection in the gums. On 3.5.2008 after the tooth extraction, the Opposite party No.1 informed the complainants that the patient was fine and discharged from the hospital. But at the time of discharge there was slight bleeding from the gums. But again on 5.5.2008 there was severe bleeding from the gums and the opposite party No.1 advised to get admitted once again to Omega Hospital. On 6.5.2008 Smt.Meera was admitted to the above said hospital in critical condition with severe nonstop bleeding from her gums. After examination opposite party No.1 informed the complainants that the Meera was suffering from Chronic Kidney failure and she has to undergo three dialysis immediately and told that bleeding would stop. Due to the tooth extraction there was severe bleeding from her gums. Since bleeding from her gums did not stop, had advised and carried out dialysis for chronic kidney failure at Omega Hospital. It is stated that their mother was not in a condition to take the dialysis treatment due to the bleeding in her gums and weak condition. Further it is stated that, even after continuing treatment Smt.Meera did not improve and further stated that, the Opposite Party No.1 told the complainants that the bleeding in the gums was due to kidney failure and advised the complainants to go for atleast 3 dialysis sessions. It is stated that, to carry out the dialysis a femoral catheter was inserted at the thigh. Inspite of that, the condition of Smt. Meera become worst and the bleeding did not stop and the Opposite Party No.1 once again suggested Meera to continue three more Dialysis sessions and after that complainant’s mother would be fine. Inspite of the dialysis and administering many units of blood there was continued bleeding from the gums of Smt.Meera and her condition become critical. And also stated that Opposite Party No.1 told the complainants that if the dialysis was not done or stopped the patient will die within one week.
It is further allegation of the Complainants that, opposite party No.1 or the hospital not given any clear details. On an enquiry, the complainants came to know that no doctors will put a person on dialysis if he/she is aged about 60 years in the event of the persons body not being able to take it. Smt. Meera was a person who was in a fragile state as her hemoglobin count was very low, she was a diabetic patient since past more than 10 years. It is stated that, she should not have been put on dialysis at all. It is further alleged that, the Opposite Party No.1 advised for dialysis and inserted a fistula to Smt. Meera’s right arm. Thereafter the Opposite Party No.1 informed that the same had failed and therefore the Opposite party No.1 wanted to do another surgery to Smt.Meera’s left hand/shoulder for the purpose of permanent dialysis. The complainants informed the opposite party No.1 not to go in for any experimentation on Smt.Meera and her condition was visibly critical and not allowed to carry out any more surgery without the permission. Thereafter went for second opinion. During which time complainant contacted many doctors who on hearing the case history and investigation reports opined that Smt.Meera was being wrongly diagnosed and that the symptoms were that of liver problem. The doctors then suggested to shift the patient to Yenopoya Hospital to carry out further investigation. On 28.5.2008 discharged Smt.Meera from Opposite Party No.2 hospital i.e. Omega Hospital and took her over to Yenopoya Hospital i.e. Opposite Party No.3 and got her admitted in the said hospital. It is stated that at the time of discharging that opposite party No.2 hospital her condition was critical with a severe bleeding from the gums. In the Opposite Party No.3 hospital, the bleeding from the gums had stopped because of their treatment and administered medicine and thereafter there was no bleeding from the gums and there was no dialysis carried out on Smt.Meera and later they given to understand that the Opposite Party No.1 had wrongly diagnosed Smt.Meera’s ailments. It is further alleged that, the act of the commission and omission as costs Smt.Meera’s medical expenses of more than Rs.2,00,000/- apart from she made to suffer great physical and mental pain and had even reduced Smt.Meera’s life expectancy. It is stated that, till the time Smt.Meera came over to Opposite Party No.1 treatment, she was only suffering from Diabetes and she also doing all her day to day work on her own. The opposite party No.1 treatment had totally rendered Smt.Meera like a vegetable and she subsequently died on 18.7.2008 and contended that the death of their mother was entirely due to the negligence and incompetency of opposite party No.1 because of the wrong diagnosis and treatment provided to Smt.Meera. It is further alleged that, the Opposite party No.1 have conducted the treatment without even a reasonable degree of care, knowledge and skills required for a professional and that of a doctor in diagnosing to administering medicine to the mother of the complainants.
However, the entire allegations made by the complainant is not supported by any medical expert nor any material evidence produced before this FORA to establish that the diagnosis carried out by the opposite party No.1 is wrong and treatment given by the Opposite Party No.1 is not correct and because of the wrong diagnosis and wrong treatment the complainant’s mother was suffered and subsequently lost her life. We also find that the complainant is failed to establish/prove that no dialysis could be carried out on a person who is aged about 60 years. And also failed to establish that the Complainant’s mother Smt.Meera’s body not being able to take the dialysis.
It is a settled position of law that, in case of medical negligence initial burden lies on a complainant to establish that the complainant’s mother Smt.Meera was wrongly diagnosed by the Opposite Parties and treatment provided to the patient is wrong and also satisfy the FORA that the deceased who could have survived otherwise and she would not have undergone the pain and suffering that she was made to undergo and the Opposite Party No.1 conducted the dialysis or any other treatment without even a reasonable decree of care, knowledge and skill required for a professional. But in the instant case, except the oral assertion nothing has been shown to us that the diagnosis/treatment given by the Opposite Party No.1 is wrong.
However, in our opinion, we find that, before forming an opinion that the opposite parties committed negligence/wrong diagnosis must come to a conclusion that the case is simple enough to opinion that, without the assistance of the expert opinion on hold that there is a negligence on the part of the Opposite parties. But in the instant case, we observed that, in a case of like this nature especially in medical negligence no mechanical approach can be followed, each case has to be judged on its own facts. But in the instant case, we are declined to hold that the opposite parties committed negligence or wrongly diagnosed and treated the patient without basing on the expert evidence. The complainant categorically admitted that they have approached the Yenepoya Hospital and taken a second opinion with many doctors who on hearing the case history and investigation reports were of the opinion that Smt.Meera was wrongly diagnosed and that the symptoms that of lever problem. That being so, atleast one of the doctor should have been summoned before this FORA to discharge initial burden, that Smt.Meera was being wrongly diagnosed by the opposite party No.1. We noticed that, the Opposite Party No.1 is admittedly a Nephrologist the bleeding in the gums is not the case of the Opposite Party No.1 because the tooth extraction done by some other doctor who is a dentist. Further more the Opposite Party No.3 i.e. Yenepoya Hospital, Mangalore also made as a party to the proceedings but they have not appeared nor contested the matter till this date and placed exparte. The Complainant’s mother admittedly taken treatment in the above said hospital and pleaded that the many doctors on hearing the case history gave a second opinion that Smt.Meera was being wrongly diagnosed. When that being so, the complainant should have invoked order 16 Rule 21 of the Civil Procedure 1908 to summon the Opposite Party No.3 as well as other doctors to give evidence in support of their allegation. No such attempt has been made by the complainant in this case. Further no expert opinion is available nor any medical authority has been placed in support of their case. In the absence of the same, we are declined to hold that, the Opposite party No.1 to 3 are committed medical negligence in this case.
In view of the above discussions, we hold that, the complainants are miserably failed to establish that the Opposite Parties committed medical negligence in this case. In the absence of the same, the complaint deserves to be dismissed. No order as to cost.
In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 16 dictated to the Stenographer typed by him, revised and pronounced in the open court on this 21st day of May 2012.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 – Sri Vinay T.S.- Complainant No.4.
Documents produced on behalf of the Complainants:
Ex C1 – Postal Receipt.
Ex C2 – 27.1.2009: Regd. Legal notice
Ex C3 – 31.1.3009: Postal Acknowledgement.
Ex C4 – 14.2.2009 Reply Notice.
Ex C5 Medical bill 50 in Numbers.
Ex C6 – 6.6.2008 : Discharge summary and connected documents.
Ex C7: 6.5.2008: Admission Record with concerned documents.
Ex C8: 7.3.2008: Admission Record with concerned documents.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Dr.Sushanth Kumar B. (Opposite Party No.1), Nephrologists
RW2 – Sri. S.L.Bharadwaj, Administrator, Omega Hospital (Opposite Party No.2)
RW 3 - Dr.H. Sudarshan Ballal, Senior Most Nephrolositst of Manipal Hospital, Bangalore (RW3)
Documents produced on behalf of the Opposite Parties:
Dated:21.5.2012 PRESIDENT
