By G. Yadunadhan, President:

            The complainant has approached this Forum alleging negligence and deficiency in service on the part of the opposite parties in treating her.  The case in brief of the complainant is that around 7 years prior to the institution of the above complaint she had noticed a colour change in her urine and had consulted a local doctor whose medication had cured the ailment.  Later in June 1999 similar colour change was noted and she had consulted Dr. Rajesh Krishnan at PVS Hospital, Calicut, who had after examination opined that there was no problem and she was sent back home.  But after 3 weeks again blood colour was noticed and she consulted Dr. Polakundan Muhammed Kutty who referred the complainant to the 1^st opposite party.  The complainant had consulted the 1^st opposite party at the 3^rd opposite party Hospital wherein the 1^st opposite party was attached at that point of time.  According to the 1^st opposite party, there was a small swelling to the right kidney and after 2 days of hospitalization, the complainant was taken to the operation theatre from wherein the 2^nd opposite party after check up opined that cholesterol is leaking through kidney and an injection ‘Silver Plant Injection’ was given to her right kidney.  Later on enquiries the 2^nd opposite party stated that the operation conducted was not a success as expected.  The complainant alleges that her condition worsened and there was infection of injection given to her and that in spite of prolonged treatment, as an inpatient in the 3^rd opposite party hospital there was no improvement.  The 1^st opposite arty advised the complainant to get discharge and to take rest from home, but within 10 days she had to be again hospitalized as her condition became worse.  Thereafter even though there was no improvement she was discharged and sent home and the doctor had to come to her house to treat her.  As there was no improvement, the complainant had again met the 1^st opposite party who had asked her to come to the 4^th opposite party hospital and from there the treatment continued.  The fault was found with the left kidney and continuous treatment and medication was done.  As pain increased she had to be hospitalised in the 4^th opposite party hospital.  Urine was blocked for 35 days and no proper diagnosis was made from the 4^th opposite party hospital.  As there was no improvement she was asked to go to Medical College or PVS Hospital for better treatment and a referral letter given to PVS hospital, from where it was found that the left kidney was completely damaged and there was block in the right kidney.  A surgery was suggested for which the complainant did not agree.  The 1^st opposite party had scolded and behaved in a bad manner with the complainant.  Finally the complainant approached Amritha Institute of Medical Science and Research Centre, Cochin from where it is found that the left kidney of the complainant was fully damaged and was liable to be removed on account of the improper treatment given by the opposite parties 1 and 2.  Unnecessarily operation was done on the left kidney when the problem was only with the right kidney and that the operation and treatment given was not required for curing the disease of the complainant.  The left kidney had to be removed.  The complainant alleges that all the complications arose and she lost her left kidney on account of the mistake committed by the opposite party Nos. 1 and 2 and claiming Rs.5,00,000/- as compensation, the above complaint is filed.

            The opposite parties entered in appearance and filed separate versions disputing and denying the case and claim of the complainant.  The 1^st opposite party contended that he had seen the complainant on 20.8.1999 from the 3^rd opposite party hospital on a reference from Dr. Polakundan Mohammed and on a provisional diagnosis of heamaturia and chyluria with catching type of pain in the right loin of 6 years duration, she was advised admission.  But the complainant went back home and came back after 2 weeks on 3.9.1999 for admission and detailed investigation were done.  Cystoscopy done after obtaining consent to locate the side of origin of chyluria on 9.9.1999 showed cloudy/bloody efflux coming from the right kidney.  Senior Urologist consultation was had with the 2^nd opposite party and at his advice retrograde instillation of silver nitrate into the renal pelvis was done.  The right kidney was found to be effected and the urine from the left side was normal.  After cross consultation, necessary treatment was given and she was discharged after 6 days on 17.9.1999 with advice to take medicines for two weeks.  On review also the complainant was found to be much better.  On 16.10.1999, as there was fever and painful micturation suggesting acute urinary tract infection after urine examination and urine culture the complainant was put on appropriate medicine.  Ultra sound abdomen for kidney was done on 18.10.1999, which was normal and as there was considerable improvement the complainant was discharged after 5 days on 21.10.1999 with advice to come for periodic checkup.  Thereafter the complainant had gone abroad and did not come for the regular checkup for almost 1 year and it was only on 28.9.2000 the complainant came back with complaints of pain on the right side of abdomen and instead of 3^rd opposite party hospital the complainant insisted for admission to the 4^th opposite party hospital.  Tuberculosis of left kidney was suspected and the right kidney was normal in position, size and function.  The tuberculosis would have been contacted during the past few months and after appraising the complainant, her husband and father and with their consent standard long-term treatment for tuberculosis of kidney were started on 30.9.2000.  The complainant was not regular for the reviews and did not follow the treatment procedure properly, which would have deteriorated her condition.  On 10.2.2001, complainant came with the complaints of pain over right flank and she was advised to restart medicine.  On 13.2.2001 she complained of retention of urine and the complainant was admitted at the 4^th opposite party hospital.  Necessary treatment were given and the C.T. Scan taken on 17.2.2001 showed contracted left kidney with irregular margins and multiple calsified regions along with Hypo-Echogenesity and Septae like structure within it, suggesting possibility of tuberculosis of left kidney.  The fact that the complainant has tuberculosis of the left kidney which was deteriorating very fast and destroying the left kidney was explained to the complainant, here husband and her father and she was advised Urologist consultation by the 2^nd opposite party or by Professor Roy Chally, but the complainant and her relatives refused surgical consultation and wanted only medical management.  When they expressed their desire to consult Dr. Sunil of PVS hospital, a referral letter issued accordingly.  Dr. Sunil found the left kidney to be non-functioning and that the complainant required surgery and also stenting of the right ureter, but the complainant did not agree to the same and wanted to take “ native” treatment against the medical advice given.  The complainant left the 4^th opposite party hospital on 21.2.2001 against medical advice without even taking the discharge certificate.  The allegations of negligence and deficiency in service were denied and 1^st opposite party prayed for dismissal of the complaint.

            The 2^nd opposite party also filed a version almost in similar lines as that of the 1^st opposite party.  The 2^nd opposite party contended that as the chyluria was of long duration she was advised retrograde injection of silver nitrate and the same administered after getting informed consent.  Preliminary cystoscopic evaluation showed conclusively that the complainant had chyluria originating from the right kidney and the chyluria was of severe degree.  The procedure was done with all strict aseptic precautions under anaesthesia assisted by Senior Anaesthetist and after evaluation by a senior physician.  It was further contended that the complainant stood the injection very well and she improved significantly following the procedure and she was discharged on 17.9.1999 in an absolutely asymptomatic stage. Even though the complainant was advised to come for review to the 2^nd opposite party periodically, she did not even once come for review after the procedure.  The 2^nd opposite party also denied the allegations of negligence and deficiency in service and prayed for dismissal of the complainant.

            The 3^rd opposite party in their version admitted the contentions in the version of the 1^st and 2^nd opposite parties.  They further contended that there was no negligence or deficiency in service on the part of the institution or any other staff attached to the same.  The expenses claimed to be incurred by the complainant is exaggerated and baseless and the 3^rd opposite party denied any liability to pay any compensation.

The 4^th opposite party filed version contending that the complainant was admitted in their hospital only on 28.9.2000 and that investigation suggested tuberculosis of left kidney and necessary treatment for the same started under the 1^st opposite party on 30.9.2000 itself.  The complainant was stable and was discharged on 2.10.2000 with advice to continue medicines and to come for periodical review of every 3 weeks.  The complainant came for review on 24.10.2000 and was found to be much better, but thereafter the complainant did not come for periodical checkup in time and discontinued the most important treatment for tuberculosis of left kidney.  On 10.2.2001 complainant came with the complaints of pain over right flank and she was advised to restart medicine, which she had discontinued.  On 13.2.2001 she complained of retention of urine and the complainant was admitted at the 4^th opposite party hospital and the urine was drained with catheter.  As pain was persisting scan was taken on 17.2.2001, which showed contracted left kidney with irregular margins and multiple calcified regions along with Hypo-echogenesity and septae like structure within it, suggesting possibility of tuberculosis of left kidney.  The right kidney was normal in size, shape and showed dilated pelvicaiyceal systems.  She was advised urologist and surgical consultation, but the complainant wanted only medical management.  As they expressed their desire to consult urologist of PVS hospital, a referral letter issued accordingly.  Dr. Sunil found the left kidney to be non-functioning and that the complainant required surgery and also stenting of the right ureter, but the complainant did not agree to the same and wanted to take “native” treatment against the medical advice given.  The complainant left the 4^th opposite party hospital on 21.2.2001 against medical advice without even taking the discharge certificate.  It was further contended that the left kidney of the complainant happened to be removed due to her own negligence and fault in continuing and accepting the advice of the doctor, long treatment, follow up and consultation of urologist and that the 4^th opposite party was not liable to pay any compensation.  In short the 4^th opposite party prayed for dismissal of the complaint with compensatory costs.

Evidence in the matter consists of the oral testimony of the complainant as PW1, her husband as PW2 and that of doctor Ramdas Pisharody (Head of Department of Nephrology, Medical College Hospital, Kozhikode) as PW3 and documents marked as Exts. A1 to A18 on the part of the complainant and the oral testimony of opposite party Nos. 1 and 2 as RW1 and RW2 and that of doctor C. Raveendran (Head of Departnment of Chest Diseases, MCH, Calicut) as RW3 and documents marked as Exts. B1 and B2 on the part of the opposite parties.  The complainant as well as opposite party Nos. 1 to 3 have filed notes of arguments as well.  Medical literature and authorities were placed on the part of the parties as well. Campbells Walsh Urology 9^th Edition, Croftan & Doglas Respiratory Diseases 5^th edition, Harrisons Textbook of Internal Medicine 16^th edition, Bailey & Love’s Short practice of Surgery 25^th edition.

            The issues that arise for consideration are:

1.                  Is the complainant a consumer as contemplated under the Consumer Protection Act?

2.                  Is there any negligence or deficiency in service on the part of the opposite parties?

3.                  If so, what compensation the complainant is entitled to?

Point No.1:  The fact that the complainant has availed the services of the opposite parties for consideration stands proved and admitted.  No serious contention regarding the maintainability of the above complaint was raised by the opposite parties.  Hence we find that the above complaint is maintainable and that the complainant is a consumer coming within the purview of the Consumer Protection Act.

Point No.2:  The complainant alleges negligence and deficiency in service on the part of the opposite parties mainly on the following grounds:  (a) Wrong and improper treatment was given by opposite party 1 and 2 from opposite parties 3 and 4 Hospitals and that surgical instillation of AgNo3 was not at all required.  (b) That opposite party No.2 had done the said instillation and treatment to the left kidney instead of the right kidney.  (c) That there was wrong diagnosis, lack of reasonable care, caution and diligence on the part of the opposite parties while treating the complainant and (d) That the complainant lost her left kidney on account of the negligence and carelessness on the part of the opposite parties in properly identifying and treating tuberculosis.

            To prove the case of the complainant, she has examined as PW1 and her husband as PW2.  Besides the same the Head of the Department of Nephrology, Calicut Medical College has been examined as PW3.  Documents marked as Exts. A1 to A9, A11 to A15, A17, A18, B1 and B2 would show the treatment given to the complainant.  The fact that the left kidney of the complainant was completely damaged and had to be removed is also admitted.  This the complainant alleges had happened on account of the negligence, carelessness and deficiency in service on the part of the opposite parties.  We do agree with the submission made by the Counsel for the opposite parties that the statements made by PW1 and PW2 regarding medical and technical aspects are incompetent and hearsay.  But as the contention of the Counsel for the complainant that it is for the opposite parties to explain as to how the admitted complications happened is well founded.  The evidence of PW3 and RW3 assumes much significance in this context, having been examined as experts by either parties.  Even though both parties referred to examination and treatment by Dr. Sunil, the urologist attached to PVS Hospital, but curiously enough no steps were taken to examine the said doctor.  Moreover no doctors/experts from the Amritha Institute of Medical Sciences, Cochin from where wherein the complainant underwent further treatment and surgery has been examined to substantiate the case and claim of the complainant.

            As revealed from the version submitted and the testimony of RW1 and 2, the main contention of the opposite parties is that the standard medically accepted treatment was given to the complainant, that instillation of AgNo3 was highly necessary and the damage to the left kidney happened independent of the earlier treatment and that the same had to be removed because the complainant was highly irregular and indifferent in availing the treatment.  Their definite case is that the complaints of chyluria and haematuria of the right kidney were completely cured and the second admission in September 2000 was on account of tuberculosis of left kidney, which had no nexus with the earlier treatment and there was failure on the part of the complainant in not properly following and continuing the treatment for the tuberculosis.

            The allegation of the complainant that the 2^nd opposite party was negligent in administering the AgNo3 instillation to the right kidney instead of the left kidney is not seen supported by any evidence.  PW3 after perusing the records produced has deposed that the instillation is done to the right side and no silver nitrate injection was done to the left side and that tuberculosis (referred to as new disease of the left kidney in page 11 of the cross examination of PW3) is not because of the injection of silver nitrate done to the right kidney one year before.  PW3 would state that silver nitrate instillation on the right kidney will not do any damage to the left kidney and that if instillation of silver nitrate is done to any kidney in a large amount, damage can be done.  Even though in the chief examination, PW3 would state that chyluria even if treated by instillation of silver nitrate it may recur and that chyluria normally is not a life threatening illness and that even if it is not treated or left unattended it will not cause any damage to the kidney, but in the cross examination he would admit that it is advisable to use silver nitrate in the instant case as medical management has failed earlier.  Thus the 2nd opposite party cannot be faulted for treating the complainant with silver nitrate instillation.  That the said treatment was effective and proper is revealed by the subsequent events and records, which show that the right kidney was functioning properly, especially Ext. A6 scan report and Ext. A12 Renogram Report.  PW3 has categorically stated that the right kidney is properly functioning and that the treatment for chyluria seems to be correct.  The 2^nd opposite party had seen the complainant when she was an inpatient in the 3^rd opposite party hospital from 3.9.1999 till 17.9.1999 during her first admission and after thorough checkup and evaluation had done silver nitrate instillation.  Thereafter the 2^nd opposite party did not have any occasion to examine or treat the complainant.  RW3 has also categorically stated that silver nitrate instillation is not connected with tuberculosis.  As far as the silver nitrate instillation is concerned, there is no proof or evidence suggesting any negligence on the part of the 2^nd opposite party, or any of the opposite parties as far as the same is concerned.

            Thus from the records and evidence available in the matter it can be found that the complainant had approached the 1^st opposite party on 20.8.1999 with Chyluria/Haematuria and correctly diagnosed to be so by the provisional diagnosis of Dr. Muhammedkutty.  On 3.9.1999 the complainant was admitted, detailed investigations like urine culture and sensitivity, X-ray chest, USG abdomen for kidneys, IVP, urine for Tuberculosis, for proteins and fat globules were done and further treatment and management done as per the medically accepted protocol, as evidenced by the testimony of PW3, RW1 to RW3 and the medical authorities submitted on the part of the opposite parties.  Free informed consent is also seen taken from the complainant and her husband.  The detailed narration of the procedure adopted and the treatment given by RW2 remains unchallenged.  The case sheet and other treatment records also substantiate the above findings.  The allegation of the complainant that she was affected by many new diseases also does not appear to be correct.  PW3 has categorically stated that as per the case sheet, no other ailment has been recorded till date of discharge on 21.10.1999.  The records and the evidence also clearly indicate that the acute urinary track infection for which she underwent treatment from 16.10.1999 till 21.10.1999 has no nexus with the earlier treatment.  Urine examination and urine culture, besides ultra sound abdomen for kidneys are seen done during that period as well.  The complainant had responded well to the said treatment and was discharged on 21.10.1999 with advice to come up for periodic checkup.  These aspects are admitted by PW1 in pages 8 and 9 of her deposition.  Thus till the discharge on 21.10.1999, there was no indication of any defect with the left kidney and the complainant does not have a case that any further investigations or tests ought to have been done or that she was not examined or treated as per the universally accepted medical protocol.  There is no evidence of any tuberculosis as well during the said period from the investigations, which were done.

            In the above circumstances we find that the allegations of negligence and deficiency in service regarding the treatment given by the 1^st and 2^nd opposite parties at the 3^rd opposite party hospital are not sustainable.

            Now coming to the allegation of carelessness and negligence in properly identifying and treating tuberculosis, which essentially centers around the 1^st and 4^th opposite party, the following aspects assumes importance.  The documents submitted on the part of the complainant, especially Ext. A18 would indicate that the complainant was consulting the 1^st opposite party on different dates from 15.11.1999 till 1.5.2000.  Ext. A18 was marked during the cross examination of RW1, but the same was disputed and denied by RW1.  All tests for tuberculosis were done while the complainant was under the treatment of opposite party No.1 and opposite party No.2 in the 3^rd opposite party hospital.  There was no evidence of tuberculosis.  Thereafter as there was blood in urine without chyle, empirically standard medical treatment for tuberculosis was started.  Drugs Rcinex and Themibutol were given as evidenced by Ext. A18.  PW3 in page 5 of his deposition has stated that these drugs are the standard anti tuberculosis drugs.  Thus from 15.11.1999 till 01.05.2000 RW1 is seen to have given the medically accepted treatment to the complainant which her condition warranted.  Even though much was argued regarding the denial of Ext. A18 by RW1, we find no merit in such contentions as the same assumes no importance as far as the issue to be decided in this matter is concerned.  More so because the complainant does not have a case that the treatment given as per Ext. A18 is wrong or improper or that something else ought to have been done.  Even going by Ext. A18 it is seen that on 1.5.2000 the complainant was advised to take CT scan.  But the complainant next came on 28.9.2000 , after around 4 months and was admitted and treated at the 4^th opposite party hospital as revealed by Ext. B2 case sheet.  Ext. B2 case sheet reveals that she was given the symptomatic treatment for the pain she complained and all necessary tests were done.  The anti tuberculosis treatment was advised to be continued with an added tab PZA (phrazinamide).  RW3 would state that this is the standard treatment/combination for tuberculosis treatment and management.  No explanation is offered by the complainant for the delay and default of 4 months indicated as above.  All the medical authorities placed before us and the evidence of PW3 and RW3 would clearly indicate that discontinuance of treatment is a very serious lapse and it may lead to drug resistance and further complications, including rapid deterioration of the affected organ. It is pertinent to note that even the healing/cure of tuberculosis of the kidney is by fibrosis, scarring, classification, strictures, which may ultimately lead on to the functional failure of the organ.  The common evidence in the matter indicate that this can occur in spite of the best care, caution and attention and the same is a medically accepted complication, for which the treating doctors cannot be found fault with.

            Further it is seen from Ext. A7, that the complainant had availed treatment only after a lapse of around 69 days that is from 24.10.2000 till 2.1.2001.  PW3 in page 5 of his deposition would state that if the patient discontinues treatment for longer periods it would adversely affect the outcome.  In page 6 of the deposition of RW3, it is categorically stated that “the treatment should be strictly regular.  If it is irregular it may cause drug resistance.  If the patient is non-complaint, it may cause more damages to the kidney.  If the patient omits to take one of the combinations among the medicine, also treatment falls.  Usually if the patient falls to take medicine for one month we consider the patient as a defaulter.  The kidney of a defaulter will definitely be damaged and becomes non functional”.  He also would further add that once the damage is caused the same cannot be reversed.

            It is an admitted case that the left kidney of the complainant was damaged on account of tuberculosis and had to be removed.  The final diagnosis going by the records as stated by PW3 in page 7 of his deposition is chronic tuberculosis of left kidney.  PW3 is the doctor who continued the treatment after the removal of the kidney and in page 1 of his deposition he stated that he has perused the records relating to the complainant.  The said ailment is referred to as chronic.  The evidence of RW3 also indicates that the disease is a chronic one and as the same progresses the kidney becomes non functional.  He would also state that the kidney shrinks and become small and that by urine culture and isolation of bacteria a definite finding could be had.  By symptoms, X-ray – IUP, CT scan of abdomen, the same could be detected.  According to him treatment has to be started on getting any supportive evidence and that if treatment is not started it will cause more damage to the kidney and need not wait for definite detection.  He would also state that the treatment should be strictly regular or otherwise it may cause drug resistance and that if the patient is non-complaint, it may cause more damage to the kidney.  Ext. A18 would reveal that the 1^st opposite party had empirically started anti tuberculosis drugs on 15.11.1999 itself.  In paragraph 7 of the complaint it is seen admitted that she was told that continuous treatment for long period is necessary.

            According to the opposite parties, the complainant was not having any such ailment regarding the left kidney when she was brought for the treatment for the first time during 1999.  PW3 in page 3 of the deposition has stated that on going through the IVP films of the complainant taken on 3.9.1999, there are no structural or functional abnormalities seen.  He would also further add that the test results showed that there was no tuberculosis.  According to him CT scan report of 30.9.2000 shows left kidney contracted, which indicates damage to the kidney and that it is only suspicious of tuberculosis.  Even as admitted by the complainant PW1 in page 9 of her deposition, as on 18.10.1999, there was no defect with the kidneys as revealed by the ultra sound scan.  According to the 1^st opposite party the complainant was diagnosed to be having tuberculosis of the left kidney and that the situation aggravated and resulted in the loss of the kidney on account of irregular treatment and loss of follow up.

            The definite case of the complainant is that due to infection on account of the injection given to her the condition worsened resulting in development of tuberculosis and loss of kidney.  The relevant contentions in the version of the 1^st opposite party are that as soon as the tuberculosis disease of the left kidney of the complainant was detected by the 1^st opposite party, she was put on the correct line of treatment for tuberculosis of kidney, but the complainant did not take the treatment correctly as advised and lost follow up by the 1^st opposite party for almost four months and discontinued the most important treatment.  The specific case of the 1^st opposite party is that the complainant’s illnesses were diagnosed right from the beginning and were treated properly.  However the complainant did not take the treatment correctly, lost follow up, contracted renal tuberculosis at a later stage, which again was diagnosed and was put on proper treatment but discontinued the treatment by herself and that the complainant’s left kidney had to be removed because of her own fault of discontinuing treatment for the severe tuberculosis of the left kidney which she developed while not on follow up.  The tuberculosis of the left kidney of the complainant was an entirely different one.  The two CT scans done in a span of 4 months (on 30.9.2000 and 17.2.2001) show a rapid destruction of the left kidney due to tuberculosis.  This could have been avoided if the complainant continued the specific and important treatment advised by the 1^st opposite party, very clearly, earnestly and in good faith, the very day when it was diagnosed.  The said complication arose in spite of the best care, caution and attention.

            After 1.5.2000, the complainant presents herself for examination and treatment only on 28.9.2000.  From Ext. A7 it can be seen that she had consulted the 1^st opposite party on 24.10.2000 and 2.1.2001.  Ext. A1 shows the treatment was discontinued for another 10 days.  Even though the contention that the complainant was abroad for around one year is found to be incorrect in view of Ext.A16, the fact remains that the complainant neglected and defaulted in strictly following the treatment and was erratic. The allegations seen made in the complaint and the deposition of PW1 and PW2 would clearly indicate that the complainant had defaulted in taking proper and continued treatment. The complainant has not produced the documents relating to her earlier treatment, which according to PW1 and PW2 are in their possession.  All the doctors examined are of the same opinion that even though there are ways and means of identifying tuberculosis and that the early identification and treatment are highly necessary for saving the kidney, tuberculosis of kidney being asymptomatic, it is difficult to detect.  RW3 has stated that it may take months or years for the symptoms to appear.  RW3 in page 3 of his deposition has stated that tuberculosis kidney may go undetected for 10 to 15 years and in page 7 that damage to kidney cannot be detected by ultrasound scan, X-ray or IVP at the earlier stage and that CT scan is used at a later stage to detect tuberculosis of kidney.  RW2 in page 5 of the cross-examination would state that an expert nephrologist like the 1^st opposite party can detect tuberculosis if the patient is under his periodical examination.  PW3 in the cross examination has stated prompt and prolonged treatment is also required and that if treatment is not started earlier, despite treatment kidney can be damaged.  RW1 in page 9 of the cross-examination would admit that the stage of tuberculosis can be evaluated by an expert like him and Ext. A18 prescription relied on by the complainant would show that there was periodical evaluation up to 1.5.2000 and as admitted to by PW3, the expert examined on the side of the complainant, correct treatment was being given.  He would in page 13 of his deposition categorically and unambiguously declare that the treatment given by the opposite parties is correct.  There is no contra evidence in the matter.

            The legal position as far as cases of medical negligence are concerned is well settled.  The Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab and another reported in 2005 (6) SCALE 130 has reiterated that negligence in the context of medical profession necessarily calls for a treatment with a difference to infer rashness or negligence on the part of a professional, in particular a doctor additional considerations apply.  A case of occupational negligence is different from one of professional negligence.  A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional.  So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the doctor followed.  So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that day, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.  It is for the complainant to prove his case, as has been held by the National Commission in B. Anthony Raj & another VS. Thomas Hospital & another II (2006) CPJ 80 (NC) and in Dr. Satish C. Gupta Vs. Rajkumar Nerula 2008(3) CPR 26 (NC) that simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se applying the doctrine of res ipsa loquitur, following decision of the Supreme Court aforementioned.

            The Hon’ble National Commission in Indira Kartha & others Vs. Dr. Mathew Samuel Kallarikkal & another 1(2006) CPJ 62 (NC) has held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he had displayed less skill or knowledge than others would have shown.  The true test for establishing negligence in diagnosis or treatment of the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.  The medical practitioner is not an insurer and so he cannot be blamed every time if something goes wrong.  Indeed, it is widely acknowledged that in medicine, in particular, things can go wrong in the treatment of patient even with the very best available care.  Court has to be careful and cannot return a finding of negligence on the ground that medical men did not comply with the existing common practice, as that would stifle the innovation.  Burden of proving that the doctor was negligent rests with the complainant and it is not for the doctor to show that he was not negligent. Medical negligence cannot be presumed and that cases of medical negligence fall in its own category and need to be proved with help of expert opinion and such cases are not proved by uncertain evidence and in the realms of probability and that in the absence of expert evidence complaint alleging negligence would not succeed as has been laid down by the Hon’ble National Commission in Kanhaiya Kumar Sing Vs. M/s. Park Medicare and Research Centre III (1999) CPJ 9 (NC), Saleemuddin & others Vs. Dr. Sunil Malhotra II (2006) CPJ 348 (NC) and Inderjeet Singh Vs. Dr. Jagdeep Sing 2004 (2) CPR 45 NC.  The Hon’ble High Court of Kerala in M. sobha Vs. Dr. Mrs. Rajakumari Unnithan & others AIR 1999 Kerala 149 relying on different rulings of the Hon’ble Supreme Court as held that in a case of medical negligence what is required to be judged is causation, nexus of injury with the action alleged to be negligent and not the consequence.

            The common evidence and the records clearly indicate that the opposite parties had treated the complainant bestowing all care, caution and attention, as per the universally accepted standard medical protocol.  It is in spite of the same that the complainant developed complications and lost her left kidney.  Delay, default and negligence in properly and regularly following the treatment is seen on the part of the complainant, which as per the medical evidence resulted in the unfortunate eventuality of loss of one kidney.  There is absolutely no evidence, let along any expert evidence suggesting that the opposite parties did something that a reasonable and prudent doctor would not have done in the given circumstances or that they have omitted to do anything that a reasonable and prudent doctor would have done in the given circumstances.  The complainant has failed to prove or establish the allegations of negligence raised by her.  The complainant has not established that her sufferings were due to want of average skill on the part of the opposite parties or due to want of care and attention.  Thus on an appreciation of the facts, evidence and the legal position applicable, indicated as above, no negligence, carelessness or deficiency in service can be attributed to the opposite parties. In the result we find that the opposite parties were not negligent or careless in treating the complainant.  Since no negligence has been established, this complaint falls and is liable to be dismissed. 

            In view of the findings on point No.2 above, we hereby dismiss the complaint.  In the facts and circumstances of the case, the parties are directed to bear their respective costs.

            Pronounced in open Court this the  28^th  day of January 2009.

                                                Sd/-President                                  Sd/-Member

APPENDIX

Documents exhibited for the complainant:

A1            Photocopy of discharge card dated 17.9.1999.

A2            Photocopy of Ultra Sound Scan Report dated 18.10.1999.

A3            Photocopy of Discharge card dated 21.10.1999.

A4            Photocopy of KUB & Pelvic Ultrasound Report dated 14.1.2000.

A5            Photocopy of Discharge Summary issued by 4^th opposite party.

A6            Photocopy of clinical summary report dated 30.9.2000.

A7            Photocopy of Medical prescription dated 24.10.2000.

A8            Photocopy of KUB & Pelvic Ultrasound Report dated 17.2.2001.

A9            Photocopy of reference letter dated 20.2.2001 issued by OP No.1.

A10            Photocopy of inpatient bill  issued by 4^th OP.

A11            Photocopy of discharge summary issued by PVS Hospital (P)Ltd.

A12            Photocopy of Renogram Report dated 12.3.2001.

A13            Photocopy of Surgical Pathology Report dated 17.3.2001.

A14            Photocopy of discharge summary dated 17.3.2001 from Amritha Institute of

            Medical Sciences and Research Centre.

A15            Photocopy of C.T. Scan Report dated 23.4.1999.

A16            Photocopy of Passport of the complainant attested by Notary.

A17            Medical prescription dated 20.9.1999.

A18            Medical prescription dated 15.11.1999.

Documents exhibited for the Opposite parties:

B1         Case sheet kept in the  Baby Memorial Hospital, Kozhikode, for the treatment

            Undergone by the complainant (I.P.No.44518)

B2         Case Record of the complainant kept by 4^th OP – 29 in Nos.

Witnesses examined for the Complainant.

PW1            Fathima, D/o, Mohammed Haji – Complainant.

PW2     K. Usman, S/o. K. Munhimohammed Maoulavi, P.O. Othukkungala, Kottakkal.

PW3     Dr. Ramdas Pisharody, S/o. Late Sri. K.K. Piasharody, Professor & Head., Dept. of

            Nephrology, Medical College, Calicut.

Witnesses examined for the Opposite parties:

RW1     Dr. Thomas Mathew, S/o. Late Dr. M.M. Thomas.

RW2     Felix Cardoza, S/o. J.J.Cardoza, Rose Dab, Nellikode P.O., Calicut.

RW3     Dr. C. Raveendran, S/o. Late K.K.V.Govindan, Professor & Head, Dept. of TB &

            Chest Diseases, Medical College, Calicut.

-/True copy/-

Sd/-President

(Forwarded/by Order)

Senior Superintendent.