KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAD, THIRUVANANTHAPURAM
FIRST APPEAL 13/2010
JUDGMENT DATED: 8/11/2010
PRESENT
JUSTICE SRI.K.R.UDAYABHANU :PRESIDENT
John.K.Mathews, : APPELLANT
S/o Late T.V.Mathai,
Thyparambil House, Kumbanadu.P.O.,
Koihippuram Village,
Pathanamthitta District.
(By Adv.Rajeev.S.S.)
Vs.
1. Fellowship Mission Hospital, : RESPONDENTS
Kumbanadu.P.O., Koippuram Village,
Pathanamthitta,
Rep.by the Administrator.
2. Dr.Jacob Oommen,
Medical Superintendent,
Fellowship Mission Hospital,
Kumbanadu.P.O., Koippuram Village,
Pathanamthitta,
(By Adv.V.K.Mohankumar)
JUDGMENT
JUSTICE SRI.K.R.UDAYABHANU :PRESIDENT
The appellant is the complainant in CC.361/2000 in the file of CDRF, Pathanamthitta. The complaint stands dismissed by the majority order of the Forum. One of the members of the Forum have dissented.
2. The case of the complainant is that his father T.V.Mathai was admitted at the hospital for diabetic gangrene to his right foot on 20.4.2000. Three fingers of the right foot were amputated. He was discharged on 6.5.00 with advice to attend the opposite party hospital for the purposes of dressing the wound. On 27.5.2000 the complainant’s father was taken to the OP department for dressing the wound. He was taken to the dressing room. The petitioner’s son Aju John Mathew and one Jose had accompanied the patient to the hospital. The above persons were directed to wait outside. After some time they heard the sound of a fall from inside the dressing room and followed by a hue and cry. The complainant’s son and the above said Jose rushed to the dressing room and found T.V.Mathai lying on the floor with bleeding from the nose, left knee and from the toes of the left leg. It was told that the patient had fallen from the dressing table having a height of about 4 ½ feet. Thereafter the injuries were dressed and he was advised to take rest at home. Thereafter he was having extreme pain and unable to sit himself on the bed. Subsequently he became unconscious due to extreme pain. He was taken to 1st opposite party’s hospital on 31.5.2000 and got admitted. X-ray was taken upon the compulsion on 1.6.2000. It was found that the upper part of let femur, which joins the hip was broken and has come out of the socket and the fractured portion was infectious. The above injury was sustained on account of the fall on 27.5.2000. The opposite parties have failed to detect the fracture earlier or they have willfully suppressed the fracture. If treatment was given in time the internal wound would not have infected. Surgery was performed on 6.6.2000 and he was inpatient till his death on 21.6.2000. The opposite parties issued a bill for sum of Rs.36007.66. The extreme pain and discomforts suffered by the deceased during the fag end of his life was occasioned only due to the negligence and deficiency in service of the opposite parties. Hence he has sought for Rs.1,00,000/- as compensation with interest at 12%.
3. The opposite parties filed a joint version contending that the deceased aged 98 was the patient of the hospital for many years. It is stated that he was brought to the OP department of the hospital at 10am on 27.5.2000 by an attendant by name Jose. His urine was leaking through the catheter. Dr. Iype Abraham, consultant Surgeon advised admission and changed catheter. The attendant refused admission stating that there was no senior member of the family at home. The catheter was changed in the dressing room of the OP department and advised to keep Mr.Mathai on the table till urine discharge through the catheter is established. Staff nurse Raji Susan Abraham who was in the treatment room asked Mr.Jose to stay with the patient to ensure that the patient takes lot of water. It was thereafter Mr.Mathai fell down from the table. Dr.Iype and duty nurse and others helped Mr.Mathai and placed him in the wheel chair and on to the autorikshaw. Nothing was heard till 31.5.2000. On 31.5.2000 Mr.Aju John Mahtews and Jose came to the hospital and wanted medication to Mr.Mathai for constipation. Dr.Iype prescribed medicines. At 5pm the administrator of the hospital was contacted on phone and told that Mr.Mathai is unconscious and needed help. Ambulance was sent with an attendant and Mr.Mathai was brought to the hospital. He was admitted in the ICU on complaint of pain in the hip X-ray was taken. It was found that there is a fracture in the neck of the femur. Surgery was advised and subsequently done on 6.6.2000. It was found that he had septic arthritis of the left hip with necrosis of the tissues around. Best treatment was given but the patient died on 21.6.2000. The petitioner did not paid the hospital bills.
4. The Forum as per order dated 13.2.2002 allowed the complaint and directed the opposite parties to pay sum of Rs.50000/- to the complainant with cost of Rs.1000/-. It was also directed that the 1st opposite party is not to realize the hospital bill amount from the complainant. The matter was taken in appeal before the CDRC vide A.381/02. The CDRC set aside the order of the Forum and remanded the case for fresh disposal after giving an opportunity to both sides to adduce evidence.
5. PWs 1 ,2 and DW1 were examined and Exts.P1 to P7 marked before the remand. After remand PW3 was examined. It was on appeal filed by the 1st opposite party that the matter was remanded. The1st opposite party hospital had contended that sufficient opportunity was not given for the opposite party to adduce evidence. It was on the above plea of the 1st opposite party that the matter was remanded.
6. During the pendency of the present appeal the notice to 2nd respondent/medical superintendent was returned with the endorsement that the 2nd respondent/medical superintendent is no more. The complainant/appellant submitted that no relief is sought against the 2nd respondent/medical superintendent and hence LRs is not to be impleaded.
7. We find that the majority of the Forum dismissed the complaint on the ground that the complainant has not adduced any evidence to substantiate the contention that the deceased had sustained the injuries during fall and that surgery was done for the said injuries. It was also noted that the treatment records were not produced. One of the Members of the Forum who dissented found fault with the opposite parties for not adducing any further evidence. The Member also pointed out contradictions in the case of the opposite parties and has also relied on the principle of res ipsa loquitor, relying on the decision in Savitha George vs. National Heart Institute (2004) 8 SCC 56.
8. As noted by the Member who wrote the dissenting judgment the opposite parties have failed to adduce evidence to support the contention that the fracture was due to septic arthritis which is mentioned in the appeal memorandum as pathological fracture. The treatment records etc evidently is in the possession of the opposite parties. They have failed to produce the same. Certainly an adverse inference has to be drawn against the opposite parties. Moreover we find that in Ext.A6 letter dated 7.8.2000 the Administrator of the hospital has admitted the lapse on their part. The relevant paragraph in Ext.A6 is as follows “ they (sic. the) medical superintendent expressed apology for what happened on an earlier occasion when the patient was brought to the out patient department”. Ext.P5 letter was written in response to the letter of the complainant dated 28.7.2000 in answer to letters of the 1st opposite party demanding payment of the medical bill. The complainant has written that the subsequent treatment was necessitated due to the lapse on the part of the staff of the hospital and that it may be recalled that Dr.Jacob Oomman, Medical Superintendent admitted this lapse and asked for the permission of the complainant to conduct the operation at the hospital under his care. He has sought the 1st opposite party in the letter to take the above matters in to consideration in the circumstance so that the matter can be settled smoothly. We find that Ext.P6 letter constitute ample proof that the incident as alleged has taken place. PW1 the complainant, PW2 who accompanied the deceased to the hospital on 27.5.2000 and PW3 who also accompanied the deceased to the hospital on the same day has deposed in support of version in the complaint. Nothing has been brought out in the cross examination of the above witnesses to show that they are not speaking the truth. Further there is no case in the version that the fracture was a secondary pathological fracture. Although the matter was sought to be remanded earlier for adducing further evidence at the instance of the opposite parties after remand they have not adduced any further evidence. Evidence of DW1 the staff nurse is hardly sufficient to disbelieve the version of PWs 2 and 3. It has also to be noted that DW1 is a subordinate of the 1st opposite party although it is mentioned that she is related to the complainant also. We find that the evidence adduced do establish that the incident had taken place on account of the carelessness of the staff of the 1st opposite party.
9. It is seen that the bill amount of Rs.36007.66 has not been paid. In the circumstances noted above the order of the forum is set aside. In view of the fact that the deceased has suffered severe pain during his last days and also of the fact that he was aged around 96 we find that it would be reasonable to direct the opposite parties to pay a compensation of Rs.35000/- with interest at 9% per annum from the date of the complaint. It is also held that the opposite party is not entitled to realise Ext.P1 medical bill amount from the complainant. The complainant is also entitled for cost of Rs.5000/-. The amounts are to be paid within 3 months from the date of receipt of this order failing which the complainant would be entitled for interest at 12% per annum on the due amount from 8.11.10 the date of this order.
10. In the result the appeal is allowed.
Office will forward the LCR to the Forum along with the copy of this order.
JUSTICE SRI.K.R.UDAYABHANU :PRESIDENT
ps
