Date of Filing: 09/08/2011
Date of Order: 03/01/2012
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 3rd DAY OF JANUARY 2012
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.Sc.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
C.C. NO.1485 OF 2011
Sri.A.V.Balakrishna,
S/o. A.Venkata Subbiah,
Aged About 82 years, Former General Manager
Of Karnataka Power Corporation Ltd.,
R/at: No.191, 1N Block, VII Cross,
Rajajinagar, Bangalore-560 010.
(Rep. by Sri.Raghavendra Rao, Advocate) …. Complainant.
V/s
Fortis Hospital, 111, West of Chord Road,
Opposite Rajajinagar Block I Junction,
BANGALORE-560 086.
By Administrator Sri.Joseph Pasnagha.
(Rep. by Sri.Radha Pyari, Advocate) …. Opposite Party.
BY SRI. KESHAV RAO PATIL, MEMBER
-: ORDER:-
The complainant had made this complaint U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay the sum of Rs.10,10,000/- alleging:
The complainant and his wife, Late Jaya Balakrishna are residents of the above address. The complainant happens to be a former General Manager of Karnataka Power Corporation Limited. He has three daughters who all are in USA. The complainant and his wife went to USA to visit their children on 22.07.2010 and returned to Bangalore on 09.02.2011. The complainant’s wife, Jaya Balakrishna, aged about 73 years was a longtime diabetic and had undergone Bypass Surgery in Wockhardt Hospital in Cunningham Road, Bangalore on 31.12.1998. By being very strict in her diet and habits and with regular check ups by doctors in Wockhardt Hospital, Cunningham Road, Bangalore, My Diabetic Center, Vyalikaval, Bangalore and Retina Institute of Karnataka, Chamarajpet, Bangalore, she had been maintaining a fairly good health. On return from USA, the complainant took his wife to My Center for Diabetics for a complete check up on 15.02.
The complainant has spent a sum of Rs.25,000/- towards the tests conducted and towards the fee and other expenses charged by the OP Hospital which has gone in vain. The complainant has suffered enormous mental strain during the treatment of his wife and has suffered severe shock due the deficient handling of the patient by the OP hospital eventually leading to the death of his wife who lived with him for nearly half a cent8ury. The complainant is all the more aggrieved by the fact that during the treatment period of less than 33 Hours he was not given any opportunity to talk to his wife and take her suggestion either for continuing the treatment or for taking a second opinion for treatment elsewhere and this has saddened the complainant. Even though the complainant was physically present in the OP hospital, he could not speak to his wife one last word for the last time in her life after she was taken away in a wheel chair to the ICU. Hence the complaint.
2. The opposite party has filed its version seeking dismissal of the complaint on the following grounds:-
And that there is no negligence whatsoever either on the part of the hospital or the treating doctor concerned as alleged by the complainants. The opposite party further submits that the compensation/damages claimed to the extent of Rs.10,00,000/- is not only legally untenable but also reflective of the Complainant’s greed and avarice.
3. To substantiate their respective cases, the complainant had filed his affidavit and documents. The opposite party has filed the affidavit of Joseph Pasangha who is the Facility Director of the opposite party and also of Dr.Sreekanth Shetty along with certain documents. The arguments were heard.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether there is deficiency in service/unfair trade practice?
- What Order?
5. Our findings are:-
Point (A) & (B): As per the final Order
for the following:-
-:REASONS:-
Point A & B:-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact by both the parties that Smt.Jaya Balakrishna is the wife of the complainant who was aged 75 years. It is also an admitted fact that on 20.02.2011 the said wife of the complainant at 6.43 AM was brought to the opposite party’s hospital, she was treated for something she was discharged at 12.45 PM and in the opposite party’s hospital itself she died at 3.00 PM. Regarding this the complainant alleges deficiency in service and unfair trade practice. This deficiency of service and unfair trade practice has been denied. We are not concerned with Medical Negligence in this case. It is the deficiency in service and unfair trade practice that has been pressed in to service.
7. The admitted facts show that the Complainant’s wife a known case of diabetic and I.H.D. having undergone C.A.B.G. operation and aged 73 years was admitted to the OP hospital and after preliminary examination required for diagnosing the ailment and treatment the patient was admitted and put on a Ventilator with sedation. The facts alleged by the OP Hospital show thatthere was fluid in the lungs and it had to be drained out. Though she was admitted in the early hours of the morning of 20.02.2011 the blood pressure though normal in the morning of 20.02.2011 the blood pressure though normal in the morning and afternoon started falling in the evening by about 5.00 PM and by about 7.45 AM of 21.02.2011 the blood pressure had dropped fast and had reached precarious level that it appears that only at 11.15 AM the OP hospital advised the complainant to shift her to a higher medical center on the ground that facilities for boosting the blood pressure by instrument I.A.B.P. was not available in the OP hospital. The Columbia Asia Hospital which was suggested for shifting the patient also did not agree to receive the patient on the ground that the patient would not survive the journey and thus with no better treatment required for in an emergency condition, the wife of the complainant died at 3.00 PM. Thus the complainant grievance that the OP hospital having no facility for emergency treatment was wrong in continuing the treatment form the evening of 20.02.2011 when the blood pressure of the patient started falling and to a dangerous level by 7.45 AM, on 21.02.2011. This grievance cannot be said to be unjustified and to this extent the OP hospital was deficient in its service to the patient in question.
8. It is further an admitted that the deceased had bypass surgery at Wockhardt Hospital in Cunningham Road, Bangalore, in the year 1988, she had very strict in her diet and food habits she had up to date checking in Wockhardt Hospital in Cunningham Road and in “My Diabetic Center” at Vyalikaval on 15.02.2011 also she had a check up of diabetes which was well under control. On 17.02.2011 she developed cough and sore throat. She was given the cough syrup by the concerned doctor, she attended to all of her household chores as usual on 18.02.2011 and on 19.02.2011 at 11 PM she went to bed. On 20.02.2011 at 5.45 PM she was little uncomfortable and the complainant advised her to come to hospital, she agreed, woke up from her bed, went to toilet, rearranged her saree properly, unlocked the almirah, kept her earrings inside, again locked the almirah, put on her slippers and walked to the auto which was brought by the neighbor and sat in the auto by herself. She was taken to the opposite party on that day. The duty doctor told the complainant that she will be taken to the ICU and the complainant had to fill up the formalities of admissions etc., and when he came out he saw the deceased was put in to ventilator, being sedated. This was not told to the complainant earlier by the duty doctor. Even the complainant asked the reason for the ventilation, Duty Doctor did not responded. When the hospital had no facility of oxygen or controlling BP the opposite party would not have admitted the patient at the early hours of the day, it could have rejected for admission and would have given first aid and told the complainant to shift the patient to another major hospital on the early hours at least at 7.45AM that has not been done. From 7.45 AM till 11.00 AM the hospital authorities attended the patient though they knew that their hospital has no facility to treat the patient, still to get more money they kept the patient till 11.15 AM and told the complainant to shift her to another hospital. Even the other hospital when contacted and explained the condition of the patient they said her condition is unstable and she cannot be shifted to any other hospital and she cannot perform the journey. Even then the opposite party has discharged the patient. This is nothing but an unfair trade practice as rightly contended. Only to escape the responsibility the opposite party did it as rightly contended.
9. Even otherwise why the discharge summery was not given to the complainant immediately after the discharge? there is no answer. That discharge summery is produced along with the version now this clearly goes to show the deficiency in service and unfair trade practice. The discharge summery they could create and concoct anything now. In a case between S.R.Shivaprakash and others –V/s- Wockhardt Hospital Limited & Others reported in II (2006) CPJ 123 the Hon’ble National Commission has ruled thus:-
“Consumer Protection Act, 1986 – Section 2(1)(g) – Medical Services – Non-supply of relevant documents – Obligation of hospital/doctor to supply all records containing treatment given, medicines administered and nature of operation – Non-supply of same, deficiency in service.”
This in all force applies to the facts and circumstances of this case as rightly contended. Hence there is deficiency in service on this ground also.
10. The opposite party knew that their hospital lacks facilities in treating the patient like the deceased, even then instead of sending her back the patient after attending to the first aid at 7.45 AM, they keeping the patient till 11.45 AM and then discharging the patient and asking the complainant to shift her to another hospital which could not be done because of the circumstances, is only to get more money and money and money only. This is nothing but unfair trade practice.
11. As regards compensation is concerned considering the age of the patient and that she is a house-wife and a home-maker and having regard to the pre-existing ailments she would have lived for another 9 to 10 years and taking a moderate expectation of life the forum can calculate on the basis of average loss of income/facility and assess the law and award compensation. Merely because the wife of the complainant was 73 years her death cannot be said to be of no consequence or suffering for the complainant. The complainant did not have the satisfaction of giving the best treatment possible to his wife and this feeling has saddened him all the more.
12. Now we have to see what is the compensation that has to be awarded in a case like this. It is held by the Apex Court and the National Commission the principals of compensation in a motor vehicle case has to be adopted here also. Considering the age of the deceased 9 or 10 multiplier has to be taken into consideration as the deceased aged about 73 or 75 years age. She was doing all the house hold work i.e., preparation of the food cleaning and looking after the house hold chores has to look to the comforts of the husband, and maintenance as a matrian; looking to that we can presume her services may be calculated at 5,000/- per month; in that her maintenance and other expenses could be deducted up to 50% then her income will be 2,500 per month and this is a lose to the complainant. Further at this old age the complainant has to leave alone without wife as the children being far away from India hence, there will be lot of discomfort and mental agony to the complainant. Taking all this in the account if we direct the opposite party to pay Rs.3,00,000/- we think that will meet the ends of justice. Hence, we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite party is directed to pay to the complainant the sum of Rs.3,00,000/- within 30 days from the date of this order.
3. The opposite party is also directed to pay Rs.2,000/- towards costs of this litigation.
4. The opposite party is directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 3rd Day of January 2012)
MEMBER MEMBER PRESIDENT
