Date of Filing: 15/06/2015
Date of Order: 13/11/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed under Section 12 of the Consumer Protection Act, 1986 alleging the medical negligence on the part of the O.Ps and prays for orders to direct the O.Ps to pay compensation of Rs.5,50,000/- along with interest at the rate of 2% per month and to pay cost of the proceedings.
2. The brief facts of the complaint are that, complainant has developed swelling on her right palm and for which she have taken treatment on 08.08.2014 with her family doctor at Aswini Clinic who has given Tet-back injection and prescribed mentioned. It is stated that on 11.08.2014 swelling persisted on her right palm and thus she has rushed to O.p.No.1 hospital (Jindal Charitable hospital Bangalore) for major treatment. It is stated that on the above said date sister of the complainant went to the hospital and caught hold the right palm of the complainant and peeled off muscle from the tendered area of her right palm below the little finger and dressed wound. Further O.Ps advised the complainant to visit the hospital on the next day for follow up treatment. Further the complainant having developed unbearable pain and hence went to O.p hospital on 12.08.2014 on that day also O.P.No.2 doctor dressed the wound by further digging the tendered muscle and dressed the wound palm and asked the complainant to come on the next day. It is stated that on account of persisting unbearable pain once again on 13.08.2014 visited the hospital and noticed that the little finger extending palm was turned black in colour and the skin over the little finger up to the palm portion turned to devastate condition. The complainant on questioning the O.Ps about the said condition of the finger, the right palm X-ray and blood report as taken on the same day. The x-ray report was analyzed on 14.08.2014 and the complainant and her daughter questioned the O.Ps and the doctor about the unmindful treatment given to her resulting in large deep wound on tender area of her right palm and little finger because of O.Ps careless treatment. Hence complainant alleged that the concerned sisters and the doctors without living appropriate treatment for simple tender view with cross medical negligence caused large wound in her right palm causing heavy damage to the skin and muscle over the said area. It is stated that the O.Ps doctor advised the complainant to take further treatment in other major hospital as their hospital do not work on 15.08.2014 thus the complainant suspected the treatment given by the O.Ps doctor and hence complainant taken immediate treatment him Supriya hospital on 15.08.2014 and 16.08.2014 where in the wound was dressed well and appraised the complainant that due to the previous dressing coupled with peeling of the muscle from the wounded area carelessly her condition became worsened. Further the Supriya hospital has opined and instructed the complainant to move to higher hospital as the previous bald treatment has aggravated her condition. Therefore, complainant and daughter moved to Chennai for better treatment to save her right arm. It is stated that complainant was firstly treated at Muthokumaran Medical college hospital on 17.08.2014 and further she was referred to General hospital to undergo Emergency vascular surgery. Thus the complainant was shifted to said hospital, on 17.08.2014 and treated as inpatient till 14.09.2014 and finally her right little finger has been amputated on the same day for the decaying conditions, to save her right arm and her life. Hence alleged that complainant became handicapped with the loss of little finger in her right palm due to negligent treatment of the O.Ps. Further complainant states that she was subject to undergo plastic surgery on 04.09.2014 by grafting the screen. Hence complainant alleges that due to act of O.Ps it caused ugly appearance in the right palm on the disarticulation of little finger. Hence it is stated that due to act of O.Ps complainant suffered both physical and mentally and also economically. Hence this complaint.
3. Upon issuance of notice O.Ps entered appearance through its counsel and the O.P.No.1 filed its version and the O.P. No.2 filing memo adopts the version filed by the O.P.No.1. In the version it is contended that O.P No.1 is a public charitable hospital held facility to treat outpatient for economically backward and poor people free of cost. Hence contended that complaint is not maintainable as the service rendered was on humanitarian grounds and for charitable persons. It is contended that O.P No 1 has never treated the complainant at any point of time except dressing of her wound and prescribing medicine and there has been nothing else done on the wound of the complainant. It is further contended that the allegation made in the complaint are baseless and all the allegation denied as false and in correct. It is admitted that on 11.08.2014 complainant with complaints of pain in her right palm visited the O.P.No.1 hospital and on examination it is found that her right palm was already treated in some other hospital. It is also admitted O.P.No.2 doctor dressed the wound, prescribed analgesic injection for pain and gave prescription for antibiotics and anti inflammatory and analgesic drugs and advised the complainant for follow ups and to review the wound and for diabetic check-up. Thereafter the complainant returned back to O.Ps hospital on 12.08.2014 and the O.P No 2 doctor did dressing of the wound and advised the complainant that she needs specialized treatment in a major hospital. Further contended that on 13.08.2014 complainant come with blood and urine report and it was showing high blood sugar 486 mg. and the complainant has deliberately concealed the said fact and has not produced the report before this Hon’ble Forum. It is contented that O.Ps advised the complainant to go to a major hospital for diabetic treatment and wound treatment immediately. Further contended that O.Ps doctor advised the complainant and her adult attendant to visit major hospital immediately. Further the complainant denies all other allegation made in the complaint are all false in correct and ultimately prays for dismissal of the complaint.
4. In order to substantiate the case of the parties and both parties filed their affidavit evidence and we also heard the arguments.
5. On the basis of the pleadings of the parties, the following points will arise for our consideration:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainant is entitled to
the relief as prayed for in the complaint?
(C) Whether the complaint brought by the
complainant is maintainable before the
Forum?
(D) What order?
6. Our answers to the above points are:-
POINT (A) to (C): In the Negative
POINT (D): As per the final order
for the following:
REASONS
POINT No. (A) To (C):-
7. On perusal of the rival pleadings of the parties it is not in dispute that the complainant visited the O.Ps hospital with the complaints of pain in the right palm, little finger and the O.P No.2 doctor dressed the wound and prescribed the medicines. It is also not in the dispute earlier to taking treatment in the O.Ps hospital the complainant took treatment with her family doctor i.e. in Aswini Clinic.
8. It is also not in dispute O.P No.1 hospital is a charitable trust hospital wherein which the complainant got the treatment free of cost only.
9. It is also not in dispute ultimately the little finger of the complainant was amputated at Chennai Hospital as a result of surgery.
10. The sole allegation of the complainant due to wrong treatment given by the O.Ps doctor unmindfully and as a result, the complainant lost her little finger and became handicapped.
11. Per contra O.Ps contended that her sugar level was very high and the complainant suppressed the same. Further contended that O.P.No.1 is a charitable hospital and O.P.No.2 did not treated the complainant but only dressed the wound and advised the complainant immediately go to the major hospital for proper treatment. Hence contended that there is no deficiency in service from the O.Ps hospital.
12. The crux of the matter is to consider whether the O.Ps are negligent in treating the complainant?
13. On perusal of the evidence placed on record it is an admitted facts that the O.P.No.1 charitable hospital and there are only treating outpatient in their hospital. On perusing the affidavit evidence filed by the complainant it also discloses that the complainant did not denied she is having high Sugar level on the day of dressing the wound in the O.P No.1 hospital. Further it is also not denied that the complainant prior to visiting of the O.P.No.1 Hospital she has taken treatment in another hospital. It is worth to note that the complainant did not examined any other doctors in order to establish that O.P.No.2 doctor treated the complainant without reasonable care. So also the complainant did not examined her family doctor in order to establish that she had no high sugar level or a diabetic. In absence of the credible evidence and hence the contention of the O.Ps that the complainant deliberately concealed the said facts and not produced the report is accepted. The evidence placed on record clearly reveals that and also as per saying of the complainant the O.P.No.2 doctor only dressed the wound for couple of times as a outpatient. Hence in absence of credible evidence it cannot be wise enough to reach conclusion that O.P.No.2 doctor unmindfully treated complainant. Further complainant failed to examine any expert in order to establish her case. The Law required that one who alleges medical negligence, the burden always lies on the complainant to prove her case by providing cogent evidence. Under the circumstances we reach to conclusion that the complainant failed to prove deficiency in service on the part of the O.Ps.
14. It is pertinent to note that O.P.No.1 hospital is a charitable hospital and the complainant got treated free of cost. Further the O.Ps also relied on the decision of the Hon’ble Supreme Court that is India Medical Association Vs. V.P.Shantha and others. On going through the above said decision the ratio of the above case aptly applicable to the present case in hand. As per the evidence on record the service availed by the complainant from the O.Ps is free of cost and hence the complaint is not maintainable before this Forum. On this score also complainant is not maintainable before this Forum.
15. Viewing from any angle complainant failed to prove deficiency in service on the part of the O.Ps and hence complainant is not entitled for the relief as sought in the complaint. Accordingly we answered the Points A to C in the Negative.
POINT (C):
16. On the basis of the answering the point A and B and in the result, we proceed to pass the following:-
ORDER
- The complaint is hereby dismissed no order as to cost.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 13th Day of November 2017)
MEMBER MEMBER PRESIDENT
SG
