KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO. 213/11
JUDGMENT DATED : 29.12.11
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
1. The Director, Medical Trust Hospital,
Ernakulam, Kochi – 16.
: APPELLANTS
2. Dr. V.M. Khaleel
Ortho Surgeon, Medical Trust Hospital,
Ernakulam, Kochi – 16.
(By Adv. R. S. Kalkura)
Vs
Joy M.K., Mattathil House,
Cheruvalloor P.O., Koratty Via, : RESPONDENT
Thrissur - 680321
JUDGMENT
SHRI. M.K. ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Ernakulam in CC No. 230/08 order dated: 25.9.2010. The appellants are the opposite parties and the respondent is the complainant in the above said OP.
2. In the brief of the case is that the complainant approached the 1st opposite party hospital with numbness of his middle and ring fingers. The 2nd opposite party diagnosed his illness as carpel tunnel syndrome. Accordingly, he had undergone operation on 13.2.2008. However, the situation became aggravated after the operation. Thereafter, though he had consulted the 2nd opposite party thrice to get his pain reduced, the efforts were in vain. Subsequently, he learned from Medical experts that the place of incision was not in the exact place and the administration of general anesthesia is not necessary for the operation. The complainant apprehends that the operation was performed by one of the junior doctors of the 2nd opposite party. Thus the complainant is before us seeking direction against the opposite parties to pay compensation of Rs. 5,00,000/-.
3. The opposite parties contended in their version that the complainant approached the 1st opposite party hospital on 2.2.08 with complaints of pain and tingling numbness both upper limbs of the hands for 2 weeks. The disease was diagnosed as bilateral carpal tunnel syndrome. On 12.2.08 the complainant was admitted for undergoing the carpal tunnel release of right wrist surgery. The surgery was performed on 13.2.2008 by cutting flexor retinaculum under general anesthesia. The patient came for review on 16.2.08, 28.2.08 and 18.3.08. Again on 31.3.08 the complainant came to the hospital and he was referred to Dr. K.G. Bhaskara, Plastic Surgeon, He advised the complainant to take medication for 2 weeks and come for review after 2 weeks. Thereafter the complainant has not responded. There is no deficiency of service of whatever nature or negligence on the part of the opposite parties. The opposite parties request to dismiss the complaint.
4. The evidence consisted of oral testimony of PW1 and Exts. A1 to A16 were marked from the part of the complainant and the 2nd opposite party and the witness for the opposite party were examined as DWs 1 and 2 respectively. Exts. B1 to B3 were marked on their side. Both sides filed argument notes Forum below and heard both in detail and passed the above impugned order.
5. On this day, this appeal came before this commission for final hearing the counsel for the appellant is present and the respondent/complainant is present party in person. Both argued their cases in detail. The Counsel for the appellant argued vehemently the appeal on the basis of the grounds of appeal memorandum that the order passed by the Forum below is not accordance with the expert opinion. He submitted that the medical negligence cases; it is the duty of the complainant to adduce expert opinion regarding the deficiency in service sustained to him during the course of the treatment of the Doctor. He submitted that in this case; the earlier testimony of the complainant and the documents Exts. A1 to A16 no other expert opinion adduced by the complainant to proves his complaint. He invited the attention of this commission is that in Martin Dizosa’s case, the Supreme Court settled the position that the Medical Expert Opinion is necessary for even numbering of the complaint. It means that the complainant cannot approach to the court without any expert opinion. It is nothing but an experimental. He did not prove the allegation. In the circumstance, the Forum below failed to appreciate the entire fact and circumstance of the case. The order passed by the Forum below is not legally sustainable hence it is liable to be caushed. But other side, the complainant party in person who appeared and, submitted that during the cross examination of the DW1 and DW2 . Thus who are the witnesses cited and examined by opposite parties to prove their innocents; seeing that the operation is admitted and the defect on finger is also admitted by them. During the cross examination of the Doctor concern, from the opposite parties hospital, the DW2 clearly disposed that there is no necessary of administrating general anesthesia in the case of this type of surgeries. He also submitted that there is no explanation from their part even though DW1 and DW2 and the Doctors; the alleged defect occurred on the thumb of the complainant is not due to the negligence and carelessness in the operation done by the 2nd opposite party. He submitted that the opposite party can also adduce any independent medical expert to prove their innocents. Moreover, he submitted that the deposition of DWs1, 2 and 3 it is proved that they committed deficiency in service and unfair trade practice in the operation of the complainant in their hospital. In such circumstance, the complainant need not be taken any steps to prove through any other independent expert. Moreover, he submitted that he approached ever so many medical experts for giving evidence but anybody were ready to depose against their fellow doctors. He submitted that he suffered lot due to the negligent and carelessness of the 2nd opposite party doctors those who worked in the 1st opposite party hospital. He showed his thumb in the open court, but we are not taking it as evidence we cannot say reason for such a defects occurred to his thumb.
6. We are seeing that the defects on thumb of the complainant were incidentally due to the negligent and carelessness operation of the 2nd opposite party. The deposition of DWs 2 and 3 corroborates this fact. The general anesthesia was given to him unnecessarily before given the general anesthesia to the patient there was no routine examination was done by the 2nd opposite party of the 1st opposite party. The contention of the opposite parties is that is highly necessary to adduce expert evidence is not necessary in all the cases. In this case, from the available evidence of the DWs2 and DW3 it is clearly established that they committed deficiency in service. In other hand from the evidence we are seeing that the opposite parties did not peruse the earlier case sheet of the complainant/patient before given anesthesia and surgery even though he is a regular patient of the hospital. This is nothing but a patent negligence and careless on their part. The Honorable Supreme Court settled this position of law. In the decision Lakshmanan, Balakrishnan Vs Dr. Trumback Bapu got hold and another AER 1969 SC 128 Page No. 50).
They are:
a) That a Doctor exercised due of care in decides in whether to undertake the case of the complainant.
b) That he exercised reasonable decree and care in decide with treatment to be given to the complainant as per the established medical norms.
c) That he exercised a due of care in administrate all the treatments.
7. This principle totally ignored in this case by the 2nd opposite party During the course of treatment of the complainant the principle of “recap a lequota” is totally on the hands of the opposite party treated doctor and hospital. It is a well settled principle of medical negligence cases.
8. On the basis of the arguments of the counsel for the appellant and the complainant/ patient (party in person) we are seeing that the order passed by the Forum below is strictly accordance with the provisions of law and evidence. It is legally sustainable. Treating the matter as all as taking in to account both opposite parties who committed deficiency in service on the part of them. The complainant suffered huge sufferings due to this reasons. Hence the Forum below ordered to pay a compensation of Rs.50,000/- to the complainant by the opposite parties. We uphold this view and findings of the Forum below. The order of the Forum below is very reasonable. There is no appeal prefers from this order by the respondent/complainant for enhancing the compensation, cost, interest etc. In the circumstance, we can do anything regarding his grievances. We noticed the permanently disabled thump of the complainant in the open court.
In the result, the appeal is dismissed and confirmed the order passed by the Forum below.
The points of the appeal discussed one by one and answered on the strength of the evidence available in the case and the arguments of the both parties. No cost ordered.
M.K. ABDULLA SONA : MEMBER
M.V. VISWANATHAN : JUDICIAL MEMBER
DA
