KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

APPEAL    NO. 410/2015

JUDGMENT  DATED. 30-05-2018

(Appeal filed against the order in  cc.823/12 of the cdrf, Ernakulam )

PRESENT:

HON’BLE JUSTICE   SRI. S.S. SATHEESA CHANDRAN : PRESIDENT

SRI.V.V.JOSE            :MEMBER

APPELLANT:

          The Director, Mar Baselious Medical Mission hospital,

          Kothamangalam, Pin. 686691.

          (By Adv. C. Dilip  & R. Suja Madhav)

RESPONDENTS:

1. K.U. Varghese, Kizhakkanedathu house,

Kanjiravely, Neriamanagalam, Ernakulam District,

Pin. 68 6693.

(By Adv. Tom Joseph)

2. Dr. Sajulal, Surgeon, Mar Baselious Medical Mission hospital,

Kothamanagalam, Pin. 686691.

JUDGMENT

HON’BLE JUSTICE   SRI. S.S. SATHEESA CHANDRAN : PRESIDENT

First opposite party in CC.823/12 on the file of  the Consumer Disputes Redressal Forum, Ernakulam, for short the district forum, has filed this appeal challenging the order of the forum directing that opposite party to pay the treatment expenses incurred by complainant as covered under exhibit A3,  with 12% interest p.a ,  and also to pay compensation of Rs.25,000/- to him.

2.     Short facts necessary for disposal of this appeal can be summed up thus: Complainant approached first opposite party hospital with complaints of back pain and the second opposite party doctor who examined him, instructed to take catamin injection.    Duty nurse administered the injection  over his guttural region.  Complainant, who was treated as an outpatient, reported again at the hospital four days later with complaints of pain over his left leg and,  then,  2^nd opposite party prescribed some tablets.  Since the pain did not subside, two days later,  he approached another hospital,  where the doctor on examination found that he had infected heamatoma on his guttural region.  He was subjected to a surgery next day and was hospitalized till 15.11.12.  He had spent an amount of Rs.50,000/- for his treatment.  Alleging that the administration of injection by the nurse at first opposite party hospital had caused him heamatoma on account of his lack of skill and negligence, complainant imputed medical negligence against the hospital and doctor, and , filed complaint claiming refund of the treatment expenses incurred with compensation and cost.

3.     Opposite parties filed separate versions raising  identical  contentions .  Both contended  that  administration of catrol injection on the guttural region of the complainant was by a competent, skiled and experienced male nurse of the hospital and there is no merit in the allegation imputing negligence on its part.  Even when  complainant   reported again on 31.10.12, the doctor, 2^nd opposite party, after examining him, found there was no symptom of swelling or heamatoma on his guttural region.  Complainant  was advised to undergo ultrasonography (USG) but he declined to do so.  He was also advised to come with USG report if the pain did  not subside, but he never turned up for review is the case of  opposite parties  to contend  that there  was  no negligence on their part or the male nurse who administered the injection,  to refute the claim of compensation.

4.     On the side of complainant,  he  was examined as PW1 and  exhibits A1 to A3 were marked.  For the opposite parties, one witness was examined as BW1 and exhibits B1 and B2 were tendered.

5.     Appreciating the  materials produced and hearing  the counsel on both sides, lower forum concluding that the infected  heamatoma on the guttural region suffered by complainant arose from improper administration of injection by  a   male nurse attached to first opposite party hospital, held that first opposite party was vicariously liable for the  negligence of the nurse.  So far as the 2^nd opposite party  doctor, the forum held that medical negligence imputed against him   has not been proved in the case, and he was absolved.  First opposite party on the conclusion reached as above, was directed to refund the treatment expenses incurred by the complainant under exhibit A3 at a different hospital and also to pay compensation of Rs.25,000/-.  Aggrieved by that order, first opposite party has filed this appeal.    

6.     We heard counsel on both sides.  Learned counsel for the appellant  first opposite  party argued before us that no convincing material was tendered by the complainant to prove that the treatment undergone by him at a different hospital   covered by exhibit A3 arose from the improper administration of injection by the nurse attached to the 1^st opposite party hospital.  He did not  have any swelling or heamatoma when examined by the doctor,   2^nd  opposite party,  on his second visit four days after his first visit at first opposite party hospital,   that he had declined the advice given to have an USG to determine the cause of his pain,  and , later,  he did not appear for review  are  also highlighted by the counsel to contend that solely on the basis of the treatment undergone later at a different hospital for infected haematoma on his guttural region, it is totally unsafe to hold that such haematoma or infection arose from improper administration of the catrol injection in the first opposite party hospital.  Lower forum went wrong in applying the principle of res ipsa loquiter   in the case when there was total lack of evidence to show that there was negligence on the part of the nurse of the first opposite party hospital in administering   injection to the complainant is the submission of the counsel  pointing out   that  the nurse  has not been made a party  in the complaint.  On the other hand, learned counsel for the complainant/respondent submitted that the conclusion drawn by the lower forum to award refund of treatment expenses and compensation to the complainant holding the first opposite party hospital culpable for the medical negligence of the nurse who administered the injection to the complainant in the  proved  facts of the case  is unassailable.  He suffered infected heamatoma on the guttural region solely on account of the improper administration of catrol injection by the male nurse at first opposite party hospital, who was unskilled and inexperienced,  is the submission of the counsel.  When his complaints of pain  over  administration of injection at the first opposite party hospital are looked into with reference to   complications of infected heamatoma in the guttural region where injection was administered and the treatment undergone by him in a different hospital, according to the counsel, it is crystal clear that this was a case where the principle of  resipsa  loquitor  has application, and,  the burden was on the first opposite party hospital to show that there was no negligence on the part of the nurse who administered the injection and that he was  skilled and  experienced.  DW1 was examined by the first opposite party hospital to challenge the case of  complainant,  and,  that witness who claimed to be a male nurse on duty at the hospital when the complainant was treated, in his evidence,  stated that he cannot remember whether he had administered injection to the complainant.  When that be so, the burden cast upon the first opposite party hospital was not discharged,   and,  the lower forum  was  fully justified in awarding him compensation to the complainant,  is the submission of the counsel.

7.     We have given anxious consideration to the submissions  of the counsel on both sides, and,  scrutinized  the records of the case.  We find the lower forum has found fault with the first opposite party hospital in not maintaining  a case sheet showing the names of the doctor who treated and   the nurse who administered the injection on the complainant when he visited   the hospital with complaints of pain .  Exhibit B1 produced by the hospital is  the  record over the outpatient treatment given to the complainant.  Normally, one cannot expect   such record to include the name of the doctor and also that of the nurse.  Reference made by the lower forum to the Medical Practioners’  Regulations 2012 over maintenance of  records cannot be strictly applied over  maintaining of   outpatient records  in a hospital.    So the adverse inference drawn against the first  opposite party hospital over the non-recording of the name of  doctor and the nurse in the   O.P. record   has little merit.  We also notice that the lower forum has applied the principle of resipra  loquitor  to hold   the first opposite party culpable of medical negligence.  Treatment of  complainant at a different hospital for   infected heamatoma over his guttural region where injection of catrol was administered a few days back by  a  male nurse  at  the first opposite party hospital persuaded the lower forum very much to hold that in the given facts and circumstances of the case, the principle of  res ipsa loquitor   has application.  The  above  maxim  simply means the  thing speak for itself.  To apply that principle, there must be some evidence in support of the case canvassed.   Application of the  maxim lend  assistance to the evidence already on record and cannot be a supplement  for  evidence that has to be tendered  to prove medical negligence imputed against the person.  Simply because the complainant suffered infected heamatoma in  his  guttural region a few days after the injection of catrol was administered in that area, it is not possible to hold that the infection  of  heamatoma was on account of the injection,  that alone,  and,  further,  that the injection was improperly administered by an unskilled nurse.  Primarily, negligence over the administration of injection by the nurse must be established by  evidence.  Here, the complainant has not even examined the doctor who treated him in the hospital where he had undergone treatment for the infected heamatoma nor produced any other evidence to show that the infected heamatoma over his guttural region arose from the injection of catrol and that too for the reason it was administered improperly.  Even assuming that the catrol injection administrated   resulted in an  infected heamatoma, it is not sufficient to impute that the injection was administered improperly by an  inexperienced nurse. Learned counsel for the complainant relied on Doon Valley Hospital and others vs Master shivanshu   and others (4(2016)CPJ 43 (WC)) to contend that the principle of  resipsa  loquitor   applied by the lower forum in the present case was  justified.  Perusal of the order of the National Commission relied by the counsel would disclose that the complainant’s case in that reported decision imputing medical negligence was established by valid materials like dopler test and medical records showing that there was negligence while giving IV injection and,  in that context, the principle of resipsa loquitor  was applied as an added factor to buttress the finding of medical negligence against the opposite party.  That is not the situation in the present case where complainant has not let in any material to substantiate his allegation that administration of catrol injection in the first opposite party hospital was done in an improper way and that too by an unskilled and inexperienced nurse.  When such be  the case, we find the orders of the lower forum directing refund of the treatment expenses and compensation to the complainant cannot be sustained.  We set aside the Order of the lower forum and order that  the complaint shall stand dismissed.

        Appeal is allowed directing both parties to suffer their cost.

                   JUSTICE  S.S. SATHEESA CHANDRAN : PRESIDENT

                   V.V.JOSE                                                      : MEMBER

Rj /sh