IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 27th day of December, 2021.
Filed on 16-10-2018
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.279/2018
between
Complainant:- Opposite party:-
Sri.Balachandran Pillai 1. The KCM Hospital
S/o Chellapan Pillai Near Leprosy Sanatorium
Palavila Veedu Nooranadu, Alappuzha-690504
Karikkode, Chandanathoppe P.O.
Kollam-691014 2. The Chairman
( Adv.R.S.Prasanth) KCM Hospital,
Near Leprosy Sanatorium
Nooranadu, Alappuzha-690504
3. Dr.Riswin
KCM Hospital,
Near Leprosy Sanatorium
Nooranadu, Alappuzha-690504
(Adv. Mujeeb Rahman for Ops)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
1. Material averments briefly stated are as follows:-
1st opposite party hospital is specialized in the treatment of deaddiction, the 2nd opposite party is the chairman of the 1st opposite party and the 3rd opposite party is the doctor working in the hospital. On 29.04.16 complainant approached these opposite parties for the treatment of de-addiction as against the consumption of alcohol. The 3rd opposite party after examination advised hospitalization for the treatment and treatment started as IP No.906 and the first phase of treatment was from 29.07.16 to 16.08.16. Complainant was discharged on 16.08.16 and the complainant was insisted to reach the hospital after 10 days.
2. Accordingly on 26-8-16 complainant again got admitted as IP No.993 for the 2nd phase of treatment. He was discharged on 05.09.16 and requested to reach on 7.10.016 for the 3rd phase of treatment. On 07.10.16 complainant was admitted at Chavara ward and his blood checkup was done. Complainant was responding perfectly to the treatments and no adverse situation existed.
3. The 3rd opposite party prescribed for an injection and it is carried out on 07.10.16. The injection resulted damage to the thumb and the fourth and fifth fingers of the left hand. The application of medicines through injection in the complainant’s body resulted in discolour of his forearm turning it blackish. He was facing heavy dehydration and in spite of adapting to immediate remedies opposite parties neglected the same. Thereafter the complainant was shifted to Padmavathy medical foundation at Sasthamcotta on 08.10.16. Since there was no cure complainant was referred to Medical college hospital on 09.10.16 and he was admitted there. After a span of 1 days at medical college and while he was discharged his final diagnosis was as collutis (L) forearm with gangrene thumb, fourth and fifth fingers. 3 fingers were amputed later and this occurred due to the act of negligence by these opposite parties. Complainant was discharged on 20.10.16 from medical college after a fasciotonamy of the dorsal surface. On 3-11-16 he was again admitted at MCH, Thiruvananthapuram and the gangrenes thumb, fourth fifth fingers of left hand was amputed and treated there till 17.11.16. The incident occurred due to the gross medical negligence of the opposite parties and complainant is claiming an amount of Rs.20 lakhs towards damages. Hence the complaint.
4. Opposite parties filed a joint version mainly contenting as follows:-
The averment that complainant approached the opposite parties for treatment for de-addiction against consumption of alcohol on 29-4-16 is false. His admission to the hospital for the treatment was not a voluntary admission. He was forcefully brought to the 1st opposite party by his brother Radhakrishna Pillai and son Anoop. They duly filled the consent form and undertook that it is due to his abnormal and dangerous behavior that he was being admitted. Being a habitual drunkard the complainant was having several medical problems and disabilities at the time of admission to hospital. The treatment was given to cure the existing medical problems of the complainant. There is no negligence or carelessness from the part of the opposite parties.
5. The complainant was discharged on 16-8-16 on completion of the 1st phase of treatment. The complainant’s continuous use of alcohol and other substances caused him to be brought forcefully to the hospital. This was the reason behind taking other phases of treatment. Complainant was again admitted on 26.08.16 due to the compulsion of his relatives.
6. Complainant was again involuntarily admitted for the third phase of treatment on 7-10-16. The allegation that application of medicines in his body resulted in discolouration of left forearm turning into blackish colour is false. The wife of the complainant herself gave information regarding ganja use. There was no injection prescribed by the opposite parties as stated in the complaint. No medication was done causing discolouration. There was no adverse or allergic reaction to the medicines administered to him on all the 3 phases treatment. The medical condition as described in the complaint was not caused as the result of the medicines administrated by the opposite parties. Gangrene can be caused as a result of loss of blood supply resulting from toeing of hand tightly. On 07-10-16 complainant was produced with his hands tied tightly. There was no medical negligence from the part of these opposite parties. Complainant is not entitled for any amount as compensation from these opposite parties. The course of treatment undertook by the opposite parties was the best one suited for the complainant and so there was no medical negligence. Hence the complaint may be dismissed with cost.
7. On the above pleadings following points were raised for consideration:-
- Whether the complaint is barred by limitation under Sec.24 A of the Consumer Protection Act 1986.
- Whether there was medical negligence from the part of opposite parties in treating the complainant?
- Whether the amputation of fingers of the left hand of complainant occurred due to the negligent treatment at the hospital of opposite parties?
- Whether the complainant is entitled to realize an amount of Rs.20,00,000/- as compensation as prayed for?
- Reliefs and cost?
8. Evidence in this case consists of the oral evidence of PW1, PW2 and Exts.A1 to A10 from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B3 series from the side of opposite parties. Ext.X1series and X2 series were also marked.
9. Point No.1:-
At the time of argument the learned counsel appearing for the opposite party pointed out that the complaint is hit by limitation. It was pointed out that the cause of action shown in the complaint is 16-8-16, 26-8-16 and 07-10-16 were as the complaint is seen filed on 16-10-18. Sec.24 A of the Consumer Protection Act 1986 deals with limitation period for admission of a complaint. Sec.24A reads as follows:-
24 A limitation period :-
- The District Forum, the State Forum or the National Commission shall not admit a complaint, unless it is filed within 2 years from the date on which the cause of action has arisen.
- Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section(1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
PROVIDED that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
10. Admittedly from the complainant it is seen that the last phase of treatment started on 7-10-16 and he was admitted at Padmavathy medical foundation at Sasthamkotta on 08-10-16. The complaint is seen filed on 16.10.2018 ie, after 2 years and 9 days. It was held by the Hon’ble Supreme Court in State Bank of India Vs. M/s V.S Agricultural on 20-3-2009 in Civil appeal No.2067 of 2002 it would be seen from the aforesaid provision that it is preemptory in nature and requires consumer Forum to see before it admits the complaint that it has been filed within 2 years from the date of accrual of cause of action. As a matter of law the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within 2 years from the date of accrual of cause of action. It is true that the question of limitation was not raised in the version filed by the opposite party. It was held by the Hon’ble Supreme Court in Union of India and another Vs. British India Corporation Ltd. and others (2003) 9 SCC 50) while dealing with an aspect of limitation for an application of for refund prescribed in Business Profits Tax Act,1947, this court held that the question of limitation was mandate to the Forum and irrespective of the fact whether it was raised or not the Forum must consider and apply it. Hence applying the principles laid down by the Hon’ble Supreme Court it can be seen that the complaint filed after 2 years and 9 days is not maintainable and so this point is found against the complainant.
11. Point No.2 to 4:-
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A9. During cross examination the medical records were marked as Ext.B1 series.
12. PW2 is professor of surgery working at medical college hospital, Thrissur. During 09-10-16 he was working at medical college hospital, Trivandrum. PW1 was admitted on 09-10-16 and discharged on 20-10-16. The medical records are marked as Ext.X1 series. He was treated for the little finger and ring finger of the left hand. There was deficiency of blood circulation to these fingers. At the time of admission fourth and fifth fingers were almost dead. So as per Ext.A5 amputation was suggested. If an injection is done in the artery it may cause such difficulty and it will depend upon the medicine.
13. He had treated PW1again from 3-11-16 to 17-11-16 and the case sheet is marked as Ext.X2 series. The discharge summary issued by him is marked as Ext.A10. As per Ext.A10 two fingers of the left hand (four and five) were amputed.
14. RW1 is the 3rd opposite party. He filed an affidavit in tune with the version and marked Ext.B2 and B3 series.
15. PW1, the complainant was admitted for de-addiction treatment at the 1st opposite party hospital. 2nd opposite party is the chairman of the hospital and the 3rd opposite party is the doctor who treated PW1 . Initially PW1 was admitted on 29/4/2016 and the first phase of treatment was from 29/7/2016 to 16 /8/2016 and the 2nd phase of treatment was from 26/8/2016 to 5 /9/2016. Thereafter PW1 was again admitted on 7/10/2016. The 1st and 2nd phase of treatment were uneventful and during 3rd phase of treatment ie, on 7/10/2016 RW1, doctor prescribed an injection and it was administered upon PW1. After the injection there was discolouration on the left forearm and it turned blackish. Immediately he was shifted to Padmavathi Medical Foundation at Sasthankotta on 8/10/2016 and thereafter he was referred to Medical College Hospital on 9/10/2016 for expert management. PW2 Dr. Anilkumar treated PW1 at Medical College Hospital. Ext.X1 series are the case sheet of Medical College Hospital. PW1 was discharged from Medical College Hospital with an advice to reach the hospital for further treatment. Ext.X2 is the treatment record of Medical College Hospital when he was admitted for the 2nd time on 3/11/2016 and discharged on 11/11/2016. The patient had gangrene (Left thumb 4th and 5th Finger) as per the discharge summary and from the oral evidence of PW2 Dr. Anilkumar it is revealed that the 4th and 5th finger of left arm was amputed under local anesthesia. It is alleged by PW1 that the incident occurred due to negligent treatment at 1st opposite party hospital by the 3rd opposite party and so he has filed the complaint for realizing an amount of Rs.20 lakhs as damages alleging medical negligence. Admittedly PW1 was brought to the hospital for de- addiction treatment. Ext.B1 series is the treatment records of 1st opposite party hospital. 1st and 2nd phase of treatment was uneventful and on 7/10/2016 when PW1 was admitted RW1 prescribed two injections and from Ext.B1 series it is seen that it was administered. Though PW1 contented that he was regularly taking medicines and he had avoided alcohol and smoking after the starting of treatment, Ext.B1 series shows that on 7/10/2016 Pw1 as admitted with a complaint of use of ganja and behavior disturbance. The alleged cause for the negligent is attributed as injunction administered on 7/10/2016. According to Rw1 the 3rd opposite party he had treated him for drug addiction and patient was not co operative and so he had to undergo three phases of treatment. According to PW2 Dr. Anilkumar attached to Medical College Hospital, Trivandrum. PW1 has admitted at the hospital on 9/10/2016 and discharged on 20/10/2016. The right finger and little finger of the left hand was almost dead since there was no blood circulation. PW1 was referred from Padmavathi Medical Foundation, Sasthankotta. Though it was suggested to PW2 that the incident happened to the negligent treatment, PW2 could not answer positively, since he had not seen the records. It is noticed that PW1 was admitted at Padmavathi Medical Mission Hospital immediately after the incident. Though the record was produced none of the doctors from Padmavathi Hospital were examined and the records were not proved. The doctors of Padmavathi Hospital will be able to throw light upon the incident because immediately after the incident PW1 was treated at the Padmavathi Hospital. For the best reason known to the complainant none of the doctors from Padmavathi Hospital were examined. Though PW2 stated that if injection is done at the artery there is possibility of gangrene and swelling, however without ascertaining the type of injection Pw2 could not give a definite answer. He also stated that he could not ascertain whether the gangrene happened due to excess dose. During cross examination PW2 stated that since he has not seen the previous history of PW1 he could not say whether the gangrene happened due to negligent treatment. However from the case history it was revealed that PW1 had a history of smoking and alcoholic. Due to deficiency in immune system the chances of such disease is more. He also stated that the chances are more for a chronic smoker. Admittedly PW1 is a chronic smoker and infact he was admitted in the hospital for de-addiction treatment.
16. Ext.B1(a) is the consent given by Radhakrishnapilla who is the brother of PW1 for treatment on 28/7/2017. Similarly Ext.B1(b) is the consent given on 26/8/2016 by the said Radhakrishnapillai for the treatment. Ext.B1(c) is the consent given by Smt. Bindhu who is the wife of PW1 for treatment on 7/10/2016. Relying upon Ext.B1 series the learned counsel appearing for the opposite party pointed out that infact PW1 was forcefully produced before the hospital for de- addiction treatment. In the proforma of the case record it is stated that the mode of admission was involuntary. It was also pointed out that PW1 was not co-operating with the treatment and that is the reason for admitting him again and again for the treatment. As discussed earlier the incident happened on 7/10/2016 after administering injections upon PW1. However the name of medicine and how it was administered was not asked during the cross examination of RW1. So we are in dark regarding the type of medicine injected upon Pw1. Though PW2 stated that there is possibility of such happening of gangrene if medicine is injected to the artery but without perusing the case records he was unable to explain the same. The case records were not seen handed over to PW2 to identify the medicine and express his expert opinion. According to PW1, the victim though he was treated for de-addiction he could not recover from the same. The incident happened at the 3rd phase of treatment. According to PW1 during the 3rd phase only tablets were prescribed. But it is to be noted that as per the allegation in the complaint the incident happened after administering injection. So it can be seen that PW1 himself is not sure about the incident. In Ext.B1 series though it is stated that at the time of admission on 7/10/2016 that PW1 was using ganja for last four days he denied the same. This attained significance since according to PW2 smoking is one of the causes for gangrene. From the evidence on record it is seen that PW1 has no consistent case and there is no clear medical opinion regarding the negligence attributed to the opposite parties.
17. The law in this regard is well settled by various judicial pronouncements. It was held by the Hon’ble High Court in Mohamed Tariq . A.K and others Vs. Savera Hospital Pvt. Ltd and Others. (2019 (5) KHC 88)
“To fasten liability on a medical practitioner the Court has to ascertain whether there was intentional act or omission or failure on his/her side in administering treatment to one’s patient – If only there was breach or failure to follow the practice acceptable on the part of medical professional and reasonable care, attention and requisite skill expected from an expert, were not provided to save a patient from acute emergency , negligence can be attributed against a doctor – A doctor who is treating a patient may only think to relieve him/her from the sufferings and the well being of the patient will be the only aim of the doctor and normally with all care and skill the doctors will try their level best to save the patient – Normally, a doctor will be taking the effort and risk even in cases where hard and risk factors are involved with the ultimate aim to save the patient and he will be satisfied only if the best treatment is provided to the patient – But, unfortunately an error or wrong judgment may happen in rare cases – It is well settled that a mere error or a mistake in indentifying the disease or lack of high skill may not amount to negligence – If requisite skill, reasonable attention and reasonable care are provided to a patient, a doctor cannot be said to be negligent in his activities.”
18. It was held by the Hon’ble National Consumer Disputes Redressal Commission in Girishchandra V.Bhatt and Ors Vs. Sterling Hospital (2018(2) CPR 296 )
“ Torts – Medical Negligence – Expert witness plays an essential role in determining medical negligence – Courts by and large rely on expert witness testimony to establish standards of care germane to a medical negligence case – Generally, purpose of expert witness is to describe standards of care relevant to a given case, identify any breaches in those standards, and if so noted, render an opinion as to whether those breaches are the most likely cause of injury – Expert witness is given more latitude”.
It was hled by the Hon’ble Supreme Court in Dr.S.K.Jhunjhunwala V. Mrs. Dhanwanti Kumar &Anr (2018 AIAR (Civil) 1083 ).
Medical negligence of a professional doctor and his liability for his medical acts/advice given by him/her to his/ her patient – Principle by which the court should decide the issue of – Standard of care required by both of professional men generally and medical practitioner in particular applied as a touchstone to test the pleas of medical negligence – A physician would not assure the patient of full recovery in every case- A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on – The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence – This is what the entire person approaching the professional can expect- Judged by this standard, a professional may be held liable for negligence on one of two findings: (i) either he was not possessed of the requisite skill which he professed to have possessed, (ii) he did not exercise, with reasonable competence in the given case, the skill which he did possess- The fact that a defendant charged with negligence acted with accord with the general and approved practice is enough to clear him of the charge- The standard of case, when assessing the practice as adopted is judged in the incident and not at the time of the trial- The standard to be applied for judging whether the person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession- It is not possible for every professional to possess the highest level of expertise or skill in that branch which he practices- A medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another- A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
“It was held that a Physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did not possess”.
19. Applying the principle laid down in the decisions referred supra it can be seen that complainant could not prove the medical negligence alleged against RW1 doctor. As discussed earlier the only expert who was examined as PW2 could not say definite reasons regarding negligence. He would say that this can happen to a chronic smoker and a person who is consuming alcohol . It is to be remembered that PW1 was admitted in the hospital for de-addiction treatment. Though the cause of incident is attributed to an injection administered upon PW1 on 7/10/2016 there is no evidence on record to even the name of medicine which was injected and the dosage except bald allegation that the incident happened after administering injection. In other words it can be seen that sufficient evidence is not available to prove negligence alleged against opposite parties. Besides that while considering point No.1 we have already found that the complaint is hit by limitation since it is not filed within two years from the date of cause of action. In said circumstances we are of considered opinion that complainant is not entitled to get any relief as prayed for and so these points are found against the complainant.
20. Point No.5.
In the result, complaint is dismissed. Parties are directed to bear their respective cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 27th day of December, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Balachandran Pillai (Complainant)
PW2 - Dr. Anilkumar.S(Witness)
Ext.A1 - IP Bill
Ext.A2 - IP Bill
Ext.A3 - Copy of OP card
Ext.A4 - Case Summary & Discharge Record
Ext.A5 - Discharge Summary
Ext.A6 - Photographs
Ext.A7 - Lawyers Notice
Ext.A8 - Postal Receipts
Ext.A9 - AD Cards
Ext.A10 - Discharge Summary
Evidence of the opposite parties:-
RW1 - Dr. Riswin.R
Ext.B1series - Treatment Records
Ext.B2 - Lawyers Notice
Ext.B3 - Envelop with AD card
Ext.X1series - Case records
Ext.X2 series - Treatment Records
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
