This complaint coming up before us for final hearing on 13-10-14                   in the presence of Sri G.Syam Ratna Raj, advocate for complainants and of Sri M.V. Subba Rao, advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President: -    The complainants filed this complaint u/s 12 of the Consumer Protection Act seeking compensation  of Rs.9,00,000/- from the opposite party for the death of one Sk. Abdul Rasool complaining deficiency in service and costs of Rs.10,000/-.

2.   In short the complaint averments are these:

          The complainants are wife and son of one Shaik Abdul Rasool, a retired employee of BSNL. The said Rasool was insured under the Health Insurance Package of BSNL.  The said Rasool on 16-11-12 joined in the hospital of the opposite party for treatment of his illness and ailment.      The opposite parties issued estimation certificates on 16-11-12 and 26-11-12 for treatment, bed charges and consultation etc.   The opposite party sent specimen for clinical analysis to diagnose the actual disease and cause for illness of the said Rasool.   The opposite party though received clinical report failed to inform contents of the said report to the complainants or their family members.   The opposite party discharged the said Rasool from its hospital on 28-11-12 after advising some medicines.   By the date of discharge the hospital authorities were aware that the said Rasool needed treatment under the supervision of an oncologist.    The opposite party failed to give proper advice and treatment to the said Rasool.   The opposite party on 22-12-12 issued a requisition to M/s Indo American Cancer Hospital, Hyderabad to provide further treatment. Meanwhile cancer cells in the body of the said Rasool had increased and moved to an advanced stage by the date when the opposite party recommended to oncologist.     The opposite party negligently and recklessly raised bills to squeeze money to satisfy their lust from BSNL on the admission of the said Rasool.    The opposite party caused a lot of delay in referring the said Rasool to an oncologist.   The opposite parties did so intentionally to grab money towards unnecessary treatment of the said Rasool in hiding the actual disease.   Family members of the said Rasool suffered a lot of mental agony, tension and harassment.   There was every possibility of the deceased surviving if proper treatment was given or advised at the earliest.   The 1^st complainant lost her husband by the above acts of the opposite party and became a widow.  The pensionary benefits were reduced to more than 50%.   The complainants therefore are entitled to claim Rs.9,00,000/- towards compensation from the opposite party.

3.   The contention of the opposite party in brief is hereunder:

        The complainants suppressed about the treatment taken by Shaik Abdul Rasool in the opposite party’s hospital from 26-07-12 to   01-08-12 for Acute Calculus Cholecysitis.   The opposite party during that period administered conservative treatment due to co-morbid conditions of the said Rasool (moderate to severe obstructive lung disease, IHD and high renal parameters with one kidney).   The said Rasool did not come up for follow up treatment after 01-08-12 as instructed.   The opposite party got admitted the said Rasool in its hospital on 16-11-12 for abdominal pain and pain on left side chest.   After obtaining the high risk consent from the said Rasool, the opposite party on 17-11-12 did laparotomy and subtotal cholecystectomy.   During surgery the surgeon found dense, hard adhesions between gall bladder and omentum, duodenum eroding the outer layer of 1^st part of duodenum with impending perforation along with multiple gall bladder stones with thick pus.  The opposite party sent specimen for out source lab for histopathological examination.   The post operative period was uneventful except discharge of pus on 24-11-12 and the opposite party treated it.   The opposite party discharged the said Rasool on 28-11-12 and advised to take prescribed medication and review after five days .   The opposite party received histopathological report dated 27-11-12 from the lab after the said Rasool was discharged from the opposite party hospital.   The report was well known to the complainants and also to the deceased and the condition was explained to him and his attenders during their surgical out-patient visit on 03-12-12. As condition of the said Rasool was not satisfactory for further treatment for gall bladder carcinoma the opposite party through its general surgeon treated him with further course of medication to relieve his pain, residual infection and improve general condition.  The said Rasool again got admitted in the hospital of the opposite party on 14-12-12 for pain in the operated site.   The investigations showed (infective) in the gall bladder fossa.   The opposite party treated the said Rasool with broad spectrum antibiotic and analgesics.   Symptoms of the said Rasool were reduced on      17-12-12 and he was comfortable and his vitals were stable with medications and care administered by the opposite party.  The opposite party discharged the said Rasool on 19-12-12 and was asked to go to higher center for further treatment under oncologist.   The opposite party treated the said Rasool with high standard protocols.   After receiving pathology report only the opposite party advised the complainant to move to a higher center.   The complainant is frivolous and filed with an intention to somehow squeeze money from the opposite party.  The opposite party did not commit any deficiency in service.   The complaint therefore may be dismissed.

4.   Exs.A-1 to A-10 and Exs.B-1 to B-4 were marked on behalf of complainants and opposite party.

5.   Now the points that arose for consideration in this complaint are these:

1. Whether the opposite parties committed deficiency in service in treating the Shaik Abdul Rasool?
2. Whether the complainants are entitled to compensation and if so to what amount?
3. To what relief?

6.    Admitted facts in this case are these:

1. The opposite party provided treatment to Sk. Abdul Rasool during 16-11-12 – 28-11-12 (Ex.A-7 = B-2).
2. The opposite party issued estimates to the said Rasool  on 14-11-12, 16-11-12 and 26-11-12 (Exs.A-1 ,2,3 & 5)
3. Dr. S. Uma Sankar sent specimen to M/s Cysto Histo-pathology Laboratory on 20-11-12 (Ex.A-4).
4. The opposite parties issued a referral letter on 22-12-12 to an oncologist of M/s Indo American Cancer Hospital, Hyderabad (Ex.A-6).

7.  POINT No.1:-   In Nizam Institute of Medical Sciences vs. Prashanth S. Dhananka and others 2009 (2) CPJ 61 (SC) it was held that in a case involving medical negligence the initial burden is on the complainant, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or a doctor concerned the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy that there was no lack of care or diligence.

8.     In Kusum Sharma and others v. Batra Hospital & Medical Research Centre and others, (2010) (I) CPJ 29 (SC)

the Hon’ble Supreme Court laid down guidelines for deciding negligence or deficiency of service in medical profession and they are reproduced under:

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence.   The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.   Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.    
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.   Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.  Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”

9.      The initial burden is on the complainants to prove the deficiency in service complained. In order to discharge their burden the complainants examined the author of the original of Ex-A4 as Pw2. The 1^st complainant filed evidence affidavit on 19-06-14 reiterating complaint averments. Like wise the opposite party also. Neither the complainant nor the opposite party did chose to cross examine their respective opponent.

10. The relevant portion in the complaint as well as in the chief affidavit of 1^st complainant is extracted below for better appreciation.

” Subsequently late Shaik Abdul Rasool was discharged from the hospital on 28-11-12 after advising some medicines. By the date of discharge the hospital authorities were vey known that late Shaik Abdul Rasool was needed treatment under the supervision of Oncologist. The opposite party with out giving proper advice and proper  treatment simply giving admission to Shaik Abdul Rasool and providing simple  treatment  and raising bills to an high extent and encashing them through B.S.N.L. even for not providing any surgeries and treatment. On 22-12-12 the opposite party authorities issued a requisition to the Oncologist, The Indo American Cancer Hospital, Hyderabad to provide proper treatment and do needful to late Shaik Abdul Rasool……… Mean while, the cells of cancer in the body of late Shaik Abdul Rasool were increased and were moved to advanced stage by the date when the opposite party recommended to the Oncologist, The Indo American Cancer Hospital, Hyderabad.  Whether the opposite party might have been suggested to take treatment at Indo American Cancer Hospital at Hyderabad while he was initially observed on 14-11-12 at their hospital there were lot of chances of survivelance of late Shaik Abdul Rasool and there was every possibility for the deceased to control the pain and sufferings prior to intimation by the opposite party.   

The above averments revealed that cells of carcinoma have increased during 27/28-11-12 – 22-12-12 and the stage of carcinoma had been advanced.   

11.   It is the contention of the complainants that they came to know that the said Abdul Rasool was suffering from carcinoma on 22-12-12 only.  On the other hand the contention of the opposite party is that the hospital authorities received the original of Ex-A4 after discharge of the patient and explained condition of the said Rasool when attended for follow up treatment on 03-12-12. The complainants have to prove that the stage of carcinoma existed on 27/28-11-12 and on 22-12-12 were different and due to that the cancer in the body of the said Rasool spilled over to an advanced stage.

12.   P.W-2 is a pathologist who examined the specimen and issued the original of Ex-A4. PW-2 stated that on 20-11-12 she received specimen from Dr.Uma Sankar of Lalitha Hospital, Guntur for biopsy and sent the original of Ex.A-4 on 27-11-12.  PW-2 stated that she could not say who brought the specimen for biopsy.  It is in the evidence of PW-2 that patient’s attendants collected the original of Ex.A-4 to her remembrance and it was not specifically mentioned in Ex.X-1 that patient’s attendants collected the original of Ex.A-4.  But the opposite party in his evidence affidavit filed on 08-07-14 mentioned “This opposite party received the histopathology report dated as 27-11-12 from the lab after the patient was discharged from the hospital”.  The above averments in the opposite party’s affidavit lead us to draw an inference that PW-2 has not spoken truth. 

13.   The opposite parties filed Ex.B-4 contending that the said Rasool took treatment in their hospital during 14-12-12 – 19-12-12.  The opposite party did not refer to the original of Ex.A-4 in Ex.B-4 discharge summary (in type) though aware and it amounted to a lapse. The said lapse in our considered opinion is a minor one in view of Ex-A6.

14.   Now this Forum has to consider whether the delay if any by the opposite party in referring the said Rasool to an Oncologist aggravated the decease and the evidence of PW-2 is sufficient to prove the complained deficiency.  Even according to the complainants also they were aware that the said Rasool was suffering from carcinoma in the least by 22-12-12.  Ex.A-8 is copy of discharge summery issued by M/s.Basavatharakam Indo American Caner Hospital & Research Institute, Hyderabad.  Ex.A-8 revealed that the said Rasool got admitted in M/s.Basavatharakam Indo American Caner Hospital & Research Institute, Hyderabad on 28-01-13 and got discharged on  29-01-13.  The complaint as well as evidence affidavit of 1^st complainant was silent regarding treatment if any taken by the said Rasool during 22-12-12 – 28-01-13. PW-2 stated that the patient was suffering from 3^rd stage of carcinoma to her knowledge.  The complainants ought to have examined an Oncologist for proving the stages of carcinoma on 27-11-12, 22-12-12 & 28-01-13 and the chance of survival of the said Rasool if referred to an Oncologist on 27/28-11-12 or in the least by 03-12-12.  The complainants for the reasons best known to them did not examine any Oncologist to prove their said contention.  Ex.A-8 revealed that the complainants or other family members did not take the said Rasool to an Oncologist on 22-12-12 or immediately there after.  Ex.A-8 further revealed that the complainants further delayed by 36 days in taking the said Rasool to an Oncologist after 22-12-12. We therefore opine that the complainants failed miserably in discharging their initial burden in proving the complained deficiency in service by cogent evidence.    In view of the afore mentioned discussion we opine that the opposite party did not commit any deficiency in service and answer this point against the complainant. 

15.    POINT NO.2:-  In view of above findings we hold that the complainants are not entitled to any compensation and answer this point also against the complainants. 

16.    POINT NO.3:-  In view of above findings in the result the complaint is dismissed without costs. 

     Dictated to Junior Stenographer, transcribed by her, corrected by me and pronounced in the open Forum dated this the 20^th day of October, 2014.

MEMBER                                 MEMBER                          PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

P.W. – 2  :  Dr.I.V.Renuka. 

For opposite party:-

                                                                                         PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.