KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

  APPEAL  NO. 384/2011

                            JUDGMENT  DATED:06-03-2012

PRESENT:

SHRI.S.CHANDRAMOHAN NAIR                    : MEMBER

SMT. A.RADHA                                                  : MEMBER

1.      The Managing Director,

Matha Hospital,

Thellakom P.O, Kottayam.

                                                                   : APPELLANTS

2.      The Administrator,

Matha Hospital,

Thellakom P.O, Kottayam.

(By Adv: Sri.M.C.Suresh)

          Vs.

1.      Lizy Cherian,

W/o Jacob C George,

Valumannil House,

Thekkemala, Kozhenchery,

Pathanamthitta District.

(By Adv: Sri.V.K. Mohankumar)

                                                                   : RESPONDENTS

2.      The United India Insurance Co Ltd.,

Municipal Shopping Complex,

Muvattupuzha.

(By Adv:Sri. R.Jagadishkumar)

                                                  JUDGMENT

SHRI. S. CHANDRAMOHAN NAIR : MEMBER

The order dated:28.4.2011 of CDRF, Kottayam in CC.206/06 is being challenged in this appeal by the 1^st and 2^nd opposite parties calling for the interference of this commission as to the sustainability of the order passed by the Forum.  As per the impugned order the opposite parties are ordered to pay an amount of Rs.10,00,000/- as compensation out of which 3^rd opposite party is liable to pay Rs.4,75,000/- and the balance is to be paid by the 1^st and 2^nd opposite parties.  The order was to be complied within 30 days from the date of receipt of the order failing which 9% interest from the date of complaint till realization was also directed to be paid by the opposite parties.

2.      The complainant had approached the Forum stating that she was admitted in the 1^st opposite party hospital on 28.3.06 with the complaint of stomach ache and that she was advised to undergo a scanning and it was informed that she had no special problems.  However the complainant reported suffering from pain and she was suddenly subjected to celiac plexus block.  It is her case that due to the negligent treatment, the complainant suffered spinal code infraction and respiratory arrest and was immediately taken to the Medical College Hospital where she underwent treatment and subsequently became paralyzed.  According to the complainant her pathetic condition is because of the injection given at the 1^st opposite party hospital and in the complaint she prayed for directions to the opposite parties to pay an amount of Rs.15.lakhs as compensation for the deficiency in service and another sum of Rs.5.lakhs for the mental agony and sufferings.

3.      In the written version filed by the 1^st opposite party it was submitted that the complainant had approached the Forum with unclean hands.  It was submitted that the complainant was treated at St.Johns Medical College Hospital, Bangalore before she came to the 1^st opposite party hospital and the said fact of treatment at St.Johns Medical College Hospital was suppressed by the complainant and the same was discovered during the examination by the expert doctors of the 1^st opposite party hospital.  It was further submitted that the petitioner was a chronic calcific pancreatitis patient and was admitted in the 1^st opposite party hospital on 28.3.06 where celiac plexus block was planned.  It was further submitted that the procedure was explained to the petitioner and her husband and the celiac plexus block was the only viable solution to give relief to the patient for her severe abdominal pain.  It was the case of the 1^st opposite party that the complainant unexpectedly went into respiratory arrest and unexpected complications developed and doctors of the 1^st opposite party hospital formulated the further course of treatment in consultation with other eminent doctors in Neurology.   According to the 1^st opposite party, the doctors of the 1^st opposite party discharged their duties properly and efficiently at each stage in the treatment period and there was no deficiency in service on their part. Contending that the complainant had approached the Forum with unclean hands and claiming exaggerated amounts, the 1^st opposite party prayed for the dismissal of the complaint.

4.      The 2^nd opposite party filed version supporting the contentions of the 1^st opposite party.  In the version it was submitted that the complainant was a diabetic patient and since the CT report did not show any pancreatic duct dilation, surgery was indicated and hence as a measure for reducing the pain celiac plexus block was carried out.  It was also admitted that the complainant unexpectedly went into respiratory arrest and the other expert from Neurology department was also consulted in the course of further treatment.  The 2^nd opposite party submitted that the complainant was referred to the Neurology Department of Medical College Hospital for expert management and contended that there was no deficiency on the part of the 2^nd opposite party also.

5.      In the version filed by the 3^rd opposite party it was contended that the complaint was not maintainable and that there was no insurance coverage in the instant case. It was also submitted that the insured has not informed the 3^rd opposite party about the treatment of further complications.  Pleading for the position that there was no deficiency in service, the 3^rd opposite party also prayed for dismissal of the complaint.

6.      Evidence consisted of the oral testimony of the complainant as PW1 and Exts.A1 to A14 on her side.   On the side of the opposite party, opposite parties 1 and 2 were examined as DW1 and DW2 and another doctor was examined as DW3.  Exts.B1 to B5 were marked on the side of the opposite parties.  The Branch Manager of the 3^rd opposite party was examined as DW4 and an expert witness was examined as CW1.

7.      Heard both sides.

8.      It is the case of the appellants/1^st and 2^nd opposite parties that the complainant had approached them concealing the fact of treatment at a different hospital namely St. Johns Medical College Hospital, Bangalore before she was treated in the 1^st opposite party hospital.  It is also submitted by them that the petitioner was a chronic calcific pancreatitis patient and also a known diabetic patient. It is also argued that the best treatment for reducing pain is celiac plexus block and that the problem of respiratory arrest and other complications evolved unexpectedly and they sought for the help of expert doctors in the field of Neurology for the management of the patient. The learned counsel argued before us that the allegation of negligence against the treating doctors was not proved properly and that the finding of the Forum below that there is no need for expert evidence in the instant case is against medical ethics and natural justice.  He has invited our attention to the statement of the complainant that the consent was obtained by the opposite parties before venturing into the process of celiac plexus block.  He has further argued that nobody has a case that celiac plexus block was not a process for reducing abdominal pain.  The learned counsel invited our attention to the deposition of CW1 who has stated that celiac plexus block block is medically recognized standard procedure.  He has also a case that the expert has agreed that even if doctor exercises utmost care and caution while doing celiac plexus block, there can be Artery Kiwis Spasm.  He has also a case that the portion alleged to be affected by the treatment is not the portion which would have been affected if the treatment given by the 1^st and 2^nd opposite parties had been negligent or deficient.  It is also his case that the Forum below has directed the opposite parties to pay Rs.10.lakhs as compensation without any basis and he argued before us that the order of the Forum below is liable to be set aside.

9.      The Forum below on an appreciation of the entire facts and circumstances has passed the order fastening liability of Rs.10.lakhs and that it has relied on the judgment of the Hon’ble Supreme Court in “V.Krishan Rao Vs. Nikhil Super Speciality Hospital”.  The Forum has also followed the principle of res-ipsa-loquitor and has finally come to the conclusion that the 1^st and 2^nd opposite parties had committed deficiency in service in the treatment of the complainant. On going through the judgment and the records contained in the case bundle of the lower forum, we find that the main case of the complainant is with regard to the treatment of the 1^st and 2^nd opposite parties and that she is having the present problems due to the said treatment.  It is true that no medical expert is seen examined by the complainant.   But the evidence of the opposite party has been relied on by the complainant and the principle of res-ipsa-loquitor is also followed by them.  The Forum below has also found that though there is a consent given by the complainant, the same is not exhaustive.  On a perusal of the said consent it is found that the complainant was not explained about the consequences in detail.   It is also found that the complainant has disputed the signature in the consent.  The learned counsel for the respondent/complainant has submitted before us that if the risk factor regarding the possibility of paraplegia was explained to the complainant she would not have agreed for the celiac plexus block and we also agree with the finding of the Forum below that there was no valid consent of the patient or her bystanders in the instant case.

10.    The learned counsel for the appellants had argued that an expert was examined as CW1.  We find that the expert is an anaethetist.  She had deposed before the Forum that the complications suffered by the complainant are the possible complications of celiac plexus block.  It is also found that the complainant was finally referred to a higher Neurological centre for further management.  We are of the opinion that the expert ought to have been from the field of Neurology rather than from the Department of Anaesthesia.  The learned counsel for the appellants argued before us that celiac plexus block is done under anaesthesia and it is an anaesthic process.  However the best evidence would have been the evidence of a Neurologist.  The Forum below has found that the medical bills produced by the petitioner itself amounted to Rs.2,02,026/- and it was on a global basis that Rs.10,lakhs is seen ordered by the Forum below as compensation.  We find that the complainant has not produced any document to prove that she was drawing a salary of Rs.7500/- as is seen by the Forum below.  But the agony and other sufferings deserve an amount of compensation.  It is found that she is paralysed and is undergoing treatment even now.   Taking all these factors into consideration it is found that an amount of Rs.5.lakhs would be just and proper to meet the ends of justice.

In the result the appeal is allowed in part thereby the opposite parties in CC.206/06 before the Forum below are liable to pay Rs.5.lakhs as compensation to the complainant within one month from the date of receipt of this order failing which the amount shall carry interest at 9% per annum from the date of the order of the Forum below till the date of payment (out of Rs.5 lakhs, the 3^rd opposite party is liable to pay Rs.4,75,000/- as ordered by the Forum).  In the nature and circumstances of the present appeal the parties are directed to suffer their respective costs.

Office will forward the LCR along with a copy of this order to the Forum below.

S.CHANDRAMOHAN NAIR  : MEMBER

A.RADHA  : MEMBER

VL.