BEFORE THE DISTRICT CONSUMER FORUM : WARANGAL
Present: Sri D. Chiranjeevi Babu,
President.
Sri N.J. Mohan Rao,
Member
And
Smt. V.J. Praveena,
Member.
Monday, the 30th day of June, 2008.
CONSUMER DISPUTE NO. 5/2000
Between:
1. Smt.Medishetti Sunanda, W/o Late M. Shiva Prasad,
Age: 46 years, Occ: Household.
2. Smt.Medishetti Srinivas, S/o Late M. Shiva Prasad,
Age:23 years, Occ: Employee.
3. Smt.Medishetti Nagendra Prasad S/o Late M. Shiva Prasad,
Age:21 years, Occ: Nil.
4. Smt.Medishetti Bruhaspathi, S/o Late M. Shiva Prasad,
Age:19 years, Occ: Student.
All are R/o H.No.16-3-798/1,
Ekashilanagar, Warangal. … Complainants
AND
1. The Management, M/s Pallavi Hospital,
Rep. by Dr.P. Dasharatham, S/o not known,
Occ: General Physician, H.No.16-10-1367,
Shivanagar, Under Bridge Road, Warangal.
2. Dr.P. Dasharatham, Occ: Doctor (Gen.Physician) in
Pallavi Hospital, H.No.16-10-1367, shivanagar,
Under Bridge Road, Warangal.
3. Dr.Naga Munnaiah, Age: 36 yrs, Occ: Duty Doctor in
Pallavi Hospital, C/o Pallavi Hospital, H.No.16-10-1367,
Shivanagar, Under Bridge Road, Warangal.
… Opposite Parties
Counsel for Complainants : Sri Y. Sree Raghava Rao, Advocate.
Counsel for the Opposite Parties : Sri K. Rajeshwar, Advocate.
This complaint coming for final hearing before this Forum, the Forum pronounced the following Order.
ORDER
Sri D. Chiranjeevi Babu, President.
This is a complaint filed by the complainants against the Opposite parties under section 12 of Consumer Protection Act, 1986 for a direction to pay an amount of Rs.5,00,000/-and costs.
The brief averments contained in the complaint filed by the complainants are as follows:
The case of the complainants is that Medishetti Shivaprasad was admitted in Opposite party No.1 hospital on 2-5-99 at 11.00 p.m. for treatment complaining chest pain. The opposite party No.3 made the complainants believe that the opposite party No.1 hospital has expertise to treat all the emergency cases and having modern equipment the patient will be cured after treatment as such the complainants got admitted M.Shiva prasad in the hospital of opposite party No.1 and the employees of opposite party No.1 collected Rs.500/- towards admission fee. Thereafter to utter shock and surprise of the complainants the said Shiva Prasad died within two hours of commencement of treatment. Opposite party No.3 declared that shiva prasad died and he did not give any reply on the other hand he left the hospital. After making several requests and great persuations the opposite party No.3 delivered the case sheet to the complainants and requested not to make any complaint. On enquiry the complainants learnt that Opposite parties are guilty of dereliction of duty namely “OF CARE”. The case sheet reveals that before commencing the treatment the minimum required tests like ECG, Urea, Electrolytes, Radiograph were not taken. Further the complainants learnt that Opposite party Nos.1 and 2 employed the services of opposite party No.3 who treated M.Shiva Prasad was not a registered medical practitioner as on the date on 2-5-99, Opposite party No.3 has not completed the intern-ship (house surgeon). Opposite parties No.1 and 2 knowingly the said fact deliberately appointed opposite party no.3 and allowed him to treat M.Shiva Prasad. The said conduct of Opposite party NO.1 and 2 allowed him to treat itself is a negligent act and the cause of death of said shiva Prasad is due to gross negligence of opposite parties. The services availed of and agreed to be provided by the opposite parties suffer from deficiency and gross negligence on the part of the opposite parties. The deceased was hail and healthy, except chest pain and sudden death of the deceased obviously was due to deficiency of service. Whereas the deceased was a business man and aged about 48 years and was earning not less than Rs.10,000/- per month and maintaining the entire family. The complainants were the dependants upon the earnings of the deceased. Due to negligence of opposite parties and untimely death of the deceased, the complainants have become helpless and they lost the services of the deceased. The complainants lost the Kartha of their family and their lives become dark in the absence of the deceased. Hence, the complainants are claiming a sum of Rs.5,00,000/- towards liquidate and unilquidate damages.
Opposite parties No.1 and 2 filed the Written Version stating that there is no fault on the part of opposite party No.2 and also stated that under his directions only opposite party No.3 attended the patient he was also present at the time of giving treatment to M.Shiva Prasad. Since there is no any negligence or deficiency of service on the part of opposite parties 1 to 3 and the deceased M.Shiva Prasad not died due to negligence and deficiency of service on the part of opposite parties, they are not liable to pay any compensation to the complainants.
Opposite party No.3 did not appear before this Forum.
The complainants in support of their claim, filed the Affidavits of Complainants NO.3 and 4 in the form of chief examination and also marked Exs.A-1 to A-10. On behalf of Opposite parties one Dr.P. Dasharatham filed his Affidavit in the form of chief examination, but not marked any documents.
Now the point for consideration is whether the complainants are entitled to get an amount of Rs.5,00,000/-from the opposite parties with costs.
After arguments of both side counsels our reasons are like this:
In this case this court has to see whether there is any negligence and deficiency of service on the part of opposite parties No.2 and 3 and also opposite party No.3 by the date of giving treatment to M.Shiva Prasad he was having any intern ship i.e, house surgeon and there is no document filed before this Forum.
To prove that compulsory this Forum we have to see and further to prove the complainants side PW-1 and PW-2 were examined. PW-1 and PW-2 are the sons of M.Shiva Prasad. They themselves have stated before this forum with regard to their chief examination what we have stated supra and on behalf of opposite parties side only RW-1 was examined. RW-1 is the opposite party No.2 and he himself running the said Nursing home and he is the main person in this case. As per him at the time of admission the deceased Shiva prasad they took Rs.500/- and issued Ex.A-1 and they have collected drug charges of Rs.150/- and was repaid Rs.350/- to the complainants on humanitarian grounds, he had not charged professional nursing charges and emergency tests. And further he clearly stated before this Forum that Ex.A-2 Observation Case Sheet does not contain his writing. Ex.A-2 contains Opposite party No.3 writing. It shows that at the time of admitting the deceased M.Shiva Prasad in his hospital he was not there. If really he was present at that time certainly he has to sign on the case sheet. But he simply added in his deposition that at his dictation the duty doctor wrote Ex.A-2 Case sheet and Ex.A-2 is written under his instructions by Opposite party No.3. By seeing Ex.A-2 what are the tests took with regard to the deceased Shiva Prasad when he was admitted to your hospital. For this he stated that they done all the necessary tests like Urine Examination, Blood, Sugar Examination and ECG and sample of blood sent to the lab for other important tests because it is a time of consuming test. It is true that it was mentioned in case sheet Ex.A-2 time was 11.20 P.M., 12-15 A.M. and 12.30 A.M. 12.40 A.M. and due to Cardic failure deceased died. As per RW-1 the case sheet was written by Opposite party No.3. If at his dictation opposite party No.3 written the case sheet why opposite party No.2 has not signed on case sheet. It clearly goes to show that opposite party No.3 he himself written the case sheet and he himself given treatment to Shiva prasad .
In this case as per the Cross Examination of RW-1 i.e, Dr.Dasharatham he has done all the tests i.e., Urine, Blood, Sugar and ECG and sample of blood sent to the lab for important tests. If it is true why he has not filed any single documentary proof before this Forum to show that he has done all the tests stated by him. It shows that opposite party No.2 or opposite party No.3 they have not done any tests to the deceased M.Shiva Prasad.
It is true and it is an admitted fact that M.Shiva Prasad got admitted through his sons in opposite parties hospital for his heart attack, for this
compulsory the doctors have to do all the concerned tests like ECG, Urea electrolyes radiograph and eco tests because he is complaining chest pain. It is true the deceased joined in opposite parties hospital complaining chest pain, when the deceased complaining chest pain, it is the duty of the opposite parties to conduct all the above tests. Without conducting any tests, he has prescribed some medicines. The entire case sheet Ex.A-2 it clearly goes to show that there is no any test conducted by opposite party No.3. When opposite party no.3 has not conducted any tests like Urine Sugar Primary Tests like ECG Urea electrolytes radiograph it is clear that there is negligence and deficiency of service on the part of opposite party No.3.
In this case whether opposite parties NO.2 and 3 are liable to pay. But here opposite party No.2 he was not there at the time of giving treatment to M.Shiva Prasad. It is clear because we already stated supra that RW-1 i.e, opposite party No.2 stated that at his dictation opposite party No.3 has written the case sheet i.e, Ex.A-2. It is utterly false because if really Opposite party No.2 was present certainly he has to sign on case sheet. But there is no signature on case sheet. Opposite party No.2 was not there and opposite party No.3 he himself has given treatment to the deceased M.shiva Prasad.
In this case another point is that whether the opposite party No.3 on to the date of giving treatment to M.Shiva Prasad is a qualified doctor or not. For this our answer is that he is not a qualified doctor at the time of giving treatment to Shiva Prasad i.e, the date of giving treatment on 2-5-99 because on that day he himself treated Shiva Prasad. When he himself has treated the patient certainly he should have qualification of Intern ship, i.e, MBBS (House Surgeon) , but surprisingly before this Forum neither opposite party No.2 nor opposite party No.3 filed their MBBS Certificates or Internship certificate. It clearly goes to show that at the date of 2-5-99 opposite party No.3 is not a qualified doctor and he has not completed his Internship i.e, House surgeon by that time. At the time of giving treatment to Shiva Prasad
Opposite party No.3 is not a qualified doctor so certainly it is negligence and deficiency of service on the part of opposite parties. Opposite party No.2 is the master and here Opposite party No.3 is under the control of opposite party No.2. Here opposite party No.3 is not at all qualified doctor at the time of 2-5-99. So whatever the acts done by the opposite party no.3, certainly opposite party No.2 is held responsible and he is liable because intentionally opposite party No.3 is not having internship he himself employed him. So on the basis of Rw-1 cross examination itself at the time of giving treatment opposite party No.3 present. So for the acts of opposite party No.3 certainly opposite party NO.2 is liable to pay compensation to the complainants.
It is true in Ex.A-2 case sheet no where mentioned the signatures of opposite party No.2 or opposite party NO.3 but as per the deposition of RW-1 it is clear that the entire case sheet was written by opposite party NO.3. RW-1 stated in his cross examination that Shiva prasad is a known diabetic, initially at the time of admission. It is not necessary to give any anti diabetic treatment because his blood and sugar was normal range after admission. This statement goes to show that without conducting any tests how he knows that his sugar levels are normal or not and also without conducting any test of blood how he could say No prudent doctor will diagnosis the diabetic patient without controlling blood sugar and urea sugar without conducting tests. It clearly goes to show that at the time of giving treatment to M.Shiva Prasad certainly the opposite party No.3 has not conducted any test to the patient. RW-1 stated that it is an odd hour. Even though it is an odd hour as per Ex.A-8 and A-9 Positive photographs and negatives, they clearly goes to show that the said hospital is 24 hours service hospital, When hospital board itself clearly goes to show that it is 24 hours service hospital compulsorily if any patient joined in their hospital certainly they have to do compulsory tests to know the disease of the patient. But no tests have been conducted to him. So it is an admitted fact with a naked eye on the day we can say that no tests have conducted on the body of deceased.
Further our answer is with regard to the death of deceased Shiva Prasad after gone through the records we cannot find out on what reason the deceased died, to know that certainly the prudent doctor can conduct Postmortem on the dead body of the deceased. The question of taking dead body by the complainants does not arise because the deceased died in their hospital. If a prudent doctor can do postmortem after the death of the deceased certainly they have to do postmortem on the dead body of shiva prasad to know the cause of death of the deceased. But in this case no post mortem done to the deceased. So we do not now what is the reason for the death of the deceased Shiva prasad. So it is clear that there is negligence and deficiency of service on the part of opposite party No.3 because he himself not qualified doctor and he has not conducted any tests on the body of the deceased, he is responsible for the death of the deceased. So when there is negligence on the part of opposite party no.3, certainly opposite parties 1 and 2 are liable to pay compensation .
Vicarious Liability:-
When an employer is responsible not only for his negligence but also for the negligence of his employees, if such act occur in the course of employment and within its scope by the principle of RESPONDEAT SUPERIOR. There are three conditions must be satisfied.
1) 1) There must be an employer – employee relationship.
2) 2) The employee’s conduct must occur within the scope of his employment and
3) 3) While on the job.
So Master is liable for the acts of Servant. For the acts done by the servant, master must be liable to pay compensation. In this case opposite party No.2 is the Master and opposite party NO.3 is the servant because opposite parties No.1 and 2 they have employed opposite party No.3, certainly for the acts of opposite party No.3 opposite parties NO.1 and 2 are liable.
The counsel for opposite parties argued elaborately that opposite party NO.3 has not given any treatment to the deceased Shiva Prasad and opposite party No.2 he himself given treatment and there is no any negligence and deficiency on the part of him as well as opposite party No.3, and further he argued that opposite party No.3 has assisted opposite party No.2. For this our answer is that it is utterly false because in Ex.A-2 Case sheet clearly goes to show that opposite party No.2 he was called absent at that time, if really he present at that time certainly he has to sign on the case sheet and he has to produce evidence with regard to that he was present and he has given treatment to the patient. So at the time of giving treatment, opposite party NO.3 was present.
The counsel for complainant cited citation in
AIR 1969 SUPREME COURT 128
Dr.LaxmanBalakrishna Joshi … Appellant
VS
Dr.Trimbak Bapu Godbole and another … Respondents
Tort – Negligence – Duties of doctor towards his patient.
A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, i.e, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
Held:- High Court was right in its conclusions that death of patient was due to shock resulting from reduction of the fracture attempted by the doctor without taking the elementary caution of giving Anesthetic to the patient and that it was guilty of negligence and wrongful acts towards his patient and was liable for damages.
So the above judgment is applicable to the case of complainants because there is a negligence on the part of the doctor i.e, without using due skill and knowledge by Opposite party No.3 threatment given by him. So master is liable to the treatment given by his servant.
Further another judgment cited in 2007 (6) ALT 1 (NC) (CPA)
National Consumer Disputes Redressal Commission, New Delhi
Dr.D.Rama Rajyam
Vs
P.K.Vasudeva Rao and others
Consumer Protection Act, 1986 – Sections 17 and 21 and 2(1)(o)- Medical negligence – Hysterectomy operation performed – Patient died after three days- Urgency for such surgery not established – Case sheets not given to complainant despite several requests – They filed before State Commission – Adverse inference drawn by State Commission for such conduct – No proof that tests mentioned in medical record were carried out in a pathological laboratory – No mention about name of pathologist or his degree – allegation of complainant that the said investigations have not been conducted not controverted effectively by doctor”.
The judgment squarely applicable to the case of the complainants because in this case the complainants version is that without conducting any tests to M.Shiva Prasad opposite party NO.3 has given treatment. Even though RW-1 stated that tests were conducted in his hospital on the body of Shiva prasad but there is no proof to show that he has conducted the tests and the above cited judgment is applicable to the case of complainants against opposite parties.
The counsel for complainant cited another judgment in
2005 (6) ALT 1 (NC) (CPA)
National Consumer Disputes Redressal Commission, New Delhi.
Sheela hirba Nail Gaunekar
Vs
Appollo Hospitals Ltd., Chennai and another
Consumer Protection Act, 1986 – Post operative treatment is equally important in such surgeries as complications may arise at any point of time – Blood pressure was high – Patient developed rigor – He fall down in the bath room when he went for urination – Those incidents indicating that patient had not stabilized after operation – Apparent cause of death is cardiac arrest – Post mortem examination would have revealed the cause of death but it was not done – Even though patient had giddiness, fallen in bath room, was restless and had nausea after operation”.
The above cited judgment is also applicable to the case of the complainants because in the present case the facts of the opposite parties that after the death of the deceased the doctors have not conducted any postmortem examination, if really conducted any post mortem on the dead body of the deceased certainly knows on what reason the deceased died. It is true we already stated supra on what reason the deceased died we do not know, but there is negligence on the part of the opposite party No.3. The above cited judgment is applicable to this case.
For the foregoing reasons given by us, we come to the conclusion that there is a negligence and deficiency of service on the part of the opposite parties. Certainly the opposite parties are liable to pay compensation. Hence, we answered this point accordingly in favour of complainants against the opposite parties.
Point No.2: To what relief:- The main point is decided in favour of
complainants against the opposite parties, this point also decided in favour of complainants, against opposite parties.
In the result, the complaint is allowed in part and the opposite parties are directed to pay Rs.1,00,000/- (Rs. One lakh only) to the complainant No.1 jointly and severally along with interest @ 7.5% pa. from the date of filing of the complaint till the date of deposit. We also award Rs.500/- (Rs.Five hundred only) towards costs.
A month’s time is granted to the opposite parties for the compliance of the order.
Since Complainants No.2 to 4 are majors, and complainant NO.1 lost her love and affection with her husband. So the complainant No.1 is entitled to get the entire amount.
(Dictated to the Stenographer, transcribed by her, corrected and pronounced by us in the open Forum, today, the 30th June, 2008).
Sd/- Sd/- Sd/-
Member Member President,
District Consumer Forum, Warangal.
Appendix of Evidence
On behalf of Complainant On behalf of Opposite Party
Affidavit of complainant No.3 & Deposition Affidavit & deposition of O.P.2
EXHIBITS MARKED
On behalf of complainant
- Ex.A-1 Deposit receipt issued by Opposite party No.1.
- Ex.A-2 Observation Case sheet of opposite party NO.1.
- Ex.A-3 O/c of legal notice issued to Opposite parties, dt.14-6-99.
- Ex.A-4 RPAD receipt addressed to Opposite parties.
- Ex.A-5 Reply notice to legal notice, dt.21-6-99.
- Ex.A-6 Passport of the deceased.
- Ex.A-7 Positive photographs of Opposite party No.1.
- Exs.A- 8 & 9 Negatives of photographs of Opposite party No.1.
- Ex.A-10 Fee payment receipt of complainant No.4.
On behalf of Opposite parties.
Nil
Sd/-
President.
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