IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA.

Dated this the 15^th  day of November, 2010.

Present:- Sri. Jacob Stephen (President)

Smt. C. Lathika Bhai (Member)

Sri. N. Premkumar (Member)

O.P.No.115/03 (Filed on 03.06.2003)

Between”

Kochuthressia Chacko, 46 years,

Muttathukunnel,

Edappariyaram P.O.,

Elanthoor.

Addl.2. M.J. Chacko,

              Muttathukunnel,

              Edappariyaram P.O.

              Elanthoor.

Addl.3. Biju Kuriakose, aged 33 years,

              --do--  --do—

Addl.4. Bobina Kuriakose, aged 34 years,

              --do--  --do—

(By Adv. S. Ajith Prabhav)                                         ….  Complainants.

And:

1.  Manager/Administrator,

     Poyanil Hospital,

     Kozhencherry.

2.  Dr. Jose,

     Physician, Poyanil Hospital,

     Kozhencherry.

(By Adv. G.M. Idiculla)

3.  Branch Manager,

     National Insurance Co. Ltd.,

     Pathanamthitta.

(By Adv. Sam Koshy)                                                  ….  Opposite parties.

O R D E R

Smt. C. Lathika Bhai (Member):

                   The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                   2. The facts of the complaint is as follows:  The 1^st complainant is the wife of the 2^nd complainant.  On 12.1.03, the 2^nd complainant was admitted in 1^st opposite party’s hospital due to cough and Dyspnoea.  The duty doctor was examined the patient and had taken blood tests, ECG and X-ray.  On the next day the physician in 1^st opposite party’s hospital Dr. Jose came and examined the X-ray and other reports. After examining the report, doctor informed that the patient was affected with T.B disease and it will reduce only after taking medicines for 3 weeks.  And also stated that one year continuous treatment is necessary for curing the disease.  He prescribed some medicines and administered by the complainant.  The 2^nd opposite party doctor also advised the complainants to not come in close contact with the patient, as it is an epidemic.  This also affected the complainant’s condition and there is no relief to the complainant’s disease.  Next day the 1^st complainant requested the opposite parties to discharge the patient for admitting Kozhencherry Govt. Hospital where there is a separate wing for the treatment of T.B.  As such the patient was discharged from opposite party’s hospital and he was admitted in Kozhencherry Govt. Hospital.  The 1^st complainant was narrated about the disease, and the treatment (medicines) given to the doctor who examined the patient.  But he informed that the treatment shall be given only after diagnosing the disease by sputum test.  On 15.1.03, the complainant’s condition become worsened and become in to heart attack.  For better treatment the patient was taken to the Muthoot Medical Centre, Kozhencherry.  Dr. N. Balakrishnan, Cardiologist at Muthoot Medical Centre was examined the patient and admitted in ICU with ventilator support.  X-ray and other tests were conducted at this hospital.  After examining this reports and reports from Poyyanil Hospital, the doctor informed the complainant that her husband had no T.B. disease.  The complication is Pneumonia due to the accumulation of cough and water in liver.  The doctor also informed that the medicines administered to the complainant for Tuber Culosis causes the heart attack.  The 2^nd complainant was treated 4 days at ICU with ventilator support and thereafter he treated 10 days at this hospital.  Due to the wrong diagnosis and negligent treatment given by the opposite parties hospital the 2^nd complainant’s condition become more complicated and they have sustained mental agony, financial loss for the treatment and other expenses and other inconveniences.  The opposite parties are liable to compensate the same.  Hence the complainants filed this complaint for getting an order for directing the opposite parties to pay compensation along with cost to the complainants.  The complainants prayed for granting the relief.

                   3. The 1^st and 2^nd opposite party filed a common version stating the following contentions:  The 2^nd complainant was brought to the 1^st opposite party’s hospital on 12.1.03 at casualty alleging cough and Dyspnoea and was admitted in the ward.  Blood test, ECG, X-ray was taken as primary investigation.  On the next day Dr. Jose during the round saw the patient for the 1^st time and then alleged ailments were still persisting.  To fix the final diagnosis examination of sputum continuously for 3 days was suggested.  Further Mando test for T.B also was ordered.  The patient was diabetic and to be on treatment.  Bilateral inflammation noted in X-ray along with high ESR to the tune of 82 m.m. per hour.  So a provisional diagnosis of disseminated Tuberculosis was arrived at and treated on clinical and lab evidence and X-ray.  High doze of antibiotic along with other supporting management was done including diabetic control drugs.  Inspite of request for sputum test it was not given, Mando test was done, but its result will available from 48 hours to 72 hours.  Before it on 14.1.03 the patient requested for discharge and prefers treatment at Govt. Hospital, Kozhencherry.  Discharge summary along with test results done were given to the patient on discharge.  The rest is not known to these opposite parties.  The patient without knowing the result of ‘Mando’ test got himself discharged.  No final diagnosis was made regarding the ailment hence no liability can be attributed to the doctor who treated or the hospital.  The complainant is put to strict proof of the allegations and the claim of enhanced compensation.  The allegation of proper diagnosis and treatment are denied by these opposite parties.  On these grounds they prayed for the dismissal of the complaint with their cost.  1^st opposite party hospital is insured with National Insurance hence the liability is only with the insurance company.

                   4. The 3^rd opposite party has filed a version stating the following contentions:  It is admitted by this opposite parties that they have issued a Medical Establishments Errors and Omission policy No.570204/46/02/8701506, valid from 25.8.02 to 24.8.03 in favour of the 1^st opposite party undertaking to indemnify them in the event of any error and omission subject to the terms of the policy.  On a perusal of records from 1^st opposite party sought for clarification the allegation of the complaint is baseless and filed on experimental basis.

                   5. As per the records of the hospital, it is evident that the husband of the complainant was not a regular patient and the doctors saw him for about 2 days from 12/1/03. On 12.1.03, at the time he was first attended by the doctor the patient was not having the details of any previous treatment and his previous medical history was not let known to the attending doctor.  On detailed discussion it was revealed that the patient was on treatment for diabetics from Govt. Hospital, Kozhencherry and it was evident that the diabetes was poorly controlled and which was a very favourable condition for contracting disseminated infection.  Poorly controlled diabetes itself can cause heart disease and there is no reason to believe that anti T.B drugs contributed to heart ailment.  That apart, the complainant had a previous history of ischemic heart disease and as such it cannot be said that the heart ailment was caused consequent to the administration of any drug at Poyyanil Hospital.

                   6. The patient was subjected to the required test on 12.1.03 and diagnosed Tuberculosis provisionally and not finally. The patient is reluctant to undergo various testes advised by the doctor.  Mantaux test was given on 13.1.03.  But the patient did not wait for the same and he preferred discharge.  The allegation of wrong diagnosis or wrong treatment as alleged in the complaint is absolutely baseless and has no medical base and is only surmise.  There is no authority or medically documented evidence that anti tuberculosis drug will cause heart attack or other heart ailment as stated in the complaint.  Their contentions are without prejudice to their right to deny the liability to indemnify, if in any event the terms of the policy are understood to be violated.  The complainant has not availed any service from 3^rd opposite party and he is not a consumer of this opposite party.  The claim of compensation made by the complainant is not sustainable.  Hence this opposite party prayed for the dismissal of the complaint with their cost.

                   7. On the basis of the above pleadings, the following points are to be considered:

(1)   Whether there is any negligence or deficiency in

treatment (service) from the part of opposite parties provided to the complainant?

(2)   Whether the complainant is entitled to get the relieves as  

      sought for in the complaint?

          8.  The evidence in this case consists of the oral evidence of the 1^st complainant as PW1 on the basis of the proof affidavit filed by her and Ext.A1 to A5 marked for the complaint.  One witness doctor who treated the 2^nd complainant has adduced oral evidence as PW2 and Ext.A6 series marked through him.  For the opposite parties, 1^st opposite party adduced oral evidence as DW1 and Ext.B2 marked on the basis of the proof affidavit filed by him.  3^rd opposite party has been filed a proof affidavit and on the basis of the proof affidavit. Ext.B1 marked.  No oral evidence from the part of 3^rd opposite party.  After closure of the evidence, both sides heard.

          9.  Point Nos. 1 & 2:- The complainant’s case is that the 2^nd complainant the husband of the 1^st complainant and the father of the additional 3^rd and 4^th complainant was admitted in 1^st opposite party’s hospital on 12.1.03 due to the cough and Dyspnoea of few days duration Blood test, ECG and X-ray was taken.  Next day 2^nd opposite party saw the patient and on the basis of preliminary investigation he diagnoses the disease as Tuberculosis to the 2^nd complainant.  He informed the complainants that the cough will reduce only after three weeks treatment and one-year continuous treatment is necessary for curing the disease.  He prescribed medicines and it was administered to the patient.  But the complainant’s condition did not improve it become serious and the 1^st complainant requested the discharge of the patient for treating him in Dist. Govt. Hospital, Kozhencherry.  Where there is a separate wing for the treatment of Tuberculosis.  On 14.1.03 the patient was discharged and admitted in Kozhencherry Govt. Hospital.  But on 15.1.03 the patient’s condition become more complicated and came to heart attack and he was referred to Muthoot Medical Centre, Kozhencherry.  At Muthoot Medical Centre he was admitted in ICU with ventricular support and he was treated here more than 14 days.  Dr. Balakrishnan who treated the patient had informed that the patient had no Tuberculosis disease but Pneumonia due to the accumulation of cough and water in liver.  The complainant alleged that due to the wrong diagnosis and the treatment for that resulted the heart attack and further complications to the 2^nd complainant.  Due to this negligent act of the opposite parties the complainants have suffered mental agony, financial loss and other inconveniences.  Hence they have filed this complaint against the opposite parties for getting the relief as sought for in the complaint.

          10.  In order to prove the complainant’s case, 1^st complainant adduced oral evidence as PW1 and Ext.A1 to A5 were marked.  Ext.A1 is the 1^st O.P. card issued to the 2^nd complainant on 12.1.03.  Ext.A2 is the discharge summary dated 14.1.03 issued by the 1^st opposite party.  Ext.A3 series are the medical bills in 4 numbers.  Ext.A4 is the inpatient bill.  Ext.A5 is the discharge summary issued by the Muthoot Hospital dated 24.1.03.  Ext.A6 series are the medical bills issued from the Muthoot Hospital to the complainant.  Opposite parties counsel has been cross-examined PW1.

          11.  One witness for the complainant the doctor who treated the 2^nd complainant at Kozhencherry Govt. Hospital has examined as PW2 and Ext.A7 marked.  Ext.A7 is the treatment records from Kozhencherry Govt. Hospital for the treatment of the 2^nd complainant.

          12. The 1^st and 2^nd opposite party contended that the 2^nd complainant was admitted in their hospital on 12.1.03 alleging cough and Dyspnoea.  After taking preliminary investigation to fix the final diagnosis.  2^nd opposite party suggested sputum test and Mando test.  The patient was a diabetic also.  On the basis of the preliminary investigation provisional diagnosis of disseminated Tuberculosis was arrived at and treated.  High doze of antibiotic along with other supporting management was done.  Mando test was given but before its result the patient requested for discharge by preferring treatment at Govt. Hospital, Kozhencherry and hence discharged. The rest is not known to this opposite parties.  No final diagnosis was made regarding the ailment of the patient.  Hence no liability can be attributed to this opposite parties.  There is no laches, negligence or deficiency in service from the part of this opposite parties.

          13.  In order to prove the contentions of this opposite parties, the 1^st opposite party has examined as DW1 and Ext.B2 marked through him. Ext.B2 is the treatment records of the 2^nd complainant produced by the 1^st opposite party.  DW1 has been cross-examined by complainant’s counsel.

          14. 3^rd additional opposite party had admitted the Medical Establishment Error and Omission policy issued in favour of the 1^st opposite party hospital covering his Multi Speciality Hospital subject to the terms of the policy.

          15.  In order to prove the contentions of this opposite party Branch Manager, Pathanamthitta of this opposite party has filed a proof affidavit and one document.  On the basis of the proof affidavit document is marked as Ext.B1.  Ext.B1 is the terms and conditions of the Medical Establishment Error and Omission policy issued in favour of the 1^st opposite party hospital.

          16.  From the evidence and from Ext.A2 discharge summary it can shows that the 2^nd complainant was treated for pulmonary Tuberculosis and Diabetics mellitus by opposite party’s hospital.  The opposite parties have admitted that on the basis of the X-ray report and clinical findings they have arrived at a provisional diagnosis of disseminated Tuberculosis to the patient.  High dose of antibiotic along with other supporting management was done.  As per Ext.A5 discharge summary issued by Muthoot Medical Centre, the diagnosis is stated as CAD/A/c Coronary Syndrome/A/c Pulmonary endemma/DM severe LV Dysfunction.  There is no mention of pulmonary Tuberculosis to the complainant.  According to the complainants, the 2^nd complainant had no ailment of Tuberculosis.  The medicines (treatment) for T.B given by the 2^nd opposite party become the complication of heart disease and he was availed treatment in Muthoot Medical Centre.  The complainant’s allegation is that her husband was wrongly treated by the 2^nd opposite party without proper diagnosis.  The medicines administered for T.B causes the heart attack to her husband.

          17.  According to the opposite parties, they contended that the test for T.B, sputum test and Mando test were suggested to the patient.  But he given only mando test and the test result will available after 48-72 hours.  They treated the complainant for T.B on the basis of provisional diagnosis.  Before availing the test result, the patient was discharged as per his request.  No final diagnosis was made regarding the ailment of the patient.  At the time of cross-examination of PW2, the doctor who treated the 2^nd complainant at Kozhencherry Govt. Hospital stated as “T.B confirm sNbvXtijta acp¶p \ÂIq”.  He admitted that bilateral infiltration noted in an X-ray, ESR to the tune of 82 mm per hour, low weight and cuff uncontrolled may lead to suspicion of T.B but he did not say the medicines can b e administered to the patient.  At the time of cross-examination of DW1 (1^st opposite party), he stated as follows:- “Tuberculosis þ\pÅ acp¶v AXnÃm¯ HcmÄ¡v \ÂInbm side effect D­mInÓ.  Further he adds short term administration of medicine will not affect any organs”.  There is no expert evidence from both sides to prove that whether anti-TB drugs will cause any side effect such as heart disease if it is administered to a person who have no ailment of T.B.  Moreover, there is no corroborative evidence from the part of opposite parties to contradicting the Ext.A5 discharge summary issued by the Muthoot Medical Centre.

          18. It is pertinent to note that the patient was given anti-tuberculosis drugs without any confirmed clinical report in respect of T.B.  For the treatment of T.B 3 days sputum test were necessary before arriving at the conclusion of this disease.  Before prescribing the treatment, the 2^nd opposite party failed to ascertain whether the patient was a case of T.B or something else as he was a diabetic and other ailments.  There is a clear admission of the opposite parties to the treatment provided to the 2^nd complainant.  Some medicines have some adverse effect or some reaction is anticipated.  Wrong diagnosis and wrong treatment were done by the 2^nd opposite party to the 2^nd complainant.  The implication and complication of the medicines administered to the complainant to be considered in this case as the complainant is being a diabetic and other diseases.  Proper Diagnosis and proper treatment of disease is the integral principles of medical service. Standard of duty to care may also be inferred.  The patient was given anti tuberculosis medicine without ascertaining whether the patient was suffering from T.B therefore medical negligence was proved against the opposite parties.  The mental and physical agony of the complainants at the time of knowing the infection of infections disease shall be considered.  In the circumstances, we find negligence and laches from the part of 2^nd opposite party in providing treatment to the 2^nd complainant.  There is no evidence from the part of the complainant to showing that the complications suffered by the 2^nd complainant was due to the direct result of the administration of anti-tuberculosis drugs prescribed by the 2^nd opposite party.  Hence the complainant is not entitled to get compensation as prayed for in the complaint.  The complainants are entitled to get a nominal compensation from the 1^st opposite party.  The 3^rd opposite party has admitted the Medical Establishment Error and Omission policy issued to the 1^st opposite party hospital.  The 2^nd complainant was treated during the coverage period of this policy.  As the insurer of the 1^st opposite party, 3^rd opposite party is liable to compensate the complainants.  In the circumstances, the complainant’s prayer can be allowed partly.

            19. In the result, the complaint is partly allowed, thereby the 3^rd opposite party is directed to pay an amount of ` 10,000 (Rupees Ten Thousand only) as compensation with an interest at the rate of 8% per annum from the date of filing of this complaint till this date along with a cost of ` 2,000 (Rupees Two Thousand only) to the complainants.  The 3^rd opposite party is directed to comply this order within one month from the date of receipt of this order, failing which interest at the rate of 12% per annum will follow for the said amount from today till the whole payment.

           Declared in the Open Forum on this the 15^th day of November, 2010.

                                                                                               (Sd/-)

                                                                                      C. Lathika Bhai,

                                                                                            (Member)

Sri. Jacob Stephen (President)                  :         (Sd/-)

Sri. N. Premkumar (Member)                 :         (Sd/-)

Appendix:

Witness examined on the side of the complainants:

PW1  :         Kochuthressia Chacko.

PW2  :         Dr. Thomas George.

Exhibits marked on the side of the complainants:

A1     :         O.P. card issued to the 2^nd complainant on 12.1.03.

A2     :         Discharge summary card dated 14.1.03 issued by the

                      1^st opposite party.

A3, A3(a), A3(b) & A3(c)      :         Medical bills (4 in numbers).

A4     :         Inpatient bill dated 14.01.2003 issued by the first opposite party.

A5     :         Discharge summary issued by the Muthoot Hospital

                    dated 24.1.03.

A6     :         Medical bills issued from the Muthoot Hospital to the 

                     complainant.

Witness examined on the side of the opposite parties:

DW1 :         Dr. Joseph George.

Exhibits marked on the side of the opposite parties:

B1     :         Policy schedule.

                                                                                      (By Order)

                                                                              Senior Superintendent.

Copy to:- (1) Kochuthressia Chacko, Muttathukunnel, Edappariyaram P.O.,

                       Elanthoor.

       (2) Manager/Administrator, Poyanil Hospital, Kozhencherry.

       (3) Dr. Jose, Physician, Poyanil Hospital, Kozhencherry.

                  (4)  Branch Manager, National Insurance Co. Ltd.,

                        Pathanamthitta.

                  (5) The Stock File.