By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. Facts in brief:-<br /> Complainant is a lady aged 33 years and has undergone heart valve replacement surgery about eight months prior to the incident of this complaint. On being pregnant for one month she approached opposite party hospital on 05-9-2007. She was advised by experts that the medicines taken by her for her heart disease was harmful for the pregnancy. She decided for Medical Termination of Pregnancy (MTP). Opposite party informed her that two days time was necessary to control and normalize certain factors in her blood before conducting MTP. Thus she was admitted in opposite party hospital on 07-9-07. After investigations the cardiologist of opposite party hospital informed that the blood test results were satisfactory for conducting M.T.P. She was asked to pay Rs.6,000/- towards labour room expenses and also to purchase medicines for Rs.297/-. She paid the amount and purchased the medicines. Later opposite party gave only tablets for abortion by which she had bleeding on 13-9-2007 and her pregnancy was aborted. That on 15-9-2007 the doctor issued her discharge. Since her M.T.P. was done only by intake of tablets she requested for refund of Rs.6,000/- paid towards labour room expenses. Opposite party refused to refund the amount. When she insisted for refund the doctor cancelled her discharge. On the same day she was taken to the labour room instigating fear in her mind that the doctor had to check whether everything was okay. Her inpatient treatment was continued further for five days and she was discharged only on 20-9-2007. During these days several unnecessary investigations were done. Even after discharge she was not fully alright and experienced physical discomforts. She was admitted for 10 days in another hospital at Ranni and recovered fully thereafter. That the M.T.P. done at opposite party hospital was incomplete. That opposite party prolonged her treatment unnecessarily for several days by carrying out unnecessary and irrelevant investigations when actually her treatment could have been completed within three days. As a result of this she had to bear huge expenses. At the time of discharge opposite party returned the medicines purchased for M.T.P. since they were unused. That excess amount of Rs.16,870/- was collected by opposite party and prays for refund of the same. Complainant also seeks to issue direction to opposite party not to exploit the helplessness and ignorance of patients in future and also to make the charges of the hospital transparent.<br /> 2. Opposite party has filed version denying the allegations of medical negligence and unfair trade practice in toto. It is submitted that opposite party hospital is a well equipped hospital with all modern facilities necessary for dealing with cases in all branches of medicine especially gynaecology and obstetrics. The doctors and para medical staff of the hospital are well qualified and well experienced. Opposite party admits that complainant had undergone treatment in opposite party hospital. It is stated that complainant is a known cardiac patient and was treated by Cardiologist Dr.Anil Saleem Kanhirala of opposite party hospital. Complainant was treated as out patient No.2007/023807 since 14-6-2007. She had consulted the same doctor on other dates like 16-7-2007, 25-7-2007, 04-9-2007 and 07-9-2007. That complainant came to the hospital not only for M.T.P. but also for cardiac treatment. She came to the hospital and consulted the cardiologist on 04-9-2007 and not on 05-9-2007 as stated by her. She consulted the gynaeocologist also on the same day. Taking into consideration the medications taken by her for her cardiac problem she was advised that it would be better to discontinue the pregnancy and she consented for M.T.P. She was admitted as patient in cardiac unit on 07-9-2007 as I.P.No.2007/9661 for normalizing her blood parameters as a pre-requisite for M.T.P., being a cardiac patient. On 11-9-2007 upon getting cardiac clearance the patient was planned for MTP and sterilization. She was advised to purchase the drugs for the procedure and also to make necessary payments. But later, after cross consultations and discussions, the sterilization under anaesthesia seeming more risky, medical modality of MTP was suggested. She gave consent for the same instantly. The possibility of complication as well as need for check curratage was explained to her. Check curratage was done on 15-9-2007 in the labour room to confirm expulsion of product. Then she was again transferred to cardiology for continuation of treatment. She was kept as inpatient in this unit until normalization of blood INR value and was discharged on 20-9-2007. The total treatment package rate in opposite party hospital for MTP is Rs.6,000/- which includes doctor's fee, medicine cost and other procedural expenses. The method of MTP can be either medical or surgical depending upon different factors including the health condition of the patient. The allegation of the complainant that Rs.6,000/- was collected for labour room expenses is false. It was a total package rate. The amount of Rs.297/- spend by her towards purchase of medicines for MTP was returned to her at the time of discharge, since they were unused. Rs.1083.09/- was collected towards cost of medicines and Rs.4,917/- towards check curratage procedure, doctors fee, etc., vide bills issued to complainant. The amount collected for MTP includes cost of specific drugs and check curratage. The allegation that complainant was once discharged on 15-9-2007 and later discharge cancelled is denied as false. She was taken to the labour room for check curratage procedure. No excess investigations were done. The investigations were not merely for MTP but mainly for cardiac purpose. She was asked to review after seven days but failed to turn up. Opposite party is not aware of any treatment taken by her after discharge. There was no negligence, deficiency or exploitation of helpless patient on the part of opposite party. Only reasonable charges were collected. Complainant is not entitled to any reliefs. Complaint is to be dismissed with compensatory costs under Sec.26 of C.P. Act.<br /> 3. Evidence consists of the oral evidence of complainant who was examined as PW1 and Exts.A1 to A7 marked on her side. The Chairman and Managing Director of opposite party hospital was examined as DW1. No documents marked for opposite party.<br /> 4. Points for consideration:-<br /> (i) Whether opposite party is deficient in service.<br /> (ii) Whether opposite party has committed unfair trade practice.<br /> (iii) If so, reliefs and costs.<br /> 5. Point (i) & (ii):-<br /> The grievances of the complainant can be summarized as follows:-<br /> (i) The M.T.P. done at opposite party hospital was not properly done/incompletely done. After discharge she had to take treatment in another hospital to recover fully.<br /> (ii) Her treatment which could have been completed within three days was unnecessarily dragged to 14 days whereby she had to undergo inconveniences and extra expenses.<br /> (iii) She was issued discharge on 15-9-2007 and when she requested refund of Rs.6,000/-<br /> which was collected for labour room expenses, opposite party cancelled her discharge and prolonged her treatment upto 20-9-2007.<br /> (iv) She was made to do excess investigations. Opposite party collected excess charges.<br /> 6. On the outset, it has to be stated, that this complaint is filed against the hospital only and the gynaecologist or the cardiologist who treated complainant are not impleaded as parties in this case. In brief, a medical professional may be held liable for negligence either (i) when he did not possess the requisite skill which he professed to possess (ii) when he did not exercise with reasonable competence, the skill which he did possess. Complainant does not have a case that doctors who treated her were not qualified for treating the problem she was suffering from. Then the only question is whether there was a breach of legal duty in exercising the skillwith reasonable competance. Medical negligence basically would mean, such negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue which are being practised by an ordinarily and reasonably competent man practising the same art. In Poonam Verma Vs. Ashwin Patel and Others 1996 CTJ 65 (SC) (CP) the Hon'ble Supreme Court has held as under:<br /> “The breach of duty maybe occasioned either by not doing something which a reasonable man, under a given set of circumstances, would do or by doing some act which a reasonable prudent man would not do”.<br /> 7. In the light of the above principles, the facts of the present case are being examined.<br /> 8. Admittedly complainant had undergone heart valve replacement surgery in December, 2006. It is her case that on confirming that she was one month pregnant, she approached the gynaecologist Dr.Nayantara of opposite party hospital on 05-9-2007. On behalf of complainant her agent who is none other than her husband, argued that complainant though had undergone valve replacement surgery on 12-12-2006, was completely normal and healthy after the surgery. That she had no further heart complaints. It was also submitted that complainant did not avail any cardiac treatment at opposite party hospital but was admitted for doing MTP and not for cardiac treatment. She alleges that the MTP done at opposite party hospital was incomplete and she had to undertake further treatment in another hospital to recover fully.<br /> 9. Per Contra, it was submitted by opposite party that though complainant was admitted for MTP she is a known cardiac patient. She is on cardiac medicines. She was admitted in cardiac unit of opposite party hospital. This was because complainant being a cardiac patient, the MTP could be done only under the supervision and control of a cardiologist. That it is utterly false to state that complainant is a normal and healthy person. There was no negligence on the part of the doctors or opposite party hospital.<br /> 10. Bare perusal of Ext.A5 which is the Case Summary issued to complainant after her valve replacement surgery from the Sree Chithira Tirunal Institute of Medical Sciences, Trivandrum reveals that complainant is a known cardiac patient. In Ext.A5 the procedure done on 12-12-2006 is noted as 'Mitral valve replacement with STAR EDWARDS', (which is an artificial heart valve). In cross examination complainant deposed that she has undergone two minor surgeries prior to valve replacement surgery. The discharge advice noted in Ext.A5 is as follows:<br /> “Never stop warfarain/Dindivan without consulting your doctor. Check P.T. Monthly – Target INR 2.5 – 3.5”.<br /> It is seen that complainant is on warfarain tablets after her valve replacement surgery. Warfarain is an anticoagulant. A person who is regularly taking anticoagulant drugs and has an artificial valve cannot be considered to be free of heart disease. Therefore the argument of the complainant that she is fully healthy and does not have any cardiac problem after the surgery cannot find favour with us.<br /> 11. Warfarain is an anticoagulant which is contra-indicated during pregnancy Warfarain crosses the placental barriers and it's intake is not safe during pregnancy. Complainant opted for MTP on the expert advice given to her in this regard. Complainant was thus admitted in opposite party hospital on 07-9-2007. Though she contends that she was admitted only for MTP and not for any cardiac treatment Ext.A2 which is the discharge Summary issued to her from opposite party hospital proves her wrong. Ext.A2 is issued from the Cardiac division of opposite party hospital which makes it crystal clear that she was admitted in cardiac unit. The diagnosis noted in Ext.A2 is as under:<br /> “RHD (Rheumatic Heart Disease)s/p MVR (2006 – STAR EDWARDS), Admitted for MTP.” Below this the clinical features are noted as “Patient was admitted for warfarain – heparin switch over for MTP”. <br /> It is seen from Ext.A2 that continuous investigations/blood tests were done from the date of admission till date of discharge. This is because for facilitating MTP., complainant was switched over from warfarain to heparin, which is yet another anticoagulant. After MTP she was again switched back to warfarain. This process could be done only by continuous Prothrombin/blood clot tests and checking the INR value. At the time of discharge her INR value was normalized. She was discharged by switching back to warfarain itself. Complainant being a known cardiac patient it would have been highly risky to undertake MTP without supervision of a cardiologist. It can be inferred that, to meet any complication that may arise, she was admitted in the cardiac unit. But MTP could be undertaken only by a gynaecologist. Fortunately her MTP succeeded by medical modality though the doctors had prepared for surgical method also. From the records of treatment it is evident that treatment of the problem suffered by complainant involved both cardiac and gynaeocology departments. This was undertaken at opposite party hospital by doctors of both departments by discussions held between them. If the gynaeocologist had undertaken the MTP fully ignoring her cardiac problem the situation would have been totally unsafe. Therefore the argument of the complainant that she availed only gynaeocology treatment is totally untenable and unacceptable.<br /> 12. The main allegation of negligence levelled against opposite party is that MTP done at opposite party hospital was incomplete and complainant had to undertake treatment in another hospital to recover fully. Though it is averred in the complaint that after discharge she was admitted for 10 days and treated in another hospital no documents are produced to support this contention. Complainant relies upon Ext.A4. But this is only a scan report and does not prove that she had undertaken any further treatment. No expert evidence or medical literature is placed before us to show that the treatment done by opposite party was wrong or that MTP done was incomplete. Further there is no expert and reliable evidence adduced to substantiate the contention of the complainant that her treatment could have been completed within three days. Moreover, in Ext.A2 complainant was adviced to come for review after 7 days. She did not turn up after discharge. Complainant has failed to establish and prove that the MTP done at opposite party hospital was incomplete. There is nothing on record to show that there was carelessness and negligence on the part of the doctors who treated the complainant.<br /> 13. It is further alleged that the doctor initially discharged her on 15-9-2007 and on her request to refund Rs.6,000/- the discharge was cancelled and her treatment was prolonged unnecessarily till 20-9-2007. There are no documents to support the contention that she was discharged on 15-9-2007. Complainant explains that the discharge bill issued on 15-9-2007 was taken back by opposite party. Opposite party denies that she was discharged on 15-9-2007. To arrive at a conclusion as to which of these rival claims are true we have perused the treatment records carefully. Admittedly she was taken to the labour room on 15-9-2007. Opposite party contends that she was taken for check and currattage procedure which is an essential part of MTP. There is no expert evidence to show that such procedure was unnecessary in the given case. Further treatment from 15-9-2007 to 20-9-2007 were mainly investigations for normalizing her blood parameters by switching back from heparin to warfarain. At the time of discharge her INR value was normalized. From the summary of the treatment records it is sufficiently evident that investigations after 15-9-2007 were continued only for the purpose of normalizing her blood parameters and making the patient stable on warfarain. Therefore we are unable to accept the contention of the complainant that she was discharged on 15-9-2007 and her treatment was prolonged unnecessarily.<br /> 14. Complainant is also aggrieved that Rs.6,000/- was collected as labour room expenses for MTP. It is her case that even though MTP was done by medical method, opposite party refused to refund this amount. Opposite party contends that though Rs.6,000/- was paid on the head of labour room procedures the amount was collected as package rate for MTP. It includes doctor's fee, medicine cost and other procedural expenses. Complainant was taken to the labour room for check and curratage. She has no case that any fees was charged from her separately for service of the cardiologist. According to her she had availed only gynaecology treatment. Ext.A1 bills are mostly regarding medicines purchased on the prescription of the cardiologist. So the contention of opposite party that the amount of Rs.6,000/- included doctor's fee, medicine costs and labour room expenses is believable and acceptable. Yet another grievance of the complainant is that the hospital collected Rs.16,870/- in excess of the tariff prevailing in the hospital. The detailed calculation of this amount is given in the complaint. This amount calculated by complainant includes even canteen expenses. At no stretch of imagination can such expenses be burdened upon opposite party hospital. Complainant has not been able to adduce any evidence as to what is the prevailing tariff in a hospital. It is common knowledge that treatment charges in hospitals differ according to specialty treatment,, and facilities offered by these hospitals. It is also settled position of law that Consumer Forum cannot adjudicate upon the legality of pricing of goods or services. Hence we do not find any merit in the allegation raised by complainant that opposite party hospital collected excess charges.<br /> 15. Another argument submitted by the agent of the complainant was that opposite party made the complainant undertake investigations and tests which were totally unnecessary and irrelevant to her disease. He placed reliance upon bills Ext.A1(7) and Ext.A1(11). On perusal it is seen that Ext.A1(7) is a bill for Rs.60/- paid towards ECG charges. Complainant being a cardiac patient we do not consider that it was irrelevant to her disease even though she was admitted for MTP. Ext.A1(11) pertains to the routine tests which are done prior to a surgery. It was argued on behalf of complainant that even HIV test was done which was totally unnecessary. Admittedly complainant was admitted and prepared for MTP. HIV test is one of the routine tests done prior to use of theatre or labour room procedures. For these reasons we find no merit in the allegation raised by complainant that excess tests and investigations were done at opposite party hospital.<br /> 16. From the totality of facts, circumstances and materials on record we do not find any medical deficiency or unfair trade practice on the part of doctors who treated the complainant or the opposite party hospital. We have to say that the doctors who treated the complainant have performed their duties viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, or a duty of care in the administration of that treatment. The doctors also brought to their task a reasonable degree of skill and knowledge and has exercised reasonable care. In short we can undoubtedly say that they have passed Bolam test as emphasized by the Apex Court in Jacob Mathew Vs. State of Punjab and another 2005 CTJ 1085 (SC) (CP). Complainant has miserably failed to establish any case in her favour.<br /> 17. We therefore dismiss this complaint we however, do not make any order as to costs.<br /> <br /> Dated this 16th day of October, 2008.<br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : PW1<br /> PW1 : Complainant<br /> Documents marked on the side of the complainant : Ext.A1 to A7<br /> Ext.A1(series) : Bills (39 nos.) received from opposite party to complainant. <br /> Ext.A2 : Discharge Summary dated, 20-9-2007 from opposite party to complainant.<br /> Ext.A3 : Discharge Bill for Rs.4,952.25 dated, 20-9-2007 from opposite party <br /> to complainant.<br /> Ext.A4 (a &b) : Ultrasonography Report from Menathottam Hospital in favour of complainant.<br /> Ext.A5 : Case Summary and Discharge Record from Sree Chitra Thirunal Institute of <br /> Medical Sciences & Technology, Thiruvananthapuram in favour of complainant. Ext.A6 : Prescription from opposite party to complainant dated, 16-7-2007. <br /> Ext.A7(series) : Receipts dated, 15-9-2006 from Sree Chitra Thirunal Institute of <br /> Medical Sciences & Technology, Thiruvananthapuram in favour of complainant. <br /> Witness examined on the side of the opposite parties : DW1<br /> DW1 : Chairman and Managing Director of opposite party hospital.<br /> Documents marked on the side of the opposite parties : Nil<br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER