IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 1st day of December 2018
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Sri. M.Praveen Kumar,Bsc, LL.B ,Member
Smt.S. Sandhya Rani, Bsc, LL.B ,Member
CC.No.23/15
Sini Bose : Complainant
W/o Late Bose.
Charuvila Manthoppil Veedu
Chenckulam P.O, Pooyapally Village
Kottarakara Taluk,Kollam.
[By Adv.V.K.Issac ]
V/s
- Managing Director : Opposite parties
Vijaya Hospital
Kottarakara, Kollam.
- Dr.Jacob John(Regn.No.17640)
Consultant Surgeon
Vijaya Hospital
Kottarakkara,Kollam.
[By adv.A.Sudheer Bose]
FAIR ORDER
E.M.MUHAMMED IBRAHIM , President
1. This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act.
2.The allegations in the complaint in short are as follows.
The complainant is the widow of late Bose @ Boby. The 1st opposite party is the Managing Director of Vijaya Hospital, Kottarakkara and the 2nd opposite party is the Consultant Surgeon of 1st opposite party hospital who conducted the surgery on the complainant’s diseased husband. On 16.05.15 the deceased Bose went to the 1st opposite party hospital seeking treatment of hernia. After detailed diagnosis the 2nd opposite party prescribed medicine, suggested minor surgery and also given an appointment to 05.06.14 for conducting surgery. As
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per the direction of the doctor on 05.06.14 the complainant’s husband admitted in the hospital by the 2nd opposite party for performing surgery. Subsequently on 06.06.14 the said Bose had subjected to a surgery. The 2nd opposite party doctor who performed the operation was working as a consultant surgeon of the said hospital advised the deceased Bose to take one week observation in the hospital. But on 09.06.14 after examination of the patient discharged in a hasty manner by noting that the patient’s condition is good. But the patient Bose, and their relatives informed the doctor that the physical condition of the patient Bose is not good for a discharge. Moreover the diseased complained that he had severe pain on the area where the surgery was performed in his body. But the 2nd opposite party never accede to their request and he discharged the patient in a hasty and doubtful manner. The hospital authorities prepared the bill and supplied medicine quickly to a period till 14.06.14. On discharge the patient taken to his home in an autorickshaw. On the way to home severer pain had developed to him and in the same vehicle he had been brought back to hospital for emergency relief. But within a short span of time the hospital authorities informed the complainant that the patient is dead.
3. The complainant’s husband was in good health before conducting the surgery. He is hard working person. He was conducting a Hotel at Chenkulam Jn. Oyoor. He earned an average income of Rs.1200/- per day from the hotel business. He is the only bread winner of the family. He had no other physical ill health except the said hernia complaint. The complainant’s husband is a victim of the medical negligence of the opposite parties. His death was caused by the mistake occurred during the surgery by the 2nd opposite party who had been paid according to the number of surgery by the hospital and the neglect and hasty discharge of the deceased by 1st opposite party hospital authorities after the careless operation. The petitioner have spent a lot of money and suffered a lot during his admission and after his death due to this fatal
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negligence and carelessness from the part of the doctor at Vijaya Hospital, Kottarakkara. As a result of the death of the deceased husband of the complainant due to the medical negligence of the opposite party the complainant and other family members of the deceased sustained financial loss apart from mental agony which resulted in irreparable loss. In the circumstance the complainant seeks this forum to direct the opposite party to pay Rs.15 Lakhs on various counts as compensation for the mental agony and damages suffered by the complainant and the family of the deceased. Hence the complaint.
4. The opposite parties resisted the case with tooth and nail by filing separate versions raising more or less same contentions which in short are as follows.
The complaint is not maintainable either in law or on facts. The complaint has been filed on a mistaken notion by presuming medical negligence on the part of the opposite parties. However the opposite parties would admit that the patient by name Bose consulted the 2nd opposite party doctor in the outpatient department of the 1st opposite party hospital on 16.05.14 with complaints of pain and swelling in the peri umbilical region and feeling of discomfort after meals. On the basis of clinical examination, he was diagnosed to have para umbilical hernia and advised blood investigations and ultrasonogram. Ultrasonogram report confirmed the clinical diagnosis and investigation showed mildly elevated bilirubin and other findings were within
normal limits. The patient was advised surgery and as part of pre-operative evaluation he was referred for physician’s consultation for hyperbilirubinimia diagnosed as Gilbert’s Syndrome being a congential benign disorder with no added morbidity, the physician found the patient fit for surgery. The patient was admitted at the 1st opposite party hospital on 05.06.14 and surgery was posted to 06.06.14.
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5. According to opposite party No. 1&2 the patient underwent necessary pre-operative investigations and pre-anaesthetic check up and found fir for surgery with normal BP and pulse. The 2nd opposite party had informed the patient and her bystanders about the pros and cons of the surgical procedure and the risk factors and the patient and his relatives voluntarily agreed and consented for surgery namely papa umbilical hernia repair. Under all aseptic care and precautions the 2nd opposite party conducted surgery under spinal anaesthesia. Intra operatively on exploration the patient was found to have para umbilical hernia and a small umbilical hernia and both were uneventfully repaired. The operative procedure took about one hour and the patient was shifted to post operative ICU. The patient’s post operative recovery was uneventful and started on oral fluids by evening and shifted to the ward. On the first operative day(07.06.14) the patient’s clinical condition was stable except for rise in temperature and he was given due medication and started on soft diet and urinary catheter was removed. On 08.06.14 the patient had no complaints, wound was found healthy and dressings changed and he was advised to take
normal diet. Though the patient asked for discharge, he was advised to remain in hospital for one more day. On 09.06.14 patient was clinically normal and healthy without any complaints at all and hence after examination by the treating doctor he was advised discharge, as the patient was perfectly fit for discharge. The doctor also prescribed necessary medicines and advised to come for review on 14.06.14 for suture removal.
6. After settling the bill the patient and his relatives left the hospital at about 1 pm. But at 2.15 pm the patient was brought back to the emergency room in the 1st opposite party hospital. The causality medical officer immediately attended the patient but he found that the patient was brought dead. On getting information the 2nd opposite party had also rushed to the emergency room and the patient was declared dead and intimated the fact to the relatives.
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The relatives accompanying the patient reported that the patient had his lunch from a local hotel on the way and he complained of severe headache and collapsed. The post mortem finding shows that death occurred due to sudden and unexpected cerebrovascular event, intracranial haemorrhage which has no nexus with umbilical and paraumbilical hernia repair.
7. It is also contented that the hernia repair was uneventful and in post operative patient was in a stable condition and was able to have normal diet and also fit for discharge. The patient developed subarachnoid haemorrhage suddenly and unexpectedly due to factors unconnected to treatment given by the 2nd opposite party . The complaint has been filed purely on an experimental basis with an attempt to correlate the death of the patient with hernia repair incidentally taking advantage of the fact that death happened on the way to home after discharge. It is an accepted fact that umbilical and para umbilical hernia repair surgery would require short hospital stay. Except for mild rise in temperature usually manifested in post surgical period, the condition of the patient was quite normal and post operative period was uneventful. Even the patient asked for discharge on 08.06.14 implies that he had no complaints by the time and 08.06.14 being Sunday he was advised discharge the very next day.
8. The 2nd opposite party would also content that he had treated the patient in strict regard to accepted medical practice and there was no negligence or deficiency in service on his part and he is not liable to compensate the complainant. Subarachnoid haemorrhage(SAH) is devastating cause of stroke manifested with cardinal symptom of sudden severe headache and post mortem finding of flabbiness of heart and haemorrhage around the intra ventricular branch of coronary artery also pin point an underlying cardiac cause for sudden death. There are several personal risk factors for sudden occurrence of SAH includes smoking, hypertension, familial preponderance of SAH, certain heritage connective tissue disorders etc. The usual cause is a ruptured
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intracranial aneurysm due to pre-disposing factors and increased intracranial pressure. The cause of death as per post-mortem finding clearly shows that the patient died due to factors unconnected to the hernia repair surgery and treatment of the 2nd opposite party.
9. According to the 2nd opposite party the allegation that he discharged the patient in a hasty and doubtful manner is highly ill motivated. The patient was absolutely fit for discharge at that time. The intra-operative and post-operation period was uneventful and there was no complication at all. The patient was brought back to the hospital as dead and reportedly the patient developed sudden severe headache and collapsed on the way following meals from a local hotel. The allegation that the complainant’s husband was a victim of the medical negligence of the opposite parties is unfounded and unsustainable.
10. It is also contented that the 2nd opposite party had done the hernia repair surgery with due care and diligence and he had an uneventful post operative recovery with proper wound healing and was able to take normal diet with normal bowel habit. The patient was discharged after proper evaluation of clinical condition, wound inspection and physical examination and he was found fit for discharge on 09.06.14. There was no negligence or carelessness on the part of the 2nd opposite party at any point of time in the treatment of the patient.
11. It is further contented that the 2nd opposite party is a qualified general surgeon having Post Graduate qualification(Master of Surgery). He is having 27 years of professional experience at the relevant time. The opposite parties are not liable to compensate the complainant for the alleged mental agony and damage suffered by the complainant and family members on account of death of the deceased. The amount of compensation sought for is highly exorbitant and without any basis. The complainant has no cause of
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action against the opposite party No.1&2 and the same has been filed on a wrong notion without appreciating the real cause of death. The complainant has been suppressing material facts regarding the basic history of the patient on an
experimental basis so as to harass the opposite parties. Both the opposite parties further pray to dismiss the complaint with costs.
12. The points that arise for consideration are:-
- Whether there is any medical negligence, deficiency in service or unfair trade practice on the side of the opposite party No.1&2 in respect of the treatment of the deceased husband of the complainant?
- Whether the complainant is entitled to get compensation as claimed?
- Reliefs and costs.
13. Evidence on the side of the complainant consists of the oral evidence of PW1&Ext.P1 to P6 documents.
Evidence on the side of the opposite party consists of the oral evidence of DW1 to DW3 and Ext.D1 to D4 documents.
14. The learned counsel for the complainant and opposite parties have filed notes of arguments.
15. Heard the counsel for the opposite parties. The complainant’s counsel not turned up and argued on the merit of the case though sufficient opportunity was given.
Point No.1&2
16. For avoiding repetition of discussion of materials these 2 points are considered together. The complainant alleges medical negligence and deficiency in service on the part of the 1st opposite party hospital and the 2nd opposite party doctor in respect of the treatment of her diseased husband. PW1 is none other than the wife of the deceased. She filed affidavit by reiterating the averments in the complaint. However the following facts are undisputed rather admitted by both sides. On 16.05.14 the deceased Bose went
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to the 1st opposite party hospital and sought treatment for his hernia complaint. After detailed diagnosis the opposite party No.2 prescribed medicine and suggested a minor surgery for the ailment. On 05.06.14 the deceased Bose was admitted at the 1st opposite party hospital as directed by the 2nd opposite party doctor. On the next day ie, on 06.06.14 the deceased Bose has been subjected to a surgery and the 2nd opposite party had performed the surgery and advised the patient to take 1 week observation in the hospital. However on 09.06.14 the deceased Bose has been discharged by the 2nd opposite party. On discharge the patient left the hospital to his home at about 1 p.m in an autorickshaw. However at about 2.15 p.m the deceased Bose was brought back to the emergency room of the 1st opposite party hospital. The casualty medical officer immediately attended the patient. On getting information the 2nd opposite party doctor also rushed to the emergency room and after examination the patient was declared dead and intimated the fact to the relatives. It is also an admitted fact that the patient just before getting discharged had his lunch and the said lunch was brought to the hospital that before discharge doctor (Opposite party 2) has examined the deceased patient that during the way to home the patient felt physical illness hence brought back to the hospital. After examination by the duty doctor it was informed that the patient was brought dead. Immediately the 2nd opposite party rushed the hospital and after examination confirmed the death of the deceased. Kottarakkara police has registered Crime No.1101/14 of that police station. Inquest and post-mortem of the deceased duly conducted. During investigation, the matter was referred to an Expert Committee and the expert panel consisting of District Medical Officer and others have issued Ext.D2/D4 report and on the basis of the post-mortem certificate findings of expert committee report the police has referred the crime stating that there is no negligence or dereliction of duty on the part of the 2nd opposite party who treated the patient.
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17. The main allegation of the complainant is that the death of her deceased husband was due to the gross negligence and deficiency of service on the part of the opposite parties. The complainant would further allege that the 2nd opposite party doctor has conducted unwanted and unnecessary para umbilical hernia repair surgery on the deceased husband. The above allegation appears to be baseless in the light of the admission of PW1 that her deceased husband initially went to the 1st opposite party hospital and met the 2nd opposite party doctor who diagnosed the disease and advised to undergo surgery after consulting a physician. Accordingly the deceased consulted a physician who also advised surgery. The relative of the deceased had also signed on Ext.D2 consent form.
18. It is further alleged that 1 week post operative observation in the hospital was advised the patient on 06.06.14. But on 09.06.14 the deceased Bose was discharged in a hasty manner in spite of information passed by the relatives of the deceased that the physical condition of the patient was not good for discharge and also by ignoring the compliant made by the patient that he had severe headache, abdominal pain besides pain of the area were surgery was performed on his body. Without considering the request of the patient and his relatives the doctor discharged the deceased on a hasty and doubtful manner by preparing bill and handing over medicine for a period till 14.06.14 and advised the patient to eat rice from there. According to the complainant the patient was in good health but for his alleged hernia complaint before conducting the surgery. The complainant would further allege that despite of the negative indication in the pre-operative test of the deceased Bose the 2nd opposite party ventured into an urgent surgery with a prime motive only to achieve the operation target to neglect and hasty discharge of the hospital authorities after the fast and careless operation is suspicious. According to PW1 the 2nd opposite party had not given much care and precautions during the operation and the same may cause the post-operative complication like subarachnoid
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bleeding and sudden death. However the clear admissions of the complainant in her pleadings and the oral evidence of PW1 pointed out in paragraph 16 of this order coupled with the evidence tendered by DW1 and Ext.D1 to D4 documents would indicate that there is no merit in the above allegations of the complainant. The 2nd opposite party doctor himself has been examined as DW1. According to DW1 slÀWnb Akp-J-¯n\v acp-¶n-Ã, kÀPdn am{Xta t]mwhgn DÅp. slÀWnb detect sNbvXm ]ns¶ Surgery \S-¯p-I-bm-Wv. complication Dmhpw F¶p-Å-Xp-sImv slÀWnb detect sNbvXm DSs\ kÀPdn sN¿pI-bmWv ]Xnhv. A§s\ Hcp complication Dm-Im-Xn-cn-¡m-\mWv Surgery suggest sNbvX-Xv. kÀP-dn¡v ap¼mbn ^nkn-j-ysâ consultation Dw pre-surgery check up Dw \S-¯n-bn-cp-¶p. A{]-Imcw ^nknjysâ report  hyper billurubin Dm-bn-cp¶p tcm-Kn¡v. Gilbert Syndrome F¶v ]d-bp-¶Xv P³a-\m-bpÅ liver sâ Hcp hyXymkw BWv, BbXv Hcp AkpJw AÃ. The above version of DW1 remains unchallenged nor the complainant adduced any expert evidence to prove otherwise. In the light of the above evidence of DW1 we find no force in the allegations of the complainant stated above.
19. The oral evidence of DW1 would also got to show that the patient underwent necessary pre-operative investigations and pre-anaesthetic check up and found fit for surgery with normal BP and pulse. It is also brought out in evidence that the 2nd opposite party had informed the patient and her bystanders about the pros and cons of the surgical procedure and the risk factors and the patient and his relatives voluntarily agreed and consented for surgery namely para umbilical hernia repair. It is also from the available materials that under all aseptic care and precautions the 2nd opposite party conducted surgery under spinal anaesthesia. Intra operatively on exploration the patient was found to have para umbilical hernia and a small umbilical hernia and both were uneventfully repaired. The operative procedure took about one hour and the
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patient was shifted to post operative ICU. The patient’s post operative recovery was uneventful and started on oral fluids by evening and shifted to the ward. On the first post operative day (07/06/14) the patient’s clinical condition was stable except for rise in temperature and he was given due medication and started on soft diet and urinary catheter was removed. On 08.06.14 the patient had no complaints, wound was found healthy and dressings changed and he was advised to take normal diet.
20. It is also brought out evidence of DW1 that the patient asked for discharge, he was advised to remain in hospital for one more day. On 09.06.14 patient was found clinically normal and healthy without any complaints at all and hence after examination by himself the patient was advised discharge, as the patient was perfectly fit for discharge. The doctor also prescribed necessary medicines and advised to come for review on 14.06.14 for suture removal. After settling the bill the patient and his relatives left the hospital at about 1 pm. At 2.15 pm the patient was brought back to the emergency room in the 1st opposite party hospital. The casualty medical officer immediately attended the patient but he found that the patient was brought dead. On getting information himself (DW1) had also rushed to the emergency room and after examination the patient was declared dead and intimated the fact to the relatives. According to DW1 the relatives accompanying the patient reported that the patient had his lunch from a local hotel on the way and he complained of severe headache and collapsed. Though DW1 was subjected to severe cross examination nothing material has been brought out in evidence to disbelieve the above version of DW1.
21. It is further to be pointed out that Ext.D1 post-mortem report would indicate that the death was due subarachanoid bleeding. Ext.D2 findings of the Expert Committee report would also probabalise the case of the 1st and 2nd opposite parties and also corroborates Ext.D1 post-mortem findings. It is stated
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in Ext.D2 that death was due to Subarachanoid haemorrhage which is not directly related to surgery. The Expert Committee has also stated in D2 findings that there is no laxity on the part of the surgeon. The findings noted in Ext.D2 have not been challenged by the complainant. No other expert evidence is also forthcoming to hold that there is negligence or laxity on the part of 1st opposite party hospital or on the part of the 2nd opposite party doctor who conducted surgery or advised discharge on 09.06.14. It is also brought out in evidence that the hernia repair was uneventful and in post operative period patient was in a stable condition and was able to have normal diet and also fit for discharge. In view of the materials available on record it is clear that the patient developed subarachnoid haemorrhage suddenly and unexpectedly due to factors unconnected to treatment given by the 2nd opposite party.
22. It is an accepted fact that umbilical and para umbilical hernia repair surgery would require only short hospital stay. In view of the materials available on record it is clear that except for mild rise in temperature usually manifested in post surgical period, the condition of the patient was quite normal and post operative period was uneventful. According to DW1 even the patient asked for discharge on 08.06.14 which implies that he had no complaints by the time and even then the patient was advised to at the hospital for one more day and DW1 discharged the patient only on the next day (09.06.14). In view of the pleadings and evidence tendered by 2nd opposite party and other materials available on record the 2nd opposite party had treated the patient in strict regard to accepted medical practice and there is no negligence or deficiency in service on his part.
23. The learned counsel for the opposite parties has further argued that police has registered a case alleging medical negligence against the treating doctor. But as per Ext.D1/PW5 post mortem certificate produced by the complainant the cause of death is due to subarachnoid bleeding. Ext.D2 expert
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panel finding also corroborate the same that subarachnoid haemorrhage is a devastating cause would of stroke manifested with cardinal symptom of sudden severe headache and post mortem finding of flabbiness of heart and haemorrhage around the intra ventricular branch of coronary artery also pin point an underlying cardiac cause for sudden death. According to the learned counsel for the opposite parties there are several personal risk factors for sudden occurrence of SAH includes smoking, hypertension, familial preponderance of SAH, certain heritable connective tissue disorders etc. The usual cause is a ruptured intracranial aneurysm due to pre-disposing factors and increased intracranial pressure. It is also pointed out that the cause of death as per post mortem finding is that the patient died due to factors unconnected to the hernia repair surgery and treatment of the 2nd opposite party. In the light of the oral evidence of DW1 coupled with Ext.D1&D2 documents we find force in the above argument.
24. The learned counsel for the opposite parties has further argued that if the death is unconnected with surgery it can never be said that there was any negligence on the part of the 2nd opposite party in the treatment of the patient. It is also pointed out by the learned counsel for the opposite parties that during police investigation the police has referred the case to expert committee constitute by the District Medical Officer, Kollam. The medical board has unanimously found and stated in Ext.D2 report that death was due to subarachnoid haemorrhage which is not directly related to surgery and there is no laxity on the part of the surgeon. DW3 is the investigating officer. Ext.D3 is the final report in Crime No.1101/14 of Kottarakkara police station which would indicate that the crime has been referred by stating that there is no negligence or dereliction of duty on the part of the doctor who treated the deceased and the bleeding inside the brain caused death.
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25. The learned counsel for the opposite party has vehemently argued before the forum further that in medical negligence cases the burden is up on the complainant and the burden must be discharged by expert evidence. However no expert medical evidence either oral or documentary has been produced on the part of the complainant to prove medical negligence on the part of the 2nd opposite party who treated the patient and simply because her husband has died the complainant is presuming negligence on the part of the doctor and the hospital without any basis or bonafides. On the other hand the opposite party has adduced expert committee report (Ext.D2) prepared by the government doctors and forensic expert which would point towards the fact that cause of death is no way connected with the surgery done at the patient and it was due to Subarachnoid Haemorrhage which is unexpected development happened to any patient at any time. In view of Ext.P5,Ext.D2 and Ext.D3 documents we find force in the above argument.
26. On evaluating the entire materials available on record we find no merit in the allegations of negligence or deficiency in service on the part of the opposite party No.1&2 regarding treatment of the deceased husband of the complainant. Hence the complainant is only to be dismissed. These two points answered accordingly.
Point No.3
In the result complaint stands dismissed.
Parties are directed to suffer their respective costs.
Dictated to the Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 1st day of December 2018.
E.M.Muhammed Ibrahim:Sd/-
M.Praveen Kumar:Sd/-
S. Sandhya Rani:Sd/-
Forwarded/by Order
SENIOR SUPERINTENDENT
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INDEX
Witnesses Examined for the Complainant
Ext. PW1 : Sini Bose
Documents marked for the complainant
Ext.P1 : Discharge card
Ext.P2 : Death certificate
Ext.P3 : True copy of FIR
Ext.P4 : Newspaper cutting
Ext.P5 : Copy of post-mortem certificate
Ext.P6 : Copy of inquest report
Witness examined for the opposite parties
DW1 : Dr.Jacob John
DW2 : Dr.Sherly.V.V
DW3 : Anildas.S
Documents marked for the opposite parties
Ext.D1 : Copy of post-mortem certificate
Ext.D2 : Copy of enquiry report
Ext.D3 : Copy of final report
Ext.D4 : Copy of the minutes of the expert panel meeting of
the DMO
E.M.Muhammed Ibrahim:Sd/-
M.Praveen Kumar:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
SENIOR SUPERINTENDENT
