BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT Tmt. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 49 / 2001 TUESDAY THE 22nd DAY OF MARCH 2011. 1. R.S. Elangovan, S/o. Gubramanian, 2. Smt. Lakshmi Elangovan, W/o. R.S. Elangovan Both are residing at No.55/1. Aruganthampoondi Big Stret, Thottapalayam, Vellore – 632 004. … Complainants. - Vs – Christian Medical College Hospital, Vellore Rep. by its Superintendent. … Opposite party. . . . . . This petition coming on for final hearing before us on 30.8.2010, in the presence of Thiru. P. S.Subrahmanian, Advocate for the complainants and Thiru. M.R. Ramanan Advocate for the opposite party and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. I. The brief facts of the case of the complainant is as follows: The complainant admitted their son Vinodh Kumar in the Hospital, of the opposite party on the diagnosis of ANAPLASTIC LALGE CELL LYMHOMA a childhool cancer. He underwent a treatment in the hospital since November 17, 1998. The specialist doctors of opposite party hospital assured that if the complainants were prepared to send a little more than Rs.2 lakhs towards medical expenses of their son he would survive and would become perfect in his health. On December 2, 1998, Dr. Chellam Kirubakaran, Professor and Head of Department of Child Health Unit II of the Hospital gave a certificate that Vinodh Kumar suffering from ANAPLASTIC LARGE CELL LYMPHONA (Cancer accruing in Children) should continue the treatment for a total period of two years and it was a treatable condition with the survival rate at 70% and that he required cranial irradiation and id not require any surgery. She had also certified that the total cost of treatment was approximately Rs.2,00,000/-. The complainants had to spend subsequently about Rs.75,000/-. The opposite party charged the boy for drugs at various point of time and the complainants managed to purchase them at very great difficulty borrowing from outside at huge rate of interest. The 1st complainant in all had borrowed Rs.2,26,000/- only for medical treatment apart form meeting other expenses. The child specialist assured that after the entire amount was spent in respect of the several stages of medical treatment at the hospital the complainant’s son Vinodh Kumar would come back to absolutely no risk involved. The doctor further said that even though she had mentioned the survival rate at 76% in her letter dt. 2.12.98 there was 100% rate of survival and she expected the complainants to pay the hospital charges and other medical expenses and arranging the methods in procuring them. On 3.1.00 the specialist doctor on duty said a special drug was required to be administered through intravenous injection and the complainants get the same without any delay. The doctor after the receipt of the drug came out informing the injection given to their son will be effective and they should be prepared to meet the other expenses required for the purchase of the drugs. But on 24.1.00 the complainant’s son showed sivns of great discomfort with a set back in his health. He had sudden rise in temperature and taken to the intensive care unit by the 1st complainant at 6.a.m. But he was shocked that the heartless and inhuman doctors there refused to examine Vinodh Kumar unless the 1st complainant paid the sum of Rs.10,000/- immediately and showed the receipt of them. The doctors did not attend the boy till 11 am. at 12 a.m. he was taken to Q 3 ward. In the ward the boy was not examined or given any medical treatment till 6 p.m. They did not attend on him deliberately stating that even though the drug was available it will not be given and only after the complainant had paid the amount further treatment shall be initiated by the doctors. The 1st complainant who had already spent Rs.2 lakhs asked them whether they did not have confidence in him for the payment of Rs.10,000/- after drug was administered. 2. Since the complainants did not have the required money the 1st complainant approached the Chennai Film Distributors Association President Sri. Chinthamani Murugesan. He took great Pity on him and gave the cheque for Rs.10,000/- in favour of the opposite party. Without realizing that the amount was paid by cheque one of the doctors with a shockingly merciless manner discharged the boy. The 1st complainant immediately reported about the payment and again admitted Vinodh Kumar and started the medical treatment. Due to the very long delay in attending on Vinodh Kumar there was deterioration in the health. The 1st complainant was shocked by the carelessness and negligence in attending on the boy. The opposite party had by its inordinate delay, made the sate of health of the bad. On 30.1.00 their son died due to the highly negligent and inhuman conduct of the doctors, paramedical staff, nurses and other in the opposite party hospital. The death of their son Vinodh Kumar at opposite party’s hospital while undergoing treatment for the disease has entirely due to the dereliction of duty on the part of the doctors and other concerned staff attending on him. The complainants caused the issue of registered notice to pay the amounts about mentioned but send x-copy of all history sheets concerning the treatment of their son. The opposite party sent a reply on 14.7.00 informing that they denied the allegations and the detailed reply will be sent after going through the records. The complainants again sent a registered notice on 24.8.00 to the opposite party calling upon it to send the copies within one week from the date of the receipt. But till to-day they have not been furnished to these complainants. It is therefore directing the opposite party to pay a sum of Rs.2,50,000/- towards reimbursement of medical charges illegally and exorbitantly collected from them for the medical treatment of their deceased son Vinodh Kumar and to pay a sum of Rs.50,000/- towards the mental agony and physical torture suffered by them due to deficiency in service and to pay a sum of Rs.15 lakh for the loss sustained by the complainants on account of the untimely death of their son due to negligence dereliction of duty on the part of the opposite party and a sum of Rs.10,000/- towards conveyance and other hospital visit expenses and Rs.10,000/- towards the cost of this complaint. 5. The averments in the counter filed by the opposite party is as follows: The opposite party denies all the averments and allegations in the complaint except those that are specifically admitted hereunder. The complainants have not filed the required memo as per Consumer Protection Act to file a single complaint before this Forum and as such a complaint by two people without the leave of the court is not maintainable and as such liable to be dismissed in limini. The complainant’s son was brought to the opposite party’s hospital as an outpatient on 25.02.98 with three episodes of febrile seizures. The patient again presented to the opposite party’s hospital on 12.10.98 and was diagnosed to be suffering from cellulites of the left axilla. He was seen in the pediatric surgery department wherein he was treated for cellulites by 23.10.98 the patient developed an abscess at the same site and the same was incised and drained under antibiotic cover. The incised wound was not healing and hence admitted again on 06.11.98 for debridement of the wound and tissue was sent for histopathological study. The histopathological study and biopsy revealed that the child was suffering from anaplastic large cell lymphoma (16633/98).The condition in the child is an extremely virulent malignant cancer condition which is usually characterized by lymphnode swelling or abdominal swelling. The complainant was explained of the malignant nature of the disease, the nature of aggressive chemotherapy for treatment and the expenses which would be incurred during the process of treatment. The complainants were also explained that anaplastic lymphoma is a fatal condition if it is not treated and even when there is adequate treatment the chances of survival is rated at only 60 to 70%. The doctor treating the patient also explained to the patient’s parents that the child was required to be kept under constant observation for infections because any minor infection during the treatment for cancer viz. chemotherapy could be fatal to the child. 6. The child was started on chemotherapy, using APO regime on 25.11.98. the child was also advised to attend regular chemotherapy sessions on Thursday. The child in the initial stages was very regular for treatment during induction, consolidation and CNS prophylaxis phases of chemotherapy. Subsequent to that, the maintenance phase of chemotherapy was started on 11.02.99. After six months, the child started defaulting in treatment. During this period, the child developed chickenpox. The opposite party further submits that in mid July 1999 the parents of the child had come to the Casualty Department without the child and chart and informed that child was suffering from chicken pox. Senior Doctors of the opposite party hospital advised them to bring the child immediately and also explained the chicken pox in the child undergoing cancer chemotherapy could be very fatal. The child was not brought to the hospital as advised. Suddenly on 03.09.1999 the child was brought to the casualty in a moribund condition with staphylococcal broncho pneumonia and left-sided pyopneumothorax coupled with lethargy and drowsiness, congestive cardiac failure, peripheral circulatory failure and impending septicemia shock. The child was drowsy and was not responding to stimulus. The enquirers made with the parents of the child revealed that they had kept the child in the temple for treatment of chickenpox for 15 days. The child was advised to be admitted at once considering the serious condition he was in. Inspite of their behaviour seeing the serious condition of the patient the opposite party admitted the child to the ward. The child was treated with inotrophic support (life support given in terminal stage) and adequate and appropriate antibiotics and intercostals drainage which drained copious amounts of foul smelling pus. The child stared recovering slowly. However, the intercostals drain continued to drain pus and air. He also has signs of bronchopleural fistula. The cancer chemotherapy was re-stared during hospitalization. He was also given packed red blood transfusion and plasma transfusion. Then on the 32 day of admission, he was discharged. However the patient while being discharge was advised to come to the hospital twice a week for evaluation of intercostals drainage. The patient was reviewed on 5.10.99 when signs of pneumococal infection was seen. He was given appropriate treatment and chemotherapy was continued after the infection was brought under control. The patient was last seen on 6.1.00 for chemotherapy and was advised to return on 24.1.00 for the next cycle of chemotherapy. On 6.1.00 Dr. Cehllam Kirubakaran and a very Senior Professor from Australia who is an expert in treating children with cancer reviewed this child. The Australian Professor opined that the child has done remarkably well despite having defaulted from chemotherapy even after getting chickenpox and he suggested that the child had a good chance of recovery if he completed the chemotherapy as per schedule. When the patient was brought on 24.1.00, the patient had been having fever coupled with abdominal pain, loose stools and decreased appetite for three days and was febrile and toxic. He was diagnosed to have a serious infection of the intestines. Inspite of treatment he deteriorated and on 29.1.00 he had to be supported by mechanical ventilation due to respiratory failure. By 30.1.00 the child had developed multi organ dysfunction inspite of all the available expertise and treatment. However the patient succumbed to illness and died on 30.1.00. It is dined that the Doctors of the opposite hospital had assured recovery of the complainant’s son on the cost of Rs.2,00,000/- as stated in the complaint. In fact most of the treatment were rendered free of cost or on nominal basis. The opposite party hospital has no knowledge of the complainant having borrowed any money as stated in the complaint. The opposite party has denies that they had given any assurance that there is no risk involved in the treatment of their son. They have done whatever was possible for the treatment of the child and therefore it is unreasonable to blame the opposite party hospital for the sad occurrence. As regards para-9 our clients deny all the allegations contained therein and submit that the child was never brought to the hospital on 3.1.00 and therefore the question of giving injection and other averments are denied as false. The opposite party hospital also denies that the Doctors did not offer treatment to the patient on 24.1.00. As soon as the patient was admitted on 24.1.00 tests were conducted on the patient it was diagnosed that the patient had acute gastroenteritis, severe pneumonia and oral candidacies which are serious infections in children with cancer. After admission, the child was given free treatment and the complainants were only asked to by medicines. It is also denied that doctors refused to treat the child and illtreated the family members of the child. The child was treated with utmost care and therefore the allegation with regard to carelessness and negligence is denied as false. The opposite party denies that the death of the patient was on account of the opposite party hospital. There has been no dereliction of duty as stated by the complainant in the complaint. The expenses that were incurred by the complainant were mainly on the medicines and puts the complainant to strict proof of the same. The opposite party hospital had taken adequate care to see that the patient was treated well and the patient gets well. He was recovering from the cancer, unfortunately the patient had succumbed to an infection because of the delay in bringing the child to the hospital and therefore the opposite party hospital cannot be blamed for the death of the patient. It is therefore prayed that this complaint has to be dismissed. 8. Now the points for consideration are: a) Whether there is any deficiency in service, on the part of the opposite party? b) Whether the complainant is entitled to the reliefs asked for?. 9. Ex.A1 to Ex.A13 Series were marked on the side of the complainants and Ex.B1 to Ex.B72 were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite party have been filed. No oral evidence let in by either side. 10. POINT NO. (a): It is admitted facts of the parties that the complainant’s son was brought to the opposite party’s hospital as an outpatient on 25.2.98 with three episodes of febrile seizures and the said patient again presented to the opposite party’s hospital on 12.10.98 and was diagnosed to the suffering from cellulites of left axilla Ex.B14 and he was treated for cellulites. By 23.10.98 the patient developed an abscess at the same site and the same was incised and drained under antibiotic cover. Hence he admitted again on 17.11.98 Ex.B27, for debridement of the wound, the tissue was sent for histopathological study. The histopathological study and biopsy revealed that the child was suffering from anaplastic large cell lymphoma (16633/98). The condition in the child is an extremely virulent malignant cancer condition which is usually characterized by lymphnode swelling or abdominal swelling. He took treatment as inpatient from 15.10.98 to 18.10.98 and from 17.11.98 to 16.9.99 and from 24.1.00 30.1.00 then he died on 30.1.00. 11. The complainant contented that their son Vinoth Kumar was admitted in the opposite party hospital for the treatment of child cancer, one of the doctor namely Cellan Kirubakaran, the professor and head of department of Child Health Unit II gave a certificate that the said Vinoth Kumar should continue the treatment for a period of two years and it was treatable condition with the survival rate of 76% without any surgery. So, the complainant had spent more than 3 lakhs for the medical treatment because of the assurance given by the opposite party and they believed the doctors that hey would be saved their child life from the said disease. But the doctors were not treated properly, so the boy had great discomfort with a set back in his health and the boy taken into ICU at 6 a.m. At the time the duty doctors refused to give treatment and the complainant paid the a sum of Rs.10,000/- immediately. Even after making the said payment the doctors was not treated the boy till at 11 a.m and the boy was shifted to Q-3 ward at 12 p.m. The complainant handover a cheque for a sum of RS.10,000/- issued by one Chinthamani Murugesan, the great film producer for the medical expenses, but the opposite party was discharged the boy from the hospital by forcibly. The said action of the opposite party had caused a huge mental agony to the complainant as well their son Vinoth Kumar. For the continuous negligent treatment by the doctors the complainant had ultimately died on 30.1.00. The death of their son was only to dereliction of duty and deficiency in service, irresponsibility on the part of the doctors and other staffs of the opposite party Hospital. 12. The opposite party contended that the complainant was explained of the malignant nature of the disease, the nature of aggressive chemotherapy for treatment and the expenses which would be incurred during the process of treatment. The complainants were also explained the anaplastic lymphoma is a fatal condition if it is not treated and even when there is adequate treatment the chances of survival is raged at only 60 to 70%. The boy was started on chemotherapy using APO regime on 25.11.98 the boy was also advised to attend regular chemotherapy sessions on Thursday. After six months the child started defaulting in treatment. During this period, the child developed chicken pox and the child was also not brought to the hospital as advised. Suddenly on 3.9.99 the child was brought to the causality in a moribund condition with staphylococcal bronocho pneumonia and left sided pyopneumothorax coupled with lethargy and dowsiness, congestive cardia failure, peripheral circulatory failure and impending septicemia shock. The child was treated with inotrophic support (life support given in terminal stage) and appropriate antibiotics and intercostals drainage which drained copious amounts of foul smelling pus. Then the 32 days of admission, he was discharged. When the boy was brought on 24.1.00 the boy had been having fever coupled with abdominal pain loose stools and decreased appetite for three days and was febrile and toxic. He was diagnosed to have a serious infection of ht intestines. Inspite of treatment he deteriorated and on 29.1.00 he had to be supported by mechanical ventilation due to respiratory failure. The child has developed multi organ dysfunction inspite of all the available expertise and treatment and finally died on 30.1.00. Despite best treatment rendered by the qualified doctors of opposite party hospital the boy succumbed to the disease. The doctors had put in beset efforts to treat sincerely with all reasonable skill and care which should be appreciated irrespective of the results. There was neither negligence nor deficiency of service either in diagnosis or in treatment. The complaint is wholly misconceived. 13. From the perusal of case summary and discharg record Ex.B14 in page No.187 medical records of opposite party hospital it is mentioned that on 15.10.98 the complainants son brought with a history of acute swelling and pain over the left axillary region 6 days ago and was diagnosed to be suffering from Celluliltes of the let axilla and he was treated for cellulites. From the perusal of discharge summary Ex.B27, (in page No.207 to 210) of medical records of opposite party hospital it is mentioned that on 17.11.98 the complainants son was admitted with the history of recurrent fever for one month, associated with non healing abscesses in the left axiliary shoulder regions, which were incised and drained twice earlier. The histopathological and biopsy revealed that the child was suffering from anaplastic large cell lymphoma and admitted for evaluation and chemotherapy. Then the boy was also advised to attend regular chemotherapy sessions on Thursday. According to the opposite party that in initial stages was very regular for treatment during induction, consolidation and CNS prophylaxis phases of chemotherapy. After six months the child started defaulting in treatment. During this period, the child developed chicken pox. From the perusal of discharge summary Ex.B5 (page No.164 to 173) of the medical records of the opposite party hospital it is mentioned that on 3.8.99 the complainant’s son Vinoth Kumar presented he developed a varicells moster infection 15 days prior to admissions for which he was kept in a temple and was not treated. The child was treated with inotrophic support (life support given in terminal stage) and appropriate antibiotics and intercostals drainage which drained copious amounts of foul smelling pus. Then the child started recovering slowly. Thereafter the cancer chemotherapy was restarted during hospitalization. Then on the 32 day of admission he was discharged. 14. According to the opposite party that again when the patient was brought on 24.1.00 the patient had been having fever coupled with abdominal pain, loose stools and decreased appetite for three days and was febrile and toxic. He was diagnosed to have a serious infection of the intestines. Inspite of treatment he deteriorated and on 29.1.00 he had to be supported by mechanical ventilation due to respiratory failure. From the perusal of Ex.B52 (page No.316) of the medical records of the opposite party hospital it is mentioned that on 24.1.00 the six years old Vinoth Kumar a case of anaplastic large cell lymphoma was brought with complaints of cough cold for 10 days, loose stools for 5 days fever for 3 days and at the time of admission he was diagnosed anaplastic large cell lymphoma on chemotherapy was admitted with acute gastroenteritis lymphoma sepsis and rental failure, liver cell dysfunction and thrombocytopenia. On 30.1.00 he developed sudden cardiac arrest. Therefore it is clear that the child was treated with at most care and caution by the doctors of opposite party. 15. According to the complainant the death of their son Vinoth Kumar at the opposite party hospital while undertaking treatment for disease as entirely due to dereliction of duty on the part of the doctors and other concerned staffs attending on him. Hence resulted much inconvenience to the complainant like expenses mental agony and torture. The learned counsel for the opposite parties have argued that bare allegations in the complaint would not establish charge of negligence on the part of the opposite party. The burden of proof on the medical negligence lies on the complaint, but in this case, the complainant has not proved the allegation made in the complaint against the opposite party through medical records or expert evidence. In this connection the learned counsel for the opposite party is relying upon the following Judgments of Hon’ble Supreme Court and National Consumer Disputes Redressal Commission, New Delhi. I. (2009) 7 Supreme Court Cases 130 C.P. SREEKUMAR (DR.), MS (ORTHO) ..Vs.. S.RAMANUJAM Wherein the Hon’ble Supreme Court is held that “ As already observed in Jacob Mathew case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. In Jacob Mathew case it has been observed as under: (SCC pp.32-33, para-48) “(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratantal 7 Dhirajlal (edited by Justice G.P.Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’ , ‘breach’ and ‘resulting damage’ (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the par of a medical professional. II. 2007 (2) CPR 260 (NC) N. Krishna Reddy ..Vs.. Christian Medical College and Hospital Rep. by its Medical Superintendent & Anr. Wherein the Hon’ble National Commission, New Delhi is held that, “ Consumer Protection Act, 1986 – Sections 21(a)(i) – and 2 (1) (g) – Complaints about medical negligence – Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against the affidavits filed by Hospital and doctors. “ In the present case, from the perusal of Ex.B1 to Ex.B72 discharge summary and medical records of the complainant issued by the opposite parties hospital would show that the doctors of the opposite party hospital have taken the proper test investigation and administer proper medicine and treatment with at most care and skill. During the treatment she was closely monitor by the nurse and doctors. 16. The nature of the medical profession is such that there are many courses of treatment in each disease. The diagnostic procedure may by vary, and the approach by each doctor will be different and the treatment given to a patient differs from man to man. It is for the doctor treating the patient to decide the best course of action and if he has done the job exercising due diligence with such standard of care that is required of him. Unless it is shown that the Doctor or Nurse has failed to opt a particular precaution or failed to follow the procedure and such failure has called to the ultimate result or complication. In the present case, except the complaint there is no medical record or expert evidence to prove that the opposite party has done irrelevant test and they failed to render services properly while treating the patient. The ruling cited by the learned counsel for the opposite party is squarely applicable to facts and circumstances of this case. 17. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A13 and Ex.B1 to Ex.B72, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainants herein. 18. POINT NO : (b ) In view of our findings on points (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him in this complaint. Hence we answer this point (b) also as against the complainant herein. 19. In the result, this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 22nd day of March, 2011. MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
