By G. Yadunadhan, President:

          The complainant has approached this Forum alleging negligence and deficiency in service on the part of the opposite parties in treating her. The case in brief of the complainant is that she was admitted in 1^st opposite party hospital with fever and slight cough on 25.8.2002.  The ailment of the complainant was diagnosed as pneumonia on the same day itself.  The complainant was treated as in-patient from 25.8.2002 to 13.9.2002. She was discharged from the hospital on 13.9.2002 at about 10 AM and was issued a bill of Rs.64000/- towards hospital expenses.  She alleges that even though permission to discharge was given at about 10 AM the bill was furnished to her only at 7 PM in the evening. The complainant and her relatives were made to wait at the hospital till 7 PM without giving intimation about this huge amount.  The complainant or her relatives were not given a hint that the bill was exorbitantly excessive.  Since they did not have such a huge amount readily available with them, the complainant and her relatives requested time till next day for making the payment.  The requests made for permission to take the complainant to her home was rejected and she was constrained to remain in the hospital for another one day.  The charges for this day also was added to the bill, thus arriving at a total of Rs.65066/-.  At the time of making payment, the complainant’s son complained about the unpleasant experience, they came across and an amount of Rs.5612/- was deducted from the hospital bill.  Even at the time of discharge the complainant was not completely cured and it was lonely after receiving treatment from another doctor that the ailment of the complainant was cured.  She further states that she was not given the medical records except the discharge summary in spite of the repeated requests.  This act of the opposite parties amounts to negligence, deficiency in service and unfair trade practice and hence the complainant sought for a compensation of Rs.1,00,000/- apart from Rs.50,000/- as reimbursement which she paid as the hospital bill.

          The opposite parties had entered appearance and filed a detailed version stating that the complainant is not entitled to file the above complaint or to get any relief and the complaint is not maintainable.  The complainant approached the opposite party with history of cough with expectoration and fever of two days’ duration.  When the complainant was initially seen in the casualty, she was in severe hypotension, systolic blood pressure-50 mm of Hg.  Provisional diagnosis at the time of admission was a typical pneumonia with shock related to sepsis.  Additional possibility of ischemic heart disease with left ventricular failure precipitated by lower respiratory infection was also thought of as the complainant was in hypotension, had breathlessness, ECG showed minor changes and Troponin-T was found subsequently positive.  The patient was taken over to the respiratory side after ruling out a probable cardiac cause with a thorough clinical evaluation.  The serious nature of the complainant’s illness was explained to the son of the complainant and he signed the consent for hospitalization, as well as for the various tests.  The complainant did not have prior diabetes mellitus, or coronary artery disease, but there was a history of mild hypotension, on irregular treatment.

          The complainant was given Dopamine for hypotension, along with I V fluids, and steroids were also added for suspected adrenergic crisis along with antibiotics.  As a result of the treatment, the complainant’s blood pressure and symptoms improved.  The complainant was seen by the cardiologist Dr. Dinesh Babu on 26.8.2002, who thought that she was coronary artery disease, unstable angina, and started on aspirin, clopidogrel, pantoprazole, enoxaparin, which were added to antibiotics, which the complainant was already on.  The complainant had mild impairment of kidney function and was seen by Nephrologist, Dr. Murali K.M. who told that the complainant had acute renal failure, related to atypical pneumonia and hypotension.  The same was informed to the relatives of the complainant.  The relatives of the complainant including her son were informed about the expenses incurred for the treatment in the opposite party hospital and also they were given an option to take her to a less expensive hospital or to the Medical College.  The relatives of the complainant were impressed with the remarkable progress made over the few hours and decided to stay back for availing the service of the opposite parties.  The complainant was shifted out to the ward from medical intensive care unit which the 2^nd opposite party is in charge on 26.8.2002.  The 2^nd opposite party is the consultant Pulmonologist and the Medical Intensive Care Unit in charge and is a well qualified doctor.  He had taken his M.D. in chest diseases and tuberculosis from KEM Hospital, Bombay and thereafter he secured his DNB in respiratory diseases during his service at JIPMER, which is a prestigious Central Govt. Medical Research Institute in Pondicherry.  He is a life member of the Indian Society of Critical Care Medicine as well as Academy of Pulmonary and Critical Care Medicine and has published and presented various articles in Pulmonary and Intensive Care Medicine.

          On 28.8.2002 at about 1 AM, the complainant suffered sudden onset of breathlessness dyspnoea increased by the morning, with worsening of oxygen saturation.  The 2^nd opposite party examined the complainant and urgent chest X-ray showed bilateral opacities.  The complainant was thought to have pulmonary oedema, secondary to ischemic heart disease and urgent cardiology consultation was obtained and she was shifted to Coronary Care Unit.  There the complainant was started by the cardiology consultants on Nitroglycerine Infusion along with other supportive measures and as her respiratory distress worsened along with progressive hypoxemia, the complainant was intubated by Dr. Wahad, Cardio Thoracic Anesthesiologist on duty.  With conventional ventilation using 100% oxygen the complainant’s oxygenation did not improve and she was put on PEEP which maintained her oxygenation very border line.  Besides Echocardiogram done by cardiologist, showed good LV contractility and hence they thought, though the complainant had ischemic heart disease, her pulmonary oedema was secondary to Acute Respiratory Distress Syndrome (ARDS) from atypical pneumonia.  The diagnosis of Atypical Pneumonia was further supported by history of fever, renal dysfunction and low platelet count. The complainant was seen by physician Dr. Bhagyanathan, for her Thrombocytopenia and Hyperglycaemia.  Since the complainant’s platelet count was low she was administered platelet concentrates.  Over the next few days, the complainant’s oxygenation was border line, and not improving with optimal ventilatory management.  The complainant’s condition remained critical and despite ventilation with 100% oxygen, her oxygenation was not satisfactory.  All these were explained to the complainant’s relatives and it was told to them that she might not be surviving in spite of utmost care.  It was also informed to the relatives of the complainant that the treatment in the hospital of the 1^st opposite party would be expensive.  The relatives of the complainant requested to continue the care with all the facilities available so that the life of the complainant can be saved at any cost.

          Since the Cardiologist was of the opinion that the complainant would be managed better in the Medical ICU, on 30.8.2002, she was shifted to Medical Intensive Care Unit.  There the complainant was subjected to a new mode of ventilation strategy call ‘open lung strategy’.  Open lung strategy is the most modern technology and this facility and expertise is available only, in a handful of hospitals in India.  This was very successful and the oxygenation of the complainant improved dramatically.  The complainant started showing signs of improvement gradually and she could later be weaned off the ventilator successfully and ultimately extubated on 5.9.2002.  The relatives of the complainant were advised that she could be shifted to the general ward to reduce the cost of the treatment.  They were repeatedly told that Medical and nursing care will exactly be the same in general ward and private room and if shifted to private room they will be paying extra money just for convenience and luxury, like private bath and telephone.  However, relatives of the complainant opted for private room, which is much more expensive than general ward, since all modern facilities including telephone and private bath are provided in the private rooms to the patient and the bystanders.  Since the complainant had completely recovered, she was discharged from the hospital of the 1^st opposite party on 13.9.2002.  As some of the x-rays of the complainant were suspicious of a superior mediastinal widening which was planned to be followed up as an out patient basis and she was advised for review in the hospital of the 1^st opposite party on 22.9.2002 at Pulmonology and Cardiology OPDs. Thus the opposite parties denied the allegations of negligence, carelessness and deficiency in service made against them by the complainant and would contend that the complaint is liable to be dismissed, especially because the complainant was through out treated bestowing reasonable care, caution and attention.

          The evidence in the matter consists of the oral testimony of the complainant as PW1 and that of her son as PW2.  Exts. A1 to A6 were marked on the part of the complainant.  The 2^nd opposite party was examined as RW1 and Ext. B1 series marked. Affidavit of Dr. K. Madhu has also been filed on the part of the opposite parties.

          The issues that arise for consideration are: (1) whether the complaint is maintainable?  (2) Is there any negligence or deficiency in service on the part of the opposite parties?  (3) What order as to reliefs and costs?

Issue No.1:  Even though in the version a contention is seen raised that the complaint is not maintainable, the same has not been seriously pressed.  In any view of the matter when admission and treatment of the complainant and payment of fees etc. is admitted, the complainant will definitely be a consumer and hence we hold that the above complaint is maintainable.

Issue No.2:  Going by the complaint, the main allegations of negligence and deficiency in service is that unnecessary expensive tests were conducted, deficient treatment was given, there was unnecessary exposure to radiological examination, she was put in air conditioned ICU for 12 days and that the health of the complainant suffered due to wrong and negligent treatment and inadequate and imperfect care given by the opposite parties.  Unfair trade practice is also alleged in so much that an exorbitant bill was raised and that the complainant was not permitted to leave after discharge on account of non payment of bills and the records pertaining to the treatment were not handed over.  To substantiate these allegations the complainant and her son were examined as PW1 and PW2 and Exts. A1 to A6 were marked.  The case sheet regarding the treatment given to the complainant is marked as Ext. B1 series.  No independent expert evidence is adduced in the matter.

          PW1 would state that her disease was diagnosed to be pneumonia on 25.8.2002 itself and in spite of the same unnecessarily she has made to undergo different tests. She would admit the different cross consultation done regarding her treatment, but would contend that the same were unnecessary.  She would further state that 17 X-rays were taken and that even though she was suffering from pneumonia, she was put in air-conditioned ICU and ICCU which according to her was not proper or correct.  A bill of Rs.64000-/- was given and when they expressed their inability to raise such huge amount, they were not permitted to leave the hospital and adding one more day’s amount, a revised bill for Rs.65066/- was given and that finally at their pleading a sum of Rs.5612/- was waived.  PW1 would state that even at the time of discharge she was not fully cured and she had to undergo treatment with another doctor.  In spite of her request, the treatment records were not given and only a discharge summary was given, which according to her was done to compel the complainant to again avail the services of the Opposite party in case of further requirements.  PW2 also tendered evidence in support of the allegations contained in the complaint.

 On the side of the opposite parties, the 2^nd opposite party is examined as RW1.  He has detailed out the tests conducted, the treatment given and the different cross consultation taken in the matter.  He would state that he was in charge of the ICU of the 1^st opposite party hospital.  He has proved Ext. B1 series.  According to him when the complainant was seen in the causality, she was having complaint of cough, breathlessness and vomiting.  She was in severe hypotension and a provisional diagnosis of ‘Atypical Pneumonia with shock related to sepsis’ was made.  He has narrated the different steps and tests conducted which were found to be necessary and which the condition of the complainant warranted.  The different treatments being given and the expenses thereof were duly intimated to the bystanders.  The condition of the complaint had remarkably improved by the treatment given to her, which according to RW1 also indicated that correct and proper treatment was being given.  The different complications which arose were properly managed and she was saved from a very critical condition. He has given the explanation for retaining the complainant in the ICU. The most modern technology and sophisticated equipments with the assistance of experts in different specialties were utilized for treating the complainant.

          The legal position as far as cases of medical negligence are concerned is well settled.  The Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab and another reported in 2005 (6) Scale 130 has reiterated that negligence in the context of 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 part of a medical professional.  So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would  not have chosen to follow or resort to that practice or procedure which the doctor followed.  So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that day, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. It is for the complainant to prove his case, as has been held by the National Commission in B. Anthony Raj & Another Vs. SH. Thomas Hospital & Another II (2006) CPJ 80 (NC ) and Dr. Satish C Gupta Vs. Rajkumar Nerula 2008 (3) CPR 26 (NC) that simply because a patient has not favourable responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se applying the doctrine of res ipsa loquitor, following the decision of the Supreme Court aforementioned.

The Hon’ble National Commission in Indira Kartha & others Vs. Dr. Mathew Samuel Kallarikkal & another 1 (2006) CPJ 62 (NC) has held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.  The medical practitioner is not an insurer and so he cannot be blamed every time if something goes wrong.  Indeed, it is widely acknowledged that in medicine, in particular, things can go wrong in the treatment of patient even with the very best available care.  Court has to be careful and cannot return a finding of negligence on the ground that medical men did not comply with the existing common practice as that would stifle the innovation. Burden of proving that the doctor was negligent rests with the complainant and it is not for the doctor to show that he was not negligent.  Medical negligence cannot be presumed and that cases of medical negligence fall in its own category and need to be proved with the help of expert opinion and such cases are not proved by uncertain evidence and in the realms of probability and that in the absence of expert evidence, complaint alleging negligence would not succeed as has been laid down by the Hon’ble National Commission in Kanhaiya Kumar Singh Vs. M/s. Park Medicare and Research Centre III (1999) CPJ 9 (NC) and Saleemuddin & others Vs. Dr. Sunil Malhotra II (2006) CPJ 348 (NC).  The Hon’ble High Court of Kerala in M. Sobha Vs. Dr. Mrs. Rajakumari Unnithan & others AIR 1999 Kerala 149 relying on different rulings of the Hon’ble Supreme Court has held that in a case of medical negligence what is required to be judged is causation, nexus of injury with the action alleged to be negligent and not the consequence and that the principles of res ipsa loquitor cannot be applied mechanically in medical negligence cases. The opposite party has also relied on 1985 KLJ 781.

In this background when the common evidence and records are analysed, the following findings merge.  Both PW1 and PW2 admit that there was cross consultation with experts of different specialties.  Ext. B1 case sheet has not been discredited in any manner.  No evidence, let along any expert evidence is adduced to show that something that ought to have been done in the matter has not been done or that something which should not have been done is done.  There is absolutely nothing on evidence to show that the treatment done as per Ext. B1 series is deficient or wrong or that the same is not in accordance with the standard medical protocol.  There is no contra evidence to the evidence tendered by RW1 that the critical condition of the complainant necessitated her continued retention in the ICU and ICCU.

PW1 in cross examination would admit that she was an inpatient and was in a special room having all facilities including phone etc., and she could not deny the suggestion that the said room would be much expensive than the general ward.   She would also admit that the said room was opted at the suggestion of her children. The complainant could have opted for the general ward if the expenses were to be reduced instead of opting for a private room with all modern facilities.  Moreover the complainant has no case that the charges are not that of the tests done and treatment given.  The payment is seen done voluntarily and without raising any protect, that too after availing a concession of Rs.5612/-.  There is no case for the complainant that any amount violating any statutory mandate including any MRP is collected by the opposite parties.  The consent letters are signed by the son of the complainant is also admitted by the complainant.  The case of the complainant that she was not permitted to leave the hospital and was retained for one more day in the given facts and circumstances of the matter appear to be not proper or correct.  The same is unbelievable as well, more so because the intention for retaining the complainant going by her own case was to extract further amounts.  But in fact a concession of Rs.5612/- is given even going by her own case and claim.  Moreover pricing is an aspect which cannot be gone into by this Forum unless there is a specific allegation and proof of over charging than statutorily or contractually fixed price/charges.  Regarding the allegation of numerous X-rays being taken, it is pertinent to observe the conduct of the complainant in not producing the said X-rays before this Forum and adducing some expert evidence to show that the said X-rays were taken unnecessarily.  PW1 admits that she is in possession of all the 17 X-rays and when confronted with the question that the said X-rays are willfully suppressed for if produced they would reveal the ailment and health status of the complainant, she would not give any answer.  PW2 also does not have an acceptable explanation.  Only one X-ray is seen produced.  When the complainant alleges negligence, carelessness and deficiency in service on the part of the opposite parties, it is imperative that she should produce all the relevant and material documents, reports, X-rays etc. in her possession and positively prove and establish the negligence or deficiency in service on the part of the opposite parties.

          Non furnishing of the treatment records cannot be made a ground to condemn the opposite parties especially because the complainant does not have a case that what is recorded in the discharge summary. Ext. A3 is not proper, correct or inadequate or that the case sheet Ext. B1 series contain some different entries.  PW2 in page 13 of the cross examination is unable to answer when the impropriety of the requirement of furnishing the original medical records in Ext. A4 notice is pointed out.  Even though the opposite parties had expressed their readiness to furnish a copy of the said medical records as per letter dated 20.11.2002, none came forward to collect the same, which as well reveals the lack of truth and bonafides in the demand made for the said records.  Moreover, the doctor under whom the complainant underwent further treatment is not examined nor is there an evidence to show that the further treatment was adversely affected or the complainant in any way prejudiced because of that.  The complainant is not even able to mention the name of the said doctor who is claimed to have treated her subsequently.  According to her, it is the said doctor, who has opined that the treatment given by the opposite party was not correct and that he had changed the medicines accordingly.  No records of any such treatment are seen produced.  According to PW2, it is one Dr. Govindan, who is claimed to be a chest specialist and retired from Medical College.  PW2 in page 7 of the cross examination would state that the said doctor has never said that the treatment given by the opposite parties was poor.  According to PW2, it is one Dr. Vijayagopal, who has opined that the treatment given by the opposite parties is not proper or correct.  No reason is given for non examination of the said crucial witness.

          The common evidence and the records in the matter clearly indicate that the opposite parties had treated the complainant bestowing all care, caution and attention, as per the universally accepted standard medical protocol.  There is absolutely no evidence, let alone any expert evidence suggesting that the opposite parties did something that a reasonable and prudent doctor would not have done in the given circumstances or that they have omitted to do anything that a reasonable and prudent doctor would have done in the given circumstances.  The complainant has failed to prove or establish the allegations of negligence raised by her.  The complainant has not established that her alleged suffering were due to want of average skill on the part of the opposite parties or due to want of care and attention.

          Thus on an appreciation of facts, records, evidence and the legal position applicable, indicated as above, no negligence, carelessness or deficiency in service or any unfair trade practice can be attributed to the opposite parties. 

In the result we find that the opposite parties were not negligent or careless in treating the complainant.  Since no negligence has been established, this complaint fails and is liable to be dismissed.

Issue No.3:  In view of the findings on point No.2 above, we hereby dismiss the complaint.  In the facts and circumstances of the case, the parties are directed to bear their respective costs.

Pronounced in open Court this the 27^th  day of January 2009.

          Sd/-President.                                     Sd/-Member

APPENDIX

Documents exhibited for the complainant:

A1      Patient Bill No. 114926 dated 14.9.2002 for Rs.57,454/-.

A2      X-Ray Film.

A3      Discharge Summary.

A4      Copy of Regd. Lawyer notice issued by the complainant to the Ops.

A5      Photocopy of letter from the opposite parties to the complainant

          Dated 20.11.2002.

A6      Photocopy of reply to Ext. A4 lawyer notice.

Documents exhibited for the opposite parties.

B1series        Case sheet of complainant.

Witness examined for the complainant:

PW1   Padmavathi Amma, W/o.Madhavan Nair,20/1060 Umminikote House

          P.O. Kallai, Calicut-3.

PW2   K. Mohandas. S/o. Madhavan Nair. A. (Late), 20/1060 Umminikote House, P.O. Kallai, Calicut-3.

Witness examined for the opposite parties:

RW1   Dr. Ajith Kumar. A.K., S/o. A. Kunhiraman Nair, Suite H 15, SAGAR

          Appollo Hospital, Bangalore-41.

-/True copy/-

Sd/-President.

(Forwarded/by Order)

Senior Superintendent.