KERALA STATE CONSUMER DISPUTE REDRESSAL COMIISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No 580/2005
JUDGMENT DATED : 29.10.2010
PRESENT:-
SHRI. M.V. VISWANATHAN : MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANTS
1. Indo American Hospital, Vaikom,
Represented by Jose N.P.,
Senior Personnel &
Administrative Officer,
Brain and Spine Centre,
Akkarapadom P.O., Vaikom.
2. Dr. Rajendran,
S/o Damodara Kurup,
Aswathy,North Gate,
Vaikom.
( Rep. by Adv. Sri. M.C. Suresh & Others )
Vs
RESPONDENTS
1. Mohammed Rafi, (died)
Kunnumpurathu Veedu,
Udayanapuram P.O.,
Vaikom.
2. Amina Umma,Aged 66 years,
Kunnumpurathu Veedu,
Udayanapuram P.O.,
Vaikom.
3. Rahiaya, aged 29 years,
W/o Muhammed Rafi,
Kunnumpurathu Veedu,
Udayanapuram P.O.,
Vaikom.
4. Muneiya, aged 10 years,
D/o Muhammed Rafi,
Minor represented by guardian, Rahiaya
-Do-
5. Muneer, S/o Mohammed Rafi,
Minor represented by guardian,
Rahiaya,
-Do-
( Rep. by Adv. Sri. B.A. Krishnakumar , Amicuscurrie )
JUDGMENT
SHRI. M.K. ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF,Kottayam in O.P. No. 201/2000 dated 9.05.2005. The appellants are the opposite parties who prefers this appeal from the above impugned order. The respondent is the complainant.The appellant prefers this appeal from the order passed by the Forum below, directed the opposite parties severally and jointly pay a
compensation of Rs. 1,00,000/- with interest @ 9% per annum from the date of filing of this petition (14.03.00) till payment and also awarded a cost of Rs. 1,000/- to the complainant. This order was challenged by the appellant.
2. In short the complainant is a tailor approached to the first O.P. hospital with complaint of pain over abdomen, fever, omitting and loose motion. The second opposite party examined the complainant as a patient and diagnoses that he was suffering from acute appendicitis and advised urgent surgery and he was admitted in the hospital on 24th and then after the abdomen sonogram was taken. Therefore second opposite party conducted appendectomy under spinal anesthesia While the operation was giving on the second opposite party, doctor, noticed that spinal anesthesia was inadequate. So surgery was completed under general anesthesia which was given without proper consent either from the complainant or from his relatives. The surgery was done in a most negligent and improper manner and without expecting the normal consequences. Subsequent to the surgery, there was continuous hemorrhage. But the second opposite party did not care to find out the cause of the
same. The complainant was not attended by no other doctor for a long time after the surgery. The surgery was conducted without observing the pre- requisites in a surgery. There was no blood bank, facility for blood cross matching post operatives device or any other adequate equipment. After the surgery, the complainant developed severe pain adequate antibiotics were not given to him. As a result of this the condition of the complainant become very critical and a crisis situation was originated. Even though the relative of the complainant repeatedly requested to the opposite party to refer the complainant to Medical College Hospital for effective and proper treatment. But it was not done by them (appellants). Later the complainant/patient was referred to the Medical College Hospital where it was diagnosed that he was suffering from crohn’s decease. He developed enterocutaneous fistula also due to the very negligent and careless treatment in the first opposite party hospital. Fislogram was done and tube drainage was applied at medical college hospital, Kottayam. The complainant was treated their till 11th September and the doctors
of the medical college hospital opinioned that actually the complainant was having crohn’s , decease and no appendices. Appendectomy was not indeed in his case even though it was done. This shows that the second opposite party was negligent and inefficient draw opinion about actual decease. The complainant had to spend about Rs. 30,000/- towards medical expenses in the Indo American hospital, Varkala. His total expectation towards hospital charges is Rs. 70,000/- Even though the complainant was told that they will adequately compensate him, this was not done. The complainant issued a lawyer notice on 8th October. The complainant is not about to do his tailor works due to this incident. Moreover he had to spend a very huge amount for the treatment. The act of the opposite parties is deficiency in service and unfair trade practice. Hence he filed the complaint.
3. The opposite parties appeared and filed their joint version and contented strongly that the symptoms and signs of the complainant at the time of his admission subjected acute appendicitis. The clinical examination had also showed that he had tenderness
over right iliac fosa which also subjected appendicitis. They totally denied the allegation of careless and negligent treatment alleged by the complainant in the complaint. They said that condition of patient was explained to the relatives and on 5th August the relatives of the complainant wanted him to refer to Medical College Hospital, Kottayam. They suggested that even accepted medical books that crohn’s decease may be diagnose as appendicitis. There has been no deficiency of service on the part of the opposite parties. When abdomen was opened and found that it was chron’s decease. The second opposite party made necessary treatment for that delay. A mistaken diagnose is not a negligence. When the case was dictated as crohn’s decease, treatment was given to cure those defects. The claim of the complainant regarding the compensation is too high. The opposite parties never promised to give any amount to the complainant. All necessary standard medical treatments were given to the complainant is not entitled to get any compensation. Hence they strongly have prayed to dismiss the complaint.
4. The Forum below raised two important points for consideration in this dispute. They are:
1. Whether there was any negligence and deficiency in service on the part of the opposite parties?
2. Relief and costs.
5. The evidence consists of the affidavit filed by the complainant and opposite parties, Exts. A1 to A9 and Ext. B1 series, Ext. X1 were adduced by both sides respectively. The Pw1, Pw2, and Pw3 were examined as witnesses for the complainant. But there is no witness cross examined by the opposite parties.
6. The Forum below discussed the entire points on the strength of the evidence adduced by both sides and answered correctly and found that the allegation of the complainant is legally proved as per the evidence adduced by the complainant and there was no sufficient evidence adduced by the opposite parties to prove their case. The Forum below found that crohn’s decease is a very rare decease and it was suggested to Pw1 that hence this is a very rare decease
the patient should have to referred to a hospital for better management, if there is no desire for treatment in that decease in the hospital. Pw1 answered that if there is qualified doctors in the hospital he can be treated any where. Pw1 has further admitted that as per Ext. B1, the patient was not seen by the doctor on 3rd and 4th August. No explanation has been given by the second opposite party for this. It is to be noted that according to second opposite party, he was very well knew that the complainant was suffering from chron’s decease which is a very rare decease. Complication even then the second opposite party failed to see the complainant on 3rd and 4th for which he has no explanation. This shows that the second opposite party was negligent in the treatment of the complainant. There was no consultation with the decision or gastroenterologist after his admission on second July. On 5th August, he was referred to Medical College Hospital where he was treated up to11.09.1998 and discharge cured. The evident of Pw1 shows that the second opposite party should have done corrective steps because the blood coat came to it to 7.7 gram. This shows that the act of the second opposite party and that failure to be drainage also as nothing to do with this.
7. The Forum below found that there has been negligence in the treatment of the complainant by the second opposite party doctor and he is an employee of the first opposite party and they are also vicariously liable for the negligence on the part of the second opposite party. It is due to the deficiency in service. The Forum below allowed the complainant. This appeal prefers by the appellant from the above impugned order passed by the Forum below. On this stage this appeal came before this Commission for final hearing. This Commission heard both sides and perused the entire evidence available in the case records. The Counsel for the appellant vehemently argued on the grounds of Appeal Memorandum that the Forum below did not consider the evidence of the Pw1 an expert doctor was examined by the complainant and the counsel for the appellant argued mainly on the grounds of appeal memorandum that the Forum below failed to appreciated that Pw1 deposed no anomaly in the treatment of the second opposite party doctor and he pointed out that the consent of the patient is not a material in
circumstances as some urgency of crisis was shown during operation. He pointed out that nothing wrong in the diagnose by a doctor prosecuted for an amount of the carelessness of the treatment. It is nothing but the risk fact of the treatment of medical practices. He also submitted that the affidavit of the second opposite party was filed. There is no ailment was taken by the part of the complainant to cross examined him. He strictly argued that no ailment was taken by the complainant to establish that the second opposite party was committed no negligence and carelessness in the treatment. So he is not liable for the deficiency in service. The respondent was absent. This Commission appointed one of the members of this bar as an amicuscurrie on behalf of the poor respondent/complainant. He argued in detail and he submitted that the proper test has not done by the second opposite party before diagnose and taken the complainant in to the theatre for the operation directly, there is no emergency situation araised to the complainant for an immediate operation without applying proper test. The Counsel for the appellant argued that the relatives of patient compelled the appellants to shift in to the Medical College Hospital in the course of a crisis was
originated in the course of the operation. The Counsel for the appellants submitted that the 2nd opposite party is well qualified to do the impugned operation. But he failed to give answer for the court question that what is the qualifications and the experiences of the second opposite party doctor? The learned counsel appeared on behalf of the second opposite doctor kept silence in the open court. He tried his maximum but he is helpless in this point.
8. We heard in detail both counsels.
9. The counsel for the respondent/complainant produced medical literature from the web site to support his argument that sigmoidoscopy is the conclusive test for the diagnose of crohn’s decease but no such test was done by the second opposite party, doctor. There is no doubt that the operation was started by the second opposite party without any proper and conclusive test and of no proper documents and there was no expert examination offered by the appellants to support their defense and there is no medical authority was put either before the Forum below or before this
Commission. We are seeing with no way in the counter or in the case sheet or in the affidavit filed by the second opposite party disclosed his qualifications, experiences and the I.M.C. registration etc. The learned counsel appeared on behalf of the Ist appellant doctor also is not in a position to give medical qualifications etc. of the second opposite party doctor. It is his bound and duty. We suspected that he is not qualified to practice as the position of a surgeon or physician. There is no hesitation to believe that he may be a quack. The original case sheet of the first opposite party hospital was suppressed and photocopy alone produced before the Forum. The explanation given by the appellants for the non production of the original case sheet is that there was a strike going on in the hospital. We do not know how they get the Photostat copy of the original case sheet. We can not understand the magic that to take photocopy without having original Case sheet
10. The second opposite party unnecessarily removed the defect free appendicitis of the patient/complainant. There is no
explanation from the part of the appellants they sent this organ for bioxy after 3 days delay it is highly negligent and contempt in their sides the treated doctor who said as the expert witness from the part of the complainant. He examined as Pw1 from the Medical College, Kottayam. He deposed that the sonogram is not a conclusive diagnose for the disorder in the appendicitis. He gave a very vague answers regarding the act of his fellow doctor(2nd opposite party). In the re-examination he reported that, he is also a member of the Indian Medical Association. We can understand his delicacy to speak anything more against this fellow member of the profession whoever may be. Nobody can consider the evidence of Pw1 as a conclusive expert opinion, even though he is qualified and competent to depose something about the lane of the treatment of the second opposite party/doctor. Here the burden of proof “Principle of Ounus Probandy” is shifted to the opposite party doctor. As per the doctrine of “ resipsa, loquiquor”, the National Commission discussed this in the reported case, S.B. Ramanka Vs. Nizams Institute of Medical Science(1999) CPR 42 NC. The Apex court of the country noted and the effected course medical negligence in the following were “gross
medical mistake will always resulted in a findings of negligence the use of wrong directed for wrong gas during the course of anesthetic will frequently lead to the imposition of liability and some situation even the principle of Rusies alopuipur can be upheld. Even delegation of responsibility to another may amount to negligence in certain circumstances. The consultant can be negligent whether he delegates the responsibility to his junior with the knowledge that the larger there in capable of perform his duties properly.
11. The negligence as a tort is a breach of duty caused by omission to do something reasonable amount could do or doing something which a prudent and responsible amount would not do. The deficiency inform the following constituents.
1) An illegal attitude to exercise due care;
2) Breach of the attitude; and
3) Consequental damages
( see the deficiency of the negligence perse is defined in “ Blacks Law Dictionary”. In the reported case”Lekshman Balakrishna Joshi(doctor) Vs. Dr. Trimvak Bapu Godvole, AER 1969 SC 128. The Supreme Court laid down that a doctor when consolidated by a patient owes him certain duties namely a duty of degree in deciding;
a) Whether to undertake the case
b) Duty of agree in deciding what treatment to give and
c) A duty of agree in the administration of that treatment.
12. An approach of any of these duties is a cause of action for negligence to the patient. The above findings of the Apex court and the Commission are strictly applicable in the facts and circumstances of this case.
13. We don’t know that why qualified doctors reluctant to make transpirancy to disclose their qualifications and experience for
the open verification of the public. Due to this reason by the quacks are taking undue advantage and making so many calamities. The doctors considered as a dignified profession in the Ancient Greek. They are nothing but a representative of “The God”. A patient approached them from any corner of the society his mental condition is so sympathethic and his puls rate may be doubled This Commission directed to the Indian medical Council, Travancore Cochin medical council and the department of health in the state of Kerala to introduce modern documentation systems in all the hospitals in the state of Kerala including the Government hospitals also and to provide the copy of the case sheet to the patients on request within two hours. But unfortunately we are not seeing to implement such directions by the concerned authorities. This Commission directed so many occasions to exhibit the names and the registered numbers of the medical practitioners in the open premises of the hospital for the information of the public and to protect quack medical practioners. It is dangerous also to all the patients. It is a fact that any person or persons may become a patient irrespective of his social status. Here the doctrine of sympathy is applicable. But we are not seeing any steps taken by the authorities to obey these directions. We remind that the disobey of the order passed by this Commission is punishable for 3 years imprisonment and fined Rs. 10,000/- or both. We bound to protect the interest of the consumers, we again directed the medical council of the centre and state and the department of the health, government of Kerala is also to implement the above directions within 3 months after the receipt of this judgment and file the action taken report in this Commission. The disobey will treat as an offence under Section 27 of the Consumer Protection(2002) Amendment Act.
14. We are seeing no irregularities or illegalities in the order passed by the Forum below. The order passed by the Forum below is strictly accordance with the provisions of law and evidence. We uphold the above order. We have taken this opportunity to appreciate the counsel appointed by this Commission to conduct the case on behalf of the respondent/complainant as an amicuscurrie. He showed his judicial honesty and assisted this Commission to find out the truth, even though he conducted the case as part and parcel
of a crown brief. We directed the registrar of this Commission to pay Rs. 2,500/- as legal fee to the Counsel for the respondent/complainant from the Legal Welfare Fund of this Commission. We also directed the registrar of the Commission to forward the copy of the judgment to the Indian Medical Council, Travancore Cochin Medical council and the secretary of Health Department, Government of Kerala.
In the result, this appeal is dismissed and confirmed the order passed by the Forum below directed the opposite parties to suffer their own respective dhasti. The points of the appeal discussed one by one and answered accordingly.
M.K. ABDULLA SONA : MEMBER
M.V. VISWANATHAN : JUDICIAL MEMBER
