Kerala

Idukki

CC/40/2019

Simi Jomon - Complainant(s)

Versus

Morning Star Medical centre - Opp.Party(s)

31 Mar 2022

ORDER

DATE OF FILING :12.2.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 31^st day of March, 2022

Present :

SRI. C. SURESHKUMAR PRESIDENT

SMT. ASAMOL P. MEMBER

SRI. AMPADY K.S. MEMBER

CC NO.40/2019

Between

Complainant : Simi Jomon,

Maliyeckal House,

Kambilikandam P.O.,

Parathode, Konnathady.

(By Adv: Shiji Joseph)

And

Opposite Parties : 1. The Administrator,

Morning Star Medical Centre,

Adimali P.O., Pin – 68561.

(By Adv: K. Ringe)

2. Dr. Jyothi,

Gynaecologist,

Morning Star Medical Centre,

Adimali P.O., Pin – 68561.

(By Adv: Johnson Joseph)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 (the Act, for short). Complainant is a house wife residing in Konnathady Village within the jurisdiction of this District Commission. 1^st opposite party is a private hospital ‘Morning Star Medical Centre’ by name, represented by it’s Administrator and 2^nd opposite party is Gynaecologist of the said hospital. On 22.9.2010 (date mentioned in complaint, may be a typing error, probably date was 22.9.2018) complainant was admitted in 1^st opposite party hospital for suspected tubular pregnancy. As advised by 2^nd opposite party, D&C was done and complainant was discharged after 2 days. On 4.10.2018, complainant had gone to 2^nd opposite party for a routine check up, as advised by (cont....2)

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2^nd opposite party, after D&C procedure. On 22.10.2018, complainant had developed severe abdominal pain and she had gone to 2^nd opposite party for consultation. Complainant was having complaints of constipation, abdominal pain and occasional fever. 2^nd opposite party had prescribed some medicines for the symptoms and sent back the complainant. However, complaints of medical ailments mentioned above increased and on 23.10.2018 and complainant had again approached the 2^nd opposite party. At that time, mother of complainant had expressed a doubt that the complainant may be having appendicitis. 2^nd opposite party had ignored the doubt expressed by mother of complainant. She had admitted the complainant and an ultra sound scanning was done, which revealed that bowel loops were distended with gas and colon was loaded. Blood test revealed ESR level was 60 and Eosin was 48. Total count revealed was 13800. All these were indicative of acute infection. Distended colon was indicative of appendicitis. Besides this, mother of complainant had asked the 2^nd opposite party and a surgeon, who had also examined the complainant, to rule out the possibility of appendicitis. Despite this, opposite parties had not paid any attention to the doubt expressed by mother of complainant. They had failed to exercise due care and professionalism expected from an expert in treating the complainant. Though 2^nd opposite party had referred complainant to a surgeon for expert consultation, this surgeon also could not find anything wrong with the complainant. The surgeon had also failed in properly analysing blood samples, test results and scan reports. Hence on 24.10.2018, complainant had sought discharge for going to a higher centre. On 24^th itself she was taken to Mar Baselios Hospital at Kothamangalam. Complainant was examined by a gastroenterologist initially who ruled out gastric problems and referred her to a surgeon. At first a junior doctor examined the complainant and he also was unable to ascertain the real cause. Subsequently, one Dr. Robin George, a senior surgeon of the hospital examined the complainant. On the same day,CT scan of abdomen was done and it was revealed that appendiceal calculus was formed. It was also found that there was perforation and fluid had collected in pelvic area of complainant. Appendectomy was done, affected area was washed with saline water and fluid were drained from pelvic area. Life of the complainant was saved by timely surgical investigation and treatment given at Mar Baselios Hospital, in particular, by Dr. Robin George. Complainant had spent more than Rs.96,000/- for her treatment in this hospital. Opposite party have not given due care to the complainant while she was admitted in their hospital. 2^nd opposite party and the surgeon who had attended the complainant, at 1^st opposite party hospital had failed to exercise professional expertise which was expected from doctors holding a post graduate degree in (cont....3)

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medicine. Due to this, condition of complainant has deteriorated. Symptoms of complainant were resonate with that of appendicitis. Yet opposite party had not taken sufficient care to rule out this possibility. Due to this, very life of complainant was endangered. She had suffered great physical pain and mental trauma apart from spending many days in both hospitals, as an inpatient. Complainant submits that she is entitled for compensation on account of all these factors. She prays for a compensation of Rs.5 lakhs from opposite parties towards deficiency in service and also for repayment of amounts spent by her in Mar Baselios Hospital, Kothamangalam from opposite parties, which comes to Rs.96,000/-. She also prays for an award of Rs.10,000/- from opposite parties as litigation costs.

 

2. Complaint was admitted and upon notice, both opposite parties have entered appearance. Written version was filed only by 2^nd opposite party. 1^st opposite party had adopted the contentions of 2^nd opposite party. Case of both is briefly narrated here under :

 

According to opposite parties, complaint is not maintainable, either in law or upon facts. There is no negligence or deficiency in service on the part of opposite parties. Complainant had a history of severe dysmenorrhoea (pain in association with menstruation) and missed abortion for which she had underwent D&C procedure with 1^st opposite party hospital. It is incorrect to say that D&C procedure was done since complainant had suspected tubular pregnancy. Complainant had consulted 2^nd opposite party in out patient department on 22.10.2018, with complaint of dysmenorrhoea for which she was prescribed tablet Cyclopam twice daily. Further she again reported with the same complaint and constipation on the next day. Upon examination, her abdomen was found to be soft and non tender and there was presence of bowel sounds. Complainant had also disclosed that she was having her periods. Hence she was kept in observation in labour room and given IV-analgesics and soap and water enema. Her urine was sent for routine examination. Ultrasound scan of pelvis was advised to rule out pregnancy related bleeding and acute abdomen condition. Scan report revealed gas distended bowel loops with loaded colon without any significant abnormality. Hence complainant was admitted for further evaluation and treatment with provisional diagnosis of dysmenorrhoea and constipation. Ultra sound scan did not reveal anything which was suggestive of suspecting acute abdomen or pregnancy induced disorder. Patient was symptomatically managed with IV analgesics and antibiotics along with medical measures to relieve constipation as per accepted line (cont....4)

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of treatment. Blood investigation showed increased WBC and ESR which is a common manifestation during periods and the patient was kept under close observation. During night, complainant had abdominal pain hence injection Cyclopam was given along with IV fluids. On clinical observation, her abdomen was soft. Complainant slept well after injection. However in the morning on 24.10.2018, she had complaint of loose stools and abdominal pain. She was referred for surgical consultation. As per reference, surgeon at 1^st opposite party hospital had examined her in detail. Her abdomen was found to be soft and there was presence of bowel sounds. There was no tenderness, guarding or rigidity as per clinical examination. There was nothing suggestive of acute abdominal condition which would warrant further investigation. Hence abdominal pain was symptomatically managed with medication and IV fluids. Complainant has no history of associated vomiting or nausea. Routine stool examination was advised by the surgeon and complainant was asked to continue with IV and antibiotic injection Metrogyl along with oral capsule Yogurt. She was prescribed to provide oral rehydration. The patient was closely monitored. Since complainant had again complaints of pain during afternoon, her bystanders wanted to take the complainant to a higher centre for further management. As requested by them and complainant, she was discharged from 1^st opposite party. The fact that complainant was found to have ruptured appendix as per evaluation which necessitated surgical management will not ipso facto give rise to a cause of action to sue the opposite parties for wrong diagnosis. The diagnosis of acute appendix despite technological advances depends largely on clinical history, physical examination findings and high index of suspicion based on general condition of patient. Complainant had clinical history of dysmenorrhoea. With manifested clinical symptoms of pain in abdomen, scan results were not indicative of acute abdominal condition. In acute appendicitis, systemic evidence of inflammation is manifested with localised pain in right iliac fossa which was absent in complainant’s case. There was no guarding, rigidity, abdominal distention or tenderness upon examination by the surgeon. Therefore, modality of treatment followed by opposite party was on the basis of investigation results and clinical examination along with clinical history, with strict regard to standard and accepted clinical practice and medical protocol. In the realm of diagnosis and treatment, there is ample scope for difference of opinion and medical practitioner cannot be held liable only because his or her opinion differs from another in diagnosis. 2^nd opposite party had exercised utmost care& caution in the treatment of complainant. There was no aggravation of symptoms during treatment of opposite parties and patient was referred to a higher centre as per request only because symptoms (cont....5)

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persisted despite medical management. These opposite parties are not aware about treatment given to complainant from Mar Baselios Hospital, Kothamangalam. It is incorrect to say that complainant had to spend more than Rs.96,000/- for her treatment at Mar Baselios Hospital. Treatment expenses are exaggerated in the complaint. There is no deficiency in service on the part of opposite parties, nor they can be held liable for medical negligence. Complainant has no cause of action against opposite parties. 2^nd opposite party has a degree of MS(OBG) with experience of 11 years as a Gynaecologist. 1^st opposite party has provided proper care and service of qualified and experienced medical staff to the complainant. She is not entitled for compensation or cost of litigation as prayed for in the complaint. Same is to be dismissed with costs.

 

3. After filing of written version, case was posted for evidence after affording sufficient opportunity to both sides to take steps. On the side of complainant, she herself was examined as PW1 and Dr. Robin George, Senior Surgeon of Mar Baselios Hospital, Kothamangalam where she was subsequently treated was examined as PW2. Exts.P1 to P3 series were marked on the side of complainant. File containing medical records of the complainant maintained with Mar Baselios Hospital, Kothamangalam was produced along with copy upon summons by PW2. On the side of opposite parties, 2^nd opposite party was examined as RW1. After examination of RW1, evidence was closed and both sides were heard. Both sides have filed argument notes to substantiate their respective contentions. We have gone through the pleadings evidence on record and the notes submitted by both sides. Now the Points which arise for consideration are :

1) Whether there was any negligence on the part of 2^nd opposite party in treating the complainant ?

2) Whether there was any deficiency in service or negligence on the part of 1^st opposite party in treating the complainant while she was admitted at 1^st opposite party hospital ?

3) Whether opposite parties are liable to compensate the complainant as prayed for ?

4) Reliefs and costs ?

 

4. Points Nos. 1 and 2 are considered together :

 

In the notes submitted from the side of complainant, pleadings addressed by both sides and evidence on record before this Commission are extensively (cont....6)

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discussed. Decision rendered by Apex Court in the matter of Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka (AIR SCC2009) as relied upon by complainant’s counsel. Quotes from the said judgement that negligence is breach of duty caused by omission to do something which a reasonable man would do while guided by those considerations and that negligence in the context of medical profession calls for a treatment with difference are incorporated in notes. Relaying upon judgement mentioned above, it is contended that 2^nd opposite party and the surgeon at 1^st O.P. though found infection in abdomen, both have not applied any professional skill to rule out cause of infection which is normally expected from a post graduate specialist. Due to this, life of the complainant was at risk. 2^nd opposite party and the surgeon of 1^st opposite party who had attended the complainant have not applied professional skill to ascertain the cause of infection. Due to this, medical condition of complainant deteriorated which would have resulted in loss of her life also. Negligence of opposite parties amounts to deficiency in service and therefore complainant is entitled for compensation as prayed for. Evidence of DW1 tendered during cross examination that pelvic inflammation could be suspected into complication of D&C would show that despite scan report showing gas distended bowel loops with loaded colon. She had not shown any reason to rule out infection due to appendicitis. There was a delay of one day in sending the complainant for surgical consultation which amounts to gross negligence. The surgeon to whom complainant was referred has also not exercised requested professional expertise, which is expected from a qualified medical man with a degree of post graduation in medicine.

 

In reply, 1^stopposite party has filed notes, contending that there is no expert opinion regarding negligence of 2^nd opposite party. PW2 had not given any evidence regarding negligence from the side of 2^nd opposite party. Being a Gynaecologist, 2^nd opposite party had exercised reasonable care and skill by ruling out gynaecological problem. Surgeon to whom complainant was referred in 1^st opposite party hospital is competent person to treat appendicitis. Surgical consultation was opined by 2^nd opposite party. There is no negligence on the part of 2^nd opposite party and therefore complaint is to be dismissed.

 

Second opposite party had filed detailed argument notes. Pleadings addressed by both sides and evidence tendered is referred to in the initial pages of notes. After discussing these aspects, it is contended by 2^nd opposite party that even surgeons who had examined the complainant at higher centre could not diagnose from the symptoms that complainant had appendicitis. PW2 has (cont.....7)

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admitted that CT scan report was not specific about appendicitis. It was only after performing operation that appendicitis was disclosed. 2^nd opposite party had exercised reasonable care and skill in the treatment of complainant. 2^nd opposite party had after conducting necessary investigation and also on the basis of clinical history given by complainant herself, ruled out gynaecological complications and referred the complainant to a surgeon. There was only manifestation by symptoms distended bowel loops and general abdominal pain. In acute appendicitis systemic evidence of inflammation is manifested with localised pain in right iliac fossa which was absent in the case of complainant. Even both surgeons at higher centre who had examined the complainant before PW2, could not diagnose appendicitis. Complainant has no case that treatment given by 2^nd opposite party was wrong. No injury was caused to the complainant by following the treatment advised by 2^nd opposite party. It has been held by the Apex Court that merely for the reason that decision of the doctor was not correct or favourable, he cannot be proceeded against for such error in judgement [1996 SCC (2) 634]. A medical practitioner will be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 2^nd opposite party had given utmost care and attention to complainant while treating her. 1^st opposite party hospital had also given due care and medical attention. There is no negligence on the part of 2^nd opposite party or deficiency in her service while treating complainant.

 

Thus these are the rival contentions. Apart from oral evidence tendered in this case, Exts.P1 to P3 series are the documents available as further evidence. Ext.P1 consists of a file containing treatment records of the complainant maintained at 1^st opposite party along with ultra sound scan report of abdomen. Ext.P2 series are photographs of medical records including result of lab test pertaining to blood and urine samples of complainant and Ext.P3 series are photo copies of records maintained by Mar Baselios Medical Mission Hospital at Kothamangalam relating to the treatment of complainant at that centre. Ext.P3 copies were produced with original for verification. It appears that PW2 was examined as an expert to prove negligence on the part of opposite parties, owing to incorrectdiagnosis of medical condition of complainant and alleged negligence in her treatment. At the formost, it appears to us that the decision of Appex Court rendered in the matter of Maharaja Agrasen Hospital and others Vs. Master Rishabh Sharma and others (2019 KHC 7258) is very much relevant here, which is relied upon by complainant’s counsel also, in the notes filed by him. Paragraphs 11.4.5 to 11.4.10 therein refer to earlier judgements of Apex Court in this regard and lays down the parameters of care to be exercised by medical persons in giving (cont.....8)

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treatment to his or her patients. For the sake of brevity, we are avoiding quotes from the said judgement. Suffice to say that it was held that standard of care to be exercised is that of reasonable average which was elaborated as the standard of an ordinary skilled man exercising that particular skill. He need not possess highest degree of expert skill. It would be sufficient if he exercises ordinary skill of a professional competent man exercising any particular art. Ratio of Bolam case was referred to, which is that it is enough for a doctor to show that standard care and skill exercised by him was that of an ordinary competent medical practitioner exercising an ordinary degree of professional skill.

 

Now taking this judgement as a guiding beacon, we shall analyse evidence tendered in this case. Exts.P1 and P2 series are medical records pertaining treatment of complainant at 1^st opposite party hospital. Ext.P3 is a file pertaining treatment of complainant at Mar Baselios Hospital. Facts therein are not at all disputed and evidence has been tendered by PWs1 and 2, more or less, in consonance with the aforesaid records. However, it would be useful to refer to certain aspects of oral evidence tendered by PWs1 and 2 in this regard with reference to the evidence tendered by 2^nd opposite party. PW1 had during her cross examination stated that when 2^nd opposite party had examined her, she(PW2) had opined that complainant should also consult attending surgeon of the hospital. She would further admit that before she was treated by PW2 at Mar Baselios Hospital, she was examined by 2 post graduate doctors of the said institution. Even they could not diagnose her condition as that of appendicitis. PW1has also given evidence regarding expenses incurred for treatment at higher centre and has explained that if condition were to be attended earlier at 1^st opposite party hospital, a key hole surgery would have sufficed for removal of appendicitis. According to her symptoms of appendicitis were noticed when CT scan was taken from Mar Baselios Hospital. This does not appear to be correct in the light of evidence tendered by PW2 to the effect that ultra sound scanning has not revealed any infection. He would say that CT scan result had lead to 2 possibilities. One was acute appendicitis with perforation and fluid collection in pelvic region. 2^nd probability was ovarian illusion showing probability of ectopic pregnancy. Thus according to PW2, two opinions were possible from the results obtained by CT scan. PW2 was further cross examined regarding symptoms of appendicitis. She had reply that symptoms would include pain in iliac fossa, vomiting and fever. It is pertinent to note that RW1 has given evidence that symptoms of pain in right iliac fossa was absent in the case of complainant at the time of her diagnosis. This was not disclosed during clinical examination of complainant in Mar Baselios (cont.....9)

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Hospital also. PW2 has also given evidence that CT scan results were not helpful in getting a clear diagnosis. That he had arrived at 2 conclusions as mentioned earlier and therefore he had proceeded with diagnostic laparoscopy and if necessary to do a laparotomy. However, diagnostic laparoscopy had revealed distended bowel loops, puss in pelvic area, right sub diaphragmatic region and when he had proceeded with laparotomy, he had found appendix which had perforated and finally found collection of leaked fluids in pelvic area. Therefore he has done appendectomy. Peritoneal wash was given with 4 litres of warm saline. Abdomen was closed.

 

This evidence of PW2 would go to show that appendix and perforation were revealed only upon opening abdomen area by surgical intervention. He would opine that medical protocol availed was that of a surgeon.

 

Though complainant would plead and depose that her mother had expressed a doubt that the complainant may be having appendicitis to 2^nd opposite party and again to the surgeon who had attended to the complainant later, while she was being treated at 1^st opposite party hospital, complainant has no case that her mother has any medical qualifications or knowledge in diagnosing medical ailments. Her mother was not examined as a witness on her side either. There is no corroborative evidence from the side of complainant to the effect that such a possibility was suggested by mother of complainant or any of the bystanders who had attended her. Therefore the case projected that mother of the complainant had voiced possibility of appendicitis to 2^nd opposite party and to the surgeon at 1^st opposite party hospital does not appear to be true. What could be seen from the evidence tendered from PW2 and 1^st opposite party is that, 2 opinions could be formed on the basis of clinical examination and investigation carried out in 1^st opposite party hospital. It may be that 2^nd opposite party and surgeon at 1^st opposite party hospital had formed an opinion that the symptoms were not specific of acute appendicitis and referred complainant for expert management to a higher centre. Such actions will not amount to negligence on/from the side of opposite parties. Complainant has no case that there was lack of care or attention from the medical persons and staff attached to 1^st opposite party hospital. Difference in opinion cannot be termed as medical negligence even if the opinion turns out to be wrong. It is also seen that 1^st opposite party is a hospital situated in Adimali which is a tiny hamlet in the District of Idukki. Expertise of 2^nd opposite party and surgeon there cannot be at any rate be equated with the expertise of PW2, who is a Senior Surgeon attached to a high hospital which has far more facilities. That apart, 2^nd opposite party is (cont....10)

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only a Gynaecologist and she had, upon failure to find any gynaecological problems, referred the complainant to a surgeon of the hospital. This surgeon has not been made a party to the present case either, though negligence is attributed to him also. For these reasons, we find that there is no medical negligence on the part of opposite parties 1 and 2. There was no deficiency in service either. Point Nos.1 & 2 are answered accordingly.

 

5. Point Nos.3 and 4 are considered together :

 

In view of our findings to Point Nos.1 and 2 above, we find that complainant is not entitled for any compensation from opposite parties 1 and 2 and that complaint is to be dismissed, under the circumstances, without costs.

 

Accordingly, this complaint is dismissed without costs. Original medical records submitted from Mar Baselios Medical Mission Hospital shall be returned to that hospital after expiry of appeal time.

 

Pronounced by this Commission on this the 31^st day of March, 2022

 

 

Sd/-

 

SRI. C. SURESHKUMAR, PRESIDENT

 

 

Sd/-

SMT. ASAMOL P., MEMBER

 

 

Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

(cont....11)

 

 

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APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Simi Jomon.

PW2 - Dr. Robin George.

On the side of the Opposite Party :

RW1 - Jyothi Prabhakar Rao.

Exhibits :

On the side of the Complainant :

Ext.P1 - medical records pertaining treatment of complainant at 1^st opposite

party hospital.

Ext.P2 - medical records pertaining treatment of complainant at 1^st opposite

party hospital

Ext.P3 - file pertaining treatment of complainant at Mar Baselios Hospital.

On the side of the Opposite Party :

Nil.