FA.No.1574/2006 against  C.D.No.420/1999, District Forum, Karimnagar.

Between:

1. Smt.A.Rajya Lakshmi, W/o.Laxman

    Aged about 36 years, Occ:Doctor,

    R/o.Samatha Nursing Home,

    Ashoknagar Locality of Karimnagar proper.

2. The New India Assurance Company Limited,

    Karimnagar Branch, rep. by its Branch Manager.                     .Appellants/

                                                                                                 Opp.parties.

And

Cherukuthota Sudhakar, S/o.Laxmaiah,

Aged 32 years, Occ:Employee,

R/o.H.No.5-4-212, Kapuwada,

Locality of Karimnagar Proper.                                                       Respondent/

                                                                                                            complainant

Counsel for the Appellants:  Smt.I.Maamu Vani

Counsel for the Respondent            :Mr.S.Ranga Reddy

            QUORUM:THE HON’BLE MR.JUSTICE D.APPA, RAO, PRESIDENT.

                                                SMT.M.SHREESHA, MEMBER.

            AND

SRI K.SATYANAND, MEMBER.     

TUESDAY, THE THIRTIETH DAY OF JUNE,

TWO THOUSAND NINE

ORAL ORDER: (Per  Hon'ble Sri K.Satyanand, Member .)

                                                                                                                                                                                                                        ***

This is an appeal filed by the opposite parties against the order passed by the District Forum imposing liability on them at the instance of the complainant on the ground of medical negligence.      

The facts of the case are briefly as follows:

In the month of August, 1998, the wife of the complainant by name, Madhavi, became pregnant.  Her father by name, P.Komaraiah, took her to the first opposite party doctor for medical care during the pregnancy period.  It is the case of the complainant that in the month of April, 1999, the said Madhavi developed some health problems and she was therefore taken by her father to the first opposite party, who it seems gave her treatment on various dates as 12-4-1999, 17-4-1999 and 23-4-1999.  On every occasion, it was claimed they paid the prescribed fee to the doctor.  On 23-4-1999 the patient was referred by opposite party No.1 doctor to another doctor, Dr.P.Veera Reddy.  The father of Madhavi took her to the said doctor, he conducted some tests and opined that the patient was suffering from Jaundice in a severe condition.  While prescribing medicines for the said ailment, it seems, he advised the patient to take treatment staying in the nursing home of the first opposite party.  It is alleged that she was again taken to the hospital of the first opposite party but first opposite party gave some treatment to the patient and on the same day discharged the patient assuring that she would be cured within two days by using the medicines prescribed and it was contrary to the advise given by P.Veera Reddy.  Subsequently on 27-4-1999 the patient was taken back to the nursing home with severe problems and thereupon opposite party No.1 referred the said patient for some tests and in those tests, it was revealed that the disease became very serious.  In such a situation, the first opposite party referred the patient to Medinova hospital.  As there was no other go, the father of the said Madhavi took her to Medinova and on ascertaining that Medinova hospital had no facility for such tests, thereupon the patient was admitted in Medwin Hospital, Hyderabad.  There the doctors stated that the situation of the patient was very precarious and such a situation had arisen on account of the negligent treatment given by opposite party No.1. The doctors at Medwin hospital conducted an operation immediately and removed the dead male baby from the body of the patient.  They further opined that the body of the patient developed Septicemia and again reiterated that it was due to the negligent treatment given by opposite party No.1.  Inspite of careful treatment given by the Medwin hospital, the wife of the complainant ultimately died on 13-5-1999 at Hyderabad.  Thus it was alleged that the death had occasioned due to the negligent handling of the case by the first opposite party.  The complainant filed as many as 57 documents in support of his contentions.  Subsequently the father of the deceased Madhavi gave a police report and a crime was registered under Section 304-A I.P.C.  They came to know that the opposite party No.1 was covered by an insurance policy and therefore the insurance company came to be added as opposite party No.2.  On the ground of negligence, the complainant claimed compensation for loss of life of wife, in an amount of Rs.3,00,000/- as also towards mental agony besides costs and consequential relief’s.

First opposite party filed a counter stating that the complainant was brought to her nursing home on 23-4-1999 with complaints suggestive of jaundice.  She claimed to have advised her to get the urine and blood tested.  Accordingly she submitted reports, which revealed that she was suffering from jaundice.  Thereupon she referred her to Dr.P.Veera Reddy who while prescribing medicines directed the deceased to join in a nursing home and take further treatment as per his advise but the deceased went away taking two bottles of I.V.fluids at about 9.30 p.m.  She was again brought to the nursing home on 27-4-1999 with aggravated symptoms.  She was thoroughly examined and various parameters were recorded.  The first  opposite party formed an opinion  that the reports indicated that she was suffering from severe jaundice and in view of the said findings, she advised the attendants of the deceased to take her to Hyderabad for better treatment but the father of the deceased was reluctant to take her to Hyderabad and rudely misbehaved with her.  On the request of the complainant, blood sample was taken and a test was conducted urgently and the said test also revealed that she was suffering from severe jaundice.  She emphatically denied having been guilty of any negligence and characterized the claim as lacking in bonafides.  She submitted that the criminal complaint filed by the father of the deceased had come to be closed after  police investigation in which they elicited opinion from experts also.  She, however, revealed that she had got negligence insurance with the second opposite party.

        The second opposite party also filed a counter reiterating the story narrated by first opposite party and repudiating its liability  as there was no sufficient material to make out negligence against the first opposite party.  

        In support of his case, the complainant filed his own affidavit as also affidavit of his father in law.  By way of documentary evidence, he relied upon documents marked as Exs.A1 to A50.  Opposite parties also filed the affidavits on behalf of both the opposite parties and also the affidavit of Dr.P.Veera Reddy.  They also tendered documentary evidence marked as Exs.B1 to B5.

        On a consideration of the evidence adduced on either side, the District Forum gave a finding that opposite party no.1 was negligent in as much as she discharged the patient from her hospital on 23-4-1999 itself without taking into consideration the advise  given by Dr.P.Veera Reddy and gave a finding that the complainant established the case of negligence and consequently deficiency in service on the part of opposite party No.1.  Accordingly it awarded compensation to a tune of Rs.2,50,000/- to the husband of the deceased, who filed this complaint with interest at the rate of 9% p.a. from the date of complaint till realization.

        Aggrieved by the said order, opposite parties 1 and 2 filed the present appeal mainly urging that the order of the District Forum was contrary to the law of evidence and probabilities of the case.  It failed to see that the complainant utterly failed in proving the negligence on the part of the first opposite party.   She relied upon the circumstance that the criminal case that was referred to  ended as mistake of fact  on the strength of the report of the Indian Medical Association and basing on the report of  medical expert’s finding  holding that there was no negligence on the part of opposite party No.1. The District Forum did not give cogent reasons to record finding of negligence against opposite party No.1 which alone could have justified the award as given by the District Forum against both the opposite parties.

        Heard the counsel for the appellant.  The respondent also filed written arguments.  In the light of rival contentions and the perusal of the material as disclosed by the record, the following points arise for consideration.

1.    Whether the District Forum was justified in giving a finding of negligence against opposite party No.1.

2.    Whether there are any good grounds to interfere with the order of the District Forum?

1.    At the outset we are constrained to observe  that the finding of negligence is hardly discernable in the order of the District Forum.  So it falls to lot  to thrash out the whole issue of negligence by scanning the entire evidence as if we were adjudicating the matter at the original stage.  In fact the scope and ambit of a first appeal, even otherwise, encompasses such an enquiry.  In this endeavour the massive evidence adduced by the complainant has to be sifted thoroughly to see if there is any material to form an opinion that the opposite party No.1 was guilty of negligence.  As could be seen from Exs.A1 to A16, it is abundantly clear that the complainant’s wife had been,  a patient of  opposite party No.1 for quite some time in as much as Exs.A3 to A16 disclose the treatment over a period of time from 10-9-1996 till the fateful day when her health became critical on 27-4-1999.  Both the parties were not very frank in acknowledging this relationship of patient and doctor that endured for quite a lengthy period.  In as much as the complainant curtailed the periodicity as 2 or 3 trips, opposite party No.1 averred as if the patient had come to her only on 23-4-1999.  Be that as it may, the fact remains  that the allegation of negligence was imputed to the opposite party No. 1 only within a short span of 4-5 days.  It is the only period of controversy that has to be keenly examined to hold opposite party no.1 negligent or otherwise as the condition of the patient began to drift for the worse from 23-4-1999 onwards.  Previous to 23-4-1999 the deceased was taken to the opposite party No.1 on 17-4-1999 and a good number of times  earlier to with which we are least concerned at this stage.  There was no indication or inkling of onset  of a fatal disease as on 17-4-1999 and atleast there was no such suspicion incited in the minds  either of the attendants of the deceased or their family doctor, opposite party No.1.   It was only on 23-4-1999 that the signs of deterioration  had set in for the first time.  On 23-4-1999 admittedly opposite party No.1 did not give any treatment whatsoever and on the other hand she referred the patient to a senior doctor, more experienced atleast according to her.  The said senior doctor by name, Veera Reddy, himself gave an affidavit stating that he had prescribed medicines for the worsening Hepatitis C Pregnancy and directed her to take treatment on those lines by staying in any nursing home.  It cannot be inferred from his affidavit that he had particularly indicated the nursing home of opposite party No.1.  It is an admitted fact that they returned to opposite party No.1 nursing home as naturally they were more used to that nursing home and there the divergence in the respective versions had sparked.  While the complainant stated she was discharged with an assurance of recovery that day itself, opposite party No.1 stated that the deceased was kept in the hospital till 9.30 p.m. when she was given two bottles of I.V. fluids and later they themselves left heedless of the advise of the doctor, Veera Reddy.  It was the further case of complainant that they again came on 27-4-99 and it was only on 27^th, opposite party No.1 had issued a note of reference to doctors at Medinova Hospital as per Ex.A20.  As between 24^th and 27^th what was done is not forth coming.  No doubt there was a random allegation   of negligence against opposite party No.1 as being responsible  for the health of the deceased landing  in such a precarious condition.  But such kind of sweeping  allegation does not justify or rather furnish proof of imputation of medical negligence as the final verdict turns  on that.  The affidavit of Dr.P.Veera Reddy remained unassailed and it was abundantly clear from it that the patient was undoubtedly clearly afflicted with Hepatitis ‘C’ pregnancy and that fact had become all the more clear by 27-4-1999.  When such was the case, if really she discharged the patient on 23-4-1999 mercilessly contrary to the advise of Dr.P.Veera Reddy and if the attendants were really responsible in their duty, they would have rushed to P.Veera Reddy or to some other nursing home and tried to save the life of the deceased who was no other than the daughter of P.Komariah and wife of the complainant.  So this unusual conduct of the kith and kin of the patient in the face of  ample indications of worsening of her health, proves the theory of opposite party No.1 that they themselves withdrew improbablising the story to the contrary to the effect that the patient  having been necked out by her as alleged.  In any view of the matter there was absolutely no evidence  in this regard except the oath against oath.   At this juncture it is not out of place to mention that even a police complaint was given long after the death i.e. nearly 3 months after the incident on 27-7-1999 and the police had taken their own time to register the crime on 16-8-99; ultimately it ended in smoke.  The inordinate delay in filing the first information report and then registering the first information report would naturally create a doubt in the mind of anybody as to the truth of the case of the complainant.  No doubt the poor lady was victim of circumstances and ultimately a still born child was extracted from her body and in the wake of such extraction, she developed septicemia also and ultimately succumbed to the terminal illness. But in the absence of a clear and cogent proof of negligence, no doctor can be faulted as being guilty of  negligence.   There are number of decisions commending such kind of close look at the evidence in identifying the element of negligence on the part of a doctor before condemning a doctor either in the realm of civil law or criminal law.  The subsequent events of a still born child extracted and her death due to septicemia and other ailments that had onset in quick succession cannot justify or cannot ve given a retrospective effect  in order to draw an inference of negligence and give a finding of guilt against the doctor that had occasion to treat any, merely examine the patient in the earlier stages of the deceased.  Certainly that is not the standard of proof that is expected in cases of medical negligence.  As a matter of fact far from proving the medical negligence as such, the complainant miserably  failed to prove even the professional negligence.  All along it has been the case of the complainant that the doctor’s negligence was manifest only in discharging her prematurely without treatment  which fact remained unproved to say the least.  The allegation of medical negligence against opposite party no.1 was not spread over other period of treatment as after all she had been treating this patient continually since 1996 as disclosed by the complainant himself without any complaint from the patient.  That is the reason why the allegation of negligence had been narrowed down to the short period between 23-4-1999 and 27-4-1999 during which period alone her condition became critical.  In as much as opposite party No.1 never treated the patient during that critical time, consequently there was absolutely no occasion to find any element of negligence fastening  to her during that period.  It is not at all the case of the complainant that she was negligent at any other time except on 23-4-1999.  According to the complainant the whole of the substratum of the doctor’s negligence was comprised of the lone fact of her  turning away the patient contrary to the advise of the doctor, who treated her that too on the recommendation of the opposite party herself.   That allegation not only remained unproved but also turned out to be ridiculous.  Thus we do not see any negligence made out against the opposite party No.1 and in this view of the matter, the order of the District Forum had to be held  unsustainable.

Accordingly the appeal is allowed setting aside the order of the District Forum, consequently dismissing the complaint before the District Forum but without costs in the circumstances of the case.

PRESIDENT                  MEMBER. 

                                                                             MEMBER

                                                                                   Dated 30-6.2009