BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.251/2008 AGAINST C.C.No.17/2006, DISTRICT FORUM-II, Krishna at Vijayawada.
Between:
Dr.K.Pattabhi Ramaiah,
Doctor, Kamineni Clinic,
S/o.Suryanarayana,, Age : 62 years,
Kaleswara Rao Road, Suryarao Peta,
Vijayawada. …Appellant/
Opp.party no.2
And
1. Sata Satyanarayana,
S/o.Suryanarayana, Rtd., LIC Employee,
R/o.A.S.Rao Street, Maruthi Nagar,
Vijayawada. …Respondent/
Complainant
2. Dr.V.Ram Prasad, M.B.B.S., Doctor,
Janatha Hospital, Dornakal Road,
Suryarao Peta, Vijayawada. …Respondent/
Opp.party no.1
3. Respondent /opp.party no.3 is not
necessary in this appeal.
Counsel for the Appellant : M/s. V.Sankara Rao
Counsel for the Respondents : Mr.J.Baladithya –R1
F.A.No.314/2008 AGAINST C.C.No.17/2006, DISTRICT FORUM-II, Krishna at Vijayawada.
Between:
1.Vijetha Hospital,
M/s. Vijetha Health Care & Research Center
Pvt. Ltd., Rep. by its Managing Director,
Rallapalla Venkata Siva Rama Prasad,
S/o.Raghava Naidu, Suryarao Peta,
Eluru Road, Vijayawada,
Krishna District. …. Appellant/
Opp.party no.3
And
1.Sata Satyanarayana,
S/o.Suryanarayana Rtd., LIC Employee,
R/o.A.S.Rao Street, Maruthi Nagar,
Vijayawada. … Respondent/
Complainant
2. Dr.V.Ram Prasad, M.B.B.S., Doctor,
Janatha Hospital, Dornakal Road,
Suryarao Peta, Vijayawada.
3. K.Pattabhi Ramaiah,
Doctor, Kamineni Clinic,
Kaleswara Road, Suryarao Peta,
Vijayawada. …Respondents/
Opp.parties 1 & 2
Counsel for the Appellant : M/s. G.Vivekanand
Counsel for the Respondents :
F.A.No.253/2008 AGAINST C.C.No.17/2006, DISTRICT FORUM-II, Krishna at Vijayawada.
Between:
1.Sata Satyanarayana,
S/o.(late) Suryanarayana ,
Aged about 76 years,
Retired LIC Employee,
Resident of D.No.31-6-24,
A.S.Rao Street, Maruthi Nagar,
Vijayawada. …Appellant/
Complainant
And
1. Dr.V.Ram Prasad, M.B.B.S.,
Janatha Hospital, Dornakal Road,
Vijayawada.
2. K.Pattabhi Ramaiah,
Kamineni Clinic,
Kaleswara Rao Road, Suryarao Peta,
Vijayawada.
3.Vijetha Hospital,
M/s. Vijetha Health Care & Research Center
Pvt. Ltd., Rep. by its Managing Director,
Suryarao Peta,
Eluru Road, Vijayawada, … Respondents/
Opp.parties
Counsel for the Appellant : M/s. J.Baladitya
Counsel for the Respondents : M/s.M.Srinivas Rao-R1
M/s.V.Sankara Rao –R2
M/s. G.Vivekanand-R3
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT AND
SMT.M.SHREESHA, HON’BLE MEMBER
.
TUESDAY, THE THIRTIETH DAY OF NOVEMBER,
TWO THOUSAND TEN
Oral Order : (Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.17/2006 on the file of District Forum-II, Krishna at Vijayawada, opp.party no.2 filed F.A.No.251/2008, opp.party no.3 filed F.A.No.314/08 and the complainant filed F.A.No.253/2008.
The brief facts as set out in the complaint are that the complainant is a retired LIC employee having three daughters and two sons and the younger daughter of the complainant Sata Annapurna aged about 30 years complained pain in her stomach and was taken to the hospital of opp.party no.1 on 23.1.2004 who prescribed some medicines. As the pain continued she was again taken to opp.party no.1 hospital on 30.1.2004 and was admitted as an inpatient and undergone blood and urine tests and was discharged on 31.1.2004. On 2.2.2004 the complainant again took his daughter to opp.party no.1 and on his advise she was again admitted as inpatient and underwent scanning and on examination opp.party no.1 stated that there were no abnormalities and assured that it is a minor complaint which will be cured with medicines. On 7.2.2004 the complainant’s daughter again complained pain in her stomach and the opp.party no.1 referred her to opp.party no.2 who advised some tests and the patient has undergone further tests on 7.2.2004 and 8.2.2004 and on examination of the test reports opp.party no.2 informed that no abnormalities were revealed in the test advised by him that it will be cured with medicines. On 11.2.2004 daughter of the complainant again complained pain and opp.parties 1 & 2 conducted operation in the hospital of opp.party no.1 and charged Rs.30,000/- towards fee excluding their consultation fee and laboratory charges. On the morning of 13.2.2004 the daughter of the complainant complained unbearable pain and restlessness with swelling in her stomach and the complainant immediately informed to the staff of opp.party no.1 who administered some medicines but the condition of the patient did not improve and gradually deteriorated and she developed blood vomitings. Inspite of several requests both the opp.parties did not turn up and finally opp.party no.2 visited the patient at about 6 p.m and assured the complainant that there is nothing to worry. But having seen the pathetic condition of his daughter the complainant requested the hospital staff to call opp.party no.1 and he was informed that opp.party no.1 was out station and will not be available till 16.2.2004. On the advise of opposite party no.2, the complainant was constrained to shift his daughter to Vijetha Hospital, Opp.party no.3 on 13.2.2004 at about 8 p.m. and on the examination the patient was shifted to ICU and they did not permit the complainant and his relatives to see the patient and made the complainant to believe that if the patient has been provided costly treatment her condition will be improved and charged more than Rs.50,000/- and all of a sudden on 15.2.2004 at about 8.30 p.m. opposite party no.3 informed the complainant that the condition of the patient become worse and in the early hours of 16.2.2004 opp.party no.3 declared that the patient was dead. The complainant submits that inspite of their repeated requests the opp.parties refused to inform about diagnosis and the nature of disease and operation and though they have collected huge amounts besides their consultation fee and laboratory charges, did not issue receipts and even did not give medical reports and relevant records. The complainant gave a complaint to the police on 16.2.2004 against opp.parties which is registered as FIR in Crime no.35/2004 by Suryaraopeta Police, Vijayawada. The complainant got issued a legal notice through his counsel calling upon the opp.parties to pay Rs.10 lakhs for which the opp.parties issued reply dt.20.1.2006 with all false and frivolous allegations. Hence the complaint seeking direction to the opp.parties to pay Rs.10 lakhs towards compensation together with interest and costs.
Opp.parties 1 and 2 filed counter denying the allegations of the complainant and contending that after several tests the ailment of the complainant was not discovered and hence they conducted Laparotomy operation on 11.2.2004 and was discovered that the patient was suffering from Small Nodular feeling near Rectum, Left Tube, Ovary etc. and at the Bladder surface Malignancy was suspected and Left Ovary and Tube were removed and were sent to the Histopathological examination and the same was explained to the complainant. During the course of treatment it was discovered that the patient was suffering from Mucin Secreting Adeno Carcinoma and there are plenty of Emboli in the Peritubal Lympatics and Ovary Sections studied show secondary deposits from a well differentiated Mucin Secreting Adeno Carcinoma. The opp.parties stated that they came to know that the deceased was suffering from Carcinoma since long time and was almost in bed rest and the complainant kept the opp.parties in dark and concealed the facts. Opp.parties submit that as per the information of Asst. Professor, Department of Forensic, Siddartha College, Vijayawada, the cause of the death of the deceased was due to Malignant Tumor Dissemination Uterus with Adenocarcinations. Opp.parties submit that they have taken utmost care during the treatment of the patient and there is no negligence on their behalf in treating the patient and prayed for dismissal of the complaint.
Opp.party no.3 filed counter denying the allegations made in the complaint and contending that the patient was brought to them with the complaint of blood vomitings and increasing breathlessness and was requiring oxygen continuously to maintain her blood oxygen saturation level within normal limits and her abdomen was distended and bowel sounds were absent and examination of chest revealed bilateral wheeze and crepitations (inadequate air supply) and diagnosis of Septicemia was made and the patient was seriously ill and the condition was explained to the petitioner and his son and after obtaining their consent the patient was admitted in ICU and the treatment that was given included Ryle’s Tube aspiration, I.V.Fluids and necessary drugs were given. At the time of admission Ultra Sound Examination revealed Right Pleural Effusion (fluid around the lungs). The condition of the patient deteriorated and she died on 16.2.2004 at 2.30 a.m. The Department of Forensic Medicine gave a final opinion regarding the cause of death that she died due to Malignant Tumor Dissemination in Uterus with Adema Carcinomatous Deposition in Kidneys, Ovary, Rectum, Omentum, Lymphanodes, stomach. The opp.party submits that the complainant has suppressed the said postmortem report for wrongful gain and that there is no deficiency in service on their behalf and seeks for dismissal of the complaint.
The District Forum based on the evidence adduced i.e. Exs.A1 to A11 and B1 and B2 and also evidence of PW1 & PW2 and RW.1 to RW3 allowed the complaint in part awarding compensation of Rs.2 lakhs only in favour of the complainant and against opp.parties 2 and 3 and to pay Rs.2000/- towards costs . Complaint against opp.party no.1 is dismissed without costs .
Aggrieved by the said order, opp.party no.2 filed F.A.No.251/2008, opp.party no.3 filed F.A.No.314/08 and the complainant filed F.A.No.253/08.
It is the case of the complainant that his daughter aged about 30 years complained of pain in the abdomen and she was taken to opp.party no.1 hospital for the first time on 23.1.2004. Opp.party no.1 prescribed some medicines, but the pain continued and she was again taken to opp.party no. 1 hospital on 30.1.2004 and on his advise she was admitted as inpatient and underwent blood and urine tests. On 2.2.2004 once again on the advise of opp.party no.1 she was admitted as inpatient and underwent scanning test and opp.party no.1 informed that there were no abnormalities and she will be cured by medicines. On 7.2.2004 once again the patient complained of stomach pain and she was advised to consult opp.party no.2 who also prescribed some tests and assured her that she will be cured with medicines.
It is the case of the complainant that on 11.2.2004 the patient complained of unbearable pain and opp.party no.2 conducted the operation in opp.party no.1 hospital and charged Rs.30,000/- towards consultation fee. Only once in the morning hours of 12.2.2004 opp.party no.1 visited the patient and informed them that she would be discharged within 10 days. But in the morning of 13.2.04 there was swelling in the stomach and injections were administered by staff of opp.party no.1, but opp.party no.2 did not turn up till evening 6 p.m. and vexed with their attitude the complainant tried to contact opp.party no.1 but he was informed that he was out of station and will not return till 16.2.04. Then opp.party no.2 was contacted at his hospital and he advised them to shift the patient to opp.party no.3 hospital. At about 8 p.m., the patient was shifted to opp.party no.3 hospital and an amount of Rs.50,000 was spent and two days thereafter on 15.2.04 at about 8.30 p.m opp.party no.3 informed the complainant that the condition of the patient become worse and declared the patient dead at 2.30 a.m. i.e. early hours of 16.2.2004. The learned counsel for the complainant contended that it is only because of the negligence of the opp.parties 1 to 3 that the patient died and even got issued a legal notice calling upon them to pay Rs.10 lakhs and also lodged an FIR against the opp.parties which is registered as crime no.35/2004, opp.parties 1 to 3 replied denying any negligence.
F.A.No.251/2008:
Point that falls for consideration is whether there is any deficiency in service or negligence on behalf of opposite party no.2 doctor?
The learned counsel for the appellant/opp.party no.2 contended that opp.party no.2 visited the hospital on the advise of opp.party no.1 and only performed a procedure of laparotomy for biopsy to remove a piece of the tumor from the body and the cause of death is carcinoma and opp.party no.2 only took a piece for biopsy test and did not perform any major operation. The learned counsel for the complainant contended that opp.party no.2 did not maintain any case sheet and did not come to opp.party no.1 hospital inspite of several requests. We observe from the record that admittedly the appellant/.opp.party no.2 doctor on 11.2.04 came to opp.party no.1 hospital and only assisted in performing laparotomy and it has been observed that the patient is having an inoperable tumor in the pelvis surrounding rectum, uterus, left ovary and tube. Admittedly in the complaint itself the complainant submitted that it was only 13.2.2004 that they contacted appellant ./op.2 to see the patient . It is pertinent to note that opp.party no..2 doctor deposed before the District Forum that his clinical examination revealed that there was mass in abdomen and so a decision was taken to conduct laparotomy and after opening the abdomen he doubted that the mass would be cancer and informed the complainant about the disease and closure of the abdomen. It was only after the third day of the operation on the request of the complainant he visited the patient and found her in a serious condition and informed the patient’s attendants that the patient required intensive care and he contacted the doctors at Vijetha Hospital and explained to them about the treatment given and suspicion of malignancy. The learned counsel for the appellant/opp.party no.2 contended that the case sheet was maintained by opp.party no.1 hospital and the post operative care is also the responsibility of the opp.party on 1 hospital and opp.party no.2 cannot be made liable. It is pertinent to note that the complainant did not mention clearly as to what line of treatment opp.party no.2 ought to have given but did not give, or as to what exactly is the negligence apart from stating that he did not visit the patient till 13.2.04 i.e. two days after the operation. The burden is on the complainant to establish that appellant/opp.party no.2 did not render the treatment as per the normal standards of medical parlance and the complainant herein failed to do so. We also observe from the record that the histopathological report i.e. Ex.B1 dt.11.2.04 i.e. the date on which the laparotomy was done shows sheets of tumor cells in the ovary and Ex.B2 states that the final opinion regarding the cause of death is due to Malignant Tumor Dissemination in uterus with carcinomatous deposits in the kidneys, ovary, rectum, mentum, lymphnodes, stomach. It is apparent on the face of the record that the appellant/opp. Party no. 2 performed the laparotomy in opp.party no. 1 hospital on 11.2.04 and saw the patient again on 13.2.04 and advised the patient to be shifted to opp.party no.3 hospital for better maintenance.
With reference to duties of the doctors to the patients, the National Commission in TARUN THAKORE v. Dr.NOSHIR M.SHROFF in O.P.No.215/2000 dated 24-9-2002 reported in Landmark judgements on Consumer Protection P-410 held as follows:
“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advise and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires”
In INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that”
“The approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owns to his client
a duty in tort as well as in contract to exercise reasonable care
in giving advise or performing services”.
Supreme Court then opined as under:
“The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence”.
The documentary evidence on record does not show that opposite party no.2 did not act as per standards of medical parlance or did not take duty of care or precaution acceptable to the medical profession. There is no documentary evidence filed by the complainant to establish any sort of the negligence on behalf of the appellant/opp.party no.2 either in conduction of the operation or in the diagnosis in which opposite party no.2 had a role to play.
In the result F.A.No.251/08 is allowed and the order of the Dist. Forum is set aside with respect to appellant/ opp.party no.2.
The point that falls for consideration is whether there is any deficiency in service or negligence on behalf of opposite party no.3 ?
F.A.No.314/08: The learned counsel for the appellant/OP.3 contended that the patient was brought to opp.party no.3 hospital on 13.2.04 in a serious condition and this condition was explained to the patient and opp.party no.3 hospital has given best possible treatment and no negligence could be attributable to them. It is pertinent to note that Ex.A1 case sheet of Vijetha Hospital (OP.3) the diagnosis at the time of admission sepsis syndrome – septicaemia. When the patient was admitted in such a high risk serious condition with distension in the stomach and septicaemia with myocarditis , and the hospital has given due care and as seen from the case sheet it cannot be stated that there was any negligence on behalf of the appellant/opp.party no.3. The complainant has also failed to establish as to what line of treatment opp.party no.3 hospital did not give as per the standards of medical parlance. The patient died within 2 days of admission in opp.party no.3 hospital and at the time of admission itself he was in septicaemic condition. In the absence of any documentary evidence we cannot attribute any negligence to opp.party no.3 hospital. In the result this appeal is allowed and the order of the Dist. Forum is set aside in respect to appellant/opp.party no.3.
The point that falls for consideration is whether the complainant is entitled to the relief sought for in the complaint?
F.A.No.253/08 has been preferred by the complainant for enhancement of compensation awarded by the District Forum. For the reasons afore mentioned in both the appeals preferred by opp.party no. 2 and 3 we are of the considered view that no negligence can be attributed to opp.parties 2 & 3. However we observe from the record that initially the patient had visited opp.party no. 1 hospital on 23.1.04 and was admitted as an inpatient and thereafter she was taken again three times to the hospital of opp.party no.1 and blood and urine tests were done. Opp.party no.1 in their reply notice Ex.A10 admit that the patient was brought to the opp.party no.1 hospital on 23.1.04 again on 3.2.04 when she was admitted as in patient and discharged on 5.2.04 and once again brought on 6.2.04 as an inpatient and again on 7.2.04. A Barium Meal X-ray and Ultra Sound examination were done on the patient and a decision was taken by opp.parties 1 & 2 to perform laparotomy on 11.2.04. In the reply notice opp.party no.1 contended that the ovary had tumor cells and patient was suffering from MUCIN SECCRETING ADENO CARCINOMA . There is no denial in their reply notice about the absence of opp.party no.1 from 11.2.04 to 16.2.04. It is the hospital which is responsible for providing best post operative care and in the instant case opp.party no.1 did not choose to file any documentary evidence to establish the exact line of treatment undertaken by them to prevent any infection which has occurred and resulted in septicaemia. The case sheet of opp.party no.1 shows that the patient was admitted in the state of sepsis syndrome-septicaemia. It is the duty of opp.party no.1 hospital to maintain the case sheet which is silent about carcinoma. Opp.party no.1 admits in his deposition that the patient’s condition was not explained to the attendants prior to the operation. We rely on the judgment of the Apex Court in Samira Kohli Vs. Dr. Prabha Manchanda & Another reported in (2008) 2 SCC 1 in which the Supreme Court summarized the principles relating to ‘Informed Consent’ as follows:
(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.”
In the instant case it is pertinent to note that no informed consent was taken by opp.party no.1 hospital and the prognosis was also not explained. While Exs.B1 and B2 show that the patient had carcinoma it is also apparent on the face of record of opp.party no.3 that the patient suffered from septicaemia arising due to lack of proper post operative care. Taking into consideration the deposition of opp.party no.1, and also the fact that no consent was taken by opp.party no.1 hospital and also the fact that opp.party no.1 was absent on 11.2.2004 till 16.2.04 and there is no documentary evidence on record to state as to which doctor had treated the patient and what is the exact line of treatment given and when there is prima-facie evidence that there was no proper post operative care, the burden of proof shifts on opp.party no.1 to explain as to how the patient got septicaemia. We rely on the judgment of the Apex Court reported in (2004) 8 SUPREME COURT CASES 56 in SAVITA GARG (SMT) v. DIRECTOR, NATIONAL HEART INSTITUTE that
‘when a prima facie case is established, it is the duty of the opposite parties to prove their case, since it is only the opposite parties who are aware of the exact line of treatment that has been given to the patient. It was also held by the Apex Court that once a claim petition is filed and the complainant has successfully discharged the initial burden that the hospital/clinic/doctor was negligent and that as a result of such negligence, the patient died, then in that case, the burden lies on the hospital and the doctor concerned, who treated the patient, to show that there was no negligence involved in the treatment’.
In the instant case the burden of proof shifts on opp.party no.1 to explain as to how the patient contacted septicaemia when admittedly the laparotomy was conducted with the intention of conducting biopsy. For the aforementioned reasons we hold that opp.party no. 1 liable to pay the amounts awarded by the Dist. Forum Hence the order of the Dist. Forum is modified. We direct opp.party no.1 alone to pay to the complainant compensation of Rs.2 lakhs and Rs.2000/- towards costs. Case against opp.parties 2 and 3 is dismissed
We do not find any force in the contention of the appellant/complainant in F.A.253/08 seeking enhancement since though the patient had contracted septicaemia in opp.party no.1 hospital Exs.B1 and B2 establish that she was also suffering from carcinoma. Therefore the treatment given by opp.party no.1 hospital cannot be said to be having any nexus with carcinoma, though we hold opp.party no.1 liable for lack of proper post operative care leading to septicemia. As cancer was already present as evidenced under Exs.B1 & B2 we do not see any reason to enhance the compensation awarded by the Dist. Forum
In the result the appeal filed by the complainant in F.A.No.253/08 is dismissed. No costs.
In the result F.A.No.251/08 and F.A.314/08 are allowed and the order of the District Forum is set aside with respect to liability of opp.parties 2 & 3 and the order of the Dist. Forum is modified fastening the liability on opp.party no.1 alone. The appeal F.A.No.253/08 preferred by the complainant is dismissed. No costs. Time for compliance four weeks.
PRESIDENT
MEMBER
Dt. 30.11.2010.
Pm*
