This complaint coming up before us for hearing on 03-06-14                                in the presence of Sri A. Sanjeeva Reddy, advocate for complainant;                         Sri A. Rama Mohan Rao, advocate for opposite parties 1 to 5;                                     Sri P.V. Ramana, advocate for opposite parties 6 and 8; 7^th opposite party remained absent and set exparte; 9^th opposite party representing in person, upon perusing the material on record, and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-      The complainant filed this complaint under section 12 of the Consumer Protection Act seeking compensation of Rs.10,00,000/- from the opposite parties 1 to 8 for causing the death of one Sanagala Sivamma by their negligent treatment.

2.   In nutshell the complaint averments are hereunder:

          The complainants 1 to 3 are the husband, son and daughter of late Smt Sanagala Sivamma.   The said Sivamma approached M/s Vamsee Specialties Hospital, Sattenapalli and Dr. Oguri Kotaiah of Narasaraopet as she was suffering from stomach pain from September, 2010.   Both the said doctors diagnosed the said Sivamma suffering from stones in gall bladder.   The opposite parties 2 to 4 are running the 1^st opposite party hospital as partners and the 5^th opposite party is the attending surgeon at the                      1^st opposite party hospital.   The 1^st opposite party gave wide publicity through their public relation officers and village quacks.   The complainants as well as the deceased Sivamma were attracted by the lucrative words of the public relation officer of the 1^st opposite party.   The complainants got admitted the said Sivamma in the hospital of the 1^st opposite party.  After going through clinical reports, the opposite parties 2 to 5 advised the said Sivamma to undergo surgery for removal of stones from gall bladder.   The 1^st opposite party collected Rs.5,000/- from the said Sivamma towards laboratory tests.   The opposite parties 1 to 5 obtained thumb marks and signatures of one of the attendants of the said Sivamma on some papers on the pretext of applying and obtaining Arogyasri Scheme facility.   The opposite parties 2 and 3 gave anesthesia while the opposite parties 4 and 5 conducted operation on 01-11-10 during 4.00pm - 6.00pm.   After operation the said Sivamma suffered from breathing problem, urinary/fecal track problem and felt dryness besides severe body pains.   The said problems of the said Sivamma increased from day to day.  The said Sivamma could not discharge urine and fecal matter inspite of arranging pipes.   The opposite parties 1 to 5 are not vigilant in conducting proper tests and they deputed their nurses to attend the said Sivamma after operation.   The opposite parties 1 to 5 dragged the issue for three days instead of immediately attending to the said Sivamma when she complained about her problem.  The 4^th opposite party failed to call a competent doctor or shift the said Sivamma to a near better equipped hospital but was attending to his other patients.   The 4^th opposite party on 03-11-10 at about 3.30 pm shifted the said Sivamma in his ambulance to the hospital of the 6^th opposite party and there the opposite parties 7 and 8 attended the said Sivamma.   The opposite parties 7 and 8 opined that there was severe infection to the said Sivamma and if she has been treated in advance better results would have come.   The opposite parties 6 to 8 explained the condition of the said Sivamma to the 4^th opposite party.   The opposite parties 7 and 8 conducted operation on the said Sivamma in the operation theatre of the 6^th opposite party and they informed that the entire infection was removed and she will be alright.   Inspite of operation the said Sivamma faced the same problem and her suffering increased.   The 4^th opposite party expressed his repentance for not getting the said Sivamma treated and cured in their hospital and informed that the complainants have to pay only part of medical expenses at Vijayawada.   The complainants hurriedly got money from the relatives and paid Rs.50,000/- to the 4^th opposite party requesting him to save the said Sivamma.   The opposite parties 4, 7 and 8 informed that the said Sivamma suffered from lung infection on 05-11-10, brain infection on 06-11-10 and skin infection on 08-11-10.   The opposite parties 5 and 6 in the presence of the 2^nd opposite party conducted another operation on the said Sivamma, removed the waste and thereafter her condition became worse and was on ventilator.  The said Sivamma breathed her last on 12-11-10.  After prolonged altercations the opposite parties 4 to 6 gave case summary stating that the said Sivamma died due to multi organ failure.   The summary of the opposite parties 4 to 6 revealed that the said Sivamma was a known diabetic and with no other side effects.   But the opposite parties 1 to 3 without controlling the sugar directly preceded with the operation and caused severe problems and death of the said Sivamma.  The said Sivamma died due to gross negligence on the part of the opposite parties 1 to 8.   The opposite parties 2 to 5 are not expert doctors in the hospital of the                          1^st opposite party and they are not eligible for getting Arogyasri Scheme but somehow or other the opposite parties 1 to 5 have got the said scheme with a view to get money.   In order to get money the opposite parties 1 to 5 conducted operation on the said Sivamma hastily, rashly and negligently.   Due to sudden death of the said Sivamma the complainant sustained a loss in several ways and suffered mentally, physically and financially.   The complainants estimated the loss sustained by them under different heads to a tune of Rs.10,00,000/-.   The opposite parties 1 to 5 gave reply with false allegations.   The 8^th opposite party refused to receive the notice.   The complainants added the 9^th opposite party as a proforma defendant. 

3.   The 7^th opposite party remained exparte.

4. The 9^th opposite party filed version contending that it plays role as a mediator/facilitator and its role is limited to process the amount of claim raised by NWH with regard to treatment of the patient beneficiary.

5.  The opposite parties 1 to 3 filed memo adopting the version of the opposite parties 4 and 5 and its contents in brief are hereunder:

          The Consumer Forum has no jurisdiction to adjudicate the complaint as neither the deceased nor complainants are consumers.   The 1^st opposite party hospital was established in 1988.   The 1^st opposite party did not appoint any PRO or promoter to canvas or bring patients to its hospital.   The 1^st opposite party is rendering medical aid even with a consultation fee of Rs.20/- to Rs.50/-.   The 1^st opposite party is one of the network hospitals under Rajiv Arogya Sri as it fulfilled all the criteria.   The 9^th opposite party (mistakenly typed as 8^th opposite party) enrolled the 1^st opposite party as one of its network hospitals after satisfying all the criteria laid under the scheme and appointed the 4^th opposite party as Rajiv Arogya Sri Medical Coordinator.   A person appointed under the scheme visits network hospitals everyday and enquiries the patients admitted under Arogya Sri scheme and makes a note of complaints.    Neither the said Sivamma nor attendant attending on her made a complaint against the opposite parties 1 to 5 or their staff.   The 1^st opposite party did not collect Rs.5,000/- towards                 pre-operative examinations from the complainants.  The 5^th opposite party is MS (General) and is an efficient surgeon in Laparoscopy and did 1000 laparoscopic surgeries under Arogya Sri Scheme and 300 Laparoscopic surgeries in other private hospitals.   The rate of mortality is NIL.   Bowel injury is one of the common injuries in Laparoscopic operations and which could not be diagnosed immediately i.e., within 72 hours after operation.   One T. Seshi Reddy son-in-law of the 1^st complainant working as a teacher in Guntur brought the said Sivamma to the hospital of the 1^st opposite party contending that she is a poor and white card holder and as such that the said Sivamma was admitted under Arogya Sri Scheme.   The said Sivamma joined in the 1^st opposite party hospital with the complaint of pain in epigastric region since one month, post prandial discomfort, bloating sensation.   The said Sivamma underwent Laparoscopy 10 years back the details being not known; not a known HTN, not a known DM and non asthmatic.   The opposite parties 2 and 3 were not connected with treatment of the said Sivamma and they were not necessary parties to the proceedings.   All pre-operative tests were done free of cost on the said Sivamma under the supervision of the 4^th opposite party. The 5^th opposite party conducted laporoscopic cholecystectomy on the patient on 01-11-10 at 4.00 pm under guidance of an anesthetist.  The operating surgeon did not find any bilary leak or bleeding and kept sub-hepatic drain by closing port sites.   After gaining consciousness and coherence the patient was shifted to ICU.   HPE report of gall bladder with calculi revealed that the patient was suffering from chronic calculus cholecystitis and bowel sounds were active.   Sub-hepatic drain was done.  The operating surgeon at 8.00 pm noticed minimal bilary staining of the dressing at drain site.   The operating surgeon on 03-11-10 noticed tenderness, bowel sounds sluggish, bile staining of the wound besides blood sugar.   The blood sugar was controlled by administering insulin.   The 4^th opposite party is a diploma holder in diabetic.   The said Sivamma was not a known diabetic and developed it due to stress.  The said Sivamma complained respiratory distress at 4.00 pm on 03-11-10.   In view of free fluids in abdomen, presence of bile leak, the 4^th opposite party shifted the patient to gastroenterology department of 6^th opposite party for better treatment at his expenses.   The opposite parties 4 and 5 discharged their duties diligently and they were not negligent at any time.   In all laparoscopic procedures minimum soakage of dressing at a drain site and bilary stained fluid through drain tube is common.   Within 36 hours the opposite parties have noticed absence of bowel sounds and bile wetting at drain site due to their utmost care.   On investigations the opposite parties came to a conclusion that the said Sivamma developed bilary leak and hyperglycemia.   The 4^th and 5^th opposite parties intimated the 6^th opposite party about stress hyperglycemia even though the said Sivamma was not a known diabetic.   The said Sivamma did not die due to diabetes.   The said Sivamma died due to failure of multi organs.   The 4^th opposite party attended the said Sivamma regularly till her last breathe and met all medical expenses.   The said Sivamma is not a bread winner of the family as the 1^st complainant is maintaining the family.   The 1^st complainant did not have any mulching buffalos.  Rest of the allegations contra mentioned in the complaint are all false and the complainants invented them for their convenience to have wrongful gain.

6.  The contention of the opposite parties 6 and 8 in nutshell is hereunder:

          The patient Sivamma aged 45 years was admitted in the hospital of the 6^th opposite party (ICU) with two days history of pain abdomen, with distension, breathlessness following laparoscopic cholecystectomy on                          01-11-10.   After clinical examinations the said Sivamma was prognosis for emergency laparotomy on 04-11-10 after pre anaesthesia evaluation under general anaesthesia.   The said Sivamma underwent laparotomy + Resection and anastomosis of Proximal ileum + EEA - Peritoneal toilet.   Post operatively the said Sivamma haemodynamic instability with hypertension, tachycardia and metabolic acidosis, for which the opposite parties 6 and 7 treated.   On 3^rd POD, the said Sivamma had worsening respiratory distress, chest skiagram revealed left pleural effusion with nonhomogenous opacities in left mid zone and lower zone.   The opposite parties 6 and 8 consulted with pulmonologist.   The said Sivamma also developed abdominal wall cellulites for which incision and drainage was done on 08-11-10.   Intra operatively the said Sivamma had hypotension, bradycardia and increased oxygen requirement and she was electively ventilated.   The said Sivamma received two units of compatible blood transfusion, had spikes of temperature post operatively.  General condition of the said Sivamma did not show any improvement inspite of best clinical care and management.  The general condition of the said Sivamma deteriorated with multi organs failure.   On 12-11-10 the said Sivamma had cardiac arrest and CPR has been initiated as per ACLS protocol, inspite of that the said Sivamma could not be revived and hence declared dead at 1.45 pm on 12-11-10.   The inexpensive nature of consumer jurisdiction should not be allowed to become a vicious weapon in the hands unscrupulous patients to harass the medical professional without good and adequate cause.  The opposite parties 6 and 8 did not commit any deficiency of service.   The complaint therefore be dismissed.

7.  Exs.A-1 to A-25 on behalf of complainant and Exs.B-1 to B-18 on behalf of opposite parties 1 to 5 were marked.   Ex.X-1 (expert opinion) was also marked.

8.   Now the points that arose for consideration in this complaint are:

          1.  Whether the complainant is a consumer?

2. Among the opposite parties 1 to 8 who committed deficiency of                         service?

          3.  Whether the complainants are entitled to compensation?

          4.  To what relief?

9.   Admitted facts:-

          1. The 5^th opposite party conducted laporoscopic cholecystectomy on                              the patient/deceased Sivamma on 01-11-10 in the hospital of                           the 1^st opposite party.

2. The 9^th opposite party appointed the 4^th opposite party as Rajiv      Arogya Sri Medical Coordinator (RAMCO).

          3. While in the hospital of the 1^st opposite party the patient Sivamma                              developed breathlessness and bile leaks.

          4. The 4^th opposite party got admitted the said Sivamma in the                                       hospital of the 6^th opposite party for better treatment                                            on 03-11-10.

          5.  The 8^th opposite party did laparotomy on the said Sivamma on

                   04-11-10.

          6.  The said Sivamma was inpatient at the 6^th opposite party hospital                     from 04-11-10 to 12-11-10.

          7. The said Sivamma breathed her last on 12-11-10 in the hospital

                   of the 6^th opposite party.

10.   POINT No.1:-   The complainants did not file any receipt to show that they paid Rs.5,000/- to the 1^st opposite party for laboratory tests or paid Rs.50,000/- at a later date to the 4^th opposite party while taking the patient Sivamma to the hospital of the 6^th opposite party.  The 4^th opposite party got treated the patient Sivamma through the 5^th opposite party under Arogya Sri Scheme.  The 4^th opposite party though did not receive any consideration directly from the complainants or the patient but received Rs.30,000/- as consideration through the 9^th opposite party (Ex.A-10).   Under those circumstances in our considered opinion the complainants as well as deceased Sivamma did fall under the purview of consumers.   We therefore answer this point against the opposite parties.

11.  POINTS 2&3:-    In Kusum Sharma and others v. Batra Hospital & Medical Research Centre and others, (2010) (I) CPJ 29 (SC) the Hon’ble Supreme Court laid down guidelines for deciding negligence or deficiency of service in medical profession and they are reproduced under:

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence.   The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring 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.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.   
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.   Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.  Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals”

12.   In Nizam Institute of Medical Sciences vs. Prashanth                          S. Dhananka and others 2009 (2) CPJ 61 (SC) it was held that in a case involving medical negligence the initial burden is on the complainant, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or a doctor concerned the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy that there was no lack of care or diligence.

13.    Ex.B-4 revealed that the 4^th opposite party was recognized as RAMCO doctor for cashless diagnosis and treatment.   Ex.B-4 further revealed that the 4^th opposite party was attached to M/s Hyma Hospitals (OP1).   It is the 4^th opposite party who took the services of the 5^th opposite party in conducting cholecystectomy.  Under those circumstances, it cannot be said that the opposite parties 1 to 3 are liable for the medical negligence alleged. 

14.    The condition of the patient Sivamma was either serious or precarious when admitted in the hospital of the 6^th opposite party.  By that time the said Sivamma was under treatment for diabetes.  In Ex.X-1 the experts opined due to bad infection and diabetic status patient succumbed to infection.   Under those circumstances the opposite parties 6 to 8 cannot be found fault with their treatment.   Hence we hold that the opposite parties 6 to 8 did not commit any deficiency of service.       

15.   The complainants did not claim any relief against the 9^th opposite party.  On the other hand, the complainants added the 9^th opposite party as a proforma party.  Under those circumstances no liability can be fastened to the 9^th opposite party.     

16.  The said Sivamma had no blood sugar at the time of operation on              01-11-10 according to opposite parties 4 and 5.  Surprisingly, the                           4^th opposite party analyzed blood on 03-11-10 and found blood sugar at 320mg%.    The 4^th and 5^th opposite parties did not analyze blood sugar even on 02-11-10 as seen from the second sheet of Ex.B-1.   The complainant being illiterate cannot explain how the sugar in blood shooted up to 320 mg%.   It is suffice to hold that the complainants initially discharged their burden that the opposite parties 4 and 5 operated the said Sivamma without noting blood sugar.

17.   It is for the opposite parties 4 and 5 to explain as to how the sugar in blood shooted up to 320mg% on the 3^rd day of operation.   The learned counsel for the opposite parties 1 to 5 stated that stress entertained by a patient during operation can raise sugar level in blood.   The opposite parties 4 and 5 neither examined any independent witness to support their contention and relied on Ex.X-1 expert opinion.   The experts in their opinion observed that there is no obvious negligence on the part of the hospital or doctor in treating the patient.   But at the same time the experts in their opinion observed that due to bad infection and diabetic status patient succumbed to infection.   Even the experts also did not deal as to how the sugar level in blood rose up to 320 mg% that too in the case of a not known diabetic patient. The opposite parties 1 to 5 ought to have examined any of the doctors who gave Ex.X-1 opinion to establish that the patient Sivamma developed sugar due to stress.  Under those circumstances mere literature in our considered opinion (even if filed) is not sufficient to discharge their burden. In the absence of cogent evidence the contention of the opposite parties 4 and 5 that sugar level in blood rose upto 320 mg% due to stress cannot be accepted in our considered opinion.

18.   The opposite parties filed in patient medical records (Exs.B-7 and B-8) relating to the said Sivamma. In Exs.B-7 and B-8 hospital ID number was mentioned as AS 998.  In Ex.B-7 percent of blood sugar was not noted on 01-11-10.   But in Ex.B-8 percentage of blood sugar was noted as 110 mg% on 01-11-10.   It is for the opposite parties 1 to 5 to explain regarding the said discrepancy.  We therefore opine the opposite parties 4 and 5 failed in discharging their burden in showing absence of negligence on their part.   We therefore answer this point accordingly in favour of the complainants and against the opposite parties 4 and 5.

19.  The complainant claimed Rs.10,00,000/- as compensation.  The details for claiming that much compensation do not find place in the complaint or affidavit.   The patient/deceased Sivamma was a house wife and her age was 44 as seen from Exs.B-7 and B-8.   Considering the steps taken by the opposite parties 4 and 5 to save the life of the patient Sivamma i.e., in shifting her to the 6^th opposite party without loss of time has to be appreciated besides payment of Rs.2,16,980/- to the 6^th opposite party.  Awarding Rs.2,00,000/- in our considered opinion will meet ends of justice.   We therefore answer these points accordingly against the opposite parties                  4 and 5.  The complainants being class-I heirs are entitled to share the amount equally.

20.  POINT No.4:-    In view of above findings, in the result the complaint is partly allowed as indicated below:

1. The opposite parties 4 and 5 are directed to pay Rs.2,00,000/- (Rupees two lakhs only)  to the complainants (complainants should share the amount equally) with interest @9% p.a., from the date of complaint till realization.

          2. The opposite parties are directed to pay costs of Rs.2,000/- (Rupees        two thousand only) to the complainants.

          3.  Claim against opposite parties opposite parties 1 to 3 and 6 to 8 is          dismissed without costs.

          4.  The amounts ordered above shall be paid within a period of six     weeks from the date of receipt of the copy of the order.

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 10^th day of June, 2014.

      MEMBER                                                                  PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:  

By the Witness:

                                                                                                 PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receit of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.