Date of Filing: 22.01.2010
Date of Order: 11.02.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20
Dated: 11TH DAY OF FEBRUARY 2011
PRESENT
Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.
Smt. D. LEELAVATHI, M.A.LL.B, Member.
Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.
COMPLAINT NO: 138 OF 2010
1. Manjula
W/o. Nayanappa
Resident of Thattenahalli
Anekal Taluk, Bangalore
2. Manjunath
S/o. Nayanappa
Resident of Thattenahalli
Anekal Taluk, Bangalore
3. Manuja
D/o. Nayanappa
Resident of Thattenahalli
Anekal Taluk, Bangalore
4. Sushma
D/o. Nayanappa
Resident of Thattenahalli
Anekal Taluk, Bangalore
5. Doddayellappa
F/o. Late Nayanappa
Resident of Thattenahalli
Anekal Taluk, Bangalore
6. Muniyamma
M/o. Late Nayanappa
Resident of Thattenahalli
Anekal Taluk, Bangalore Complainants
V/S
1. M/s. KIDWAI Memorial Institute of Oncology
Lakkasandra, Behind NIMHANS Hospital
Bangalore, Rep. by its Director
2. Dr. Srinivas, Surgical Oncologist
M/s. KIDWAI Memorial Institute of Oncology
Lakkasandra, Behind NIMHANS Hospital
Bangalore Opposite Parties
ORDER
By the President Sri S.S. Nagarale
This is a complaint filed under section 12 of the Consumer Protection Act.
The facts of the case are that complainants are farmers and resident of Anekal taluk. Husband of first complainant Nayanappa felt congestion and difficulty in breathing. He approached Dr. Raghu at Anekal and he referred him to undergo CT Scan. Thereafter, Doctor opined that there was some water formation in the left lung. Nayanappa approached opposite party hospital to undergo treatment. It was told that he was operated for removal of water from his left lung and from the left side of his Thorax. Nayanappa was admitted to opposite party hospital on 16.04.2009. Dr. Srinivas opposite party No. 2 being in a hurry due to duty timings coming to end performed an incision on the right side of thorax of Nayanappa though the pain being suffered by him was on the left side of the thorax. Dr. Srinivas cut the right side of the thorax to perform the operation due to which there was heavy blood loss. Realizing the mistake which he had committed negligently sutured the cut made to operate and proceeded to perform the operation on the left side. Nayanappa was shifted to emergency ward. He was discharged from the hospital without issuing discharge summary. Hospital ought to have given post operative treatment and medicines but hurriedly sent him out of the hospital without taking care of the patient. Condition of the patient was deteriorated due to the incision made on the right side of the thorax. It is submitted that the opposite party hospital being a reputed one ought to have taken full and utmost care of the patient. But instead of that due to the mistake and negligent act of Dr. Srinivas patient was discharged without post operative treatment. The negligent act of the Doctor was also reported in the daily newspaper Deccan Chronicle on 21.04.2009. Nayanappa got issued legal notice to opposite party through his counsel on 24.04.2009 calling upon opposite party to pay Rs. 15,00,000/- damages for negligence of hospital and doctors. Opposite parties not replied to the notice. It is submitted that health of Nayanappa deteriorated day by day after operation and consequently he died on 16.05.2009. The staff and opposite party hospital are solely responsible for death of the patient. Nayanappa was sole breadwinner of the complainants’ family. The opposite parties have committed deficiency in service and they are liable to compensate the complainants for the death of Nayanappa at an early age of 45 years. Complainants are deprived of love and affection. Hence, the complainants have filed the complaint against the opposite parties claiming compensation of Rs.20,00,000/-.
2. Opposite party No. 1 & 2 appeared through respective counsels and filed defence version. Opposite party No. 1 submitted that complaint is not maintainable. As regards CT scan and report it is not disputed. Nayanappa was admitted to the hospital on 16.04.2009 at about 3.30 p.m. is true. In order to ease the congestion, he was operated upon as was required by the exigency and all possible pre and post operational treatments were given. It is submitted that Nayanappa was brought to the hospital in extreme pain and he was suffering from advanced stage of cancer and he was given emergency pre and post medical treatment. Hospital records show that late Nayanappa immediately after the operation was shifted to the treatment room for post operative care and was seen by Dr. Srinivas opposite party No. 2. Nayanappa was discharged from hospital and allowed to go home along with his relatives with medical advice. Nayanappa was given both pre and post operational treatments. Case papers would speak for itself. Hospital has earned reputation on account of its professional service. The health of Nayanappa deteriorated day by day after operation and consequently died on 26.05.2009 is not within the knowledge of opposite party. Nayanappa did not suffer anything adversely on account of the operation carried on him on 16.04.2009 and the alleged superficial cut on the right side of thorax even if it is made, is insignificant and has absolutely no consequences in medical parlance and cannot be a cause of death of the patient. Therefore, same cannot be characterized as deficiency in service under the Consumer Protection Act. Complainants have not given any split-up details supporting claim of Rs. 20,00,000/- towards damages. Complaint itself is not maintainable as opposite party hospital being a Government hospital has not charged any fee for the operation carried on Nayanappa. Dr.Srinivas opposite party No. 2 is on the pay-roll of the first opposite party hospital. Opposite party No. 2 has also not charged any fee for the operation on Nayanappa. The complainants have carefully suppressed the fact that Late Nayanappa was suffering from Lung cancer and it was in the final stage. Therefore, opposite parties could not be held responsible for the death of Nayanappa. The opposite parties served free of charge and would be outside the purview of Section 2(1)(o) of the Consumer Protection Act. Therefore, the opposite party No. 1 has prayed to dismiss the complaint.
3. Opposite party No. 2 Dr. Srinivas has submitted separate defence version stating that he was working as a resident surgeon in the first opposite party institute and he is a qualified surgeon. On 16.04.2009 Nayanappa was brought to the surgical oncology out patient unit. After discussion with senior surgeon Dr. Mahesh, opposite party No. 2 attended to the patient. Second opposite party placed the chest tube on the correct side to drain the fluid collected in the body to relieve the pain. The patient’s pain was related to advanced stage of cancer. It was the decision of senior surgeon on duty that patient needed emergency palliative surgery. Accordingly, opposite party No. 2 carried out operation as it was necessary. Patient was given necessary pre surgical treatment. After surgery it was noticed that patient was relieved of his pain and distress. After surgery patient was kept in treatment room and given necessary post operative treatment. Second opposite party again saw the patient at 5.30 p.m. on 16.04.2009. On 17.04.2009 second opposite party has again seen the patient in the morning and also in the afternoon. Second opposite party advised the patient be admitted for some more time. However, the relatives of the patient took the patient against the medical advice. Opposite party No. 2 took utmost care rendering professional service. Patient was not charged any fees either by the first opposite party or by second opposite party. There is no conflict of interest between the first and the second opposite party. Claim of the complainant is speculative. The complaint is not maintainable. There is no document to show cause of death. For all these reasons stated above the opposite party No. 2 prayed to dismiss the complaint.
4. On behalf of complainants affidavit evidence of widow of the deceased Smt. Manjula has been filed and Director in-charge of the opposite party No. 1 institute has also filed affidavit evidence and opposite party No. 2 Y.P. Srinivasalu has also filed affidavit evidence.
5. Respective parties have also filed written arguments.
6. We have heard the arguments. Perused the pleadings, affidavit evidence and documents.
7. In the light of the arguments advanced before us following points arises for consideration:
1. Whether the complaint is maintainable against the opposite party No. 1 since opposite party No. 1 is Government institute?
2. Whether the complainants have proved deficiency of service on the part of opposite parties?
3. Whether the complainants are entitled for compensation? If so, what would be the quantum of compensation?
8. The main defence of the opposite parties is that opposite party No. 1 is a Government institute rendering free service to the patients. Therefore, complaint is not maintainable and it was argued that the complainants are not ‘consumers’ under the provisions of Consumer Protection Act. So, on this ground the learned counsel for the opposite parties submitted that complaint is liable to be dismissed. As regards this argument is concerned recent ruling has come on this point reported in 2011 CTJ 73 State Consumer Disputes Redressal Commission, Aizawal, Mizoram had given judgement in Director of Health Services, Health & Family Welfare Department Vs. Lalramliana wherein it has been held as under:
“Medical negligence – Deficiency in service – Consumer Protection Act, 196 – Section 2(1)(g) – Section 2(1)(o) – complainant’s wife underwent a sterilization operation in a government hospital – A little over two years later she had again conceived – Alleging negligence of the operating doctor, a complaint filed before the District Forum claiming compensation of Rs. 2 lakhs for the upbringing of the baby - opposite party contested, saying that she was not a consumer having received free service – Negativing the objection, the complaint allowed by the District Forum relying on a decision of the Supreme Court in the case of State of Haryana Vs. Smt. Santra – complainant awarded compensation in the sum of Rs. 1 lakh – Appeal of the opposite party dismissed by the State Commission.”
9. The Hon’ble State Commission has relied upon judgement of Hon’ble Supreme Court reported in 2000 CTJ 481 (AIR 2000 SC 1888) between State of Haryana Vs. Smt. Santra. Placing reliance on the Supreme Court judgement the District Forum rendered judgement awarding compensation of Rs. 1,00,000/- in that case. The Hon’ble Union Territory Consumer Disputes Redressal Commission, Chandigarh reported in III (2008) CPJ 230 judgement in Jaswant Lal Vs. General Hospital & ors. has held as under:
“(ii) Service – Consumer – Medical Service rendered by Government hospital, where services rendered on payment of charges, also free of charge, could fall within ambit of service under Section 2(1)(o) – Free service would be service, recipient is consumer – No amount charged from deceased patient as she was Government employee – Patients who are not Government employees are being charged – Deceased patient consumer – Complaint by her husband maintainable.”
10. The Hon’ble National Commission had confirmed awarding of compensation against All India Institute of Medical Sciences, New Delhi Vs. M/s. Aisha Begum (NCDRC) page 618. Same has been reported in CTJ December 2010 Index pg. 273. Therefore, the above authorities are the full and complete answer to the argument of the learned advocate for the opposite parties. Since, the above judgement is a very recent and latest judgement we can very well place reliance on the judgement and it shall have to be hold that complaint is maintainable even against Government institute. The second point is regarding deficiency of service rendered by opposite parties. It is admitted fact that Nayanappa was admitted to the opposite party hospital on 16.04.2009 and opposite party No. 2 taken the charge of patient. He performed incision for the right side of the thorax though the patient was suffering pain on the left side of the thorax and opposite party No. 2 Doctor who was surgeon then in KIDWAI Institute of Oncology cut open the right side of the thorax to tap the fluid instead of the left side due to which there was heavy blood loss. Realizing the mistake opposite party No. 2 doctor who had committed negligence sutured the cut made earlier and proceeded to open the left side of the thorax for operation. In this way the complainants have made out the case that opposite party No. 2 doctor committed deficiency in service in not properly doing his duty. Opposite party No. 1 in the version did not deny specifically the above allegations in the version. On the other hand in para 15 of the version opposite party No. 1 infact admitted right side of the thorax cut and it has been stated that it is insignificant and that cannot be a case for death of a patient. By defence version it is very clear that on 16.04.2009 opposite party No. 2 doctor cut open the right side of the thorax instead of left side of the lung. This is a negligent act of the doctor on the face of it. No further proof is required to establish the medical negligence and deficiency of service rendered by the opposite parties. The negligent act of the doctor even appeared in the newspaper Deccan Chronicle dated 21.04.2009. Newspaper cutting has been produced by the complainant with heading “Wrong cut costs doctor his job”. It is better to reproduce the newspaper report as it is.
“A surgeon at the premier Kidwai Memorial Institute of Oncology goofed up while operating on a farmer suffering from lung cancer, by cutting open the right side of his chest instead of the left during surgery recently. KMIO has acted quickly and dismissed the surgeon from service.
Nayanappa, 45, a farmer from Thattenahalli near Anekal, who has terminal lung cancer, is not able to even sit up as a result of the double surgery conducted on him, say his relatives, who grew suspicious when they saw the additional bandage on his chest.
According to hospital sources, the resident surgical oncologist Dr. Srinivas, cut open the right side of the lungs to tap the fluid instead of the left although the section was marked for surgery.
“By the time the doctor realised his mistake, the skin was cut and Nayanappa was bleeding profusely. The doctor asked his juniors not to panic and stitched up the open side before making an incison on the left,” sources added.
The farmer’s brother, Suresh, who noticed the bandage on the right side of his chest, asked the doctor about it, only to have him dismiss the matter as of little importance.
“He not only forced to leave the hospital but said it was not a big issue,” Suresh said, adding, “My brother who was able to walk properly before the surgery, is now not even able to sit up. He can’t sleep because of the pain. His wife and two children, who are upset about his condition, are now seeing him in more pain than he should be.”
Dr. Veerendra M. Professor of surgical oncology at the hospital, revealed Dr. Srinivas had worked overtime on the day of the surgery.
“Although operation theatre timings are between 10 and 4 pm, he did the surgery after 4 pm. He just cut the skin. This did not worsen the patient’s disease as such,” he added.
Dr. Ashok M. Shenoy, director of Kidwai, said he was dismissing Dr. Srinivas immediately and the farmer would be given free treatment at the hospital.
Dr. Srinivas refused to comment on the issue when contacted.”
11. In view of the fact that the opposite party No. 2 having not taken proper care and caution and he acted negligently in treating the patient it is nothing but deficiency of service on the part of opposite parties. Opposite party No. 1 in the defence version clearly admitted that opposite party No. 2 doctor was on the pay-roll of the KIDWAI Memorial Institute of Oncology. Therefore, the deficiency of service rendered by opposite party No. 2 is definitely binding on the opposite party No. 1 hospital. One more interesting point to be noted in this case is that opposite party No. 2 Doctor was a surgeon in Surgical Oncology Department. His services were terminated with effect from 01.06.2010 by the Director of opposite party No. 1 institute. The information regarding termination of service was obtained by writing a letter to the opposite party No. 1 institute by this forum and opposite party No. 1 through Director submitted the information and the information is on record as Ex. C1. The very fact that opposite party No. 2 was terminated from the service by the opposite party No. 1 institute also goes to establish that opposite party No. 2 was negligent and he had committed deficiency of service in treating the patient. The complainants have submitted that Nayanappa died on 16.05.2009. The complainants have claimed compensation of Rs. 20,00,000/-. But absolutely there is no legal basis to claim compensation of Rs. 20,00,000/-. Admittedly, deceased was suffering from cancer of advanced stage. Opposite party No. 1 has taken defence that patient was discharged from hospital against medical advice. The complainant has not produced any expert evidence or expert medical opinion that due to the negligent act of opposite party No. 2 in cutting open on the right side of thorax is the cause for the death of patient. There is absolutely no medical evidence or any other evidence and documents to prove that due to the wrong opening on the right side of thorax the health of the patient was deteriorated and that led to his death. So under these circumstances death of the patient cannot be connected with the opening of right side thorax to tap the fluid. After realizing the mistake opposite party No. 2 sutured the right side opening and thereafter, he proceeded to open the left side thorax and the procedure was completed. When this is the case for the mistake done by opposite party No. 2 in opening of right side of lung such a whopping compensation of Rs. 20,00,000/- cannot be asked. Granting of compensation should be commensurate with the suffering of the patient. Admittedly, the complainant has not produced discharge summary or case sheet of the hospital. The deceased was suffering from advance stage of lung cancer and ultimately, succumbed to the cancer a deadly decease. Death of the patient cannot be connected with the opening of right side thorax by the opposite party No. 2. There is absolutely no connection the negligence done by the opposite party No. 2 and the death of the patient. However, since the opposite party No. 2 had committed mistake in opening right side of the thorax which was not necessary and after realizing the mistake he sutured the opening and again cut open the left side of the lung and operation was carried out. So this clearly amounts to deficiency of service and medical negligence on the part of opposite party No. 2. Therefore, the complainants are definitely entitled for reasonable sum of compensation. Complainant No. 1 is widow of deceased and complainants No. 2, 3 & 4 are children and complainants No. 5 & 6 are parents of the deceased. The complainants are villagers coming from farmer’s family of Anekal Taluk, they are being agriculturists and coming from poor family and complainant No. 1 lost her husband. Under the facts and circumstances of the case it would be just, fair and reasonable to grant compensation of Rs. 50,000/- to the complainants. The opposite parties No. 1 & 2 are liable to pay the compensation jointly and severally. Since, opposite party No. 2 was on the pay-roll of the first opposite party the responsibility to pay the compensation under the vicarious liability is on the opposite party No. 1. It is open to the opposite party No. 1 to recover the compensation paid to the complainants from opposite party No. 2. In the result I proceed to pass the following:
ORDER
12. The complaint is partly allowed. The opposite parties No. 1 & 2 jointly and severally directed to pay compensation of Rs. 50,000/- to the complainants within 4 weeks from the date of this order. In the event of non-compliance of the order within 4 weeks the above amount carries interest at 6% p.a. from the date of this order till payment / realisation.
13. Send the copy of this Order to both the parties free of costs immediately.
14. Pronounced in the Open Forum on this 11TH DAY OF FEBRUARY 2011.
Order accordingly,
PRESIDENT
We concur the above findings.
MEMBER MEMBER
