Date of Filing:15.06.2007<br /> Date of Order:24.05.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> Dated: 24TH DAY OF MAY 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> <br /> COMPLAINT NO: 1477 OF 2007 <br /> <br /> <br /> 1. N. Ramaswamy,<br /> S/o Narayanappa, <br /> <br /> 2. Smt. K.M. Kusuma,<br /> W/o N. Ramaswamy,<br /> <br /> Both are residing at Honnenahalli Village,<br /> Tamaka Post, Kasaba Hobli,<br /> Kolar Dist. Complainants<br /> <br /> <br /> V/S<br /> <br /> 1. M/s St. John’s Medical College Hospital,<br /> Represented by its Associated Director,<br /> <br /> 2. Dr. Antony Robert. C,<br /> Associated Professor and Head, <br /> Department of Pediatric Surgery,<br /> M/s St. John’s Medical College Hospital,<br /> <br /> 3. Dr. Kanishka Das,<br /> Associated Professor and Head, <br /> Department of Pediatric Surgery,<br /> M/s St. John’s Medical College Hospital,<br /> <br /> All the respondents having common address<br /> John Nagar, Hosur Road, <br /> Bangalore-560 034. Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed U/Sec.12 of the Consumer Protection Act, 1986 claiming Rs.19,90,000/-.<br /> The facts of the case are that, the complainants are the parents of the child by name Likhith. The said child was born to this complainants on 4/3/2006 at M/s Manjunatha Health Care Hospital, Kolar. The said child is the first and last child and the delivery was through surgery. In the first week of September-2006 the said child was affected by cough and cold, light fever. The child had been treated at ETCH Hospital, Kolar for the said cough and cold, the child recovered from the same and again in the 2nd week of September-2006 the child affected with similar cold and cough, the said child was taken again to the same ETCH Hospital and admitted as inpatient on 7/9/2006, the Doctors in the said Hospital after treating the said child advised the complainants to take the child to the first respondent for Bronchoscopy. The complainants took the child to the opposite party No.1 hospital on 9/9/2006, the second opposite party being the head of the pediatric department examined the child and informed to the complainants that the child is suffering from Broncho Pneumonia and got admitted the child to the respondents’ hospital with MRD No.2083243. As the child was not normal, the complainants took the child from ETCM Hospital, Kolar to the opposite party No.1 hospital at Bangalore. On 9/9/2006 the opposite party No.2 informed to the complainants that the child has to undergo Bronchoscopy and on the same day at about 9-00 PM the opposite party No.2 took the child to operation theater in the opposite party No.1 hospital, at the time of taking the child to the OT, the child was quite normal and conscious, the child has been brought back from OT on the same day at 10-30 PM after under going bronchoscopy. The child was not conscious when the child brought back from OT, none of the doctors from opposite party No.1 hospital turned up towards the said child for treatment after the child brought from OT, it is the nurses who were attending the child, but the child did not gain consciousness at any time after the child brought back from OT. On 11/9/2006 Dr. Nanjundaswamy of the opposite party No.1 hospital came for the first time to attend to the said child, noticed the condition of the said child and abused the nurses who were attending the child and immediately took the said child to ICU of the opposite party No.1 hospital, ventilators were used and the said child was treated in the opposite party No.1 hospital till 18/8/2006, the complainants were made to spend huge amount on drugs, but the said child did not gain consciousness, the doctors who subsequently treated the said child informed to the complainants about poor prognosis and asked the complainants to take the said child to home, the opposite party No.1 hospital forcibly discharged the said child on 18/9/2006, when the child is taken out of hospital and on the way to the complainants village, the said child died. The complainants paid Rs.39,261-79 as hospital charges to the opposite party No.1 hospital, spent Rs.27,445-82 for medicines purchased for the said child as per the prescriptions of the opposite parties, the complainants also spent more than about Rs.6,000/- for traveling during the said treatment period from their native place to Hospital at Bangalore and also spent about Rs.10,000/- for boarding and lodging at Bangalore. In all the complainants spent Rs.82,707-61 for treating the said child. The second and third opposite parties have not properly conducted the surgery on the child, the child has been given excess dosage of anesthesia while conducting surgery, because of excess dosage of anesthesia, the said child not gained consciousness. The second and third opposite parties know this fact and also know that the said child will not survive because of their gross negligence, due to this reason the 2nd and 3rd opposite parties deliberately never turned to treat the said child after surgery, this clearly goes to show that the 2nd and 3rd opposite parties played with the life of the child and ultimately caused the death of the said child. The opposite parties prescribed medicines worth Rs.27,445-82, this complainants purchased the said medicines from the opposite party No.1 hospital, the opposite parties intentionally made this complaints to spend such huge amount on medicines and paid Hospital charges of Rs.39,261-79. It is because of the negligence on the part of opposite party No.2 and 3 the complainants lost their only child. The opposite parties No.1 to 3 are jointly, severally and personally responsible for the death of the said child. The opposite party No.1 to 3 are jointly and severally liable to pay the medical expenses incurred by the complainants at the opposite party No.1 hospital of Rs.82,707-61 and damages of Rs.20 lakhs to the complainants. The complainants approached the respondents and claimed the same, but the opposite parties No.1 to 3 though assured to pay the same failed to pay the same in spite of legal notice issued on 2/11/2006, the opposite parties have not given any reply to the said notice. The opposite party No.1 hospital being the private hospital collected surgery charges, bed charges, drugs charges and other charges in all Rs.82,707-61 from the complainants, the opposite party No.2 and 3 are the Doctors working under the opposite party No.1 hospital, have not properly discharged their duty as Doctors, there is fault and defective treatment and dereliction of their duty, thereby there is deficiency in rendering their service for the charges they collected from the complainants. Hence, the complaint.<br /> 2. Notice was issued to opposite parties by RPAD. Opposite parties put in their appearance through Advocate and filed defense version stating that, the opposite parties have taken every possible measure to ensure that Likhith got the very best of care and treatment at the hospital. No blame can be attached to the opposite party. After review of relevant investigations with appropriate monitoring, the child was administered appropriate short acting anesthetic a drug under the cover of which bronchoscopy was done. The child was well ventilated through the side port of the bronchoscope and was well oxygenated throughout the procedure. It would be incorrect to said that child was not consciousness, child was breathing of his own. The defence version had explained all the steps taken in the hospital to give the best medical care and supervision of expert doctors. The treatment of child at the opposite party hospital was impeachable. Utmost care has been taken at every stage and child has received the very best and treatment at the hospital. There has been no negligence or deficiency or any short fall in standards of care or treatment given to the child. It is the defence of the opposite party that parents opted to have the child discharged against medical advice. Dispute being explained all the risk involved. The death of child was a most unfortunate one. It is relied that child was given excess dosage of anesthesia or the child did not gain the consciousness. The opposite party hospital denied the dereliction of duty or deficiency in rendering service. It is submitted by the opposite party that the death of child is indeed extremely unfortunate, it was not caused due to any negligence or wrong treatment or deficiency in service on the part of the opposite party. Opposite parties are not liable to pay any damages. Therefore, the opposite parties have requested to dismiss the complaint. <br /> 3. The complainant No.1 has filed his affidavit and he has produced documents. On behalf of opposite parties also affidavit evidence filed. The opposite party has produced the entire hospital case sheet and documents and connected file before the Forum. The opposite party has submitted list of documents and totally 22 documents have been produced. Arguments are heard.<br /> 4. The points for consideration are:-<br /> 1. Whether there was a deficiency in service on the <br /> part of the opposite parties hospital? <br /> <br /> 2. Whether the opposite parties hospital was negligent in giving treatment?<br /> <br /> <br /> REASONS<br /> 5. I have gone through the complaint, affidavit of the first complainant Ramawamy and the documents produced by the complainants and also a defence version and the entire hospital case sheet produced by the opposite party. This is a case claiming compensation for medical negligence. In this case, one of the important issues to be decided is whether the opposite party hospital was negligent in treating the child. Doctors enjoy a special status in our society. Doctors profession is said to be a noble profession. Indian doctors are holding larger esteem all over the world. Before holding the Doctors the responsible for the death of a child it is the duty and the obligation of the complainant to establish the allegations made against the Doctors. A mere making allegation in the complaint does not establish the negligence on the part of the Doctors. The complainants have to establish negligence by adducing expert evidence. Admittedly in this case the complainant is a layman no doubt his only son unfortunately died and for the short death of child the opposite party hospital also expressed its sorry and regret. Everybody has to express sorry for the untimely death of a child. The cases are not decided on the basis of emotions. The complainant who has come to the court seeking compensation against the Doctors has to establish as per law the negligence or failure of duty on the part of the attending Doctors. The courts are indeed slow in attribute negligence on the part of Doctors. If the Doctors had performed their duties to the best of their ability and knowledge and they had taken due care and caution and given best of treatment in spite of their steps to save the life if a person or child died while giving treatment or at hospital negligence on the part of the Doctors cannot be attributed. The professional skill differ from Doctor to Doctor there may be more than one opinion or course of treatment which may be advisable for treating a patient. As well as the Doctors acted in a manner which is acceptable to the medical profession and due care and caution and diligence was taken and if the patient dies in that case it would be very difficult to hold the Doctor to be guilty of negligence. In this case, the opposite party hospital had not suppressed any facts or matter it has come with all the facts and the entire case sheet of the patient and hospital records have been produced before the Forum. The case sheet had been recorded day by day and all the particulars of treatment and drugs and the method adopted by the Doctors had been meticulous written in the case sheet. The main argument or case set up by the complainant is that the Doctors administered excess dosage of anesthesia and the child did not regain consciousness after operation. To prove this fact there is absolutely no record or expert opinion. The complainant has not produced any medical expert opinion or medical literature to establish that excess dosage of anesthesia was administered to the child. In the nature of present case the burden of proof of negligence is on the complainant. The opposite parties have specifically denied deficiency or negligence in service both in defence version and also in the affidavits filed by the Doctors. Therefore, it is up to the complainant to establish the deficiency in service or negligence on the part of the Doctors while treating the child. In the absence of any expert evidence or opinion or medical literature it is very difficult to hold that opposite party hospital was negligent in giving treatment to the child. As per the defence version since bronchopneumonia worsened antibiotic Magnex was changed to Meropenem. Therefore, the complainant has not established that morphine drug was not necessary and it was not established that the said drug is forbidden for infants. As per the case of the complainant the child did not regain the consciousness after anesthesia, but this fact is not correct as per the case sheet of the child. As per the affidavit of Doctors the child regains consciousness and it was breathing on its own and child was even fed by mouth. In a recent judgment the Hon’ble State Consumer Disputes Redressal Commission, Bangalore in H.V. KRISHNA V/S MANJUNATH ORTHOPEDIC & TRAUMA CENTRE AND OTHERS reported in 1(2008) CPJ 69 wherein it has been held as under:-<br /> 1(2008) CPJ 69<br /> KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE<br /> Hon’ble Mr. Justice Chandrashekaraiah, President & Mr. M. S. Shama Bhat, Member<br /> <br /> H.V. KRISHNA -President<br /> <br /> Versus<br /> <br /> MANJUNATH ORTHOPEDIC & TRAUMA <br /> CENTRE & ORS. -Respondents<br /> <br /> Appeal No.2507 of 2006-Decided on 3.9.2007<br /> <br /> Consumer Protection Act, 1986-Section 2(1)(g) – Medical Negligence – Treatment – Condition deteriorated – Complainant came down to coma stage – Condition improved after treatment – Loss of erection alleged – Allegations not proved by expert evidence – Complainant himself responsible for getting himself discharged from O.P. hospital – No negligence/deficiency in service in conducting operation proved – Professional services discharged by doctor in conformity with established medical procedure and practice – Complaint dismissed by Forum – Appeal against order dismissed.<br /> <br /> <br /> So in this case also the complainant has not adduced any expert evidence to show that the treatment given by the opposite party hospital was not in conformity with medical practice or procedure and there is absolutely no evidence before the Court to establish the negligence or deficiency on the party of the opposite party. The Hon’ble National Consumer Disputes Redressal Commission in a case reported in 4(2006) CPJ 71(NC) it has been held to prove negligence of Doctor, complainant has to lead adequate evidence with supportive medical texts same not done no medical negligence prove. In para-41 of the judgment it has been observed as under:-<br /> “ It could not be expected that every physician or surgeon is gifted with extraordinary skills or they can perform miracles. What is expected of a doctor is whether the procedure adopted by the doctor is acceptable to medical profession”.<br /> <br /> <br /> The learned advocate for the opposite party submitted during the course of argument that 5,33,423 patients were treated as outpatients during the year 2007 and 46,609 patients were admitted as inpatients in the opposite party hospital during the same year. The opposite party hospital is 1100 bedded hospital out of those 800 beds are free beds. The learned counsel submitted that the opposite party hospital is a charitable hospital. The Doctors work there with all devotion and dedication and he expressed regret or sorry for the unfortunate death of child, but the death of child in this case is not due to negligence or short fall in giving treatment to the child. The Doctors have every care, caution and tried their level best and use their skill and professionalism to give best care and treatment to the child and the child was discharged from hospital against medical advice. Therefore, the learned counsel submitted that no negligence or deficiency in service can be attributed to the opposite parties. So taking into consideration of all the facts and circumstances of the case, and the evidence and the documents produced by the parties, I am of the opinion that the complainants in this case have not proved the medical negligence on the part of the opposite parties hospital. Therefore, the Forum is not in a position to grant any compensation for the unfortunate death of child of the complainants. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 6. The complaint is dismissed. No order as costs.<br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 8. Pronounced in the Open Forum on this 24TH DAY OF MAY 2008.<br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> <br /> <br /> <br />