Tamil Nadu

StateCommission

FA/44/2014

DHIVYA NURSING HOME - Complainant(s)

Versus

N. DINESH KUMAR - Opp.Party(s)

ANAND ABDUL VINOD ASSO

02 Mar 2020

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

Present:    THIRU.K. BASKARAN,                      PRESIDING JUDICIAL MEMBER

        TMT.Dr.S.M.LATHA MEHESWARI   MEMBER

 

F.A.No.44/2014

[Against the order passed in CC.No.06/2012, dated 4.12.2013  on the file of the District Consumer Disputes Redressal Forum, Erode]     

DATED THE  2^nd  DAY OF  MARCH  2020.

                                                 

Dhivya Nursing Home,

Rep by Dr.P.Chidambaram, MBBS.M.S.,

No.306, Chennimalai Road,

Kangayam – 638 701.                                                                                         :: Appellant /Opposite Party

Vs.

N. Dinesh Kumar,

S/o. Nallathambi

D/No.1, Bajanai Mada Street,

Tiruppur Road,

Kangayam – 638 701.                                                                                              :: Respondent/Complainant

 

Counsel for Appellant          :  M/s.Anand Abdul Vinod Associates

Counsel for Respondent       :  M/s.RA. Chandrasekaran

            

This appeal coming before us for final hearing on 06.01.2020  and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following:- 

 

THIRU.K. BASKARAN, JUDICIAL MEMBER:           

1. This appeal has been preferred by the opposite party under section 15 read with section 17 (1) (a) (ii) of the Consumer Protection Act 1986, against the order dated 4.12.2013  passed by the learned District Consumer Disputes Redressal Forum, Erode  in C.C.No.06/2012.         

2.       This appeal has been preferred by the opposite party hospital having suffered an order directing payment of compensation of Rs.7,50,000/- and cost of Rs.10,000/- finding medical negligence on the part of the opposite party by the Learned District Consumer Disputes Redressal Forum, Erode (in short the District Forum).

3.        For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Forum.

4. The factual background culminating in this appeal is as follows;-

That the complainant had filed this complaint claiming a compensation of R.20,00,000/- attributing medical negligence against the opposite party hospital pleading  inter alia, that when he had approached the opposite party hospital with complaints of vomiting and head ache on 22.10.2010 the opposite party had prescribed medicines after doing some investigations and the opposite party had informed the complainant that all  the reports were normal; even after taking the prescribed medicines for a week the sufferings continued and hence the complainant  had gone to the opposite party again on 30.10.2010 and on that day also the opposite party had conducted various tests and the complainant was advised  to consult Dr.S.K.Sithayyan who was a cardiac  consultant in that hospital and thereafter the complainant was advised to continue the medications and even thereafter  the  condition did not improve necessitating  the complainant to again approach the opposite party on 17.11.2010 and again some medicines were prescribed; that even thereafter the same problems continued and hence he went back to the opposite party on 20.11.2010 and he was prescribed some medicines and again he had gone to the opposite party hospital on 24.11.2010 and on 25.11.2010 endoscopy / scan were taken on the complainant and he was advised to take some medicines continuously but the problems continued even 3 months thereafter and hence the complainant on 11.03.2011 visited  the Opposite party Hospital and again some medicines were  prescribed for him and on 19.08.2011 another scan was taken  and he was prescribed some medicines promising that he would become alright; that again the complainant visited the opposite party on 13.09.2011  and 27.09.2011 and also 29.9.2011 and after insistence  on 29.11.2011 only to the shock and  surprise of the complainant the opposite party had informed the complainant that he was suffering from renal failure and  both his kidneys were not functioning and on the same day the complainant was referred to some other Doctor by giving a referral letter; that the complainant  had approached a nephrologist in Erode and was admitted as inpatient for one week and since then  he has been undergoing  treatment for renal failure; that the development of renal failure was due to the wrong prescription of high dosage of medicines and powerful steroids coupled with some medicines which were injurious  to kidney  for one year which made the complainant to undergo  dialysis  twice a week at Erode incurring huge expenditure and all these things were due  to the deficiency in service flowing from the  medical negligence exhibited by the opposite party hospital.

5.       That the complaint was resisted by the opposite party  Doctor  by putting up a defence that there was no medical negligence on his part and that he had given proper treatment to the complainant and that the complainant originally came to the opposite party with complaints of  heart burn, fullness of abdomen and belching and after investigation he was found to be hypertensive and that all other parameters were found normal and  hence medicines were prescribed for hypertension and  when the complainant had visited the opposite party again with the same complaints he was referred to a cardiologist  who was a visiting consultant of the opposite party  hospital and the said cardiologist suggested  the complainant to take  Echo Cardiography and  had advised the complainant to take medicines for hypertension and advised to obtain nephrologist  opinion but  the complainant  did not get nephrologist opinion and that thereafter the complainant  came to the opposite party  after a lapse of 5 months with the same complaints and on investigation it was noticed  that his Blood  Urea, Serum creatinine were found elevated and the complainant was informed  of his renal failure  and he was referred to  a Nephrologist  and thereafter the complainant  did not turn up to the opposite party  Hospital; that the renal failure developed in the complainant was due to the negligence  on the part of the complainant in as much he did not immediately consult a nephrologist even though advised to do so by the opposite party  hospital and that he might not have regularly taken the medicines for hypertension and hence there was no medical negligence on the part of the opposite party  hospital.

6.       That based on the pleading of the parties the Learned District Forum had framed 2 points for consideration and by way of answering those points held that the opposite party  was guilty of medical negligence and had partly allowed the complaint directing the opposite party  to pay a sum of Rs.7,50,000/- as compensation and Rs.10,000/- as cost and the aggrieved opposite party  is  now before us in this appeal.

7.Points for consideration in this appeal

1.Was not there any deficiency in service arising out of medical negligence on the part of the opposite party?

2.Is not the complainant entitled to the reliefs granted?

8.Point No.1

          The complainant’s grievance is that he approached the opposite party  hospital on 22.10.2010 for treatment of vomiting and headache and after carrying out some investigations the Doctor in the opposite party  hospital informed the complainant that everything was normal and prescribed some medicines for hypertension and in spite of taking such medicines  the condition continued and hence the complainant  had visited the opposite party  on several occasions from 30.10.2010 to 29.09.2011  and all through  those visits the opposite party  had prescribed medicines for vomiting and headache and hypertension  and it was only on 29.09.2011, the opposite party  hospital informed him that he was suffering from renal failure but the fact remains that even on the first day of  visit  to the opposite party  hospital on 22.10.2010 itself the investigation revealed that the blood Urea, Serum creatinine level were elevated and in spite of that the opposite party  hospital did not give treatment for  renal failure nor the complainant was referred to a nephrologist for proper and better management and hence not taking proper  treatment nearly for 1 year from 22.10.2010 to 29.09.2011 resulted in further elevation of blood Urea, Serum creatinine which meant  Chronic Kidney Disease and hence the complainant  suffered renal failure and has been on dialysis since October 2011 and he has to continue to live on dialysis for the rest of  his life and all these hardships coupled with monetary loss were due to the medical negligence exhibited by the opposite party  hospital in not properly and promptly diagnosing the condition of the complainant.

9.       Per contra the defence of the opposite party hospital is that  when the complainant first came to them on 22.09.2010 the tests done on him revealed that all parameters were normal except that he had  hypertension and hence medicines for hypertension was prescribed and the complainant did not get relief and when he visited the opposite party  hospital again on 30.10.2010 he was referred  to a cardiologist who was a visiting consultant of opposite party   hospital  and the said cardiologist advised him to take anti hypertension and to adopt life style modification and advised him to obtain Nephrologist opinion but the complainant did not get any opinion from a Nephrologist and instead continued to visit the opposite party  on several occasions and when he came on 29.09.2011 the tests done revealed elevated level of Urea, Serum creatinine and hence he was immediately referred to a Nephrologist  and hence the renal failure occurring to the complainant was due to his own negligence in not  following the advice  of the cardiologist to consult and obtain a Nephrologist’s  opinion and  his failure to take medicines for hypertension regularly.

10.     What the opposite party  wanted to portray  is that when the complainant visited them for the first time on 22.09.2010 the test done on him revealed all parameters were  normal except that his blood pressure  was high and hence he was prescribed anti hypertension medication; and it was only on 29.09.2011 the further tests done on him revealed elevated levels of   blood Urea, Serum  creatinine. But Ex.A1 which is a bio-chemistry test  report  issued  by the opposite party  hospital  itself    would     show that the blood  Urea, Serum creatinine  of the  complainant was 78.00  miligram  %  whereas   the normal  value is 22 to 40 mgs / DL and  the  creatinine  was 03.10 mg%  whereas  the  normal   value  is 0.6  to  1.2 mgs /  DL. A  perusal   of medical   literature      would     show    that    a     person     having      78  mgs   %  of     urea

and 3.10 mgs% of  creatinine  is a clear case of condition of  renal failure which requires immediate and effective treatment. But in this case the opposite party  hospital not only failed  to refer the complainant to a Nephrologist for better management but also had gone to the level of putting forth a false defence as if all the parameters of the complainant were normal on 22.10.2010 and it was on 29.09.2011 only  the tests reports revealed elevated levels of blood  Urea, Serum creatinine. It is heartening to note that a medical  professional like the opposite party  was so careless that he  did not diagnose that the complainant was suffering from renal problem  based on the  elevated levels of blood Urea and  Serum creatinine.

11.     For this callous negligence there was and in fact there could not be any plausible  explanation  from the opposite party. But the opposite party  would make an attempt to show that  when the complainant had visited for the second time on 30.10.2010 the opposite party  caused the complainant to be examined by a cardiologist by name Dr.K.K.Sithayyan who was a visiting consultant of the opposite party  hospital on 31.10.2010 who after examining the complainant and taking tests opined  that the complainant had got

1.SHT    2.Compressed  heart   3. Sinus  rhythm  and he had prescribed tablet Amla 5 mg and had also advised  to obtain nephrologist opinion  and hence the complainant had to blame himself for the aggravation of the renal failure.

12.     But we cannot accept this contention for the following reasons. Firstly that the cardiologist had advised to obtain  Nephrologist  opinion for the complainant. This advice was given to the opposite party  hospital and that the complainant could not be knowing unless the opposite party  hospital informed him  that he had to obtain nephrologist opinion. Further the opinion of the said cardiologist was written in  English which an auto rickshaw driver like the complainant could not understand; secondly if at all the opposite party  had suspected that the complainant was suffering from renal failure and as suggested by the cardiologist obtaining opinion from  a nephrologist  was  a must before proceeding to  give further treatment to the complainant but in our case admittedly the complainant visited the opposite party hospital on 22.10.2010, 30.10.2010, 31.10.2010, 17.11.2010, 20.11.2010, 24.11.2010, 25.11.2010, 11.03.2011, 19.08.2011, 24.09.2011, 27.09.2011 and  finally on 29.09.2011 and all those days the opposite party  hospital went on prescribing medicine  after medicine for hypertension and other conditions and not for renal failure. If the opposite party  hospital had bluntly told  the complainant that unless he obtained nephrologist opinion they  could not give  further treatment then the complainant would be left with no other option except to consult a nephrologist. Instead during these  11 months period the Doctor in the opposite party  hospital went on prescribing  medicine after medicine for hypertension and other condition and not for renal failure. Hence  we are of the considered opinion that the opposite party cannot be heard contending  that it was only due to the negligence on the part of the complainant in not consulting a nephrologist the renal failure aggravated and  hence the opposite party  hospital cannot be fastened with any responsibility.

13.     The records in this case would reveal  that on 29.09.2011 only the opposite  party hospital informed the complainant and his mother that he  was suffering from renal failure and that he was advised to approach a nephrologist and that immediately on the next day (i.e) on 30.09.2011 the complainant had approached a nephrologist in a kidney specialty hospital in Erode and continued treatment for renal failure and has been continuing the same. From this it can be seen that had  the opposite party  hospital advised  the complainant on 22.10.2010 itself to  consult a nephrologist and obtain his opinion suspecting it to be renal failure then the complainant would have immediately consulted a nephrologist and in that event the condition could have been cured making it unnecessary for the complainant to under go dialysis life long.

14.     From the above it clearly emerges that the condition of the complainant was not properly and promptly diagnosed by the doctor in the OP hospital and the complainant was not informed that the elevated   blood  Urea, Serum creatinine level was suggestive of renal failure. Hence it would amount to medical negligence.  Our above view draws strength from the following case laws.

1. II (2014) CPJ 188 (NC) in K.Ranga Rao (Dr.) Vs. Shaikh Dadoo Saheb.
2. III (2016) CPJ 6B (TN) (CN) in P.Balasubramaniam Vs. Sree Abirami Hospital (Pvt.) Ltd. and Another.
3. I (2017) CPJ 29 (NC) In Akhilesh Chandra Gaur Vs. Manik Chand.
4. III (2017) CPJ 367 (NC) In Billroth Hospitals Ltd. & Another.
5. II (2018) CPJ 111 (NC) In Pushpa Vyas Vs. Dr.Sajjan Daga & another
6. III (2018) CPJ 228 (Utta.SC) In City Hospital Vs. Vijay Singh Pal & others.

     17.Point No.2

             The complainant had claimed a sum of Rs.20 lakhs as compensation for the mental agony and physical hardship and medical expenditure past, present and future due to the kidney failure developed in him which in turn was due to the medical negligence exhibited by the opposite party. TheLearned District Forum had awarded Rs.7,50,000/- in addition to Rs.10,000/- as litigation cost holding that it would be a reasonable compensation. Admittedly the medical negligence exhibited by the opposite party resulted in kidney failure to the complainant which required the complainant to undergodialysis twice a weekat present and in fact he has to continue the same till the end of his life or he should have to undergo kidney transplantationwhich would requireenormousmoney and efforts and physical and mental stress and strain which cannot be computed in terms of money. We know the cost of undergoing dialysis twice a week and taking medication, the complainant being an auto rickshaw driver cannot afford to go for kidney transplantation. Hencehe has to live on dialysis and in course of time the frequency would increase. But unfortunately the Learned District Forum had awarded just Rs.7,50,000/- as compensation which in our considered view is very meager in the circumstances of this case however it is to be noted that the complainant has not appealed against the order. Hence we are of the view that the award of compensation and cost has to be confirmed.

       

18. Hence we hold that the complainant is entitled to the reliefs granted and this point is answered in the affirmative.

           

   In the result the appeal fails and the same is dismissed with the cost of the Respondent quantified at Rs.10,000/-.

 

 

S.M.LATHA MAHESWARI                                                                   K. BASKARAN,                                                                       

MEMBER                                                                                PRESIDING JUDICIAL MEMBER.  

 

INDEX; - YES/No

CMP/e/JM/Orders