Tamil Nadu

StateCommission

A/267/2015

M/s. Madras Medical Mission, Rep. by its Director, Dr. Mathew Samuel Kalrickal & anr - Complainant(s)

Versus

N. Nagarajan - Opp.Party(s)

S.Natarajan

19 Nov 2021

ORDER

 

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :       Hon’ble Thiru. Justice R. SUBBIAH                          PRESIDENT

Tmt  Dr. S.M.LATHA MAHESWARI                                       MEMBER

                        

F.A.NO.267/2015

(Against order in CC.NO.156/2010 on the file of the DCDRC, Chennai (North)

 

DATED THIS THE 19^th DAY OF NOVEMBER 2021

 

1.       M/s. Madras Medical Mission

          Rep. by its Director

          Dr. Mathew Samuel Kalrickal

          No.4A, Dr. J.Jayalalitha Nagar

          Mogappair, Chennai

 

2.       Dr. Mathew Samuel Kalrickal

          Honorary Director

          Madras Medical Mission                                          M/s. Paul & Paul

          No.4A, Dr. J. Jayalalitha Nagar                                    Counsel for

          Mogappair, Chennai                                    Appellants /Opposite parties

 

                                                         Vs.

M. Nagarajan

S/o. Mariasamy                                                          M/s. Renga Ramanujam

No.95, Motilal Main Road                                              Counsel for                   

Madurai                                                                      Respondent / Complainant

 

          The Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the opposite parties praying to set aside the order of the District Commission dt.17.6.2015 in CC.No.156/2010.

 

          This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel appearing on bothside and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:

ORDER

 

JUSTICE R. SUBBIAH, PRESIDENT   

 

1.         This appeal has been filed by the opposite parties as against the order dt.17.6.2015 passed by the District Commission, Chennai (North), in CC.No.156/2010, in allowing the complaint by directing the appellants /opposite parties to pay a sum of Rs.4,36,574/- towards medical expenses alongwith compensation of Rs.300000/- for mental agony, alongwith Rs.90000/- towards loss of income, and cost of Rs.5000/-.      

 

2.       The brief facts of the complaint before the District Commission are as follows:

           The complainants only son namely Mr.Sathish Kumar, aged about 25 years was studying MBA from a reputed institution.  Complainant’s son Mr.Sathish Kumar underwent Pott’s Shunt Operation treatment at the time of infancy in 1980 at Government Hospital, Chennai.  He had remained healthy till the end of December 2003.  While so, due to the sudden ill health, he had developed chest pain in the first week of January 2004, immediately the complainant consulted the 1^st opposite party Hospital on 27.3.2004 alongwith his son.  After paying the consulting fees prescribed by the opposite parties, the 1^st opposite party advised admission of his son as inpatient.  But complainant  preferred to come later for evaluation.  On 4.5.2004, the patient was admitted in the 1^st opposite party hospital and underwent cardiac catherisation and angiography in the 1^st opposite party hospital, and he was discharged on 6.5.2004, with advise to undergo early complete repair with interruption of Pott’s shunt.  The opposite parties had given his son “Nimulselide” a drug banned in India, among other drugs and he tolerated all the procedures adopted by the opposite parties in the name of treatment.  Subsequently, the complainant’s son was admitted into the hospital on 16.5.2004 where he underwent the intra-cardiac repair and taken down of pott’s shunt on 17.5.2004 and was shifted to ICU and immediately after an hour of the said operation, the complainant and his wife were permitted to see their son in ICU and he was found in an unconscious state.  The complainant saw his son on the next day evening, and still he continued to be in unconscious state.  On enquiry it was informed that his son has got fits and seizure on the next day of surgery.  Despite treatment given by the opposite parties, his son continued to be in unconscious state.  While the complainant’s son was being treated for fits, the neurologist attending to his son informed him that his son’s brain had been damaged.  MRA and MRI brain studies dt.29.7.2004 and the CT brain dt.21.5.2004 revealed that “The clinical history:  Post Operative Neurological deterioration CT-Brain”.  The contents of the report has been detailed vide para 7 of the complaint.  The findings of the MRA and MRI are consistent with hypoxic ischemic brain damage (global arrest with partial recovery and sequalae).  Complainant’s son was discharged from the 1^st opposite party hospital on 28.7.2004 and his condition Neurologically was E2 MI VI in Glasgow coma scale and was taken to Madurai in the ambulance for admission into M/s.Jawahar Hospital, K.K.Nagar, Madurai at 11.30 pm.  When the doctors at the Jawahar hospital, Madurai, asked details of treatment given in the 1^st opposite party hospital, like anesthesia doctor’s notes and neurologist opinion, he was unable to give them as the discharge summary produced by the 1^st opposite party hospital does not contain any information about that.  When he approached the staffs of the 1^st opposite party hospital, who were waiting in the ambulance, they promised to give necessary details within an hour after contacting their doctors over cell-phone.  Subsequently, after a lapse of 30 minutes, when he searched for the staff of the 1^st opposite party hospital they were not found.  Hence he has made a representation to the 1^st opposite party hospital on 11.8.2004 about the irresponsible attitude of their staff on 28.7.2004, which evoked no response.  His son’s condition turned into a vegetable state immediately after the surgery was done by the opposite parties and his brain had been damaged by the negligent treatment given by the opposite parties.  No steps had been taken by the opposite parties to submit the neurology opinion, urgent MRI pre-operative and doctors notes at the time of discharge on 28.7.2004, and thus the 1^st and 2^nd opposite parties had committed deficiency in service.  The 1^st opposite party had charged Rs.2,13,452/- for the treatment and the tests.  He had further incurred expenditure of Rs.195000/- by way of treatment at Jawahar Hospital, Madurai from 28.7.2004 to 31.10.2004 and incurred an expense of Rs.217400/- towards hospital bill and consultation charges of visiting doctors and fees for physiotherapist.  Doctor Jeyakumar a leading neuro specialist at Madurai was continuously providing treatment without charging any consulting fees, on seeing the pitiable condition of his family and his son. He had with great difficulty spent about Rs.15 lakhs till the complaint was filed, with help of his relatives and friends.  The complainant had retired from M/s. Fenner India Ltd., on 17.6.2008.  Inspite of incurring huge debt for the treatment of the complainant’s son, he had not returned to normalcy so far, and would submit that the said situation of the complainant’s son was only on account of the administering of over dosage of anesthesia at the time of surgery by the opposite parties.  Hence the complaint is filed by the complainant praying for a direction to the opposite parties to pay a sum of Rs.625852/- towards medical treatment, a sum of Rs.90000/- towards loss of income, alongwith compensation of Rs.500000/- for mental agony, Rs.1 lakh for sufferings and pain and a sum of Rs.5 lakhs for loss of income apart from cost of Rs.10000/-.   

 

2.       Resisting the claim of the complainant, the opposite parties have filed their version as follows:

          There is no cause of action for the complainant to file this complaint, as the complainant had admittedly not availed any service from the opposite parties.  Hence he cannot maintain the complaint.  The 1^st opposite party had rendered service to the complainant’s son Sathish Kumar, who underwent complicated surgery, and was discharged on 28.7.2004.  Sathish Kumar or his representative alone can maintain a complaint.  In any event, even assuming the complaint is maintainable, the same is barred by limitation as prescribed under Sec.24A of the Consumer Protection Act.  The complainant’s son was discharged from the 1^st opposite party on 28.7.2004, the above complaint was filed only on 8.5.2010. 

          As far as the merits of the case is concerned, the complainant’s son Sathish Kumar, 24 years old, who was doing his MBA in Madurai , was suffering from cyanotic congenital heart disease Tetralogy of Falllot.  He had undergone a palliative surgery- Pott’s Shunt as a small child at Government Hospital in Chennai.  This form of surgery provides immediate relief to an otherwise moribund child but greatly diminishes the chance of eventual surgical repair.  Pott’s shunt involves creation of a connection between the descending aorta and the left pulmonary artery to improve the body’s oxygen saturation.  While it does improve body’s oxygen saturation, by default it increases the pressure in the pulmonary artery often to a level, which precludes further surgical correction.  This particular surgery has been abandoned in the developed world and currently no major pediatric cardiac surgical centre in India is conducting this procedure.  Mr.Satish Kumar who underwent this shunt was able to spend the next two decades of his life without any major hardship.  However, the nature of this condition would prevent long term survival with reasonable quality of life and would impose severe restrictions on his life, and a detailed cardiac evaluation including cardiac catheterization was explained to the patient and the family in several sessions.  The family undertook the decision to go ahead with a high risk corrective surgery fully aware of the risk involved.  The patient underwent corrective surgery (total intra cardiac repair) by team of doctors on 17.5.2004.  The surgical correction involved closing a large hole inside the heart (VSD) and creating an adequate communication between the right ventricle and the pulmonary artery and closure of the earlier surgery – Pott’s shunt.  Closure of the Pott’s shunt would involve temporary cessation of circulation with standard precautions to protect the body and the brain.  The patient came out of the surgery in good hemodynamic condition.  In the next few days it became evident that the patient had evidence of neurologic injury.  This was communicated to the parents and subsequently updated on a daily basis.  The patient underwent detailed neurology evaluation by a competent neurologist and the neurologic part of the care was guided by him.  The patient was in medical care from 16.5.2004 till 28.7.2004 for a period of about 10 weeks.  As the patient would require a longer period of care, the case was discussed with a physician in Madurai and the patient was transferred to Madurai on request. The letter written by Dr.C.Shanthi, Consultant Pediatric Cardiologist to Dr. Jayakumar gives the full details of the patient’s condition alongwith a detailed discharge summary describing the patient’s cardiac and neurologic condition.  The bill referred by the complainant is for a period of 10 weeks treatment, most of it in the ICU.  The patient was given substantial concession by the hospital to minimize his financial burden.  The patient had the choice of remaining in a stable condition for a few years with the attendant risk of the condition stroke- exercise limitation and poor quality of life with passage of time.  The parents of the patient consciously took the decision to proceed with a high risk surgery, which if successful would have given him a quality of life similar to that of a normal person.  Unfortunately, he sustained a well-known and previously explained complication during the surgery.  His subsequent course of events is the natural outcome from that type of a complication.  The 1^st opposite party hospital, the surgical team and all the care providers delivered a standard of care well above expected limits but met with a well-described complication.  There was never any negligence from the 1^st opposite party hospital or the care providers.  All necessary documents and discharge summary were furnished to the complainant at the time of the discharge.  That opposite party had given Nimesulide a banned drug to the complainant’s son is false and is denied.  The present case involved a complicated medical condition, and thus they sought for dismissal of the complaint. 

 

3.       In order to prove their cases the parties have filed their proof affidavits and filed documents, which were marked as Ex.A1 to A17 on the side of the complainant, and Ex.B1 to B4  on the side of the opposite parties. 

 

4.       The District Commission, after analysing the evidence has come to the conclusion that there was a negligence on the part of the appellants mainly on three grounds (i) administration of drug Nimuselide  (ii) over dosage of anesthesia  (iii)  Non-availability of informed consent. Thus based on the same, by rejecting the plea of limitation, the District Commission had partly allowed the complaint and directed the opposite parties jointly and severally to pay a sum of Rs.436574/- towards the cost of the medical treatment and also to pay a sum of Rs.3 lakhs towards compensation for mental agony and a sum of Rs.90000/- towards loss of income, besides a sum of Rs.5000/- towards litigation expenses.  Aggrieved over the said order the opposite parties, as appellants before this commission. 

 

 

5.       At the outset, the learned counsel for the appellant/ opposite party had submitted that the patient was discharged from the 1^st opposite party hospital on 28.7.2004.  The complaint was filed only on 8.4.2010.  Therefore, the complaint is hopelessly barred by limitation.  But the District Commission failed to observe the aspect of limitation.  With regard to merits of the case, the learned counsel for the complainant submitted that complainant’s son Sathish Kumar, born with a congenital heart condition, had undergone a cardiac procedure known as Pott’s Shunt as early as 1980.   At the age of 24 he developed breathing problem, and hence he came to 1^st opposite party hospital on 27.3.2004.  He was having respiratory tract infection since 6 months, which is evident from Ex.B1/A1.  He was advised for admission as inpatient.   The complainant’s son preferred to come late for admission, accordingly the complainant came alongwith his son and got admitted on 4.5.2004 and underwent Cardiac Catherisation and Angiography  procedure with early intracardiac repair for Tetralogy of Fallot and interruption of pott’s shunt.  During this time he was administered a drug viz. Nimesulide.  Now the contention of the complainant is that the Nimesulide is the banned drug, since the same was given to his son, which is banned in India.  

          The learned counsel for the appellant/ 1^st opposite party categorically denied that the Nimesulide was given to the complainant’s son as seen from the discharge summary under Ex.A2 dt.6.5.2004, i.e., much earlier to the admission on 16.5.2004.  The District Commission had failed to appreciate the fact that the medicine prescribed does not pertain to the surgery period i.e. 16.5.2004 to 28.7.2004.  The District Commission ought to have appreciated the fact that there was no adverse effect on the patient which was prescribed during the earlier admission, and hence ought not to have allowed the complaint.  The Nimesulide is not a banned drug as alleged by the complainant.  There are several materials available in the public domain to establish that Nimesulide is not a banned drug as alleged, and that the Central Drugs Standard Control Organisation of India has only restricted use of Nimesulide to children under twelve years of age.  Various High Courts in India have passed orders permitting manufacturing and marketing of the said Nimesulide.  In any event, the District Commission ought not to have come to the conclusion that the 1^st opposite party was liable for negligence.  The District Commission ought to have seen that there was no evidence to the effect that the condition of the patient was due to the result of the use of drug Nimesulide and erred in proceedings to award compensation.  The patient’s hospitalisation for the surgical procedure, Nimesulide was not prescribed and the same is not seen in the respective discharge summary.  The Delhi High court in May 2004 issued a verdict that Nimuselide will continue to be marketed in India, since concerns over its side effects are unsubstantiated.  The Union Ministry of Health and Family Welfare decided to suspend pediatric use of Nimesulide in patients less than 12 years of age.  This was implemented on 10.2.2011.  The Madras High Court on 13.9.2011 revoked the suspension on the manufacture and sale of Nimesulide and remanded the matter to the Central Government to decide afresh.  Therefore it is evident that Nimesulide was neither a banned drug at that time when it was prescribed i.e. on 6.5.2004, nor was it contra indicated for the patient.  Therefore, the allegation of treatment to Mr.Sathishkumar with banned drug is not represented by any evidence. 

 

6.       The next fold of submission of the learned counsel for the appellant is that the 1^st opposite party had not filed any document to establish that they have obtained signature of the complainant, who is the father of the patient.  In this connection, the District Commission ought to have seen that it was not the case of the Respondent/ complainant that valid consent for the high risk surgery was not given or obtained.  As the said point was not raised in the complaint, the 1^st opposite party was not required to establish the same.  However said consent form has been filed before this commission.

 

 

7.       With regard to the finding of the District Commission regarding the administration of over dosage of anesthesia it was neither raised soon after the surgery or at the time of discharge of the patient at the Hospital, nor pleaded specifically in the complaint.  In fact it was raised before the District Commission orally for the first time at the time of arguments.  In any event, no medical expert evidence has been produced to substantiate the claim that the appellants acted negligently in administering over dosage of anesthesia because of which the patient never regained consciousness.  The fact that the surgery was of a high risk category highlighted.  The medical literature ‘Palliative Shunting Operations in Tetralogy of Fallot’ states that “............................the high incidence of complications, such as congestive cardiac failure, bacterial endocarditis, and pulmonary hypertension and the high mortality with total correction in these patients..........”

          The Hon’ble Supreme Court in S.K.Jhunjhunwala vs. Dhanwanti Kaur & Anr (2019) 2 SCC 282 held that “suffering of ailment by the patient after surgery is one thing.  It may be due to myriad reasons known in medical jurisprudence.  Whereas suffering of any such ailment as a result of improper performance of the surgery that too with the degree of negligence on the part of the doctor is another thing.  To prove a case of negligence of a doctor, the medical evidence of experts in the field to prove the later is required.  Simply providing former is not sufficient”. 

8.       Countering the submissions, the learned counsel for the Respondent/ Complainant had submitted that the complainant’s son was discharged after Cardiac Catheterization and Angiography on 6.5.2004 with an advice to undergo corrective surgery at the earliest.  At that time he was administered amongst other drugs, the drug known as Nimesulide, which is banned in India.  The gazette Notification issued on 10.3.2016 also would establish the same.  The said drug would cause health hazards and there are risks involved in the administration of the said drug. Therefore the administration of said drug is a gross negligence on the part of the opposite parties.  The District Commission has rightly held that the administration of the said drug and giving an over dosage of anesthesia lead to the patient losing consciousness and he had never regained consciousness.  The version and the proof affidavit filed by the appellant/ opposite party merely contained a very vague and bare denial.  Neither the version nor the proof affidavit contained any details of the nature of the treatment provided and also had not put on notice about his son’s state.  The complainant’s son was discharged from the 1^st opposite party on 28.7.2004.  The discharge summary issued by the opposite parties did not indicate the details of treatment like Anesthesia Doctor’s notes and Neurologist opinion.  The Jawahar Hospital at Madurai asked for such details.  Therefore, the complainant had preferred representation on 11.8.2004 to obtain such details.  The appellants/opposite parties also have not provided the Neurological opinion, MRI pre-operative and doctor’s notes at the time of his discharge on 28.7.2004.  Later when the complainant’s son was admitted in the Jawahar Hospital at Madurai, it was brought to the notice of the complainant that prolonged unconsciousness was only due to the over dosage of anesthesia.   Moreover the Appellants/ opposite parties hospital had not produced any document to the District Commission regarding any consent obtained from the complainant.   No doubt the appellants had produced the documents before this commission such as additional document dt.16.5.2004, but no explanation was given as to why the said document viz. consent form was not marked before the District Commission.  Moreover the perusal of the consent form would show that it is nothing but a consent printed form.  Therefore, no significance could be attached to them.  Thus learned counsel for Respondent/ complainant submitted that the District Commission had come to the conclusion that the opposite party has committed negligence on well founded reasoning.  Therefore such order need not be interfered with.  Thus he prayed for dismissal of the appeal. 

 

9.       In view of the submissions made, the following questions framed for consideration:

          1.       Whether the complaint is maintainable on the point of limitation?

2.       Whether there is negligence on the part of the opposite party in treating the son of the complainant?

         

          3.       Whether there is deficiency of service on the part of the opposite parties?

 

          4.       Whether the compensation awarded by the District Commission is justifiable?

 

 

10.     POINT NO.1:

          According to the learned counsel for the appellants/ opposite parties the complaint filed by the Respondent/ complainant is hit by limitation.  In this regard, it is the submission of the learned counsel for the appellant that the complaint is barred by limitation under Sec.24A of the Consumer Protection Act as the complainant’s son was discharged from the 1^st opposite party hospital as early as on 28.7.2004, whereas the complaint was filed with the delay of 6 years i.e., on 8.5.2010.  Therefore, as per Sec.24A of Consumer Protection Act 1986,  District Forum, State Commission or the National Commission (as the case may be) shall not admit a complaint if it has been filed after two years from the date on which cause of action has arisen.

          In this regard, the learned counsel for the appellant also relied upon a judgement of the Hon’ble Supreme Court in VN.Shrikhande Vs. Anita Sena Fernander (2011) 1 SCC 53, observed at para 23 that “In case of medical negligence, no straight jacket formula can be applied for determining as to when the cause of action has accrued to the consumer.  Each case is to be decided on its own facts.  If the effect of negligence on the doctors part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done.    If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative complainant discovers the harm/injury caused due to such acts or the date when the patient or his representative complainant could have, by exercise of reasonable diligence discovered the act constituting negligence”. 

          In the instant case the patient was admitted on 16.5.2004 and surgery was performed on 17.5.2004, and patient was discharged on 28.7.2004.  Therefore, according to the learned counsel for the appellants, the cause of action for filing the case deemed to have been started from 17.5.2004, and no latent negligence was alleged in the present complaint.  Therefore the complaint ought to have been filed within two years from 17.5.2004. 

On a careful perusal of Sec.24A (2), we find that said provision also provides power for condoning the delay if sufficient cause has been shown for not filing the complaint within two years.  Which reads as “ a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period”. 

In fact in the present case, a petition was filed alongwith the complaint and the delay was also condoned.  A revision filed against the said order was also closed stating that it could be decided alongwith other issues.  The District Commission also dealt with the issue and rejected the contention of the appellants/ opposite parties. 

          We find that though the complainant’s son was discharged from the appellants hospital, he was continuously being treated in a coma stage at Jawahar Hospital at Madurai.  The parents were also under the hope that he would recover from coma at one point of time.  When they have come to the conclusion that it is not going to happen, they have chosen to file the complaint.  According to the complainant, the delay could be condoned since there is a continuous cause of action.   In support of his contention, the Respondent/ complainant had relied upon the order of the Hon’ble Apex Court in the case of Union of India Vs.  Tarsem Singh reported in (2008) 8 SCC 648, with regard to Sec.23 of Limitation Act, where it was held that “If the injury on account of wrongful act continues, then the act constitutes a continuing wrong”. 

Considering these aspects, by placing reliance upon the above citation, we hereby reject the contention of the appellants/ opposite parties that the complaint is hit by limitation.  Absolutely, we find no infirmity in the said finding.  Point No.1 answered accordingly.

 

11.     POINT NO.2:

          The District Commission had allowed the complaint, finding negligence on the opposite parties, mainly on three grounds   (i) the administration of banned drug Nimuselide;  (ii) Over dosage of anesthesia;   (iii) Non-availability of informed consent;

          According to the learned counsel for the Respondent, when the complainant’s son was in 1^st opposite party hospital from 4.5.2004 to 6.5.2004 to undergo cardiac catherization and angiography, he was administered Nimuselide. That is a banned drug.  Therefore, there is negligence on the side of the appellants.

          Whereas according to the appellants/opposite parties, at the relevant point of time, Nimuselide was not banned in India for adults.  Only under Gazette Notification dt.10.2.2011, the Government had prohibited the manufacture and sale of the medicine for the use of children below 12 years.  At that time the complainant’s son was 25 years old, hence the medicine was not prohibited for administering on him, even thereafter.  Moreover the drug was administered only when he was admitted in the hospital on 4.5.2004 to 6.5.2004, whereas the operation was conducted 11 days thereafter.  During the course of surgery this medicine was not administered to the son of the complainant. 

          On a perusal of the Government Notification, we find that the medicine Nimuselide was not banned in India at the relevant point of time.  Therefore, the administration of the said medicine to the complainant’s son cannot be taken as negligence, especially when it was administered during the previous period of admission at the opposite parties hospital. 

 

12.     Similarly, there is no allegation by the Respondent/ complainant in respect of surgery performed by the opposite parties doctors. However, it was yet another allegation of the complainant that there was over dosage of anesthesia, which had resulted in the patient to fall in a prolonged coma.  It is an admitted case that after surgery, immediately he went into the stage of coma, and remained as it is for 9 years.  The complainant’s son was admitted in the hospital of the appellants and thereafter shifted to Jawahar Hospital at Madurai, on 28.7.2004 and there he died on 27.9.2013. It is the submission of the learned counsel for the opposite parties that Respondent had not pleaded anywhere in the complaint that the patient went into coma after surgery due to the over dosage of anesthesia.   In this regard it is appropriate to refer the document Ex.A8 MRI report dt.29.7.2004.  Wherein it has been stated in the said report as “Status” that A case of TOF, for which surgery done: not recovered from anaesthesia”. Hence in our considered opinion, eventhough there is no pleading, when there is enough document to show that the petitioner went into coma due to anesthesia, the same can be considered by the court. 

 

13.     It is yet another contention of the Complainants that before surgery no informed consent was obtained from the complainant.  In fact the Appellant’s hospital had not filed any document before the District Commission regarding informed consent, stated to be obtained from the Respondent/ complainant.   But during the course of appeal, the learned counsel for the appellants had produced the informed consent, signed by the patient’s mother to show that the consent was obtained from the patient before commencing the operation.  But we are of the opinion that when a document is produced in the appeal stage, it ought to have been marked before this commission as an additional document.  But the appellants have not taken any steps to mark the document, and produced only a copy of the said document for perusal of the commission.  Further we feel that the consent said to have been obtained is only a printed form, and in the said form no reasons have been assigned, and does not contain anything about the nature of the surgery. 

In this regard a reference is to be placed to the judgement of the Hon’ble Supreme Court in the case of Samira Kohri Vs. Dr.Prabha Manchanda and another reported in CDJ 2008 SC 051 has given certain guidelines for the term “consent” as follows:

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.

 

(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.

 

14.     In the similar proposition the learned counsel for Respondent/ complainant had produced a judgement of the Hon’ble Supreme Court reported in (2009) 9 SCC 221 in the case of Malay Kumar Ganguly Vs. Dr.Sukumar Mukherjee and another, in which it was held that

 “Patients by and large are ignorant about the disease or side or adverse effect of a medicine.  Ordinarily the patients are to be informed about the admitted risk if any.  If some medicine has some adverse effect or some reaction is anticipated, he should be informed thereabout.  It was not done in the instant case”  “An issue whether non-disclosure of a particular risk or cluster of risks in a particular case should be condemned as a breach of the doctor’s duty of care is an issue to be decided primarily on the basis of expert medical evidence.  “In this respect, the only reasonable guarantee of a patient’s right of bodily integrity and self-determination is for the courts to apply a stringent standard of disclosure in conjunction with a presumption of proximate cause”. 

 

 15.    Therefore the cumulative reading of the judgements would clearly show that the patients have to be informed about the risk factors of the surgery and the side effects of the medicine if any to be administered on the patient.  That is why the consent is called informed consent.  In the instant case, the materials produced on records, including the perusal of the copy of the consent form, would show that the appellants/ opposite parties have not obtained the informed consent from the complainants as per the procedure.  Therefore, we find negligence on this account also.

 

16.     In view of the above, we are of the considered opinion that though the operation was done correctly, there seems to be some negligence on the part of the opposite parties while administering the anesthesia.  As per E.A8 it is clear that the patient had not recovered from anesthesia.  The opposite parties also had not taken any steps to prove contra, except adverting that there is no negligence on their part.  Accordingly, we are of the considered opinion that there is no infirmity found in the order of the District Commission, which needs our interference. 

 

17.     The complainant also would submit that after filing of the complaint the complainant’s son had expired on 28.12.2013.  Therefore, it is evident that the hope of the complainant that his son will come back had been shattered.  The complainant also would submit that he had spent huge amount for the treatment of his son by spending all his savings and by borrowing from his friends and relatives.  Considering the same, we are of the opinion that compensation awarded by the District Commission is justifiable. 

 

18.     In the result, the appeal is dismissed by confirming the order of the District Commission in CC.No.156/2010 dt.17.6.2015.  There is no order as to cost in this appeal.

 

 

  S.M.LATHAMAHESWARI                                                R. SUBBIAH

               MEMBER                                                                                 PRESIDENT

 

INDEX : YES / NO

Rsh/dRSJ/ ORDERS