BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 84/10.
THIS THE 8th DAY OF APRIL 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Kumari Gayatri D/o. Shankaragouda, aged about
11 years, Occ: Student Minor by her Next Friend: Gururaja S/o. Gangadhara Gouda aged about 30 years, Occ: Business & Agriculture, R/o. Nagadadinni Village, Tq. Deodurga, Dist: Raichur.
//VERSUS//
OPPOSITE PARTIES :- 1. Navodaya Education Trust A Registered
Trust, represented by its President, Shri Rajendra Reddy, Mantralayam Road, Raichur- 584 103.
2. The Medical Superintendent, Navodaya Medical College, Hospital and Research Center, Mantralayam Road, Raichur- 584 103.
CLAIM : For to direct the opposites to pay an amount
of Rs. 20 Lakh with litigation expenses.
Date of institution :- 18-10-10.
Notice served :- 10-11-10.
Date of disposal :- 08-04-11.
Complainant represented by Sri. N. Chandrashekharayya, Advocate.
Opposite Nos. 1 & 2 represented by Sri. Sateesh.V. Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by minor complainant Kumari Gayatri through her next friend against the opposite No-1 Navodaya Education Trust and opposite No-2 Navodaya Medical College, Hospital Raichur U/sec. 12 of Consumer Protection Act for to direct the opposites to pay compensation amount of Rs. 20,00,000/- (Rs. Twenty Lakhs) with litigation expenses.
2. The brief facts of the complainant’s case are that, opposite No-2 Navodaya Medical College Hospital, Raichur is being run by opposite No-1. Complainant Kumari Gayatri fell to the ground on 05-08-09 while she was playing in the school premises of her village, she developed heavy pain in her right leg on the date itself, she was brought to the opposite No-2 hospital for treatment. On that day, she was treated by opposite No-2’s doctor by name Anand Chowdiki as out patient and advised to go to village. As per his advise, she brought back to her native place. After lapse of 4-5 days, complainant again developed severe pain on her right leg, in spite of giving medicines as prescribed by the above doctor. She started suffering intolerable pain, as such on 10-08-09 again she was brought to opposite No-2 hospital for necessary treatment, she was admitted as an in patient on that day itself, Dr. Chowdiki to advise to apply crape bandage. He made visit on 11-08-09 & 12-08-09 once in a day in the morning and advised staff nurses to give medicines for fever. But no one treated the complainant for fever on 13-08-09, the said doctor visited and casually informed that, she is OK and advised to get discharge her from hospital with a direction to visit the hospital once in a week for checkup. The complainant was discharged from the hospital on 13-08-09 without prescribing any medicines, she brought to her native. Thereafter 3-4 days pus formed in the surrounding area of the fracture, there was severe pain, as such, again she taken to opposite No-2’s hospital on 17-08-09. On that day the said doctor made oral questions and advised to wait till his arrival in evening on that day. Meanwhile, the complainant’s attendant requested the staff nurses, who were on duty to give some medicines for pain. No proper response from the side of staff nurses, in view of such attitude of the said doctor and staff nurse, complainant was shifted the patient to Balanku Orthopedic & Maternity Hospital, Raichur. In the said hospital, she was treated as an in patient till 22-08-09. Operation was conducted, pus was removed, proper treatment was given with care, thereafter complainant recovered and she was discharged. The complainant suffered mental agony and physical pain due to negligence of the doctor and staff nurse of opposite No-2. Now the complainant’s right leg is limping, this is because of the negligence of the doctor of opposite No-2 in treating her, as such this complaint is filed against both opposites for the reliefs as noted in her complaint.
3. The opposite No-2 appeared in this case, filed written version, opposite No-1 adopted the said written version of opposite No-2 both of them admitted the admission of complainant as an in patient, treated her in proper manner by the doctors as well as staff nurses of the hospital. There was no negligence as alleged in the complaint. The complainant’s father himself got discharged the complainant against to the medical advise, there was no negligence on its part and thereby they prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, she consulted doctor by name Anand Chowdiki of opposite No-2 on 05-08-09 on the complainant of pain to her right leg, she took treatment from the said doctor with crape bandage as an out patient and returned to her village, thereafter, again she developed severe pain on her right leg on the same area, as such, she admitted on 10-08-09 in opposite No-2’s hospital as an in patient. The doctor Anand Chowdiki treated her and advised to apply crape bandage, he advised staff nurses to give medicines for fever to the complainant but no one have given treatment to her and on 13-08-09 she got discharged as per the advise of the said doctor and thereafter once again she developed severe pain to her right leg, again she came to opposite No-2’s hospital on 17-08-09, the said doctor orally questioned her and asked to wait till evening, but he not returned, staff nurse not attended the complainant properly, she remained in the hospital un attended throughout a day. Thereafter, the father of the complainant took her to Balanku Orthopedic & Maternity Hospital, Raichur she was admitted as an in patient till 22-08-09, her right leg was operated, now she is limping she suffered mental agony and physical pain and suffered permanent disability to right leg due to negligence of attended doctor and staff nurses of opposite No-2 and thereby opposite Nos. 1 & 2 have found guilty under deficiency in their service.?
2. Whether complainant is entitled for the reliefs as prayed in her complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative
(2) In view of the finding on Point No-1, the complainant is entitled for the reliefs as noted in the body of the judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2 :-
6. To prove the facts involved in these two points, affidavit-evidence of the next friend of the complainant was filed, he was noted as PW-1. The complainant filed interrogatories to opposites, who have filed their answers to those interrogatories. The documents Ex.P-1 to Ex.P-8 are marked.
7. The medical superintendent of opposite No-2 was filed, he was noted as RW-1. Affidavit-evidence of attended Dr. Sri.A.H. Chowdiki was filed, he was noted as RW-2. The documents Ex.P-1 to Ex.P-5 are marked.
8. In view of the pleadings, affidavit-evidences and answers to the interrogatories filed by opposites, we have noticed some of the following facts are undisputed facts in between the parties:-
1. That, on 10-08-09 complainant was admitted in the hospital of opposite No-2 on the complaint that, she was suffering from severe pain in her right leg, she was treated by the doctor of opposite No-2 by name Anand Chowdiki as an in patient on 10-08-09 as the said fact was admitted in the answers to the question No-4 of interrogatories.
2. Further it is undisputed fact that, on 11-08-09 and 12-08-09, the said doctor advised staff nurses to give medicines to the complainant as she was suffering from high fever as admitted in the answers to the question No-5 of interrogatories.
3. It is further undisputed fact that, on 13-08-09, the patient was suffering from high fever upto 100 degree .F. temperature while discharging her from the hospital.
9. Keeping in view of these undisputed facts between the parties. Now we have to see documents filed by the parties.
10. The documents of the complainant’s are:
Ex.P-1 is the Primary case record of the complainant, which shows the admission of the complainant as an in patient from 10-08-09 to 13-08-09 with case history papers and clinical pathology report. Ex.P-2 Discharge summary card of the complainant issued by opposite No-2, which discloses the fact that, patient was admitted as an in patient on 10-08-09, she was discharged on 13-08-09. Further said documents discloses the fact that, one Dr. by name Sri. Anand Chowdiki treated this patient from 10-08-09 to 13-08-09. Ex.P-3 is containing various bills paid by the complainant to show that, he incurred expenditure regarding the treatment in the hospital of opposite No-2 as well as in Balanku Hospital, Raichur. Ex.P-8 is the copy of the legal notice issued by complainant.
11. Now we have to examine the documents filed by the opposite in support of their case:
Ex.R-1 is the copy of the letter written by next friend of the complainant to opposite No-2 for to furnish certain reports regarding the treatment given to her in the hospital. Ex.R-2 is the copy of the legal notice. Ex.R-3 is the reply notice given by Dr. Anand Chowdiki. Ex.R-4 is the postal receipts and Ex.R-5 is the postal acknowledgement. These are the only five documents produced by the opposites as their documentary evidences.
12. Keeping in view of the affidavit-evidences, answers given by the opposites to the interrogatories and documents with the nature of the allegations made by the complainant against opposite No-2, one thing we have to make it very clear that, the burden of proving the alleged negligence on the part of opposite No-2 i.e, against attended doctor and staff nurse is on the complainant. Keeping in view of the principles of law regarding the alleged medical negligence against opposite No-2, we have to appreciate the disputed facts between the parties to ascertain as to whether the complainant has discharged her burden of proving the negligence on the part of attended doctor and staff nurse of opposite No-2.
13. We have made it clear on 19-10-09, at the time of admission of this case by detail order by keeping in view of the principles of ruling of the Hon’ble Supreme Court in V.Kishan Rao V/s. Nikhil Super specialty Hospital, reported in 2010 SAR (Civil) 550, as the allegations made by the complainant against opposite Nos. 1 & 2 are not involved any serious questions of law and facts and there is no need to get expert’s opinion in that regard. The said order is not challenged by opposites till today, as such we have appreciated the case of parties, as per their respective affidavit-evidences and documentary evidences.
14. The first allegation of the complainant against opposites is that, on 05-08-09 her father and herself visited opposite No-2 hospital for severe pain to her right leg. On 05-08-09 Dr. Anand Chowdiki advised to apply crape bandage, accordingly crape bandage was applied to her. This allegation was denied by RW-2 Dr. Chowdiki in his affidavit-evidence. However opposite No-2 hospital authority admitted the fact that, complainant was treated in the said hospital on 05-08-09 by applying crape bandage to her right leg. This fact is supported by treatment slips of opposite No-2 hospital vide Ex.P-2, Ex.P.3(3).
15. Thereafter complainant developed severe injury and swelling on right leg where crape bandage was applied, she visited again hospital of opposite No-2 on 10-08-09.
16. It appears from the document Ex.P-1 and discharge summary report at Ex.P-2 that, complainant sustained bleeding injuries to her right leg on 05-08-09 with severe pain. Admittedly opposite No-2 hospital is a Super Specialty Hospital attached to the medical college, the public is visiting to the hospital with great hope that hospital will give better and proper service without botheration of heavy charge made by it. In such circumstances, complainant brought to the hospital to give better treatment. It is the duty of the doctor, who attended the complainant on 05-08-09, to get clinical pathology report of complainant to ascertain as to whether there was any fracture injury to her right leg by x-ray examination on the injured portion, but the said doctor not done it, the doctor attended the complainant on 05-08-09 simply applied crape bandage on the injury portion was due to negligence of the doctor who attended her on that day. Such kind of treatment given to her on 05-08-09 is not a recognized line of treatment, resulting to further complications and there by once again complainant was admitted to the said hospital on 10-08-09, as such it is a clear act of negligence on the part of opposite No.2’s doctor on 05-08-09. Hence opposite Nos. 1 & 2 shall answer vicariously for the torts of their servants. ( We have followed the principles of the ruling of Hon’ble National Commission, Dr. V. Patwa V/s. Surendra Mohan Ghose reported in IV (2004) CPJ 1 (NC). )
17. Another serious allegation made by the complainant against opposite No-2 and its doctor Sri. Anand Chowdiki is that, she developed heavy pain and swelling due to crape bandage on the injured portion of the right leg, she was not able to stand and walk due to the pain and swelling, she was again admitted to the hospital of opposite No-2 on 10-08-09 thereafter she was discharged on 13-08-09. These facts are supported by the documents Ex.P-1 Primary case record and Ex.P-2 Discharge Summary report. This fact was not denied by the opposites, she made further allegation against the Dr. Anand Chowdaki, who attended her on that day is that, he gave visit on 11-08-09 and 12-08-09 at that time, the complainant was suffering from high fever to the extent of 100 degree .F. This fact is supported by documents Ex.P-3(3) & Ex.P-3(4), which are treatment details dt. 12-08-09, Ex.P-2 summary discharge card issued on behalf of Dr. Anand Chowdaki. In such critical situations doctor not properly treated the complainant and staff nurses also not took proper care in between 10-08-09 to 12-08-09.
18. This allegation was denied by opposite No-1 in affidavit-evidence and also in the affidavit-evidence of the doctor RW-2, who attended the patient with a contention that, the father of the patient got discharged the patient against the medical advise. Hence the father of the complainant is responsible for future consequences.
19. We have gone through the documents Ex.P-1, Ex.P-2, Ex.P-3(3) and Ex.P-3(4) with affidavit-evidences of RW-1 & 2 and their written versions, we are of the clear view that, the document of Ex.P-1 Primary case record shows the reason for discharging the complainant on 13-08-09, as the patient was discharged on request. The doctor attended the complainant in that period has not stated in any one of the said documents that, the complainant’s father got discharged the patient from the hospital against medical advise and also not produced any documents from their side to substantiate that contention of opposites. In such situation, it appears from the written version of opposites that, its contents in this regard is materially differs to the contents of document at Ex.P-1, if really father of the complainant got discharged his daughter in such precarious condition against medical advise, then why it was not mentioned by the doctor in the said documents. It is clear that, the attended doctor not informed anything to the father of the complainant with regard to future consequences and problems in the health of the patient, if she got discharged. There are no records to show that, doctor informed such facts to the father of the complainant before discharging the complainant. Even then, complainant’s father got discharged his daughter. It appears to us from the records and facts and circumstances of this case and in absence any records from the side of opposites that, the father of the patient might have frustrated from the nature of the medical treatment given by the doctor, coupled with treatment by Para Medical staff of the hospital or he got discharged his daughter as per the say of the doctor as her health condition was satisfactory as noted in Ex.P-2 summary discharge or he might have lost his faith in the hospital with regard to recovery of health of his daughter as it was worsening day by day with high fever, as such, we are of the clear view that, the stand taken by opposite No-2 that, the father of the complainant got discharged from the hospital against the medical advise is a false contention it is after thought, such contention might have taken by the opposite No-2 without any records and for making baseless allegations against father of the complainant, only to escape themselves from their negligence and liability. We have followed the principles of the Hon’ble National Commission in a case Dr. K.G. Krishna V/s. Parveen reported in II (2003) CPJ 125 (NC).
20. Another allegation against opposite No-2 treating doctor by the complainant is that, she developed severe pain on right leg, swelling on the injury portion, as such, he again came and visited the hospital of opposite No.2 on 17-08-09 and consulted Dr. Anand Chowdaki. The complainant and patient were asked to wait till evening as he will again visit the hospital in the evening. Accordingly complainant and her father waited for arrival of the doctor till evening on that day without treatment. The said doctor, not visited the hospital as assured by him to the father of the complainant on that day evening.
21. The defence taken by the said doctor RW-2 in his affidavit-evidence to counter this allegation is that, on 17-08-09, he was on leave. Hence no question of consultation by the father with him or giving assurance to them that, to wait till his visit to the hospital in the evening on that day.
22. It is very much surprise to note here that, the said doctor RW-2 or opposite No-2 hospital authority not filed any documentary evidences before us to show that, he was on leave on 17-08-09. Simply taking such defence in written version is not sufficient for to us to believe that, he was on leave on 17-08-09. Such contention might have taken by RW-2 or RW-1 only to negativate the said allegation of the complainant, as such, we have believed the entire affidavit-evidence of complainant PW-1 in this regard and came to a conclusion that, the doctor who attended the complainant not shown real interest in treating the complainant on 17-08-09. Hence he made father of the complainant to believe his false promise that, he will re-visit the hospital in evening, even though, he knew that, he will not attend the hospital in the evening, such attitude of the doctor towards his patient is amounting to professional negligence.
23. Another allegation made by the complainant against opposite No-2 is that, he gave application dt. 16-11-09 in person to opposite No-2 to issue copies of six documents relating to the treatment given by the hospital to the complainant. But opposites, neither furnished the copies of those documents nor produced any one of them before this Forum, as such, we are of the view that, non furnishing the copies of those documents to the patient by the hospital is nothing but it is deficiency in service against its patient.
24. The cumulative effect of all the series acts of negligence by the doctors of opposite No-2 in treating the patient complainant resulted into a series health consequences and hazardous, she forced her to get treatment in another hospital by name Balanku by paying heavy charges and ultimately complainant suffered little permanent partial disability of limping of her right leg and thereby she has to suffer mental agony through out her life.
25. In view of the discussions made by us with related to series acts of negligence of opposite No-2, it is a proper and fit case to apply the doctrine of Res-Ipsaloquitor, when Res-can speaks itself the negligence of the doctor. It is not a rule of law, it is a rule of prudence, it will not shift the burden on the other side. It can be applied only when the event is caused by negligence of the doctor. In such circumstances, onus shifts on the doctor to prove that, there is no negligence on his part. In the instant case, opposites RW-1 & RW-2 not filed single paper to substantive their claim that there was no negligence on the part of treating doctor.
26. Apart from the said principles we have also referred and applied the principles of the following rulings to hold that, opposite Nos. 1 & 2 committed deficiency in their services to the complainant while treating her on 05-08-09, in between 10-08-09 to 13-08-09 and on 17-08-09.
1) Shraym Sunder V/s. State of Rajasthan
1973 ACJ 296 (Supreme Court)
2) State of Punjab V/s. Modern Cultivators
AIR 1965 Supreme Court 1.
3) Global Motor Services V/s. Reamak Velu Swami
AIR 1962 Supreme Court 1.
4) Pushpa Bai V/s. Ranjit Gard.P.
AIR 1977 Supreme Court 1735.
5) Syed Akbar V/s. State
1979 Supreme Court 1848.
6) Mangal V/s. Sharadabai.
1981 ACJ 156.
Some of the following rulings of the breach of duty owed by the doctor to his patient as committed by opposite Nos. 1 & 2 to the patient (complainant).
Doctor Laxman Bala Krishna Joshi
V/s.
Doctor Triambuka Babu Godgole
AIR 1969 Supreme Court 128.
The principles of medical service and negligence of the doctor in serving the patient as noted in the present case, principles of the following rulings.
1. Jacob Mathew’s V/s. State of Punjab (SC)
2005 CCC 370.
2. Dr. Basojit Gangopadhyya V/s. Agayendunath (NC)
2009 CPR (NC).
27. In view of the facts and circumstances of this case and in view of the principles of the rulings referred above, there is no doubt that, complainant has discharged her burden of proving medical negligence committed by opposite Nos. 1 & 2’s doctors in treating her. There is no single piece of medical paper on behalf of the opposite Nos. 1 & 2 to negatativate our above conclusion, hence we answered Point No-1 in Affirmative.
28. As regards to compensation amount required to be granted to the complainant ,due to medical negligence committed by the doctors of opposite Nos. 1 & 2 and permanent partial disability to her right leg due to such negligence, suffering of her physical and also suffering of mental agony, still she has to suffer in future life due to limping of her right leg, we have to taken note of all these facts in fixing compensation amount to her even though there are no documents to ascertain the percentage of disability to her right leg, It is not such extraneous case to grant such big amount of Rs. 20,00,000/- as prayed. However we have taken note of all the circumstances stated above, we have granted lumpsum amount of Rs. 1,50,000/- to the complainant which will meet out the ends of justice. The said amount is recoverable from opposite Nos. 1 & 2 jointly and severally for the torts committed by their servants.
As regards to deficiency in service committed by the doctors of opposite Nos. 1 & 2, we have granted another lumpsum amount of Rs. 3,000/- to the complainant.
As regards to the litigation expenses are concerned, we have granted another lumpsum amount of Rs. 3,000/- to the complainant. Hence complainant is entitled to recover total amount of Rs. 1,56,000/- from the opposites.
29. We have considered this case as a special case by keeping in view of the fact that, complainant being tender aged girl suffering from partial permanent disability to her right leg, as such we have granted interest at the rate of 9% p.a. on total amount of Rs. 1,56,000/- from the date of this complaint till realization of the full amount. Accordingly we have answered Point Nos-1 & 2.
POINT NO.3:-
30. In view of the findings on Point Nos. 1 & 2 , we proceed to pass the following order.
ORDER
The complaint filed by the complainant is partly allowed with cost.
Complainant is entitled to recover total amount of Rs. 1,56,000/- from opposite Nos. 1 & 2 jointly and severally.
Complainant is entitled to recover interest at the rate of 9% p.a. on total amount of Rs. 1,56,000/- from the date of this complaint till realization of the full amount.
Out of the total amount, an amount of Rs. 1,00,000/- shall be kept FD in any one of the Nationalized Bank in the name of complainant till her marriage. The rest of the amount shall be made use for the benefit and welfare of minor complainant.
Opposite Nos. 1 & 2 are hereby given one month time to make the said payment of total amount to the complainant.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 08-04-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
