COMPLAINT FILED: 25.06.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 30th OCTOBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1416/2008<br /> <br /> <br /> COMPLAINANT Sri. Jayaramaiah,<br /> S/o. Krishnappa,<br /> Aged about 25 years,<br /> Residing at Devalapura Village,<br /> Kora Hobli, Tumkur Taluk,<br /> Tumkur District.<br /> <br /> <br /> Advocate (H.J.M. Aradhya)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY Chief Medical Officer,<br /> The National Institute of Mental Health and Neuro Sciences (NIMHANS),<br /> Department of Psychiatry, <br /> Neurology and Neurosurgery,<br /> Bangalore – 29.<br /> <br /> <br /> Advocate (A. Madhusudhana Rao)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.18,00,000/- and medical expenses of Rs.1,00,000/- and for such other reliefs on an allegations of deficiency in service and medical negligence. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant was getting a repeated headache, vomiting and tiredness, thus he approached the OP for the said treatment in the month of November 2004. OP subjected the complainant for various tests and examinations, later on concluded that complainant is suffering from cerebellas tuberculosis and started treating him with ATT. Complainant’s condition was improved significantly within 10 days then he was discharged. After 5 months complainant faced the same problem. Thus he approached the OP on 03.04.2005, again he was subjected to various tests and it was diagnosed that he is suffering from pyogenic meningitis, he was treated accordingly. Then he was discharged. On 28.04.2005 complainant lost his eye sight. Immediately he approached the OP, OP referred him to the Ophthalmologist and Ophthalmologist have concluded no perception of light in either eyes and hence it is not possible to do visual field examination. Complainant being a youngster, for the faulty treatment given by the OP and wrong diagnosis he lost his eye sight. The repeated requests and demands made by the complainant to OP to compensate him towards their negligence, carelessness and wrong treatment, went in futile. Complainant got issued the legal notice on 15.04.2008, again there was no response. Thus complainant felt both medical negligence and deficiency in service on the part of the OP. For no fault of his, he is made to suffer both mental agony and financial loss and permanent disability. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP the complainant has not availed their service for consideration, hence he cannot raise consumer dispute against the OP. Complainant has been provided with all necessary treatment that is required for the ailment which is duly recognized in the medical field. OP is the renowned hospital to treat such kind of ailment. Complainant was suffering from cerebral tuberculosis. When they started the treatment he improved considerably, hence he was discharged with a medical advise to follow up certain medicine and guidelines. Unfortunately complainant did not continue the said medicine nor came for the follow up check up. The problem if any faced by the complainant after the discharge is due to the very nature of the disease he suffered. As and when complainant appeared before OP he was subjected to various tests. The disease was diagnosed and it was properly treated. The loss of the eye sight by the complainant if any is due to the consequences arisen out of the disease, for that OP cannot be blamed. OP did take precautionary measures. In the better interest of the complainant has immediately referred to the Neuro Surgeon as well as Ophthalmologist, unfortunately he could not regain his eye sight. It is all because of the tuberculosis of the brain and the loss of vision is a result of the said disease. Of course when complainant appeared before the OP on 28.04.2005, on clinical examination it was noticed the optic disc is pale which is secondary to tuberculosis meningitis. The C.T. Scan showed accumulation of cerebro spinal fluid in the brain. Complainant and his father were explained about prognosis of the disease and the consequences. Though OP gave the effective treatment, meningitis is improved but the loss of vision could not be regained. The loss of vision in a cases of like disease is a common phenomena, for that also OP cannot be blamed. The other allegations made by the complainant are false and frivolous. There is no deficiency in service muchless medical negligence on the part of the OP. The complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence with documents and literature with respect to the disease suffered by the complainant and the consequences of the said disease. The complainant has not cross-examined the OP nor served any interrogatories. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. It is a case of the complainant that he had a severe headache, tiredness, vomiting that is why he approached the OP hospital in the month of November 2004. He was subjected to various tests and examinations, later on it is concluded and diagnosed that he is suffering from cerebellas tuberculosis. Then he was treated with ATT. It is stated by the complainant himself in para.2 of the complaint that within 10 days he has improved significantly. Then he was discharged with a direction to continue the said medicine and come up for follow up check up periodically. It appears complainant failed to follow the medical directions with regard to the follow up check up for the treatment. It is further stated by the complainant that on 03.04.2005 he again experienced the same ailment that is nearly after 5 months. Then he approached the OP, again he was subjected to various tests, then he was diagnosed that he is suffering from pyogenic meningitis, again he was treated accordingly.<br /> <br /> 7. On the perusal of the contents of the said complaint and other related documents as and when complainant approached the OP proper and required accepted treatment was given to him. That means to say OP has taken proper care and caution in treating the complainant. Of course on 28.04.2005 complainant again appeared with a complaint of loss of eye sight. OP took the Neuro Surgeon opinion, then referred the complainant in his better interest to the Ophthalmologist. The concerned Ophthalmologist has expressed his inability to treat the complainant on the ground that there is no perception of light in either eyes and hence it is not possible to do visual field examination. So the documents produced by the litigating parties goes to show that the eye sight problem faced by the complainant is mainly because of the consequence arisen out of the disease. The literature produced by the OP clearly goes to show that in a cases of like nature there is a possibility of affecting visual disorders, deafness and hemiparesis. That opinion of an expert is not otherwise repudiated or denied by the complainant. So the other allegations of the complainant appears to be rather baseless.<br /> <br /> 8. It is contended by the OP that when complainant appeared before them on 28.04.2005 with a lose of vision, on clinical examination they observed optic disc is pale which is secondary to the tuberculosis meningitis. The CT scan taken at that time showed that there is accumulation of cerebro spinal fluid in the brain. They immediately explained the complainant and his father about the out come of the treatment. Though OP tried its level best to regain the vision, unfortunately it could not. Their treatment gave positive result in the improvement of meningitis, but the loss of vision could not be improved. It is further stated by the OP that such a loss of vision is a common phenomena along with certain other complications amongst the persons who suffering from tuberculosis meningitis. This defence of the OP is supported by the text and literature referred to above.<br /> <br /> 9. The fact that OP is a renowned hospital to treat such kind of ailments having reputed qualified experienced doctors in the field is not at dispute. Of course in view of the law laid down by the Hon’ble Supreme Court of India in AIR 1996 SC page 550, Indian Medical Association V/s. V.P. Shanta. The defence of the OP that complainant has not hired their service, he is not a consumer rather does not hold force. The evidence and the defence set out by the OP finds full corroboration with the contents of the undisputed documents produced, which shows the treatment given to the complainant as and when he approached the OP. The hospital records speak to the mode of treatment, nature of treatment, conducting of various tests and examinations, reports of the concerned Department, etc. The contents of those hospital records are not denied or disputed by the complainant. So viewed from any angle, merely because complainant could not get back his vision, that cannot be a ground to say that there is a medical negligence and deficiency in service on the part of the OP. Nobody has stated that the procedure followed and treatment given by OP is wrong and not accepted in the medical field. When that is so, vague and bare allegations of complainant cannot be believed. The complainant has not examined any expert to substantiate his allegations that there is a carelessness and negligence on the part of the OP in treating him. In absence of such expert’s evidence, the bare and vague allegations of the complainant rather does not hold much force.<br /> <br /> 10. OP Doctor is not guilty of negligence since he acted in accordance with the practice accepted as proper by a reasonable body of medical man skilled in that field. It is known fact that the best skill in the worldly things some time went wrong in medical treatment or surgery operation. A doctor was not to be held negligent simply because something went wrong. There is no evidence to come to the conclusion that the OP fell below the standard of a reasonably competent practitioner in their field. The evidence has come that OP has acted in accordance with the practice regularly accepted and adopted. Medical negligence is to be established, it can’t be presumed. <br /> <br /> 11. The fact and circumstances of the case before us, show that OP has attended the patient with due care, skill and diligence. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complainant. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the OP. It will not be out of place to mention that doctors only treat whereas it is in the hands of the Almighty to cure. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. <br /> <br /> 12. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions also. A surgeon performing surgery is not gifted with an extra-ordinary skill nor he is expected to perform miracles. What is expected of him is whether the procedure followed by him is generally acceptable to the medical profession. The law does not require of a professional man that he be a paragon combining qualities of polymath and prophet. A complaint regarding medical negligence should allege and support with expert evidence as to what was done which should not have been done or what was not done which should have been done. But it is missing in this complaint.<br /> <br /> 13. In view of the discussions made by us, we find the complainant has utterly failed to establish the deficiency in service as well as medical negligence on the part of the OP. Under such circumstances he is not entitled for the relief claimed. The complaint appears to be devoid of merits. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 30th day of October 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> p.n.g. <br />