KERALA STATE CONSUMER DISPUTES REDRESSL COMMISSION

 VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL 960/2004

JUDGMENT DATED: 24..09..2011

PRESENT

JUSTICE SRI.K.R.UDAYABHANU  : PRESIDENT

SRI.M.K.ABDULLA SONA               : MEMBER

1. M/S Lourdes Hospital,                    : APPELLANTS

    Rep.by the Director,

    Pachalam, Ernakulam,

    Cochin -682012.

2. Dr.Krishna Moorthy,

    Consultant Urologist,

    Lourdes Hospital, Ernakulam,

    Cochin -682012.

(By Adv.P.F.Thomas)

           Vs.

1. P.C.Haridasan @ Hari aged 32,                 : RESPONDENTS

    s/o Chakrapani, Palakkat Thachat,

    Enathy.P.O., K.S.Mangalam Vaikom,

    Kottayam dist.

2. District Forum for Consumer Redressal
    Forum, Ernakulam.

(Vakkom N.Vijayan)

JUDGMENT

JUSTICE SRI.K.R.UDAYABHANU  : PRESIDENT

          The appellants are the opposite parties/hospital and the consultant urologist who are under orders to pay a sum of Rs.12000/- towards treatment expenses and compensation of Rs.12000/- and cost of Rs.1500/- in OP 862/02 in the file of CDRF, Kottayam.

          2. It is the case of the complainant that he underwent laser treatment for kidney stone at the opposite party hospital.  On 6.6.2002 the procedure was done by the 2^nd opposite party urologist.  He paid a sum of Rs.8500/-.  He was discharged on the next day.  As per the scan report a stone of the size of 30 x 6mm was located in the right kidney.  He underwent the above procedure as referred to the above hospital by Dr.S.G.Rajan, Civil Surgeon attached to General hospital, Ernakulam.  From 28.7.02 the complainant again experienced severe pain and he was again admitted at the opposite party hospital.  On X-ray it was found that the stone was not removed completely.  The 2^nd opposite party conducted another laser procedure on 31.7.02.  A sum of Rs.3000/- was paid for the same.  It is alleged that even after 2 months there was no cure.  On 10.9.02 he met the opposite party.  After taking X-ray the above doctor prescribed certain medicines to be taken for 3 months.  On the same day he took another USS and it was found that kidney stone is not removed fully and that 9x4mm size of calculus is seen in the right mid ureter.  He again  met Dr. S.G. Rajan at General Hospital who referred him to Dr.Appu Thomas, Head of Urology, Medical College hospital, Kottayam.  Dr.Appu Thomas on examination found that that the complainant is still having ureteric calculus and prescribed medicines.  He is undergone treatment of Dr.Appu Thomas.  It is alleged that the failure to remove the kidney stone even after 2 laser treatments is the  result of negligence on the part of the 2^nd opposite party and that the same has caused considerable pain and sufferings to the complainant.  He has sought for a sum of Rs.2,15,000/- towards compensation and treatment expenses.

          3. Opposite parties have filed version denying the allegations altogether. It is admitted that the complainant was made to undergo ESWL(Extra Corporeal Shock Wave Lithotrispy treatment). He was advised to take medicines.  Subsequently on 28.7.02 the complainant again consulted 2^nd opposite party and on X-ray it was found that  stone fragment of the size of o.7cm is remaining. The complainant was again subjected to ESWL on 30.7.02 and medicines were prescribed.  It is asserted and there is no negligence and that standard treatment was provided.

          4. The complaint has filed rejoinder reiterating the allegations.

          5. The evidence adduced consisted of the testimony of PWs 1 to 3 and DW1;Exts.A1 to A13(b) and B1.

          6. The Forum has observed that it was possible to push the stone back into the kidney with ureteroscopy so that it can be treated with ESWL .The Forum has also held that there is no authority to support the treatment imparted by using 3000 shock waves when the  stone was in the uretar. The Forum has  held that there is deficiency in service on the part of the 2^nd opposite party.

           7. The counsel for the appellant has pointed out relying on Campbell’s Text Book of Urology VI^th edition 2001 that it would not be possible to visualize the stones as fragments after executing ESWL as immediate post SWL radiograph following the procedure is not helpful to  predict the  success as the fragments are intimately packed together(supra at page 2167).  The counsel has also pointed out that as evident from Ext.B1 case sheet 2500 shock waves were inflicted when the stone was in the kidney and 3000 shock waves when the stone was  in the uretar.  As kidney is more vulnerable less number of shock waves are inflicted and more shock waves when the stone is in the ureter.  The above is the established procedure(op.cit page 2167).  It was pointed out that pushing back the stone to the kidney is not the right procedure as in situ ESWL is the well accepted therapy  for ureteral stones and that the push back technique adds a cumbersome extra procedure for the patient(American Urological Association(AUA) Update 2001).  It is also pointed out that relying on Campbell’s Text Book of Urology, supra at page 2165 that an appropriate length of time after ESWL should be allowed to elapse before declaring that a patient  is or is not stone free. Three months is most often the time required.  In the instant case it is pointed out that DW3 Dr.Appu Thomas did not conduct any further ESWL and only prescribed medicines. The complainant consulted PW3 without waiting for sufficient period so that the stone will be pushed out through the urine.  It is pointed out that Dr.Appu Thomas also only prescribed medicines ie the pain killers and anti inflammatory drugs  It is pointed out that the complainant  has no case that the stone remains still in the ureter. 

          8. PW2 is Dr.S.G.Rajan, General Surgeon who referred the complainant to the Urologist, ie, PW3 Dr.Appu Thomas.  DW1 is the 2^nd opposite party Urologist.  It is the case of DW1 that the small fragments that has passed into the ureter would have gone out through the urine and that the complainant did not wait and immediately left his treatment and consulted PW3.  PW3 the Professor of Urology, Medical College Hospital, Kottayam in his testimony has not implicated the 2^nd opposite party doctor.  He has stated that the medicines are sufficient and that it is not possible to conduct another ESWL in the position of the stone in  Ext.A10 diagram,  Ext.A10 is the prescription of PW3 wherein there is the sketch noting the location of the stone.  PW3 has stated that the part of the stone is still in situ.  He has also stated that it cannot be stated that the procedure done by 2^nd opposite party doctor has failed.  PW1 has not given a direct answer to the question as to why the stone could not be completely removed by ESWL executed by the 2^nd opposite party. In the re examination he has clarified that as on 19.9.02 the stone has not been completely removed.  He has not stated that the  complainant is still under going treatment.  As contended he has not produced any records of treatment  as to the treatment if any being under gone by him  subsequently ie after the administration of medicines by DW3.

          9. In the circumstances and in view of the observations in the Campbell’s Text Book of Urology we find that it cannot be held that there is any amount of negligence on the part of 2^nd opposite party doctor in the treatment imparted to the complainant.

          10. In the result the order of the Forum is set aside and appeal is allowed.

          Office will forward the LCR along with the copy of this order to the Forum urgently.

          JUSTICE K.R.UDAYABHANU         : PRESIDENT

          M.K.ABDULLA SONA                     : MEMBER

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