BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD
F.A.No.672/2005 AGAINST C.D.No.105/1999, DISTRICT CONSUMER FORUM, KURNOOL.
Between:
Dr.N.Srinivasan M.S.(Ortho) DNB (Ortho)
M.Ch.(Neuro)
S/o.N.N.Chari, aged about 49 years,
R/o.P.No.103, H.No.18-90,
Sai Srinivasa Apts., Sriramnagar,
Venkatapuram, Alwal, Secunderabad. Appellant/
Opp.party No.1
And
1. P.Balaiah Naidu, S/o.P.S.Naidu,
aged 72 years.
2. Smt.P.Saroja, W/o.P.Srinivasulu,
aged 42 years.
3. Kum.P.Madhavi, do.P.Srinivasulu,
4. P.Bilhan Naidu, S/o.P.Srinivasulu,
aged 19 years.
(All residents of
H.No.17-1060, Upstairs, R.K.T.Street,
Kurnool). Respondents/
Complainants
5. United India Insurance Co. Ltd.,
40-439, Station Road, Kurnool-518 001.
Post Box No.45, Tel.Ph.08518221647,220388. Respondent/
Opp.party No.3.
6. Managing Director of Gowrigopal hospital
(A unit of Sri Janapriya hospitals Pvt. Ltd.,)
Budhwarpeta, Kurnool. Respondent/
Opp.party No.2
Counsel for the Appellant: M/s.K.R.K.Iyyengar.
Counsel for the Respondents: Mr.M.Radhakrishna –R1 to R4.
Mr.T.K.Sreedhar-5
Mr.P.Krishna Reddy-R6
F.A.No.722/2005 AGAINST C.D.No.105/1999, DISTRICT CONSUMER FORUM, KURNOOL.
Between:
The Managing Director,
Gouri Gopal Hospital,
Budhawarpeta, Kurnool. ..Appellant/
Opp.party No.2
And
1. P.Balaiah Naidu, S/o.P.S.Naidu,
aged 72 years.
2. Smt.P.Saroja, W/o.P.Srinivasulu,
aged 42 years.
3. Kum.P.Madhavi, do.P.Srinivasulu,
aged 19 years.
4. P.Bilhan Naidu, S/o.P.Srinivasulu,
aged 19 years.
(Respondents 1 to 4 are residents of ..Respondents/
H.No.17-1060, Upstairs, R.K.T.Street, Complainants
Kurnool).
5. Dr.N.Srinivasan M.S.(Ortho) DNB (Ortho)
M.Ch.(Neuro)
S/o.N.N.Chari, aged about 49 years,
R/o.P.No.103, H.No.18-90,
Sai Srinivasa Apts., Sriramnagar,
Venkatapuram, Alwal, Secunderabad. Respondent/
Opp.party No.1
6. United India Insurance Co. Ltd.,
Kurnool. Respondent/
Opp.party No.3.
Counsel for the Appellant: Mr.P.Krishna Reddy.
Counsel for the Respondents: Mr.M.Radhakrishna –R1 to R4.
Mr.K.R.K.S.Iyyengar-R5
Mr.T.K.Sridhar-R6.
CORAM:THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT.
AND
SMT.M.SHREESHA, LADY MEMBER.
WEDNESDAY, THE TWENTY NINTH DAY OF OCTOBER
TWO THOUSAND EIGHT.
Oral Order:(Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.D.No.105/1999 on the file of District Forum, Kurnool, opposite party No.1 preferred F.A.No.672/2005 and opposite party No.2 preferred F.A.No.722/2005. Since both the appeals arise out of the same C.D., they are being disposed of by a common order.
The brief facts as set out in the complaint are that the complainant No.1 is the father, complainant No.2 is the wife and complainants 3 and 4 are the children of the deceased, Mr.P.Sreenivasulu, who was a tailor earning Rs.5,000/- per month. The deceased was diabetic six months prior to his demise and underwent treatment at Dr.Thirumalachari on 17-3-1998 as there was severe pain in his right shoulder, who in turn referred him to Dr.Sreenivasulu, Neuro Surgeon i.e. opposite party No.1. Opposite party No.1 advised Mr.P.Sreenivasulu to join as in patient in opposite party No.2 hospital and underwent clinical tests such as x-ray, blood test etc. and purchased medicines prescribed by him. At 11.15 p.m. opposite party No.1 administered an injection and left the hospital leaving some instructions to the duty nurse and at about 12.30 mid night, the patient complained pain and the duty nurse merely administered an injection (Fortwin and phenogram) and did not care to contact opposite party No.1 inspite of repeated requests of complainant and also administered another injection at 1.00 a.m. At 3.00 p.m. the patient complained of pain and no duty doctor was found except a nurse, who administered a sedative at 3.30 a.m. and at 4.15 a.m. the patient developed breathlessness and the nurse except saying that she informed opposite party No.1 did not attend the said patient. At about 5.00 a.m. opposite party No.1 examined the said patient and declared him dead but after 10 minutes as there were some movements found in the said patient, he was shifted to Intensive Care Unit of Cardiology and Dr.Vasantha Kumar attended him and put him on artificial respiration and thereafter the patient breath his lost at 7.10 a.m. The complainants submit that there was negligence on behalf of opposite party No.1 in not properly monitoring the conditions of the patient and in entrusting him to a nurse, who was not able to attend the problem. They further submitted that opposite party No.2 is running the hospital in a negligent manner and there was no duty doctor in the night to meet any emergencies and thus the opposite parties are at fault for not lending proper medical aid services to the patient which ultimately resulted in the death of the patient. The complainant submitted that the deceased is a bread winner of the family and his demise through them in distress of their livelihood i.e. education of complainants 2 and 3 and medical care of complainant No.1 and submitted that the liability of opposite party No.3 is on account of policy issued by it to opposite party No.1. Hence the complaint for a direction to the opposite parties seeking compensation of Rs.4,95,000/- along with interest and Rs.5,000/- costs in not providing proper medication and treatment to the deceased.
Opposite party No.1 filed written version and submitted that the admission of the deceased P.Srinivasulu in opposite party No.2 hospital was on the choice of complainant and that he was a visiting doctor in the said hospital and attends only on patients, he admits in the hospital. He submitted that he is not paid by the hospital. He submitted that the patient came to him at about 7.30 p.m. on 17-3-1998 at opposite party No.2 hospital complaining pain along with right side of neck radiating to right arm and right side of chest in distribution of C5, C6 dermatomes. During history, the patient told him that he was suffering from the said pain since six months and it was continuous and aggravated since 4 days. The patient informed him that he was under treatment of Dr.Nagraj, M.D.Physcian & Cardiologist for the said pain and as he was not revealed of the same, he approached opposite party No.1. Opposite party No.1 submitted that the patient told him that he consumed alcohol regularly and when he advised E.C.G. the patient refused to take the same since he already took E.C.G., x-ray at advice of Dr.Nagaraj and cervical spine showed narrowing of intervertebral disc space at C5-C6 level. Since the patient was suffering from severe pain and not relieved by previous treatment , he advised bed rest since strict bed rest will relieve the pain by admitting himself. in the hospital. Opposite party No.1 submitted that since the patient was diabetic he referred him to Dr.Tirumalachari, Professor of medicine and a Diabetologist, who examined him and advised to take insulin from next day onwards before breakfast. He submitted that the drugs prescribed by him are only analgesic at the lowest dosage level and a routine treatment followed in the neurosurgical cases for severe pain due to cervical disc. He submitted that the patient was admitted on 17-3-1998 at 9.45 p.m. in general ward. Fortwine injection was given at 10.30 p.m. and he again visited at 11.45 p.m. visited the patient and as he told him that he was feeling better after the injection. He denied the allegation made in the complaint that he was admitted in the hospital between 10 and 11 AM on 17-3-1998 and submitted that he admitted at 9.45 p.m. on 17-3-1998. He denied that the patient again woke up in the night and no duty doctor attended him and that he gave instructions to the nurse that he could not be disturbed in the night. He also denied that the nurse had given sedative to the patient. He submitted that when the patient complained pain, injection Contramol 1 amp was given intramuscularly at 4.30 a.m. which is also an analgestic drug without any sedative action and as soon as the duty doctor inform him, he rushed to the hospital at 5 a.m. and examined the patient and took all resuscitative measures including external cardiac massage, throat suction, O2 administration and asked the duty doctor to continue the same and went to ICCU for making arrangements for shifting the patient for further resuscitative measures. Dr.Vasanth Kumar, Cardiologist came and artificial respiration was given in ICCU and all resuscitative measures failed. He denied that he pronounced the patient died at 5.00 a.m. and submitted that there is no need to call anesthetist as Dr.Vasanth Kumar himself attended and all the paramedical staff in ICCU are well trained in resuscitative procedure. He submitted that it is false to state that the opposite parties failed to monitor the condition of the deceased and submitted that no sedatives were to the patient . He further submitted that the complainants did not give any complaint against the opposite parties or any notice demanding compensation or complainant negligence or deficiency of services. He submitted that no postmortem was done and submitted that if really they were responsible for the incident, the complainant would not kept quite since long time and submitted that there is no positive evidence. He submitted that the case sheet shows that the deceased hospital stay was less than 12 hours and the patient was examined properly, necessary tests were suggested and proper care taken. He submitted that he attended the patient thrice in less than 12 hours as admitted by the complainants and submitted that the patient is diabetic moderately obese and died due to pre-existing disease i.e. diabetes and not due to drugs administered. He submitted that diabetics are prone for autonomic neuropathy and sudden cardiac arrest and denied medical negligence and prayed for dismissal of the complaint.
Opposite party No.2 also denied deficiency in medical services in the treatment given to the deceased and submitted that the patient was admitted on 17-3-1998 at 9.45 p.m. and denied that he was admitted on the same day between 10 to 11 a.m. It denied that the duty nurse had injected medicines improperly and excessively resulting in complications and leading to death and submitted that it is false to state they are running the hospital with unqualified nurse and failed to post duty doctor or night emergencies and take immediate measures to save the deceased. They denied that the carelessness and casualness of their staff resulted in death of the deceased and submitted that there was no negligence. They submitted that they appointed only qualified and trained nurses and is one of the best hospitals and has duty doctors and 22 staff nurses working in it and all are qualified and experienced and adopted the written version of opposite party No.1 in other respects and prayed to dismiss the complaint.
Opposite party No.3 pleaded ignorance of the deceased undergoing treatment with opposite party No.1 and the demise of the patient was due to any deficiency of medical services of opposite party No.1. They submitted that the allegations mentioned in the complaint pertain to opposite party No.1 and opposite party No.2 and the complainants can claim amount from opposite parties 1 and 2 and not from them as there is no cause of action. They admitted that they issued a Professional Indemnity Policy No.051100/46/34/42362 to opposite party No.1 and submitted that there is no contract between them and the complainants. They submitted that the complainants have to claim the amount from opposite parties 1 and 2, if the deceased died in opposite party No.2 hospital due to negligence of opposite party No.1. They submitted that the claim of the complainants is barred by limitation and also filed additional counter alleging that the complainants are not entitled to seek any relief against them as opposite party No.1 has taken professional indemnity and the indemnity applies only to claims arising out of injury or death of any patient caused by error, omission or negligence in professional services rendered by the insured. In this case the insured i.e. opposite party No.1 denied negligence. If the complainants establish their case against opposite party No.1, they must recover the amount from the insured only and the insured can claim re-imbursement from them by fulfilling the conditions and prayed to dismiss the complaint.
Based on the evidence adduced i.e. Exs.A1 and A2 and B1 and B2 and deposition of P.W.1 allowed the complaint directing opposite parties 1 and 2 jointly and severally to pay Rs.4,95,000/- together with costs of Rs.5,000/- and dismissed the complaint against opposite party No.2. Further taking into consideration, the dependency of the complainants on the earnings of the deceased and possible tenure of their dependency and in the interest of their future welfare, the amount awarded as compensation be invested in any Nationalized Banks in the form of fixed deposits to the benefit of the complainants permitted them to enjoy its periodical interest jointly at least for the period the minor complainants 3 and 4 becomes major and thereafter divide among the survivors equally.
Aggrieved by the said order, opposite party No.1 preferred F.A.No.672/2005 and opposite party No.2 preferred F.A.No.722/2005.
The facts not in dispute are that the patient visited opposite party No.1 at 7.30 p.m. on 17-3-1998 in opposite party No.2 hospital and he examined him in detail. The learned counsel for the complainants submitted that the patient complained of severe pain in the right shoulder and went to Dr.Thirumalachari who referred him to Dr.N.Srinivasan contended that he complained of pain along with right side of neck radiating to right arm and right of chest in distrubutionof C5-C6 dermatomes. The learned counsel for the complainant in his written arguments submitted that the patient was a tailor and was only 39 years old and was a diabetic and was admitted in opposite party No.2 hospital on 17-3-1998 and at 11.15 p.m., opposite party No.1 gave him an injection and left the hospital giving instructions to the duty nurse. It is the complainants’ case that at about 12.30 a.m. on 18-3-1998 when the patient complained of pain, the duty nurse only gave pain killers and there was no duty doctor available in opposite party No.2 hospital. The complainants further submit that the patient was examined by opposite party No.1 at 5.00 a.m. and was pronounced dead but thereafter at about 6.15 am. some movements were noticed in the body and this was brought to the notice of the doctor and thereafter he took the patient to I.C.C.U. and declared him dead at 7.15 a.m. The learned counsel for the appellants submit that there was a correction in the death extract i.e. Ex.A1 and that opposite party No.1 did not consult any Endocrynologist/ Diabetologist even though the patient was diabetic and the affidavit of opposite party No.1 doctor dated 31-12-2002 is contrary to the affidavit of Dr.Tirumalachary, who has referred the patient to opposite party No.1. The learned counsel for appellant/opposite party No.1 submitted that opposite party No.1 attended the patient through the night and monitored the situation of the patient and the patient had informed the appellant at 11.30 p.m. that the pain reduced and he was improving. Opposite party No.2 hospital had facility of I.C.C.U. for cardiac treatment and a full time Cardiologist, Dr.Vasanth Kumar and also consultant doctor, Tirumalachary, who is a Professor and expert diabetologist. The learned counsel for opposite party No.1 submitted that opposite party No.1 doctor was present in the hospital at 5.00 a.m. and shifted the patient to I.C.C.U, incharge of Dr.Vasanth Kumar, Cardiologist, who took over the patient’s treatment and gave resuscitation and artificial respiration and therefore there is no negligence on their behalf. We observe from the record that the medicines admittedly prescribed by the appellant were injection Fortwin 1 amp., Inj. Phenargan 1 amp. Intramuscularly, Tab Trypatmer 10 mg. and Tab. Diwan 1 tablet twice daily and anit-diabetic treatment. The case sheet does not state that any x-ray, E.C.G or any other investigative tests were done when admittedly the patient, who is only 39 years old joined the hospital for pain in the right neck and cervical disc problem. There is nothing on record to state whether any investigative tests were done prior to starting treatment. As seen from the case sheet, even the basic E.C.G. was not done, the patient complained of chest pain at 4.50 a.m. as per the case sheet and at 5.00 a.m. he developed convulsions and gasping. The patient was shifted to I.C.C.U. At 6.00 a.m. the case sheet itself shows that there was one hour gap in shifting the patient to I.C.C.U. when the writing at 5.00 a.m. was as follows:
B.P.not recordable
Pulse not palpable
Heart sounds feeble
There are no substantial grounds offered by the appellants as to why the patient was shifted to I.C.C.U. only at 6.00 a.m. as per their own record. The death extract i.e. Ex.A1 shows a correction as to the time of death which has been corrected to 7.15 a.m. We observe from the record that even the basic investigative tests were not done and there is a one hour gap between 5.00 a.m. to 6.00 a.m. in shifting the patient to I.C.C.U.
We also rely on the decision of the Apex Court in Dr.Laxman Balkrishna Joshi v. Dr.Trimbak Bapu Godbole and Anr. reported in (1969) I SCR 2006 a Landmark judgment on medical negligence. In this case the death of patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthesia to the patient. In this case the court discussed the duty of care a doctor should undertake
a) A duty of care in deciding whether to undertake the case
b) A duty of care in deciding what treatment to be given
c) A duty of care in the administration of that treatment
Therefore, in the light of the evidence adduced and the aforementioned judgements, we conclude that the appellants have not taken proper care as per the standards of normal medical parlance and we find no reason to interfere with the well considered order of the District Forum. However, we direct opposite party No.3, insurance company to indemnify as per the terms and conditions of the policy.
In the result these appeals are disposed of, while confirming the order of the District Forum against appellants i.e. opposite parties 1and 2 with a direction to the insurance company i.e. opposite party No.3 to indemnify as per the terms and conditions of the policy.
PRESIDENT. LADY MEMBER.
Dt.29-10-2008
