BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 235/2001 Filed on 01.06.2001

Dated : 30.07.2010

Complainant:

Vasantha, W/o Sasi Kumar, 'Kailas Bhavan', Kavalloor, Vattiyoorkavu, Thiruvananthapuram.

(By adv. K.P. Jayachandran)

Opposite parties :

1. Sree Ramakrishna Charitable Hospital, Sasthamangalam, Thiruvananthapuram represented by its President/Director.

    

2. Dr. Sreekesh. N.S, Sree Ramakrishna Charitable Hospital, Sasthamangalam, Thiruvananthapuram.

(By adv. K. Murlidharan Nair)

This O.P having been taken as heard on 30.04.2010, the Forum on 30.07.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant came to 1^st opposite party's hospital on 28.09.2000 with complaints of headache, dental carris and vomiting, that she was attended and examined by doctor in charge of ENT OP and it was diagnosed as Dental Carris and she was given some pain killer tablets and advised to consult the Dental O.P after 3 days, that she went to Dental OP on 02.10.2000 and she was attended by 2^nd opposite party, that on examination the 2^nd opposite party extracted the first premolar in her left upper jaw holding it to be the cause of the headache. Thereafter complainant suffered abnormal sore and numbness all over the head, pain escalated, lost sight of her left eye as her left eye-lid was smoothered with swelling, that immediately complainant was taken to 1^st opposite party, but unfortunately the 2^nd opposite party who attended her was not available there on that day, that other doctors in 1^st opposite party hospital declined to attend the complainant, that they advised her to continue the medicines as per the prescription, that thereafter complainant went to Government Hospital, Peroorkada on 05.10.2000 wherein she was admitted and certain medicines were administered and finally she was referred to Medical College Hospital and treated her therein, that there was no change in her ailment, she was admitted in Sreechithra Medical Centre and MRI scan was taken, thereby it was revealed that there was deviation of the artery, she was subjected to a surgery on 29.12.2000. On 03.01.2001 she was discharged from Sreechithra Medical Centre without any change in her ailment. Complainant lost sight of her left eye. She met with such disastrous fate solely due to the negligent and reckless act of the 2^nd opposite party and other doctors working under 1^st opposite party hospital. Hence this complaint to direct opposite parties to pay a sum of Rs. 5,00,000/- towards compensation for injuries and loss sustained by the negligence of opposite parties.

Opposite parties filed version contending that the complainant came to 1^st opposite party hospital with complaints of headache and dental carris on 28.09.2000, that she was initially seen by Dr. Sreejith N. Kumar, Physician who prescribed medicines for headache and referred her to the 2^nd opposite party, since it was a case of dental carris, that 2^nd opposite party saw the complainant in the dental OP. She complained of pain in the teeth in the right upper jaw and she was diagnosed as having caries. Medicines were prescribed to reduce the pain and she was asked to come after 3 days for follow up. On 02.10.2000 complainant came to dental OP and was seen by the 2^nd opposite party. A molar tooth from right upper jaw of the complainant which most grossly carious, was extracted by the 2^nd opposite party, that the extraction was uneventful and there were no abnormal symptoms, that tooth extraction was done after applying local anaesthesia. Opposite parties denied the allegation that complainant was brought to the 1^st opposite party hospital on 03.10.2000 and other doctors declined to treat the complainant on account of the absence of the 2^nd opposite party. The records of the 1^st opposite party hospital showed that complainant did not visit the 1^st opposite party hospital as a patient between 03.10.2000 and 10.10.2000. All contentions to the contrary are denied as being wholly false. Opposite parties assert that complainant was treated with due care and caution and with reasonable degree of expertise by the 2^nd opposite party. There was no negligence or want of care in the treatment given to the complainant at 1^st opposite party hospital. Complainant is not entitled to any relief whatsoever. Hence opposite parties prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether there is negligence and deficiency in service on the part of opposite parties in giving treatment to the complainant?

2. Whether the complainant is entitled to compensation? If so, at what quantum?

3. Whether the complainant is entitled to get cost?

    

In support of the complaint, complainant has filed affidavit in lieu of chief examination as PW1 and has marked Exts. P1 to P7. Complainant has been cross examined by opposite parties. In rebuttal, 2^nd opposite party has filed affidavit as DW1 and DW1 has been cross examined by the complainant.

Points (i) to (iii):- Admittedly, on 28.09.2000, complainant came to 1^st opposite party hospital with complaints of head ache, dental carris and vomiting. It has been the case of the complainant that she was attended and examined by the doctor in charge of ENT OP and it was diagnosed as “Dental Carris” and she was given some pain killer tablets and was advised to consult dental O.P after 3 days and accordingly she came to the Dental OP on 02.10.2000 and she was attended by the 2^nd opposite party. It has also been the case of the complainant that on 02.10.2000, 2^nd opposite party on examination had extracted the premolar in her left upper jaw holding it to be the cause of the head ache, thereby complainant suffered abnormal sore and numbness all over the head, pain escalated, lost sight of her left eyes as her left eye lid was smoothered with swelling, which was brought to the notice of the opposite parties, but opposite parties declined to attend the complainant, that on 05.10.2000 complainant went to the Government Hospital, Peroorkada, wherein she was admitted, and certain medicines were administered and finally doctors referred her to Medical College, Thiruvananthapuram and treated her therein and since there was no change in her ailment, the complainant was admitted in Sree Chithra Medical Centre and by MRI Scan it was revealed that there was deviation of artery and she was affected with craniotomy and surgery was done on 29.12.2000, that even after surgery, there is no improvement in her ailment, and suffering as her left eye remained closed. According to complainant the loss of sight of the left eye is solely due to the negligent and reckless act of the 2^nd opposite party and the other doctors working under the 1^st opposite party hospital. Ext. P1 is the copy of the complainant's O.P card at SRKAC hospital, Trivandrum. As per Ext. P1 (a) dated 28.09.2000 complainant was admitted with complaints of head ache and dental carris and she was attended by Dr. Sreejith N. Kumar. Ext. P2 is the copy of the discharge slip dated 05.10.2000 from Government Hospital, Peroorkada. Ext. P3 is the copy of the referral OP card of the Medical College Hospital, Trivandrum. Ext. P3 is not a readable copy. Ext. P4 is the copy of Medical College reference card. Ext. P5 is the copy of the case summary and discharge card from Department of Neurosurgery, Sree Chithra Tirunal Institute for Medical Science and Technology, Trivandrum. A perusal of Ext. P5 reveals that complainant was admitted on 19.12.2000 and discharged on 03.01.2001, Diagnosis is Rt. PCOM Artery Aneurysm

History : “This 43 years old lady presented with drooping of the right eye on 02.10.2000. She also had double vision. The patient also had history of holocranial headache with vomiting that lasted for 3 days on 27.09.2000”.

Surgery : 29.12.2000 Right Supra Orbit Craniotomy and clipping of P Com Aneurysm. Ext. P6 is the copy of the advocate notice dated 17.11.2000. Ext. P7 is the copy of the reply to Ext. P6 advocate notice sent by opposite parties. It is rebutted by opposite parties that initially complainant was seen Dr. Sreejith N. Kumar, who prescribed medicines for her headache and referred her to the 2^nd opposite party. It was a case of dental carris, that on examination by 2^nd opposite party she was diagnosed as having carris, she was prescribed appropriate medicines to reduce pain and she was asked to come after 3 days, that on 02.10.2000 the complainant again came to the Dental O.P and was seen by the 2^nd opposite party, a molar tooth, from the right upper jaw of the complainant which was most grossly carrious was extracted by the 2^nd opposite party, that the extraction was uneventful and there were no abnormal symptoms and complainant did not make any complaint of anything abnormal. It is argued by opposite parties that tooth extraction was done after local anaesthesia is given. Opposite parties denied the contention that complainant was brought to the 1^st opposite party hospital on 03.10.2000 and that other doctors decline to treat the complainant on account of the absence of the 2^nd opposite party. It is contended by opposite parties that as per the register of the 1^st opposite party, the party had collected the OP Card on 10.10.2000 from the counter and had taken away the card without going to the Dental Outpatient Department, that incidentally there is prohibition against taking away the O.P card, outside the department, printed on the card itself. It is further submitted by the opposite parties that they are not aware as to what treatment had been given to the complainant at the Government Hospital, Peroorkada or elsewhere nor are they aware as to diagnosis made about the alleged condition of the complainant. Complainant has been cross examined as PW1 by the opposite parties. In her cross examination PW1 has admitted that she went to opposite party hospital with complaints of headache and toothache and tooth extraction was done on 02.10.2000. Asked about the original of Ext. P1, she said the original is with her in the house. It is pertinent to point out that there is a warning printed on Ext. P1 “not to be taken outside the department”, but complainant admitted that the original of Ext. P1 is with her. Complainant is bound to explain how did she get the original of Ext. P1 from opposite party hospital. In her cross examination, when asked thus: നിങ്ങളോ നിങ്ങളുടെ ആള്‍ക്കാരോ അനധികൃതമായി ഇതു മോഷ്ടിച്ചതല്ലേ (Q) പല്ലു വേദന കാരണം വലിയ പ്രയാസമായിരുന്നു. Witness did not answer to the question. പല്ല് എടുത്തതിലുള്ള കുഴപ്പം കൊണ്ടല്ല നിങ്ങള്‍ക്ക് ഉണ്ടായി എന്നു പറയുന്ന പ്രശ്നങ്ങള്‍ ഉണ്ടായത് എന്നു പറയുന്നു (Q) ചിത്രയിലെ doctor പറഞ്ഞു. അതിനാല്‍ ആണ് അങ്ങനെ പറഞ്ഞത്. Doctor-ടെ പേര് അറിയില്ല.

Thus in the facts and circumstances mentioned above, the question for consideration is whether the opposite party was negligent in performing the operation of the complainant. Negligence is defined as a tort which is the breach of a legal duty to take care which results in damage, undesired by the opposite party to the complainant. It would comprise existence of a legal duty, breach of legal duty and damage caused by the breach. In a complaint for damages on account of negligence the onus lies on the patient to prove that the doctor (opposite parties) was negligent and the said negligence resulted in the injury which is complained to be compensated. Basically, medical negligence means such negligence resulting from the failure on the part of the doctor to act in accordance with medical standards or vogue which are being practiced by an ordinary and reasonably competent man practicing the same art. Once a doctor accepts a patient this principle became applicable. It may be stated here that to establish negligence on the part of the opposite party, the claimant must show a) what is the standard care, b) on the facts of the case, that opposite party's conduct fell below standard and c) that the same had resulted to some injury to the patient. Expert opinion is the basis for determining medical negligence. Complainant did not produce expert evidence to prove any negligence and deficiency in service on the part of opposite parties. In view of the above, we find opposite party is not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skill and competence. Complaint has no substance, which deserves to be dismissed.

In the result, complaint is dismissed. Parties are directed to bear their costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of July 2010.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 235/2001

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Vasantha

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of the complainant's O.P Card at SRKAC Hospital,

Tvpm.

P2 - Copy of the discharge slip dated 05.10.2000 from

Government Hospital, Peroorkada.

P3 - Copy of referral O.P Card.

P4 - Copy of the medical college reference card.

P5 - Copy of the case summary and discharge card.

P6 - Copy of the advocate notice dated 17.11.2000

P7 - Copy of the reply to Ext. P6.

III OPPOSITE PARTY'S WITNESS :

DW1 - Sreekesh

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT

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