KERALA STATE CONSUMER DISPUTES REDRESSAL COMIISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
COMMON APPEAL No 710/11, 837/11
JUDGMENT DATED 31.05.2012
PRESENT
SHRI. M.K. ABDULLA SONA : HON. MEMBER
APPEAL 710/2011
APPELLANT
Roshan P. Johnson,
Pareparambil House, Kanjiramattom P.O.,
Ernakulam Pin 682 315
(Rep. by Adv. T.L. Sreeram)
RESPONDENTS
1. Al-Shifa Educational & Charitable Trust,
Rep. by its Chairman,
C/o Al-Shifa Super Speciality Hospital for Piles,
Rajaji Road, Near KSRTC, Kochi- 682 035.
2. Alshifa Super Speciality Hospital for piles,
Rajaji Road, Near KSRTC, Kochi – 35
Rep. by its Chairman & Managing Director, Dr. Shajahan Yoosaf Sahib
3. Dr. Shajahan Yoosuf Sahib,
Chairman & Managing Director,
Al-Shifa Super Speciality Hospital for piles,
Rajaji Road, Near KSRTC, Kochi – 682 035
4. Dr. Sreenathan Nambiar,
Medical Officer, Alshifa Super Specialty
Hospital for Piles
Rajaji Road, Kochi – 35
(Rep. by Adv. Smt. Preetha John K & R. Suja)
APPEAL 837/2011
APPELLANTS
1. Al - Shifa Educational & Charitable Trust,
Rep. by its Chairman,
Rajaji Road, Kochi-35.
2. Alshifa Super Speciality Hospital for piles,
Rajaji Road, Kochi – 35
3. Dr. Shajahan Yoosuf Sahib,
Chairman & MD
Alshifa Super Speciality Hospital for piles,
Rajaji Road, Kochi – 35
( Rep. by Adv. Smt. Preetha John K & R.Suja)
Vs
RESPONDENTS
1. Roshan P. Johnson,
Pareparambil House, Kanjiramattom P.O.,
Ernakulam Pin 682 315
2. Dr. Sreenathan Nambiar,
Medical Officer, Alshifa Super Specialty
Hospital for Piles
Rajaji Road, Kochi - 35
(R1 Rep. by Adv. Sri. Sunil Nair & P.V. Varghese )
JUDGMENT BY HON. MEMBER M.K. ABDULLA SONA
Both appeals prefers from the order passed by the CDRF, Ernakulam in C.C. No. 422/08 dated 31st August 2011. The appeal No. 710/11filed by the complainant for enhancement of the amount ordered by the Forum below and also to fix the liability also upon the forth respondent (forth opposite party). Appeal No. 837/11 preferred by the first opposite party and others for setaside the impugned order passed by the Forum below.
2. The Forum below ordered “item No. 10 concluded in view of the discussions they have and so far made, they allowed the complaint in the following terms:
1) Opposite parties 1 to 3 shall jointly and severally pay Rs. 25,000/-
to the complainant towards charges incurred by him by way of
treatment in the 2 hospitals.
2) Opposite parties 1 to 3 shall jointly and severally pay Rs. 75,000/-
to the complainant towards compensation for mental agony and
physical pain and discomfort.
3. The opposite parties 1 to 3 shall jointly and severalty pay Rs. 5,000/- to the complainant as the cost of the proceedings in the Forum. The appellant/opposite parties prefers from this order to setaside this order passed by the Forum below and appeal No. 710/11 prefers from the above impugned order for the enhancement of the compensation and also to fasten joint liability also to the forth respondent/opposite party.
4. On this day this appeal came before this Commission for final hearing, both counsels for the appellant and respondents for the above mentioned appeals are present and argued their own cases vehemently on the basis of the grounds of appeal memorandum.
5. The cause of action of the case is very same and it proved as the complainant who was suffering from the decease, piles for the past 4 years as it is happened to see at the advertisement of the opposite parties 1 and 2 published in leading newspapers induce by the promise made in the said publication he approached the second opposite party hospital and slipped the 3rd opposite party doctor the 3rd opposite party advised him complete cure and advised him to undergo laser therapy to get complete healing. Accordingly he underwent research which eventually proved to be a colossal failure in as much as consequent upon the said treatment he was made to face physical problems one after another making life miserable for him. When there was a profuse bleeding at the spot of the procedure then he was referred to The Medical Trust Hospital where his condition improved much. Still he is suffering a lot due to the failure of the laser treatment he undergone at second opposite party’s hospital. He alleged that the failure was due to the deficiency in service on the part of the opposite parties for which he has seeking various relief in the complaint.
6. In the version; on behalf of the first opposite party, laser procedure is admitted to have been done to the complainant as part of the treatment for hemorrhoid. It is an accepted mode of treatment. The Medical Team consisting of Dr. P.C. Joseph, Dr. Philomina and Dr. Shahjahan, the 3rd opposite party has carried out the procedure with at most care, skill and caution. The anal structure is a known complication of Laser hemorrhoidoctomy. It was corrected by violation under local xylocine gel. Unfortunately he later developed sudden bleeding and he was referred to Medical Trust Hospital for better treatment.
7. The opposite parties 1 to 3 have denied the allegation regarding the qualification of doctors. The 3rd opposite party is DHMS holder and had sufficient training and experience in the field of proctology using radio frequency. In the same way doctor P.C. Joseph also is well qualified in the field. The 3rd opposite party was having Diploma in homeopathic medicine is recognized medical qualification by government of Kerala from June 1974 on wards. Lasery is never treated as a branch of modern medicine. The 3rd opposite party has also produced judgments of the Sub court of Cherthala in O.S. No. 125/06 declaring that the 3rd opposite party is qualified to follow non surgical and non invasive treatment such as High Frequency Laser Treatment. No expert evidence is elicited to show that the exact nature of deficiency in service or negligence on the part of the opposite parties. In that view of the matter the opposite parties 1 to 3 prays to dismiss the complaint with costs.
The forth opposite party has submitted separate version in support of his opposition to the allegations raised against him in the complaint. whether the opposite party is not by service of second opposite party hospital now. At the relevant period he was only a respective medical officer at the second opposite party hospital and he is not a surgeon. The forth opposite party who has no role in either admission or in discharge of the patient including the complainant has closely examining the complainant as R.M.O. He is not subjected the complainant for surgery in the hospital. He was examined and admitted that the complainant and identified his disease was Piles. When the complainant approached him later with severe pain and other problem, the forth opposite party advised him to approach another hospital for better treatment. It is not proved that the complainant was subjected to surgery in the hospital only laser treatment with most modern sophisticated measures is done to the 3rd opposite party. The forth opposite party is not assailed to the adversities made by 3rd opposite party as the former is only an employee in the second opposite party hospital. Therefore the limited prayer in his version is to dismiss the complaint against the 4th opposite party with costs.
8. The evidence consisted of oral testimony of the compliant, who examined as Pw1 and marked document Ext. A1 to A28. A witness was also examined from the part of the complainant Pw2, Dr. Rajesh C.N. On the otherside examined a witness Dr. P.C. Joseph and marked Ext. B1 and marked the case sheet as Ext. X1 and X1(a) respectively.
The forum below raised contentions mainly:
1) Whether the Laser Therappy conducted on the complainant was above boards?
2) Whether the 3rd opposite party is qualified enough to conduct laser therapy?
3) Whether there was any unfair trade practice committed by the opposite parties?
4) What are the allowable reliefs if any
9. The Forum below answered each points separately on the basis of the evidence adduced by both sides.
10. Heard both sides in detail.
11. Finally the Forum below reached in a conclusion that the opposite parties 1 to 3 were deficiency in providing medical service to the complainant, the only question that seems to be answered is as to the quantum of compensation, awarded to him as per the Ext. A8 to Ext. A27, period to the expenses incurred by the patient by way of the treatment in Alsifa and Medical Trust hospital that even though the complainant has stated in the complaint that he has incurred Rs. 1lakh for his treatment. It is safer to rely Ext. A8 to Ext. A27 bills to calculate expenses and other incidental charges approximately as Rs. 25,000/- As per Ext. B1 Hospital records disclosed the physical pain discomfort and probable mental agony suffered by the patient due to the failure of the laser procedure. Moreover at page No. 10, Ext. 11, the hospital records were sent by the patient was recorded. It is stated that it verified to the Annal canal may record also control over bowel activities is lossed to some extent. All these lingering fears will necessary laid him to severe mental pain, anxiety and may develop even the tendency to avoid company of fellow being. It is indeed a miserable situation to a young man who is a bachelor. Therefore the Forum below did not think that the compensation of 75,000/- is not on the higher side given his young stage and also taking into account his single marital status. The opposite parties 1 to 3 will pay as cost Rs. 5,000/- to the complainant. The Forum below dishonorated the forth opposite party from the liability under the head of deficiency in service and unfair trade practice.
12. Both counsels for the appellants as well as respondents respectively in the each appeals argued the cases in total on the basis of the grounds of appeal memorandum. The appellant in 710/11 submitted that the Forum is not having any jurisdiction in the matter of exoneration given to the 4th respondent from the liabilities. The 4th respondent , Medical practitioner is ethically bound to here inform the appellant forthwith his observation on the issues. He was in the team of the doctors who examined the appellant. If he was not satisfied with the progress he had duty bound to communicate his view and opinions had realized to the appellant/complainant. He has admittedly and apparently failed in such measures. Hence he is liable to be directed to pay an amount along with the respondent 1 to 3. Hence the finding regarding exoneration of the 4th respondent is liable to be interfered . Another contention raised by the appellant in this appeal ordered very minor amount as hospital expenses and compensation for pain and sufferings. He prays to enhance the hospital expenses, to Rs. 1,00,000/- and also award to enhance the pain and sufferings Rs. 1,75,000/- and also award interest on the above amount @ 12% per annum at least allowing of the complaint, in the interest of the justice by allowing of the appeal. The counsel also prays for Rs. 10,000/- as cost of the appeal proceedings. On oither side the counsel for the appellant/opposite parties argued in the appeal No. 837/11 on the basis of the appeal memorandum that the order of the Forum below is contrary to the well settled position of law and evidence and unsustainable in the light of a proper scrutiny. The Forum below ought to have found that the case of the first respondent could well within the scope of the accepted post surgical complication experienced by many a patient for reasons other than the deficiency in service or negligence in the diagnosis as well as medical pre surgical and post surgical procedure and care. The Forum failed to appreciate the fact that the anal stricture or stenosis is not a permanent or irreversible disability but only a passing phase in the post surgical condition to some patient in no way could be attributed to medical negligence or in efficiency or in sufficient medical procedure. It is a curable and remediable condition by anal dialation using finger dilator, laser or surgery
Anal incontinence is also not permanent disability filing hemerrhoidectomy either surgical or laser. The Forum below has absolutely failed to take rest which is justification upon any unambiguous finding of fact as per the verdict of the Forum as seen on the phase of verdict itself is often doubtful, ambiguous and lacks clarity and precision in almost all points like identification of doctor, his qualification whether excess anal tissue was cut and removed and whether bleeding developed due to defective treatment etc. The Forum below also has without any basis entered in to an erroneous finding, the Ext. B1 shows that doctor conveyed to the first respondent that he may encounter with difficulty in defecation and may even loose control over his bowl activity forever which is against facts as no such statement would find any place in Ext. B1.
13. The Forum below has absolutely failed to take in to consideration the fact that the prescribed medical procedure to be availed in case of a patient in a decision solely upon the wisdom and discretion of the doctor who exercises it in the benefit and welfare of the patient in good faith. Nothing has been out in the case the first opposite party just indicative of any irrational inactive or negligent and contributable to the doctor. The Forum below has failed to appreciate the modus and functions of the lacer and its impact upon the patient. In laser only blood supply is cut of by heat and piles mass shrinks in one week and reaches the normal stage in one months time. The Forum below has awarded the damages without being satisfied by itself that any excess anal tissue was removed by laser treatment. The Forum below ought to have found that the treatment on the complaint was done by Doctor P.C. Joseph retired surgeon having sufficient training in laser treatment along with 3rd appellant and another doctor. Even though doctor who did laser treatment on the complainant has deposed before the Forum below as Dw1 that he has done the treatment the Forum is in doubt about the identification as well as the qualification of the doctor who had done the laser treatment. In this case the first respondent has no complaint against doctor P.C. Joseph who had done laser treatment on him. The Forum below ought to have found that on 29.2.2008, the first respondent subjected to sigmoidoscopy at Medical Trust Hospital, Cochin of anal canal was admitting one finger dialatation and sigmoidoscopy was passed up to 15 centimeters vide as per the Ext. X1 case sheet. But on examination Pw2 had deposed that the patient has complete stenosis not even admitting one finger which is against entries in Ext. X1. The counsel for the appellant submitted that the order passed by the Forum below is not accordance with the provisions of law and evidence. It is not legally sustainable. The Forum below did not consider the crucial question that whether the doctor concerned who committed any specific due care and caution during the application of lacer therapy. The counsel for the appellant submitted that the Forum below have no clear idea about lacer treatment. The Forum considered it is a surgery.
14 We this Commission heard in detail both parties and perused the entire documents available in the case records and papers and decisions submitted by both parties and discussed the fact and circumstances and evidence of this case elaborately.
15. The contents of the complainant developed stenosis due to careless and negligent treatment given by the opposite parties
3 and 4. They also contended with their version that the procedure adopted by the opposite parties was nothing but surgery even if a new instrument namely laser beam is used in the place of scalpel. The complainant was having 3rd degree piles. The allegation in the complaint is that the opposite party doctor, who had treated the patient but the DW1 was deposed in the box that in the operation theatre the 3rd opposite party and Dr.Rani would be there apart from him. But in the version filed by the 4th opposite party he has stated that piles operations are conducted by the 3rd opposite party only. The procedure done to the complainant was no exception. Thus the dispute begins with the identification with the doctor who had done the procedure. It is agreed the settled position given by the apex court of the country regarding the burden that to prove the medical negligence is on the hands of the complainant in a prima facie case. But as per the principle of resipsa liquator, it is the burden of the members of the profession to prove that they given proper diagnosis and careful approved treatment to the patient. But in this case the surgery of the complainant is admitted by all the opposite parties without any hesitation, they also admitted that there was an application raised from same day to the patient/complainant with in the hospital and they shifted the patient to the Medical Trust Hospital for crisis management. And the evidence of the DW1 Dr. P.C Joseph M.S is contradicting the version of the 4th opposite party.
16. The 4th opposite party has submitted separate version. He deposed otherwise and contrary to other. But the 4th opposite party is not in the service of 2nd opposite party hospital at the time of filing the complaint. He is not a surgeon. The 4th opposite party has no role in either the admission or discharge of the patients including the complainant. He has only examined the complainant as RMO (Research Medical Officer) he has not subjected to the complainant to the surgery in the hospital. It is admitted that he examined the complainant, and identified his disease as piles in the 2nd O.P. hospital. When the complainant approached him later with severe pain and other problems, the 4th opposite party advised him to approach to any other hospital for better treatment. It is not true that the complainant was subjected to surgery in the hospital. Only laser treatment with most modern sophisticated machine is done by the 3rd opposite party. The 4th opposite party is not a party to the advertisements made by 3rd opposite party as a former is only an employee in the 2nd opposite party hospital. Therefore the limited prayer in the version of the 4th opposite party is dismissed the complaint filed against him.
17. The complainant approached to the opposite party hospital and others only on the basis of the advertisement published by the 1st and 2nd opposite parties hospital. This advertisement is marked as Ext.A7 documents. This is a full page advertisement appeared in a leading newspaper. In the Ext. A7 advertisement it is clearly stated that [[=OHa CIU8 \*CJ^ =u8UBWATBU "L7T*WJ^ “Alsifa Educational and Charitable Trust” and it is given in the advertisement that:-
$N5_BUDT:_ATBU 5U1UpO [L*a3BUO Ha*TN H]1<_^&
EU\:F =CUFVD<^ \<3UB EU:,a; \5T*a3MATCW[3 \HE<^&
FHa`8`*UB #EF_AUDc
#FW=`8UBUO *U3\dt8UDc&
#8WC\HE<C^,[f AU*/b H^@TE<BadWm =WCHa*TChP&
18. Medical team included in the name of the 3rd opposite party Dr. Syed Ali and his qualification is MBBS MD, DGO and his qualification in the field of laser therapy also given in the advertisement along with other doctors. The complainant was having a strong case that the operation was conducted by the 3rd opposite party. The version of the 4th opposite party is corroborating the allegation of the complainant. The allegation of the complainant is that the laser surgery was done by the OP3 and not Dr. P.C. Joseph. The DW1 Dr. P.C. Joseph M.S admitted that OP3 also with him in the operation theatre and the treatment was done by him to the complainant. He deposed before the Forum below that he knows OP3 doctor and he confirmed the qualification of Dr. Syed Ali. The document produced by the part of the opposite parties which is a document issued by the board of government examinations in Homeopathic medicine and surgery, Government of Kerala. As per this document the Shahjahan Yousaf Sahib, MD hospital in the diploma in Homeopathic medicine and surgery. A registration certificate was given to him and as per the documents it is seeing that the qualification of Dr. Joseph in laser treatment of colorectal disease in the internal and external immortals, fistula, fissures and assessed the clinical condition. The Lonostar health care group centre for pain management has given a certificate. This certificate is not having any seal and barcode etc. It is a down loaded paper from the computer website. It also seen that the qualification given to OP3 by an engineering association from Delhi for the treatment of laser therapy or laser surgery. As per the document, version and case sheets are contradictory to one another about the treatment procedure of the complainant by the opposite parties. The opposite parties did not prove conclusively that the opposite parties are qualified in the treatment of laser therapy or surgery for piles from a recognized and approved body. The presence of the PW3 along with Dr. Rani is admitted by the DW1 Dr. Joseph as per the documents and version it is seeing that OP4 also having some participation in the admission of the patient, medical examination etc of the complainant in the hospital. But it is mentioned in the judgment by the Forum below that OP4 was not serving at the time of file the complaint in the opposite party hospital. But in the version and as per the deposition of DW1, it is clearly admitted that he was present at the time of the treatment of the complainant. It is proved that 4th O.P. given some treatments to the patient/complainant. We don’t know how the Forum below dishonorate the OP4 from the liability of the payment of the compensation. Another interesting aspect is that either the complainant or the opposite parties did not take any steps to examine the doctor who treated the complainant in the Medical Trust Hospital eventhough after the complainant who was having same crisis situation in the 1st and 2nd opposite party hospital due to the operation in 2nd O.P. Hospital. It admitted both parties. It also the duty of the opposite parties to cite a treated doctor as a witness from the Medical Trust Hospital, they already referred the patient to that hospital. The 1st and 2nd opposite parties and other opposite parties referred the complainant/patient to the Medical Trust Hospital. As per records and deposition of the opposite parties and DW1, we are seeing that there were shadow plays staged inside the hospital regarding the treatment of the complainant. There is no doubt that the opposite parties is in toto committed deficiency and unfair trade practice according to the available evidence as per the provisions of the Consumer Protection Act. It is seeing that ever so many diplomas awarded by the prohibited institutions such as Alternative Medical University Kolcutta etc. The Ext. A7 document is an advertisement is nothing but an unfair trade practice committed by the opposite parties. The Medical Council of India strictly prohibited such advertisement. It is violation of the ethics of the dignified profession and they answerable to the Medical Council. The hospital is not a business concern. It is a service providing center to the human beings. The doctors are taking Hippocrates oath who is considered as the Great Father of the Modern Medicine. But such members of the dignified profession is committing deficiency in service and unfair trade practice. This type of members of the glorified profession may be lesser but it is enough to degrade the entire profession. Anybody become a patient in any moment, some time he may be ruler or the doctor himself, or any of the dignitaries irrespective of positions and status. It is the best principle to apply empathy. The Forum below did not ordered any compensation under the head of unfair trade practice as per Ext. A7 advertisement. The opposite parties severally and jointly committed unfair trade practice. It is against the professional ethics. We are not in a position to pick and chose anybody from the joint liability. The view of the Forum below is not legally sustainable as per the settled position of the Supreme Court. Even the presence of a doctor in the hospital and who provided any service with or without the consent and connivance of the premises of the hospital, that hospital or nursing home is liable for any wrongful act committed by such a doctor. In this case, the appellant in 710/2011 is the complainant is asking more amount for compensation than the Forum below ordered. But we are not seeing any evidence to support such a prayer. It is a mere allegation about his permanent disability regarding the day to day activities due to the negligence and carelessness committed by the opposite parties due to careless treatments. A further treated doctor of the complainant is not a witness before the Forum below. They did not produce any disability certificate from any competent medical authorities to show that he was completely disabled and held up without doing any work at home. In the absence of such evidence the fact finding bodies cannot be done any thing to the complainant. We considered his difficulties sustained by him due to the wrongful act of the opposite parties. We decided to interfere and to modify the finding and the result portion of the order of the Forum below for the interest of justice. It can not be allowed any person or persons in the shadow of the medical profession to treat a patient as a commodity for just trading. Nobody is bothering about the pitiable conditions of the patients. Unfortunately they are unorganized lakhs and lakhs. They are also the citizens of India.
In the result, Appeal No. 837/11 is dismissed and appeal 710/11 is allowed in part. By consider the facts circumstance and evidence of this case we this commission directed the opposite parties 1 to 4 shall jointly and severally pay Rs.25,000/- to the complainant under the head of the unfair trade practice, according to the Consumer Protection Act. We fixed the liability to the 4th opposite party doctor also. We modified the order accordingly.
1. The opposite parties are directed 1to 4 jointly and severally
to pay Rs.75,000/-to the complainant towards
compensation or mental agony and physical pain and
discomfort.
2. The opposite parties 1 to 4 are jointly and severally pay Rs.5,000/- to the complainant as cost of the proceedings for the Forum below.
3. The opposite parties 1 to 4 shall jointly and severally pay Rs.25,000/- for committing unfair trade practice by publishing the advertisement through violating the medical ethics as per Ext. A7 under the provision of Consumer Protection Act.
4. The registrar of this commission is directed to send the copy of the judgment to the Medical Council of India, New Delhi to take necessary and appropriate disciplinary actions against the members of the counsel regarding the violation of medical ethics as per Ext. A1 advertisement for the interest of the justice.
The points of the appeal discussed one by one and answered accordingly. There is no cost for both appeals ordered. We do so.
( Dictated to the C.A. typed , corrected and pronounced by me in the open court)
M.K. ABDULLA SONA : HON. MEMBER
ST
