COMPLAINT FILED:26.04.2008 <br /> <br /> 02nd SEPTEMBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1031/2008<br /> <br /> <br /> COMPLAINANT <br /> <br /> B. Narayanaswamy,<br /> S/o. Late Bodappa,<br /> Aged about 59 years,<br /> R/at Kannamangala Village,<br /> Bidarahalli Hobli,<br /> Bangalore – 560 067.<br /> <br /> <br /> Advocate (M. Ramaswamy)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES <br /> <br /> 1. M/s. Sagar Apollo Hospital,<br /> By its Medical Director,<br /> No. 44/54, 30th Cross,<br /> Tilak Nagar,<br /> Jayanagar Extension,<br /> Bangalore – 560 041.<br /> <br /> <br /> 2. Dr. Pratap Kumar Pani,<br /> Consultant Neuro <br /> & Spine Surgeon,<br /> C/o. Sagar Apollo Hospital,<br /> No. 44/54, 30th Cross,<br /> Tilak Nagar,<br /> Jayanagar Extension,<br /> Bangalore – 560 041.<br /> <br /> <br /> Advocate (Dr. S.V. Joga 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 to direct the Opposite Party (herein after called as O.P) to pay a compensation of Rs.4,90,000/- and for such other reliefs on an allegations of medical negligence and deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant went to OP.1 hospital for the removal of already inserted plate in the Hosmat Hospital on 09.02.2008. After studying the condition the concerned Doctor OP.2 advised him to get admitted as he has to undergo some operation. He was subjected to x-ray, MRI, etc. Complainant got admitted on 13.02.2008 at OP.1 hospital under the care and advise of OP.2. On the same day OP.2 conducted the operation in the neck portion in order to remove the implanted plate fixed between C-4 to C-6. OP.2 failed to take the minimum care as required by the professional surgeon, he did not follow the accepted medical norms, procedure and the technique. OP.2 exhibited the in-experience, lack of skill in horizontally cutting the neck portion which ought to have been done vertically. Due to this carelessness OP.2 is unable to remove the said implanted plates, thereby the purpose for which complainant visited the OP hospital, went in futile. Due to the said negligence and carelessness complainant started getting unbearable pain. He has to undergo lot of sufferings besides incurring lot of expenditure to meet the cost of the so called treatment. Under such circumstances he felt the deficiency in service and medical negligence on the part of the OP. He got issued the legal notice to the OP on 13.03.2008 to compensate him, there was no proper response. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP.1 and 2 filed their respective version. The defence set out by both the OP’s is same and identical. It is contended by the OP that the allegations made by the complainant with regard to medical negligence, carelessness are all false and frivolous. There is a suppression of material fact on the part of the complainant. Actually complainant visited the OP hospital on 12.10.2006 with a history of pain in the right shoulder and upper limb weakness. He was subjected to MRI and the report showed severe cervical spondylosis. He was referred to Neuro Surgeon, who advised for surgical decompression. But somehow complainant failed to appear for the follow up treatment and check up. Thereafter only on 02.02.2008 he appeared before the OP hospital and not on 09.02.2008 as contended. After examining him a surgery was suggested that too after due investigation which was held on 13.02.2008. During the course of surgery OP.2 found that the cervical implant was adherent to oesophagus and it was difficult to separate the two. OP.2 consulted the Thoracic Surgeon as well as the General Surgeon, took their advise and guidelines then collectively took the decision not to proceed further with the procedure as there was a substantial risk of developing oesophageal perforation. <br /> <br /> 3. Looking into the condition of the complainant dilatation of oesophagus with oesophago gastro duodenoscopy was advised. Complainant and his relatives were intimated regarding the said treatment in detail. When complainant recovered he was discharged on 16.02.2008 with a direction to come for follow up check up, but he did not come. So there is no deficiency in service muchless medical negligence on the part of the OP. It is further contended that complainant has undergone surgery and treatment during April 2007 in Hosmat Hospital, thereafter he has developed hoarness of voice, difficulty in swallowing and felt no improvement thereby he approached the OP hospital that too nearly after 1½ years. So complication if any developed during the said period is mainly because of the earlier treatment which complainant has taken not at the fault of the OP. OP’s have rendered best available treatment according to the standard of medical practice which is accepted. The other allegations of the complainant are frivolous. The entire complaint is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 4. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP’s have also filed the affidavit evidence along with evidence of one expert witness Dr. Thimappa Hegde. The interrogatories were served by the litigating parties, they were suitably answered. Then the arguments were heard.<br /> <br /> 5. 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’s?<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 /> 6. 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 /> 7. It is the case of the complainant that on 09.02.2008 he went to OP hospital for the removal of the plates which were implanted during the course of surgery in the month of April 2007 at Hosmat Hospital. OP.2 examined the complainant and subjected him for the X-ray and MRI, then directed him to get admitted as inpatient at OP.1 hospital so as to undergo the operation for the removal of the said implanted plates. Complainant got admitted in OP.1 hospital on 13.02.2008. OP.2 conducted the operation on the same day to remove the implanted plates fixed between C-4 to C-6. Now it is the grievance of the complainant that OP.2 instead of opening neck portion vertically improperly opened it horizontally so as to remove the plate, thereby utterly failed in his attempt. Due to the negligence of the OP.2 he could not get the relief, on the other hand pain and suffering increased, thus he felt the medical negligence as well as deficiency in service. <br /> <br /> 8. As against this it is contended by the OP’s that there is a suppression of material fact by the complainant. According to OP complainant approached the OP for the first time on 12.10.2006 with a history of pain in the right shoulder and upper limb weakness. After subjecting him to MRI it was revealed that he is suffering from severe cervical spondylosis. After thorough examination by the Neuro Surgeon he was advised to undergo surgical decompression. Thereafter somehow complainant did not return to their Hospital for the treatment. This material fact is borne out by the Hospital records and it is not denied by the complainant. With all that he failed to plead the same in his complaint. So the approach of the complainant does not appears to be fair and honest.<br /> <br /> 9. It is further stated by the OP that when surgery was held for the removal of the said implanted plates at the time of surgery it is noticed that the said plates were adherent to oesophagus and it was difficult to separate the same. Then a consultation was held between the Thoracic Surgeon and General Surgeon. Thereafter collectively they opined that there is a substantial risk to go ahead with the said procedure for the removal of the plate as there is a scope for developing of oesophageal perforation. The experts in the field felt dilatation of oesophagus with oesophago gastro duodenoscopy is advisable. The said fact was intimated to the patient as well as his relatives in detail. After the patient recovery he was discharged on 16.02.2008. All these details are noted in the history records of OP hospital which are produced. <br /> <br /> 10. Complainant has not produced such other expert evidence in the field so as to show that the procedure adopted by the OP.2 and the conclusion arrived by the Thoracic Surgeon and General Surgeon including that of OP.2 so as to avoid the risk of oesophageal perforation and they having suggested oesophago gastro duodenoscopy is wrong and opposed to usual procedure and practice. So in absence of such expert’s evidence on behalf of the complainant, his vague allegations with regard to cutting of the neck either vertically or horizontally cannot be believed.<br /> <br /> 11. OP’s have filed the expert evidence of a Doctor in the field to support and substantiate their action in treating the said patient. We have gone through the interrogatories served to the said expert witness, but nothing is extracted in his cross-examination so as to discard his evidence. We have no other go but to believe the evidence of the said expert witness who fully supported the treatment and the procedure adopted by OP.2. Complainant somehow avoided to implead the Hosmat Hospital, wherein he underwent the said surgery in the month of April 2007. Though he has taken the opinion of OP hospital in October 2006, he failed to appear before OP for further treatment. He has chosen to go to Hosmat Hospital in April 2007, that is nearly after 6 months and thereafter 1½ years he has again approached the OP hospital on 09.02.2008 or may be on 02.02.2008. Why there is so much of delay, why he failed to chose the Hosmat Hospital to get rid of his pain and suffering is not known. <br /> <br /> 12. That means to say complainant has got the trust and believe in the standard of treatment rendered by the Doctors of OP.1 who are experts in the field, with their qualification and experience. That is the reason for the complainant to chose OP again to seek relief of his pain and suffering. So whatever the best can be done with regard to the said ailment OP’s have done and that act of the OP cannot be termed as deficiency in service muchless the medical negligence. OP.2 has not committed any haste in removal of the said plate. If an hurried attempt was made there is a scope for perforation in the oesophageal which is fatal to the patient life. It is not only the OP.2 who opined the same, even the Thoracic Surgeon and General Surgeon namely Dr. H.V. Raja Shekar Reddy, Dr. Aashish Shah have also opined the same. Under such circumstances we are of the view that OP did take proper care and caution with all diligence in treating its patient.<br /> <br /> 13. The evidence and the documents produced by the OP appears to be very much natural, cogent and consistent. It is an unimpeachable evidence. On the other hand complainant has not rebutted the said evidence by producing the relevant records, documents and the expert’s evidence. Under such circumstances the bare and vague allegations of the complainant rather alone cannot be believed. As it is there is no dispute with regard to the qualification, experience and competency of OP.2 as well as the necessary infrastructure, facilities, services available at OP.1 hospital, which is a renowned hospital in Bangalore treating for the ailment which complainant has suffered. So bearing all these facts and circumstances in mind, the allegations of the complainant appears to be false and imaginary. There is no strict proof of either deficiency in service muchless medical negligence on the part of OP.<br /> <br /> 14. OP.2 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 /> 15. A doctor has discretion in choosing the treatment with regard to ailment and emergency in the better interest of the patient. The facts 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’s. It will not be out of place to mention that doctors only treat whereas it is in the hands of the Almighty to cure. <br /> <br /> 16. 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. 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 is 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.<br /> <br /> 17. We have also borne in our mind, the catena of decisions relied on by both the litigating parties in this complaint. We have followed the basic principles and guidelines enunciated by their Lordships, while coming to the just conclusion in this case. In view of the discussions made by us in the above said paras, we find the complaint is devoid of merits. Hence the complainant is not entitled for the relief claimed. 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 02nd day of September 2008.) <br /> <br /> MEMBER MEMBER PRESIDENT