BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

O R D E R

SRI.P.V.SINGRI, PRESIDENT

This complaint is filed by the complainant under Section 12 of Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs)  claiming compensation of RS.5,00,000/- for mental agony, huge pain and suffering caused to them due to gross negligence and deficiency in service on the part of the OPs while treating complainant No.1 at their hospital.

2.  The brief averments made in the complaint are as under:

That on 16.12.2011 around 7-00 P.M.  complainant No.1 had an acute abdominal pain and immediately she was rushed to Sevakshetra Hospital, Banashankari 2^nd Stage, Bangalore.  In the said hospital she was given two injection to control her pain and advised to consult Sri.Jayadeva Institute of Cardiovascular Sciences, Bangalore to check for any problem in her heart, since it was found that her Blood Pressure was on higher side.  As recorded in the said hospital the Blood Pressure was 220/100.  The complainant No.1 was then taken to Jayadeva Hospital.  After thoroughly examining the patient and giving her medicine, the doctor of Jayadeva hospital advised the complainants to consult a multi-specialty hospital for evaluation of abdominal pain of the complainant No.1, since they did not find any heart related problems in the patient.  The complainant No.2 took the complainant No.1 to Sagar Hospital which was very close to Jayadeva Hospital.  The complainant reported to the duty doctor of casualty department of the Sagar hospital at 10-00P.M. on 16.12.2011.  The complainant No.2 handed over all the documents of Sevakshetra Hospital and Jayadeva hospital to the duty doctor of the casualty department of OP hospital.  The complainant No.2 also briefed the doctor about the past ailments of acute Arthritis and Psychiatry of complainant No.1. By that time the abdominal pain of the complainant No.1 was receding.  After check-up the doctor of the casualty department of the OP hospital decided to admit the complainant No.1 as in-patient and complainant No.2 was informed that the complainant No.1 was being admitted in the Intensive Care Unit (ICU).  This was strongly resented by the complainant No.2 because the condition of the complainant No.1 at that time was much better and also because the purpose of her hospitalization did not warrant her admission in the ICU.  However, on their insistence the complainant No.2 agreed for admission in ICU and the complainant No.1 was admitted at about 11-00P.M. on the same day.

3. From the time the complainant No.1 was taken to the ICU, complainant No.2 was trying hard to meet the ICU duty doctor or any senior doctor there.  Since entry in the ICU is restricted the complainant No.2 was waiting for a long time outside ICU for doctor to come out and meet him.  After waiting for a long time the complainant No.2 met the duty doctor and was shocked and highly surprised when he was informed that complainant No.1 has been admitted in the Cardiology unit of ICU under a Cardiologist. Complainant No.2 strongly protested and told ICU doctor that the patient never had any heart related problems earlier and the doctors at Sri.Jayadeva Hospital on examination did not find any heart related problems.  He further informed that the patient has been brought to the OP hospital only for evaluation of abdominal pain and further told him that both complainants are schedule to leave for Delhi next day and hence, the patient has to be discharged by next day.  Complainant No.2 also informed the ICU duty doctor that the patient is also suffering from acute Arthritis and Psychiatric problems.  For this the duty doctor requested the complainant No.2 to talk to the Cardiologist, who would come to the hospital at about 9-00 A.M. the next day.  That on 17.12.2011 after making frantical attempts the complaint No.2 met the Cardiologist at Cardiology outpatient department.  At that time seeing the apathy and maltreatment of the complainant No.1, complainant No.2 had become skeptical about any kind of beneficial treatment for the complainant No.1 by the OP hospital.  Hence on meeting cardiologist, complainant No.2 straight away requested the doctor to arrange for her immediate discharge.  At the outset, the Cardiologist rejected the idea saying that she urgently needed to undergo tests to make sure that she did not have any heart related problems. Surprisingly however, the Cardiologist never said anything regarding evaluation of her abdominal pain, nor about her scan report, also not about the stones that they had noticed in the Gall Bladder.  That when the complainant No.2 insisted for discharge without any delay the cardiologist agreed only with an undertaking by the complainant No.2 to the effect that the discharge of the patient was at risk and responsibility of the complainant No.2 and the patient was discharged at 12-25 P.M. on 17.12.2011. 

4. At the time of discharge of the patient, the personnel of the ICU handed over a file containing a two page medical summary consisting of two sheets, bill and one ECG report which was done on 16.12.2011 at 10-45 hours along with document which complainant No.2 had handed over to the duty doctor in the casualty department, previous day.  At that time of discharge the complainant No.2 scrutinized the medical summary and noticed a highly objectionable record which said that the complainant No.1 was admitted with complaint of chest pain and pain in abdomen.  That on objection by the complainant No.2 for having spoiling medical record of the patient with wrong and baseless statements, the OP promptly took back the file and after sometime returned it with some hand written correction to mend such wrong statements and even after such corrections the report said that the patient was admitted with “chest discomfort” which again blatantly false.   A recital of the said medical summary of the patient would make it clear that it had seriously spoiled and smeared the medical history of the complainant No.1 with indications about non-existent heart related problems, whereas she never had any heart related problem.  Such harmful wrong remarks in medical history render a person ineligible for medical insurance.  The complainant No.2 had obtained a detailed bill copy of 05.07.2012 which was found to contain five pages.  Out of these five pages the complainant No.2 was given only the first page along with medical summary at the time of discharge of the patient.  The balance four pages of the bill were given only when a detailed bill was demanded at 05.07.2012.  The said bill  revealed that the patient abdomen was scanned by the OP on 17.12.2011 and in the scan they noticed stone in Gall Bladder and adjoining areas (Cholelithiasis).  This was indeed the cause of her abdominal pain, but surprisingly for the reasons best known to them the OP withheld and concealed the scan report and never handed over the said scan report to the complainant No.2.  They veiled this critical information with medical terminology “Cholelithiasis” the meaning of which was not known to the complainant No.2 at that time.  The doctors at OP did not give any advice anything about stones in the region of Gall Bladder and also did not offer advices for urgent remedial actions for removal of stones.  They went on harping only on the non-existent heart ailments with advices for several irrelevant and unnecessary expensive tests, which were not at all necessary for the patient.

5. The bill of the OP hospital showed that they had undertaken several expensive tests and procedures on the patient and the reasons best known to them, the reports were kept away and not handed over to the complainants.  Even the scan report which was so crucial for the patient was not given to the complainants and because of this unforgivable act by the OP the complainants were made to remain in the dark about stones in the Gall Bladder region and the complainant No.1 due to which they could not prevent another sudden attack of severe abdominal pain of the complainant No.1 on 26.06.2012.  The bill shows a debit of Rs.800/- towards fee for the visit of the cardiologist to the patient on 16.12.2011.  but since she was admitted after 11-00P.M on 16.12.2011 and the complainant No.2 was frantically looking to meet the cardiologist would only be available on 17.12.2011 at about 9-00A.M. consequently the cardiologist could not have made any visit to the patient on 16.12.2011 after 11-00P.M. that night and raising a bill towards his fees for the visit which he never made is dishonest.  When the admission counter told the complainant No.2 that the patient was being admitted in the ICU, complainant No.2 strongly resented saying that the then condition of the patient was quite good and she need not be admitted in the ICU.  But since they insisted the complainant No.2 had no alternative but to accept the expensive bed in the ICU.  The complainant No.2 had informed to the doctor at casualty department of OP Hospital that complainant No.1 had a history of chronic Arthritis and Psychiatry.  Even then the cardiologist had chosen to prescribe test like TMT etc.  It goes without saying that it is just not possible for the complainant No.1 who is a patient of chronic Arthritis can ever undergo TMT and such other tests.  It is best known only to the cardiologist why he never bothered to meet the complainant No.2 at the bed side of the patient for detailed discussion about the said problems of the patient.  Though the complainant No.2 was all along sitting outside the ICU from 11-00 P.M.  on 16.12.2011 till 12-20P.M. on 17.12.2011 only to aid the patient and to discuss with the doctors for the purpose of effective treatment, but OPs never choose to meet the complainant No.2.

6. The Blood pressure record of 240/120 shown in the medical summary elicits serious question about their correctness.  The Blood Pressure first recorded by Sevakshetra Hospital at the peak of her pain, was 220/100 and by Sri.Jayadeva Hospital it was 210/100.  This clearly indicates that after the two injections pushed by the Sevakshetra Hospital the pain and Blood Pressure was gradually declining.  When the complainant No.1 was brought to the OP hospital the Blood Pressure was reported to be much lesser than what was recorded earlier.  Then how the Blood Pressure could be 240/120 as recorded by the OP hospital summary.  Was it intended to import the non-existent heart related problems in the patient though she never had any such problems before. The above facts would clearly establish that the OPs deliberately did not hand over and reveal about the Gall Bladder stones with the patient which they had rightly detected in the abdominal scan, but avoided giving honest advises to the complainants.  Had the OPs did not act as they choose to act, complainant No.2 would certainly arranged for immediate surgery for the removal of the stones from the Gall Bladder of complainant No.1.  That would have averted another sudden relapse of similar excruciating abdominal pain on 26.06.2012 requiring her emergency hospitalization, double surgeries, total removal of her seriously infected Gall Bladder and resulted sufferings, mental agony to the complainants and their family members, including avoidable huge expenditures to them. 

7. The complainants caused a legal notice dated 24.09.2012 to the OPs calling upon them to refund the amount collected by them and pay an adequate compensation for deficiency in service on their part.  The OPs have failed to reply to the legal notice despite acknowledging the receipt of the legal notice through their advocate and also failed to comply with a demand made in the said notice.   The OPs have been gross negligent in treating complainant No.1.  The manner in which the OPs have handled the case of the complainant No.1 betrays utter callousness and lack of sensitivity on their part, unbecoming of a prestigious institution as theirs.  The complainants have suffered not merely monetary loss, but also acute mental agony because of the acts of the OPs.  The OPs are guilty of gross deficiency in services and liable to compensate the complainants for the loss and damages as also the immense sufferings undergone by them. 

 8.  For the aforesaid reasons the complainants prays for an order directing the OPs to pay them Rs.5,00,000/- as compensation for mental agony, suffering offered by them due to gross negligence by the OPs through their various gross and sub-standard services, refund the money collected, by them towards the treatment of complainant No.1 with cost. 

9. In response to the notice issued, OPs appeared through their Advocate and filed their version denying the allegations made in the complainant and contending in brief as under:-

That Mrs.Krishna Sengupta was brought at emergency department of the OP hospital on 16.12.2011 with presentation of severe epigastric pain radiating to bilateral hypochondria.  It was found on screening that patient had accelerated hypertension with the Blood Pressure recording of 240 systolic and a diastotic pressure of 120.  Further investigations of ECG and ultrasound, ECG showed inverted T waves in V5-V6 and ultrasound showed presence of multiple stones in the Gall Bladder suggesting Cholelithiasis. That the presence of accelerated hypertension and inverted T waves in the ECG was of primary importance as it could lead to potentially life threatening condition of Myocardial Infraction (Heart Attack).  Hence, the patient was advised admission to ICU and started on medications to control the hypertension and ruled out any cardiac condition. That the patient attendee had given his consent for ICU by giving written consent at the time of admission and the same could be found in the patient’s inpatient record. 

Even though the presence of Gall stones was found out by ultra sound and symptoms and condition of the patient improved the next day, it was necessary to rule out any potential cardiac causes and the cardiologist suggested further investigations like TMT.  The patient and the attendee did not agree to the further evaluation of cardiac causes and they insisted on getting discharged and were discharged on 17.12.2011 against the medical advice.  That the admission in ICU was very much needed to immediately bring the Blood Pressure down by intravenous Nitro-glycerine drip and thereby preventing immediate complications like heart attack and brain stroke/haemorrhage and to investigate for causes of high Blood Pressure.  That on admission in ICU also needed to evaluate the cause of severe epigastric pain.  Likely causes in this patient could be acute gastritis, sub-endocardial ischaemia due to high Blood Pressure, unstable angina, acute pancreatitis, gall stones, abdominal perforation aortic aneurysm, dissection of aorta, all these conditions are life threatening condition which need to be ruled out in this patient.  Therefore ICU admission was advised.  That the OPs submitted that ICU doctor immediately admitted the patient by arranging the oxygen masks, Iv-Drips, drawing the blood for investigation, taking the ECG.  After these basic measures are given to the patient ICU doctors spoke to the complainant No.2 and informed the same to him.  From Sri.Jayadeva Hospital the patient was referred to the OP hospital with very high blood pressure and abdominal pain without any diagnosis.  The patient did not have any history of cardiac problem before.  It is relevant to note that the doctor at Sri.Jayadeva Hospital have not conducted Echo cardiogram, Blood tests (Trop I), ultrasound abdomen.  That the lSri.Jayadeva Hospital doctors have not referred back to Sevakshetra hospital as the case was not that simple.  The patient in the emergency ward was told that immediate need is to control the Blood Pressure.  Infact OPs were never told that the patient has any cardiac problem.   In this context, it is pertinent to mention that there need not be any cardiac problems before it develops into a heart attack or brain stroke in a patient like this.  Further, the history of arthritis and psychiatric problem of the patient have made the case more complicated in terms of eliciting correct history and make them understand the problems of medical emergency like this.  The investigation which has been took immediately after admission of the patient where very essential for further course of treatment.  That the finding of the ECG was discussed with OP -2 and he visited the patient to cross check the findings.  By morning  Blood Pressure got controlled, pain in abdomen got relieved and patient got discharged at request.  That the patient was advised to go Treadmill test to rule out blockages in coronary arteries for the reasons of high Blood Pressure which was not a symptom of gallstone, epigastric pain with high blood pressure and mild T wave changes in the ECG could be due to blocks in the coronary arteries.  The treatment and the care provided to the patient is standard of care given under the circumstances.   The OPs have been very prompt and methodical in treating the patient.  She was prescribed medicines for blood pressure, acidity and blood thinning.  She was also advised to get the TMT test done to rule out the coronary artery blockages.  Hence, medical summary needs to be looked at in totality by a medical professional.  Therefore, the allegation made by the complainants are denied as false and baseless.

The OPs challenge the basis, qualification and competence of complainant No.2 to comment about the services rendered and the discretion in rendering treatment of high qualified and competent medical professionals like the OPs. That medical summary given to the patient mentioned about the provisional diagnosis made based on the symptoms and signs, course of treatment during the last 12 hours of the hospitalization.  That was not a final diagnosis, still cause of high Blood Pressure in the patient was not known and coronary ischemia was not ruled out.  That the symptoms are very subjective which need to be correlated with the signs and investigation to treat and come to conclusion in this patient.  Symptoms alone are not taken for diagnosis and treatment.  That the OPs have not supressed anything from the complainants.  That the OPs have not informed the complainant that the patient had any heart attack or any major abdominal problem as the patient was still under evaluation.  That the OPs never informed the complainants that the complainant No.1 needs any major surgical procedure. That all the findings were discussed, reports were handed over to them. That the patient was treated forthwith for the immediate condition of high Blood Pressure and to rule out incidental complications thereto.  Under the relevant circumstances treatment of Gall Bladder stones is of secondary importance when compare to life threatening consequences that would follow high Blood Pressure.  Hence appropriate treatment was rendered in the light of patient’s condition and relevant findings in the investigation reports.  Even before the OPs could initiate further treatment for Cholelithiasis, the complainants insisted for discharge.  The OPs have never undertaken any expensive test and procedures except that were essential under the given circumstances.  That emergency surgery for gall stones was not indicated in this patient at that night.  Aim of treatment is to control the pain, control the Blood Pressure, rule out any other serious associated co-morbid conditions and then consider surgery for gall stones.  There is no negligence on the part of the OP in offering necessary treatment to the complainant.  There is also no deficiency in service on the part of the OPs.  The complainant have no cause of action to file the complaint.  The complainants are also not entitled to any of the relief claimed including compensation/damages of Rs.5,00,000/-.    

10. For the aforesaid reasons, the OP prays for dismissal of the complaint.

11. The complainants to substantiate the allegations made in the complaint, filed affidavit evidence of complainant No.2.  Apart from the evidence of complainant No.2, the complainants did not prefer to examine any other witness including expert evidence in support of the allegations made against the OPs.  The complainants also submitted written arguments.

12.  OPs to substantiate the averments made in the version filed the affidavit evidence of Col. Dr.D.K.Vasukar, Medical Director of  OP-1.  OPs also let in the evidence of Dr.K.H.Srinivas MBBS, MD, DM, DNB (Cardiology) who is working as professor of Cardiology since 2008 at Sri.Jayadeva Institute of Cardiology, Bangalore by filing his affidavit.  OPs also submitted their written arguments.

13. On the rival contention of both the parties the points that arise for our determination in this complaint are as under:

1. Whether, the complainant proves negligence and deficiency of service on the part of the OPs as alleged in the complaint?

2. To, what relief/order the complainants are entitled to?

14. Perused the allegations made in the complaint, the averments made in the version, the sworn testimony of both the parties as well as affidavit evidence of Dr.K.H.Srinivas, written arguments submitted by both the parties, authorities and other material placed on record. 

15.  Our answer to the above points:

16. POINT No.1:   The admitted facts are as under:-

On 16.12.2011 around 7-00P.M. the complainant No.1 developed acute abdominal pain and complainant No.2 immediately took her to Sevakshetra Hospital situated at Banashankari 2^nd Stage, Bangalore and in the said hospital she was given two injections to control her pain and then referred to Sri.Jayadeva Institute of Cardiovascular Sciences, Bangalore for further consultation and to check for any problems in her heart since her Blood pressure was on higher side i.e., 220/100.  As advised complainant No.1 was taken to the said Sri.Jayadeva Hospital.  In the said hospital the doctors after thoroughly examining the patient advised the complainants to consult a Multi-speciality hospital for evaluation of abdominal pain of the patient since no any heart related problem were found.  Then complainant No.2 took the complainant No.1 to OP-1 hospital which was close to Sri.Jayadeva Hospital and reported to the duty doctor of casualty department at about 10-00 P.M.  on the same day.  All the documents of Sevakshetra Hospital and Sri.Jayadeva Hospital were handed over to the duty doctor of casualty department of the OP hospital.  Complainant No.2 also briefed the doctor about the past ailments of acute Arthritis and Psychiatry of the complainant No.1.  After the check-up the doctors of the casualty department of OP hospital decided to admit the complainant No.1 as in-patient and complainant No.2 was informed that the complainant No.1 was being admitted in the Intensive Care Unit (ICU).

17.   The complainant No.2 alleges that when he was told that complainant No.1 is being admitted to Intensive Care Unit he strongly resented the same as the condition of the complainant No.1 at that time was much better and also because the purpose of her hospitalization did not warrant her admission in the Intensive Care Unit.  The complainant No.2 however states that on the insistence of the OP hospital he agreed for the admission of the complainant No.1 to Intensive Care Unit and accordingly she was admitted to Intensive Care Unit at 11-00 P.M.  on 16.12.2011.  The complainants alleges that complainant No.2 was shocked and surprised when he was informed by the Intensive Care Unit doctor that the complainant No.1 was admitted in the Cardiology Unit of ICU under a Cardiologist, for the reason that the complainant No.1 never had any heart related problem earlier and the doctors at Sri.Jayadeva Hospital also did not notice any heart related problem.  The complainants contends that complainant No.1 was brought to the OP hospital only for evaluating abdominal pain and nothing else.  Therefore, the complainants alleges that OPs deliberately and wrongfully admitted the complainant to Cardiology Unit of ICU though the complainant No.1 never complained chest pain or heart related problems.  The complainants further alleges that when the doctors at Sri.Jayadeva Institute of Cardio-vascular Sciences, who are specialised in heart related ailments, did not find any heart related problems in complainant No.1  on their examination.  The OPs were totally not justified, in the first place, in admitting her to ICU and secondly admitting her in the Cardiology Unit of ICU under a Cardiologist. Thus, it is alleged that OPs only with a sole intention to make money, admitted the complainant No.1 to an expensive ICU bed though such admission was not at all required.

18. The complainants further alleges that the complainant No.2 was kept in dark about the investigation and other procedure conducted on the complainant No.1 during the intervening nights on 16.12.2011 and 17.12.2011 and though the complainant No.2 was all the while present in the hospital just outside ICU he was never permitted to meet complainant No.1 to ascertain her condition and also verify as to the genuineness of the alleged investigations and test conducted by the OPs.  The complainant No.2 also disputes the correctness of the Blood Pressure of complainant No.1 as 240/120 as recorded by the OPs, just prior to her admission to the ICU, since the Cardiologist attending of complainant No.1 did not meet and disclose about the course of treatment.  Since he was not at all informed about the various test and investigations conducted on complainant No.1 during intervening nights of 16.12.2011 and 17.12.2011, complainant No.2 being not happy with the conduct of OP-2 and the line of treatment taken up by them decided to get the complainant No.1 discharged from the hospital, even without disclosing or knowing as to the outcome of various investigations. The complainant No.2 got discharged complainant No.1 from the hospital around 12-20 P.M. on 17.12.2011 against medical advice.  The complainants have been handed over with medical summary of complainant No.1 together with bill for Rs.16,285-35ps. The complainants were also handed over the relevant records of Sevakshetra hospital and Sri.Jayadeva hospital which complainant No.1 handed over to the duty doctor of casualty at the time of admitting complainant No.1.

    19.  Referring to the medical summary the complainants alleges that the OPs admitted complainant No.1 to their hospital by wrongly mentioning that she was complaining chest pain apart from abdominal pain.  The complainants further contended that though the complainant No.1 had no heart related problem in the past and was not found to be suffering with heart related problem on 16.12.2011 when examined by the doctor of Sri.Jayadeva hospital the OPs have conducted/under taken unnecessary investigations and tests pertaining to heart related problems forgetting to evaluate the pain in abdominal for which infact she was admitted to the said hospital.  The complainants further alleges that Ultra Sound of the abdomen taken by the OPs reveals Gall Bladder stones and the same was not brought to the notice of either complainant No.1 or complainant No.2 and nothing was discussed about the same and no immediate measure were also suggested by the OPs in the Medical summary towards removal of the Gall Bladder stones.  Thus it is alleged by the complainants that the OPs started treatment of the complainant for the ailments which she was never suffering with and utterly failed to provide immediate treatment for the Gall Bladder stones which infact were causing for severe abdomen pain.   For these reasons the complainants alleges that there is a gross deficiency in service on the part of the OPs.  The complainants also alleges that since they were not provided with the abdomen scan report along with the medical summary and since they were not advised for the remedial measures for the removal of the Gall Bladder stones and  they were made to remain in dark regarding the stone in the Gall Bladder due to which they could not prevent another sudden attack of severe abdominal pain of the complainant No.1 on 26.06.2012 which ultimately resulted in double surgeries for removal of the Gall Bladder stones as well as Gall Bladder itself thereby putting the complainant No.1 to untold hardship and miseries and also avoidable huge expenses. 

  20.  In the case of medical negligence, we have to find out as to what constitutes medical negligence and upon whose part the burden of proof lies.  It is also to be seen as to what kind of evidence is required to be adduced to satisfy the Forum as to the claim of medical and its negligence liability on the part of the doctor concerned.  In catena of judgements rendered by Hon’ble Supreme Court and National Commission it has been explained as to what amounts to medical negligence.  In case of Dr.Laxman Balkrishna Joshi Vs. Dr.Trimbak Bapu Godbole and another reported in AIR 1969 Supreme Court, 128 the Hon’ble Supreme Court has observed as under:-

“The duties which a doctor owes to his patient are clear.  A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.  Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.  A breach of any of those duties gives a right of action for negligence to the patient.  The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care”

           21. Further in a case between Achutrao Haribhau Khodwa Vs. State of Maharashtra reported in AIR 1996 SC 2377 the Hon’ble Supreme Court has opined as under:-

“A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.  This is the least which a patient expects from a doctor.  The skill of medical practitioners differs from doctor to doctor.  The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of doctor if he has performed his duties to the best of his ability and with due care and caution.  Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Courts find that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable”

22. In a case between Smt.Vimlesh Dixit V Dr.R.K.Singhal,

I (2004) CPJ 123 (Uttaranchal) the Uttaranchal State Commission has explained as to what constitutes medical negligence and

“Every operation is not a case of negligence.  Failure of operation is also not a case of negligence.  Side effects are also possible.  Happening of side effects is also not negligence.  The term “negligence” is defined to mean absence of lack and care, which a reasonable man should have taken in the circumstances of the case.  Not even a single word has been told in the complaint, nor in the grounds of appeal about what care was desired from the doctor in which he failed it is not said anywhere that what negligence was done during the course of operation.  Nerves may be cut down at the time of operation and mere cutting of nerve doesn’t amount to negligence.  It is not said that it has been deliberately done.  To the contrary it is also not said that the nerves were cut in the operation and it was not cut at the time of accident.  No expert evidence whatsoever has been produced.  Only the report of the Chief Medical Officer of Haridwar has been produced wherein it has been said that the Patient is a case of Post Havmatic Wrist Drop.  It is not said that it is due to any operation or the negligence of the doctor.  The mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and is supported by expert evidence.  It is true that operation has been done.  It is further true that the complainant has met heavy expenses but unless the negligence of the doctor is proved she is not entitled to any compensation.”

23. The Hon’ble State Commission of West Bengal in case between Dr.Kamata Prasad Singh V.Nagina Prasad, III (2000)CPJ 283 (WB)have discussed as to what is the standard of care to be taken by medical practitioner while treating a patient and held as under:-

“It is now a settled principle of law that a medical practitioner will bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care.  Neither the very highest nor the very low degree of care and competence judged in the light of circumstances in each case is what the law requires.  Judged from this yardstick, post-operative infection or shortening of the leg was not due to any negligence or deficiency in service on the part of the opposite party appellant.  Deficiency in service thus cannot be fastened on the opposite party.”

24. From the authority referred to above one can make out as to what constitutes medical negligence and what is the standard care a medical practitioner is expected to take while treating a patient.  Now it has to be seen upon whom the burden lies.  In a case between Ajay Kumar Vs. Dr.Devandra Nath, II (2004) CPJ 482 it has been held as under:-

“The Apex Court and the National Commission have held in several cases including, Dr.Laxman Balkrishna Joshi Vs.Dr.Triambak Bapu Godbole, AIR 1969 SC 128: (1969) 1 SCR 206, and in the leading case of Indian Medical Association Vs. V.P.Santha, 1996 (1) CCJ 1 (SC) : III (1995) CPJ 1(SC): (1995) CTJ SC 969: 1995 AIR SCW 4463: AIR 1996 SC 550: (1995) 6 SCC 651: 1995 (3) CPR 412, it has been held that a 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 that field.  To make allegation against a doctor is easy but it is difficult to prove it.  His case is on different footing with the negligence act of taxi driver, Therefore, the evidence to prove negligence of a doctor must be of a high degree and must be an expert evidence which leads to the conclusion that it was the fault on the part of the doctor which he committed negligently which caused adverse to the patient.

The above literature will regard to lariago clearly mentioned that the side effect of this medicine if taken for longer duration can be on eye sight but this is not a fact in this case besides there is no expert evidence on record to show that use of this medicine caused damage to his eye sight.  Even for argument sake if it accepted that this medicine has caused damage to his eye sight in that case also if the respondent doctor who is qualified one has advised to use this medicine after examining the patient and found the patient suffering from malaria in that case also the doctor respondent cannot be held guilty of negligence or deficient in his service.  However, as stated above in this case the medicine has been used by the patient in low doses for a very few days and there is no expert evidence to show that the use of medicine has affected his eyesight. Therefore, the complainant-appellant has failed to prove that respondent was negligent and deficient in his duty as a doctor.”

25. In view of the principles laid down in the above citation, the burden to prove the negligence of the doctor concerned heavily lies upon the person who alleges negligence.  In the instant case on hand the burden  heavily lies upon the complainants to prove negligence on the part of the OP-2.  In the instant case on hand it is alleged by the complainant that OPs instead of evaluating the cause for severe abdomen pain have started treatment for the chest pain with which the complainant No.1 was never suffering including on the date of admission to the OP hospital.  The complainants alleges that though it was not necessary the OPs admitted complainant No.1 to cardiology unit of ICU and conducted unnecessary investigations and test.  The complainant claims that the Blood Pressure of complainant No.1 was 220/100 when examined at Sevakhestra Hospital which according to him is on lower side.  He further claims that the Blood Pressure of the complainant No.1 had come down to 210/100 when examined at Sri.Jayadeva Hospital.  Therefore, the complainant claims that the Blood Pressure recorded at 240/120 at casualty ward of OP hospital is not correct.  The complainants contended that on the basis of wrong recording of the Blood Pressure, the OPs unnecessarily admitted complainant No.1 to Cardiology unit of ICU.

      26. No doubt, the Blood Pressure was recorded on 220/110 when complainant No.1 examined at Sevakshetra Hospital in the evening of 16.12.2011.  When the Blood Pressure of the complainant was examined at Sri.Jayadeva Hospital thereafter it was recorded at 210/100.  The medical summary and the test report of OP hospital shows that at the time of admission around 11-00P.M. on the same day the Blood Pressure of complainant No.1 was recorded at 240/100. 

      27. It is submitted on behalf of the OPs that the complainant No.1 was referred to their hospital from Sri.Jayadeva Hospital in view of very high Blood Pressure and epic Gastric in descriptive diagnosis.  It is further submitted that the high Blood Pressure recording at 240/110 warranted the admission of the patient in ICU to immediately bring down the Blood Pressure Interoverious Nitroglycerin drip was given with an intention to prevent immediate complications like heart attack and brain stroke/haemorrhage and to investigate for causes of high Blood Pressure.  It is further submitted that admission of the patient was very much needed to evaluate the cause of severe epigastric pain.  Since likely causes in this patient could be acute gastritis, sub-endocardial ischemia due to high Blood Pressure, unstable angina, acute pancreatitis, gall stones, abdominal perforation, aortic aneurysm and dissection of aorta.  According to the OPs all these conditions are life threatening conditions which need to be ruled out for the patient.  Therefore, the admission to ICU was advised.  Though complainant No.2 admits his consent for admission to ICU, but claims that he did so in duress and as he had no other option at that time.

      28. Now the question is as to whether the admission of complainant No.1 to ICU was essential for treating her high Blood Pressure and to avert any related complications as mentioned above.  The OPs produced the extract from RightDiagnosis.com regarding treatment for Accelerated Hyper Tension.  The treatment for Accelerated Hyper Tension prescribed therein is as under:-

        Accelerated hypertension is a medical emergency and immediate treatment will help to decrease the risk of developing serious complications.  Such as stroke, blindness, kidney failure, heart failure, seizures, angina, coma and death.  Emergent aggressive treatment can often return high blood pressure readings to a safe level without complications. 

      Treatment of accelerated hypertension includes hospitalization usually in an intensive care setting that provides continuous monitoring of blood pressure and other vital signs, heart rhythm, urine output and other important functions.  Medications are given intravenously to lower blood pressure treatments will also be given to address complications such as pulmonary edema.  This can include diuretic medications to help pull excessive fluid off the lungs.  Medications may also be given to protect the heart from damage. Supplemental oxygen is also administered.

        29. The OPs let in the expert evidence of one Dr.K.H.Srinivas a professor of Cardiology who is working since 2008 at Sri.Jayadeva Institute of Cardiology, Bangalore.  In para 5 of his affidavit Dr.K.H.Srinivas states as under:-

        Para 5: I submit that intial assessment at Emergency Department of Sagar Hospital has recorded a blood pressure of 240/120.  With T wave inversions in v2 v3 in ECG with symptoms of epigastric pain, hypochondrial pain and nausea.  With this presentation, I feel it is appropriate to admit in ICU for further evaluation and management.

He further states in Para 9 as under:-

Para 9: I submit that in the said context with BP of 240/120, she required admission in ICU.

  30. The evidence of Dr.K.H.Srinivas stands unchallenged.  For the reason best known to him the complainants did not prefer to subject the said witness to any cross examination.  We do not have any reasons to disbelieve the expert opinion given by Dr.K.H.Srinivas.  In view of the nature/kind of treatment provided for Accelerated Hyper Tension mentioned above and the expert opinion given by Dr.K.H.Srinivas, we are of the opinion that the OPs are justified in admitting complainant No.1 to Cardiology unit of ICU in view of high Blood Pressure recorded at the time of admission.   The complainant did not let in any expert evidence to substantiate his contention that under the given circumstances the admission of Complainant No.1 to cardiology unit of ICU was unwarranted and unnecessary.  For the reasons mentioned above we do not find any oblique motive on the part of OPs in admitting complainant No.1 to ICU.

31. The complainants allege that the complainant No.1 was subjected to unnecessary investigation and test and the medical treatment rendered was sub-standard.  The OPs submitted that the relevant investigation, line of management and quality of care given to the patient were part of standard medical practice, in a case of this nature.  Dr.K.H.Srinivas, examined on behalf of the OPs in para 14, 15 and 16 of his affidavit evidence states as under:-

Para 14: I submit that the patient has not been subjected to unnecessary/unwarranted tests or procedures.  Patient was subjected to only basic and appropriate tests.

Para 15: I submit that the opposite parties are not at all negligent in rendering required care and treatment to the patient.

Para 16: I submit that the patient has not been subjected to any unwarranted/unnecessary medication. Only necessary medication has been given. 

    32. The affidavit evidence of Dr.D.K.Vasukar  Medical  Director of OP hospital  coupled with affidavit evidence of Dr.K.H.Srinivas establishes that complainant No.1 has not been subjected to any unnecessary or unwarranted tests or procedures and she ws also  not been subjected to any unnecessary medication.  The said Dr.K.H.Srinivas after perusal of the relevant medical records of complainant No.1 states that the OPs are not at all negligent in rendering required care and treatment to the patient.  As already stated above the sworn testimony of Dr.K.H.Srinivas stands unchallenged and we have no reasons to disbelieve his sworn testimony.  As mentioned above, the burden of proving negligence on the part of the OPs lies on the complainants.  However, the complainants did not adduce any expert evidence to substantiate the alleged negligence on the part of the OPs.  In a judgement reported in II (2004) CPJ 102 (MP) the Hon’ble State Commission of Madhya Pradesh dealing with a similar situation have held as under:

Marble City Hospital & Research centre and Ors. Vs. V.R.Soni II (2004) CPJ 102 (MP)

The respondent/complainant has not produced any expert medical opinion that there has been any negligence on the part of the appellant Doctor in performing the said operation. The burden of proving negligence rests upon the person who asserts it.  In medical negligence cases, it is for the patient to establish his case against the medical man and not for the medical man to prove that he acted with sufficient care and skill.  See, the decision of Madhya Pradesh High Court in case of Smt.Sudha Gupta and ors. Vs. State of M.P. & Ors., 1999 (2) MPLJ 259.

The National Commission has also taken the same view observing that mishap during operation cannot be said to be deficiency or negligence in medical services.  Negligence has to be established and cannot be presumed.  See, the decision of the National Commission in case of Kanhiya Kumar Singh Vs. Park medicare and Research Centre, II (1999) CPJ 9 (NC) – (2000) NCJ (NC) 12.Similar view has been taken by the MRTP Commission in case of Dr.P.K.Pandey Vs.Sufai Nursing Home, II (1999) CPJ 65 (MRTP)-2000 NCJ (MRTP) 268.  Followed by this Commission in Vaqar Mohammed Khan and Anr. V.Dr.S.K.Tandon, 2002 (II) CPJ 169.

“Allegation of medical negligence is a serious issue and it is for the person who sets up the case to prove negligence based on material on record or by way of evidence”.

Further in a case between Smt.Vimlesh Dixit v. Dr.R.K.Singhal, I (2004) CPJ 123 (Uttaranchal)  the Hon’ble State Commission of Uttaranchal have held that “the mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and is supported by export evidence.”.

 34. In the instant case on hand the complainants have not produced any expert evidence/opinion to prove their allegations of negligence on the part of the OP-2.

35. The complainants allege that along with medical summary the OPs did not hand over the patient’s abdomen scan report taken on 17.12.2011.  The complainant further alleges that for the reasons best known to them the OPs with-held and concealed the scan report and they veiled this critical information with a medical terminology “Cholelithiasis” the meaning of which was not known to the complainant No.2 at that time.  The complainants also alleged that in the medical summary in the Heading “Advised on discharge”, OPs did not disclose or did not give any advice about the stones in the Gall Bladder region and for urgent remedial action for removal of stones.  The complainants further alleged that since they were made to remain in dark about the stones in Gall Bladder region, they could not prevent sudden severe attack of serious abdomen pain to the complainant No.1 on 26.06.2012.  Therefore, the complainants alleges that this conduct of OPs amounts to gross negligence and deficiency in services. 

36. It is pertinent to note that the complainant himself admits that OPs in the medical summary mentioned that ultra sound of abdomen showed “Cholelithiasis”.  The word “Cholelithiasis” refers to presence of stones in the Gall Bladder region.  From the allegations made in the complaint as well as from the affidavit evidence of complainant No.2 it could be gathered that the complainants never allowed the OPs to continue the treatment of complainant No.1, subsequent to the investigation result and insisted for her discharge immediately even without discussing as to the result of various tests and investigations conducted on complainant No.1, with OP-2.  Complainant No.2 even has not sought to seek an explanation from OPs as to what is meant by “Cholelithiasis” as mentioned in the medical summary.  The complainants have also not showed the said medical summary to any other medical practitioner to understand themselves as to what is meant by “Cholelithiasis”.  Had the complainant No.1 discussed with OP-2 as to the outcome of the abdomen scan report or had he showed the medical summary to any other medical practitioner he would have certainly come to know about the presence of stones in the Gall Bladder region of complainant No.1.  Therefore, the complainants having failed in their duties in properly understanding the medical summary, cannot blame the OPs that they did not mention about the presence of stone in the Gall Bladder region.  Therefore, we are of the opinion that OPs cannot be blamed for severe abdomen pain suffered by complainant No.1 on 26.06.2012 resulting in surgeries for removal of stones as well as Gall Bladder itself.

37. On perusal of the various tests reports and other tests conducted on complainant No.1 does not discloses, that too in the back ground of expert evidence, that she was subjected to any unnecessary investigation or test.  Similarly the fee charged by OPs towards the treatment also doesn’t seems to be on higher side looking to the nature of ailments with which the complainant No.1 was suffering.

38. In view of the discussion made above, we are of the considered opinion that the complainants have failed to prove any deficiency in service or negligence on the part of the OPs as alleged in the complaint.  Therefore, the complaint is liable to be dismissed. 

39.  The order could not be passed within the stipulated time due to heavy pendency. In the result we proceed to pass the following:-

ORDER

1. The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.

2. The parties to bear their own cost.

3.  Furnish free copy of this order to both the parties.

 (Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Forum by us on this the 13^th day of October 2015)

MEMBER                                                              PRESIDENT

NRS* 

C.C.No.226/2013

Witness examined on behalf of the complainant dated 22.04.2013 Sri.H.Sengupta

Witnesses examined on behalf of the OP dated 07.05.2013 Sri.Col. DR.D.K.Wasunkar, Medical Director of OP

MEMBER                                                              PRESIDENT