KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No 908/2005
JUDGMENT DATED : 21.06.2012
PRESENT
SHRI. M.K. ABDULLA SONA : HON. MEMBER
APPELLANTS
1. Amrita Institute of Medical Science and Research Centre,
Amrita Lane, Elamakkara P.O., Ernakulam.
2. Dr. V. Sathyaprasad, Chief Adult Cardiovascular Surgeon,
Amrita Institute of Medical Science and Research Centre,
Amrita Lane, Elamakkara P.O., Ernakulaml.
3. Dr. A.P. Chandrasekharan,
Amrita Institute of Medical science and Research Centre,
Amrita Lane, Elamakkara P.O., Ernakulam.
( Rep. by Adv. Sri. K. Srikumar & others )
Vs
RESPONDENT
Mr. Sali, Nellippilly Parambu, Kizhakkepram kara, Koduvally, North Parur.
. ( Rep. by Adv. Sri. A.X. Varghese, Niyamavedi)
JUDGMENT
SHRI. M.K. ABDULLA SONA : HON. MEMBER
This appeal prefers from the order passed by the CDRF, Ernakulam in O.P. No. 4.8.2004 dated 5.8.05. The appellants are the opposite parties and the respondent is the complainant. This appeal prefers under the order of the Forum below; that Forum directed the opposite parties to pay jointly and severally a compensation of Rs. 1lakh and cost of Rs. 1,500/- to the complainant within a period of 30days from the date of receipt of a copy of the order.
In short, the complainant’s wife admitted in the hospital on 19.2.2003 for breathing difficulty. The patient was earlier treated in the Medical College Hospital, Thrissur and Don Bosco Hospital, Parur for the same decease without observing the patient. It is alleged that the 2nd and 3rd opposite parties detected the decease as T.B. and given the treatment for the very same decease. The patient was discharged on 28.3.2003 and again admitted on 25.4.2003. On 17.5.2003, the complainant was informed by the opposite party doctor that the patient is suffering from cancer and discharged on 19.5.2003. Since the hospital was not equipped for cancer care. The patient was later admitted in the Lake Shore Hospital and research centre and she died on 8.4.2004. The complainant has claimed a sum of Rs. 4,31,720 as compensation in different heads with an allegation that the opposite parties committed medical negligence , then they are liable for deficiency in service as per the Consumer Protection Act.
The opposite parties appeared and filed their joint version and strongly contended that the patient’s decease was not detected or diagnosed as T.B. The said treatment was given to the patient was only on clinical grounds considering the treatment given by the earlier hospital and the results obtained by them in the cultures and smears. The C.T. scan done in the hospital on 22.2.2003 which revealed that the focal narrowing of trachea due to sub mucosal lesion with inflammation of the mediastinal fat. So even though there was no diagnosed treatment was imported for the most important reason during the first admission.
In that admission; all the days were done on the tissues taken from the inner wall of the trachea, since C.T. report was very clear that submucosal lesion was in the inner wall. The second C.T. scan was repudiated on 2.5.2003 it revealed that the soft tissue was thickening; has increased surroundings the trachea. Then it was decided to undergo thoracotomy and it was diagonized on 19.05.2003 that there were malignant cells and the patient was immediately referred for the treatment of the same. All these facts were explained to the bystanders of the patient without any delay. The opposite parties totally denied the negligence and carelessness on the part of the opposite parties.
The evidence consisted of oral testimony of the complainant and the same as Pw1 and opposite party doctor examined as Dw1. It marked as Ext. A1 to A2 series for the part of the complainant and marked Ext. X1 to X3 on the part of the opposite party.
The Forum below heard both parties in detail and analyzed the entire evidence adduced by both sides. The Forum below discussed each points in detail on the strength of the fact, circumstance and evidence. The Forum below reached in a conclusion that the opposite parties are negligent in their treatment and they are liable to pay compensation under the head of deficiency in service. In the result the Forum below passed the above impugned order.
On this day this appeal came before this Commission for final hearing. The Counsel for the appellant argued on the grounds of appeal memorandum that the opposite parties/appellants provided all the usual and proper treatment to the patient. In the first diagnosis, they diagnosed it as T.B. and the earlier treated doctors also diagnosed the disease of the patient which is also very same diagnose later the thorough pathological examination etc. It revealed that the disease was nothing but cancer. In this instant the opposite parties referred the patient to the Lakeshore hospital for proper treatment. The complainant is not having any specific allegation about the negligence in diagnose and treatment done by the opposite parties. It can not be practicable in all the medical cases diagnosed disease at a glance. It depends upon the clinical examination datas further examinations, further observations etc. On the basis of the grounds leans of the appeal memorandum that the counsel for the appellant strongly argued that the impugned order passed by the Forum below without evidence and expert opinion from any corner. He submitted further that the complainant did not take any steps to examine any expert to prove is his case. In the absence of such evidence, the complainant failed to establish the case as per his allegation in the complaint. The appellant produced a document from the computer down loaded from the net. But the fact and circumstance is par different from the fact and circumstance of this case. The Counsel for the complainant submitted that the opposite parties provided the treatment on a payment of an amount and not on charitable basis. The opposite party doctor claimed and given propaganda that their hospital is most well equipped and highly specialized hospital for all treatments. Under this impression; the patient approached to the opposite party hospital. As per the evidence adduced by both sides it is clearly shown that the opposite party committed negligence, and carelessness and they are liable to pay compensation. He submitted that the order passed by the Forum below is strictly as per the provisions, the law and evidence. Hence the appeal is liable to be dismissed. But the counsel for the appellant strongly concluded his argument with a submission that the order passed by the Forum below is not accordance with provisions of law and evidence and it is not legally sustainable. Hence he prayed to allow this appeal and to set aside the impugned order passed by the Forum below.
Heard in detail. As per the principles of “recipsa liquitor” the burden is upon the treated doctor to prove that whether the concerned doctor is innocent or not as per evidence. Here the opposite party doctor and hospital are well known doctors and hospital establishment respectively. They can very easily cite any expert person in the field to prove their defense in the Forum below. But no such attempt was taken by the opposite parties. They simply put their own lacune in the head of the poor patient and complainant. It is quite unfair. The opposite parties diagnosed the disease as cancer after a long period even from the date of the patient was admitted in the hospital as in patient. It is the duty of the opposite party doctor to take all the steps to examine both clinically and pathologically about the patient. The patient approached to the hospital under the impression that he will definitely get most careful and modern diagnose and treatment from the opposite parties. Unfortunately the opposite parties failed to diagnose the patient in right time in their hospital. It is nothing but a negligence and carelessness on their part. As per the evidence adduced by both sides, it is seeing that the opposite parties already committed deficiency in service and unfair trade practice on their part. I am not seeing any apparent error in the order passed by the Forum below. It is not seeing any reason to interfere in the order passed by the Forum below. The Forum below passed the order in accordance with the provisions of law and evidence. It is legally sustainable and uphold this order passed by the Forum below.
In the result this appeal is dismissed and confirmed the order passed by the Forum below.
The points of the appeal discussed one by one and answered accordingly. No cost ordered.
I do so.
(Dictated to the C.A. typed, corrected and pronounced by me in
the open court)
M.K. ABDULLA SONA : HON. MEMBER
ST
