KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 493/2003
JUDGMENT DATED 26.03.2011
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANTS
1. K. Vijayalekshmi, W/o Late Ganapathy Bhatt,
Chinmaya Colony,
P.O. Vidya Nagar, Kasargod.
2. P. Preethy, D/o Late Ganapathy Bhatt,
Chinmaya Colony,
P.O. Vidya Nagar, Kasargod.
3. S.N. Prasad, S/o Late Ganapathy Bhatt,
Chinmaya Colony,
P.O. Vidya Nagar, Kasargod.
(Rep. by Adv. P.C. Haridas & Others )
Vs
RESPONDENTS
1. Dr. Santhosh Raj. M.
M.D., Mulleria P.O
2. The Medical Director,
Srikrishna Maternity & Nursing Home,
Chinmaya Colony P.O., Vidya Nagar, Kasargod.
3. The Branch Manager, Unitted India Insurance Co. Ltd.,
M.G. Road, Kasargod.
4. Dr. Sahana, B.A.M.S.,
Sri Krishna Maternity and Nursing Home,
Chinmaya Mission Colony, Kasargod.
5. Nurse Omana,
Sri Krishna Maternity & Nursing Home,
Chinmaya Colony, Kasargod.
( R1,R2,R4 &R5 rep. by Advs. Sri. Joseph Vallamattam & others)
(R3 rep. by Adv. Sri. N.S. Mohamed Usman)
JUDGMENT
SHRI. M.K. ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Kasargod in O.P. No. 325/99. The appellant is the complainant. Respondents are the opposite parties. The appellant prefers this appeal under the order of the Forum below that the Forum below dismissed the complaint.
In short, the husband of the first complainant and father of complainant 2 and 3 deceased Ganapathy Bhatt died on 22.5.1998 at the second opposite party’s hospital. The complainants alleged that the Ganapathy Bhatt who undergone treatment for certain miner ailments like descentry and feavar. The deceased Ganapathy Bhatt was advised to take rest up to 20.5.98. The first opposite party did not have any time for the attention of the patient. On the other hand, he left the care and custody of the patient to disqualified and un experienced staff of the second opposite party. Moreover the relatives were not informed of the nature of the disease, the type of the treatment or the specialized hospital whether it was available and they were left in the dark. It is further submitted that with any test dose conducted on Ganapathy Bhatt, the 5th respondent administered crystalline, Penicillin, injection on the deceased. Ganathy Bhatt had died immediately after the administration of the injection. There were no doctors to know the reaction of the said medicine on Ganapathy Bhatt’s body on afford several medical care and attention including overcoming of the reaction to the said injection. The breathlessness which Ganapathy Bhat had suffered from was diagnosed by the doctors as Asthma and prescribing Pencilin injection and administering the same to the Asthma patient is against Medical Authorities. The condition of deceased Ganapathy Bhatt became worse with every passing moment after the administration of Pencillin injection. The opposite parties have not identified the cause of death. Though it was stated to be due to respiratory failure. No postmortem was also conducted on the deceased. The complainant alleged that the death of Ganapathy Bhatt had occurred absolutely on account of doctor’s negligence a deficiency in service in the manners and much of treatment and diagnoses etc given to the deceased Ganapathy Bhat during his treatment at the second opposite party hospital. Hence the complaint filed. This complaint for a direction to O.Ps 1 and 2 to pay Rs. 5,00,000/- with interest on account of the negligent act which resulted in the death of the Ganapathy Bhatt together with cost.
The opposite parties 1 and 2 filed their joint version. They admitted the treatment of the Ganapathy Bhat . But they denied the responsibility of the death of Ganapathy Bhat. They denied all the allegations regarding the deficiency in service or negligence on their part which alleged in the complaint. They filed very detail version and denied each and every allegation to the complainant in the complaint. The complaint was amended and impleaded 3 to 5 later an additional written statement was filed. They contended that O.P. No. 3 and 5 are unnecessary parties. And O.P. No. 4 did not give any treatment to Ganapathy Bhatt and that O.P. No. 5 did not administered any injection on him. Hence they prayed for the dismissal of the complaint.
The evidence consists of the oral testimony of Pw1 and Exts. P1 to P10 including Ext. P4(a), P4(b), P6(b) and Dw1 to 4 were examined and Exts. R1 to R6 including R1(a) and R6(a) were also marked on the side of the opposite parties. The Forum below raised 7 points and discussed one by one and answered in connection with dispute arised in the complaint. On the strength of the fact and circumstances of the case, the Forum below taken a view that there is no deficiency in service on the part of the opposite parties 1 and 2 , and the hospital staff of O.P. No. 2 can be attributed against them. In the result, the Forum below dismissed the complaint.
On this day, this appeal came before this Commission for final hearing, both the counsels for the appellants and respondent are present and they vehemently argued their own respective cases in detail and submitted that the Forum below decided the case on the strength of the evidence adduced by both sides. There is no deficiency in service from the part of the opposite parties. The complainant tried to get the compensation from the opposite parties. It is nothing but an experimental attempt and just to harass the opposite parties.
We heard in detail both parties, and perused the entire evidence. It is seeing that the Forum below rightly answered all the questions rised for the consideration of the dispute. We are seeing that all the allegations of the complainants in the complaint are baseless and not legally sustainable. They did not adduce any sufficient evidence to prove their own case. There are ever somany mis understandings about the treatments inside and outside the clinical hospitals during the course of the treatments to be conducted by the qualified and efficient doctors those who have from a highly dignified and learned profession.
There is a internationally accepted principle “Recipsa Loquor” well settled by competent Judicial tribunals and apex courts not only in India but also all over the world we admitted that the prima-facie duty of the doctor concerned to prove negligence and carelessness which incidented to the patients under their custody. But it is the first and last duty of the patient/heirs and next friends that to establish a prima-facie case about their allegationS of medical negligence which alleged to be committed by the concerned and aggrieved doctor or doctors. It is the principle of” ONUS PRABAND” as per the provisions of the Indian Evidence Act. This position is well settled by the Apex Court of the country in a reported case : Lakshman Balakrishnan Vs. Dr. Trumback Bapu God hold and another (AIR 1969 SC 128 Page No. 50).
1) A doctor that he exercised duty of care in deciding whether to undertake the case of the complainant.
2) Though he exercised reasonable degree of care in deciding of the treatment to be given to the complainant as per the established medical norms.
3) That he exercised a duty of care in the administration on the treatment. On application of the decision in the facts and circumstances of the case discharged out by the opposite parties doctors liable explain what happened to the complainant/patient and what was the reason for the alleged sufferings sustained to the patient.
In the detailed examinations of the evidence adduced by the complainants it is seeing that the complainants failed to establish a case against the opposite parties as per the above guidelines drawn by the Hon’ble Supreme court in the above reported case. On the basis of the above reported case we remain the patients/bystanders/legal heirs, next friends etc to avoid misunderstandings and misguidance regarding the medical negligence cases. It is also necessary to aware the duties and liabilities of the patients/bystanders/next friend/ and general public etc they are:
a) A doctor is only a professional expert and he is not a magician or The God to do all the miracles and to use “Mritha Sanjeevani” for save the life from the destiny of God Almighty.
b) Shall be disclosed each and every details of the ailment including its previous history and treatments etc, to the doctor.
c) Ensure the available doctor who is legally qualified and competent to do a treatment to the patient.
d) Ask the copies of the medical documents prescriptions, refral letters, scan and clinical report etc. each and every day and to keep it further use.
e) If any doubt will be have about the treatment, scanning, operations, clinical tests etc, take clarifications from concerned persons or from other expert doctors or persons or second opinion from other expert doctors or persons to be qualified in such a field.
f) If feel any doubt regarding the behaviour of the doctor concerned or other paramedical staff etc take up the matter to the top officials or top managements or before Health Department or Medical Council of India.
g) Shall not think whole the doctors are indifferent and deficient service nature people. Shall not be generalized whole equal. . He is a life saver and crisis manager. Obey strictly the guidance and advice of your doctors.
h) Don’t become puppet of third parties and only approach reliable qualified persons if any crisis will be occurred.
i) Don’t think all the doctors wanted to be attended you alone or concentrated around you, patient alone, their service is highly indispensable for each and every patients like you or other most complicated patients.
j) Doctors want to be attended on somany crisis like disaster management, communicable deceases, court duties etc. Don’t blame them without enquiry and without reasons.
k) Cannot be insisted for the attendance of all the doctors for your requirements.
l) Behave properly and co-operate with the honest and dedicated treating doctors concern “
Hon’ble Supreme Court held in a recent decision “Martin Dizzuza”s case that except doctors even the courts are also laymen in the field of medical science”.
Any way in this case the attempt of the complaint is nothing but an arrow against the moon. We think both the complainant and this appeal are only for experimental attempts. But the doctor must be explained each and every doubt of the patients and their bystanders immediately. A good relationship between the doctor and patient is
highly necessary to maintain a healthy atmosphere in the field of the Health Service both in government and public.
A doctor is an inevitable part of the community. Target them due to each and every displeasure, unhappiness, enmity and inducement of other fellow members of the same profession. is not fair. Nobody can be substituted a person instead of a doctor. We want to protect the genuine interest of the patient/consumers but the very same time we can not allow to harass the members of the dignified profession un necessarily. In this occasion we remind the doctors that they must be attented each and every grievances of their patients timely. According to the patients, irrespective their status the treating doctor is a “shadow of The God. Treatment is nothing but a holly service. It is not a business like slaughter House. It is contempt also. But at the very same time the doctors and hospitals are bound to provide all the details about the copy of case sheet, including prescriptions, Scan report etc. of the patients to the patients/bystanders on their request. It can not be denied at all. The hospitals bound to give the qualifications, experience of the doctors and para medical staff and other staff including fes etc. to the patients/bystanders. The patient/consumer have the right to know each and every details of the service or services of the hospital etc. U/s. 6( b) of the Consumer Protection Act. 2003. The denial of such details is a deficiency in service. We are not seeing any illegality or irregularity in the findings of the Forum below. The order of the Forum below is purely legally sustainable and accordance with law and evidence. We are not seeing any reason to interfere in the order passed by the Forum below. Hence we uphold the order.
In the result, this appeal is dismissed and confirmed the order passed by the Forum below. Both parties are directed to suffer their respective expenses. The points of the appeal discussed one by one and answered accordingly.
M.K. ABDULLA SONA : MEMBER
M.V. VISWANATHAN : JUDICIAL MEMBER
