CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present
Sri. Santhosh Kesavanath P. President
Sri. K.N. Radhakrishnan, Member
CC No. 108/2009.
Monday, the 26th day of March, 2012
Petitioner : Cyriac,
Kollaparambil House,
Kaduthuruthi P.O
Vaikom Taluk
(By Adv. Jolly Joseph)
Vs.
Opposite parties : 1) Kaduthuruthi Co-Op. Hospital
Kaduthuruthi P.O
reptd. by its Secretary
2) Kaduthuruthi Co-Op. Hospital,
Kaduthuruthi P.O
reptd. by its President
3) Deepthi Ajith Prasad,
Duty Nurse,
--do—
4) Dr. Bibi Raj,
--do—
(By Adv. Emmanuel Thomas)
5) Dr. K.V Jose, (Deleted)
--do—
(By Adv. Sajeevu Mathew)
O R D E R
Sri. Santhosh Kesavanath P., President
Case of the petitioner filed on 2..3..2009 is as follows:
On 1..9..2008 petitioner brought, his son aged 3 ½ yrs, named Angel Cyriac to the first opposite party hospital having compliance of fever and cold. Petitioner usually consulted the 5th opposite party pediatrician attached to office of opposite party hospital for the diseases of his child. On 9..4..2008 petitioner consulted 5th opposite party for the diseases of his child. 5th opposite party prescribed medicines for 3 days and treated the patient as out patient. 5th Opposite party prescribed injection and one syrup. On 3..9..2008, petitioner along with child for taking prescribed 6th injection, approached the hospital of the first opposite party at 8.45
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P.M. Duty nurse taken the patient to the injection room at 8.45 P.M. According o the petitioner after the injection the patient fell down and body of the patient become blue colour. Petitioner states that at that time there was no qualified doctor in the hospital for taking night duty only a house surgeon of ICH Hospital is deputed. On seeing the condition of the child of petitioner. Petitioner and his wife cried loudly and a physician, who is in duty, examined the pulse rate and advised the petitioner to take the child to some where else. Petitioner asked to the opposite party for an ambulance to take child to some other hospital. At that time opposite party has not cared to avail the ambulance. Petitioner in his own vehicle taken the child to Carithas hospital. For the act of deficiency and negligence committed by the opposite party Kaduthuruthi police registered a crime against 3rd and 5th opposite party. According to the petitioner act of the opposite party amounts to deficiency in service. So, he prays for a compensation amounting Rs. 20 lakhs from the opposite parties.
Opposite party one to four filed joint version contenting that petition is not maintainable. According to the opposite party all allegation of medical negligence alleged against the opposite party are false and hence denied. Kum. Angel Cyriac has consulted 5th opposite party on 21..8..2008, 5th opposite party after clinical examination and investigation prescribed medicines. There after the patient was admitted at first opposite party hospital on 1..9..2008 with IP No. 6149 for dyspnoea, cough and fever. Since patients by standards were not willing for admission bio tax injection was taken on an out patient basis. On 1..9..2008 and 2..9..2008 injection was take promptly. Second dose of IV Bio tax by tax injection taken on 3rd day and at home, 25 minutes after taking the injection patient had violent cough and dyspnoea then the patient was brought to casualty. Diagnosis of aspiration was made.
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Opposite parties tried oxygen inhalation, nasal suction, injection hydrocortizone injection IV fluid were ordered by duty medical officer. Observing rapidly worsening condition of the child duty Medical Officer asked the duty nurse to call the casualty medical officer and pediatrician and told the nurse that the child may have to be referred to a higher centre. On hearing the word referred, in there own vehicle parents immediately took away the child . So, duty nurse could not carry out further orders of the doctor and, without waiting for the reference letter, patient died on the way. The cause of death as per the chemical analysis report, pursuant to the post mortem, showed that the death was due to aspiration of taken food in to the air passage. 4th opposite party is a qualified doctor who was in duty on 3..9..2008. The crime 270/08 registered against opposite party 3 and 5 was referred by the police on the basis of post mortem report. Chemical analysis report pursuance to the post mortem and the expert opinion of the panel of experts headed by the DMO conclusively proved that the death was due to aspiration of taken food in to air passage. The allegation that there was no qualified doctor in the first opposite party hospital on 3..9..2008 is denied by the first opposite party. The allegation of negligence on the part of 3rd opposite party is also denied. Emergency treatment was given to the child. According to the opposite party there is no negligence or deficiency in service on their part. So, they pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether there is deficiency in service on the part of the opposite party?
ii) Relief and costs?
Evidence in this case consists of deposition of PW1 and PW2 and Ext. A1 to
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A4 documents on the side of the petitioner and deposition of DW1 and 2 and Ext. B1 to B6 documents on the side of the opposite party.
Point No. 1
Petitioner raise the following act of deficiency against opposite party they are: (a) General medical negligence on the part of the opposite party (b) Opposite party had not cared to give the service of the ambulance attached to the hospital (c) While brought the patient for taking injection there was no qualified doctors in the hospital (d) Petitioner attributed negligence on the part of the nurse who had taken injection (e) No first aid treatment were given to the patient when she was brought to the hospital (f) The condition of the patient was not good but physician do not mentioned same to the petitioner and his wife.
After filing version of Opposite party 1 to 4 petitioner filed a petition to remove the 5th opposite party from the party array. 5th opposite party is the physician who treated the patient. So, in our view by removing 5th opposite party there is non-jointer of necessary party. While considering the question of general medical negligence. Whether the doctor had given a standard care is to be looked in to. Medical negligence basically means negligence resulting from failure on the part of the doctor, to act in accordance with medical standards, or else doctor had taken reasonable care practiced by a reasonably competent medical man practicing in the same trade. Doctors are required to exercise a reasonable degree of care. Reasonable degree of care is that degree of care and competence which an ordinary member of the profession professes to have those skills would exercised in the circumstances in question.
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In our view a doctor should not be held negligent simply because something happens wrong to a patient. Doctor is removed from the party array as per order of the Fora in IA 663/2009 Dtd: 30..3..2010 filed by petitioner. If the Fora finds negligence on servants of the opposite party hospital ie. doctor, nurse, para medical staff working under them, then only hospital is to be held liable. On going through the complaint it can be seen that allegation of petitioner is a general case of medical negligence against opposite party 1 to 5. But in the proof affidavit and other document a case of hospital negligence is attributed by the petitioner. Opposite party produced a copy of postmortem certificate of the diseased Angel Cyriac. Said document is marked as Ext. B2. From Ext. B2 it can be seen that there is no un usual aspects with regard to the cause of death of patient. Ext. B3 is the proceedings of the expert panel meeting conducted at the chamber of DMO on 30..9..2009. In Ext. B3 the panel of experts opined that on referring the postmortem certificate and case sheet even though expert management was given death was occurred within 2 – 5 minutes after complete occlusion of the air passage and death was not due to side effect of injection. We, further find that reasonable skill and knowledge for diagnosis of the disease and available treatment modalities applied and the case was referred to a higher centre. So, based on findings in Ext. B3 case of general medical negligence will not lie in this case. Ext. A3 is the copy of case sheet of the patient named Angel Cyriac. From Ext. A3 it can be seen that 5th opposite party advised the patient to be admitted in some other hospital. Petitioner has a definite case that on 3..9..2008 immediately after taking the injection the child fainted and soon the colour of the child changed to blue. Ext. B2 is the FIR registered by the Kaduthuruthy police in crime No. 270/08. Statement for the FIR was given by the petitioner himself no
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where in Ext. B1 petitioner mentioned about the change of colour. So, in our view the case of colour change after injection is only a cooked story. In Ext. B1 it is stated that after injection petitioner came out of the hospital and immediately they brought back the child to the duty room. There the duty doctor and other staff examined the patient and advised them to see medical assistance in some other hospital.
Even though the petitioner had a definite case that there is no qualified doctor and the duty doctor was doing house surgeon in ICH. This allegation was not proved by any solid evidence. The allegation of not giving any ambulance service by the opposite party is also not believable. Even if there is any buffet of trueth with regard to the allegation of absence of qualified doctor and non availing of ambulance service definitely this allegation would find a place in Ext. B1 FIR. Complainant as PW1 before the fora deposed that he had an own vehicle with him and the child was brought to the hospital and was taken from the hospital in his own vehicle. So, the question of availing of an ambulance facility will not arise. Petitioner failed to prove that there was a intentional omission as to providing ambulance. Petitioner has a definite case that opposite party has not availed any first aid to the patient. In Ext. B1 FIS petitioner himself stated that while bringing the child to the hospital the doctor and other staff examined the child and advised the petitioner to take child to some other hospital. PW1 deposed that the IV fitted was present on the body of the child till death. Admittedly patient died during the transit of the patient from opposite party hospital to Carithas hospital. Presence of I V on the body of the child conclusively prove that the child was in patient and the parents of the child take away the patient on their risk. From the evidence it can be seen that the reason for the death is aspiration of taken food in to the air passage. Petitioner failed to prove any
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medical or surgical negligence on the part of the opposite party. So, point No. 1 is found accordingly.
Point No. 2
In view of the finding in point No. 1. Petition is dismissed. Considering the facts and circumstances of the case no cost and compensation is ordered.
Dictated by me transcribed by the Confidential Assistant corrected by me and
pronounced in the Open Forum on this the 26th day of March, 2012.
Sri. Santhosh Kesavanath P. President Sd/-
Sri. K.N Radhakrishnan, Member Sd/-
APPENDIX
Documents for the Petitioner:
Ext. A1: Copy of registration card of Angel Cyriac
Ext. A2: Receipt Dtd: 1..9..2008 of Kaduthuruthy Co.Op. Hospital
Ext. A3: Copy of case sheet of Angel Cyriac
Ext. A4: Copy of Log Book.
Documents for the opposite party:
Ext. B1: Copy of FIR
Ext. B2: Copy of Postmortem certificate
Ext. B3: Copy of proceedings of expert panel metting dtd: 30..1..2009
Ext. B4: Copy of final report in crime 270/08
Ext. B5: Copy of Letter No. K-379/87 dtd: 20/4/87 issued by Co.Op.Registrar to the Psdt. of Hospital
Ext. B6: Copy of minutes
Witness
PW 1: K.L. Cyriac
PW2: Binoy George
DW1: Manjo Joseph
DW2: Deepthi Ajith Prasad.
By Order,
Senior Superintendent
