KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL  NO. 662/11

JUDGMENT DATED:16.11.2012

PRESENT

SHRI. K. CHANDRADAS NADAR                    : JUDICIAL MEMBER

Mar Gregorious Memorial-

Muthoot Medical Centre,

College Road, Kozhencherry,

R/by Chief Medical Officer/Managing-    : APPELLANT

Director, 2. Dr.Jolly V. Mathew,

MGM Muthoot Medical Centre,

College Road, Kozhencherry.

(By Adv:Sri. G.M. Idiculla)

          Vs.

1.      Skariah Mathai,

Puthenchirayil House,

Mekozhoor.P.O,

Pathanamthitta.

2.      P.M. Jhony Kutty,

          -do-  -do-

                                                                   : RESPONDENTS

3.      Mathew Varghese,

          -do-  -do-

4.      P.M. shaji Mon,

          -do-  -do-

5.      Annamma Mathew,

          -do-  -do-

(By Adv: Sri.K.G.Mohandas Pai)

JUDGMENT

SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER

The appellants were opposite parties 1 and 2 in CC.121/07 in the CDRF, Pathanamthitta.  Complainans/respondents in this appeal were the legal heirs of deceased Sosamma Mathew.  Smt.Sosamma Mathew was admitted in the hospital of the 1^st opposite party on 1.2.07.  She was treated by opposite parties 2 and 3.  Smt.Sosamma Mathew was admitted in the hospital with complaints of pain in the neck and pleuritic pain on the right side of chest for 2 weeks.  The 2^nd opposite party diagnosed the illness of Sosamma Mathew as diabetes mellitus, hyper tension, bronchogenic carcinoma with pleural metastasis; malignant mesothelioma and coronary artery heart disease and admitted her in the ICU.  The patient was administered various medicines both oral and intravenous.  The relatives and family members were allegedly not allowed to see the patient when she was in the ICU and they were not given any information about the condition of the patient and her treatment.

2.      While so, on 3.2.07 at about 12.30 am the patient was intubated and put on ventilator by the 3^rd opposite party allegedly without the consent from the complainant or the patient by saying that the patient’s condition had worsened due to cardio respiratory arrest.  According to complainants, patient’s condition worsened  due to wrong medication, medical negligence and improper management and care of a critically and terminally ill patient and due to the negligent treatment, the patient developed oedema and other respiratory and heart complications and the patient was intubated and put on ventilator for rectification of the same.  From the very first day onwards the complainants enquired about the progress and condition of the patient and requested the opposite parties to permit them to see the patient but permission was refused.

3.      On 3.2.07 the opposite parties served huge medical bills and treatment bills and on getting the bills the complainant informed their inability to meet the heavy expenditure in the 1^st opposite party hospital and requested for discharge of the patient for treatment elsewhere.  But the opposite parties did not discharge the patient as requested by the complainants as they wanted to hide their mistakes and extract money from the complainants and destroy evidence against the opposite parties.  Thereafter the opposite parties made the patient and the complainants to sign various blank documents and blank papers forcibly before discharging the patient so as to make false evidence and show consent for treatment. They finally discharged the patient on 8.2.07 on request and against medical advice.  The said acts of the opposite parties amount to medical negligence, deficiency of service and unfair trade practice.  The complainants were billed Rs.43,000/- for the treatment in the 1^st opposite party hospital.  As a result the complainants sustained financial loss and mental agony.  Smt.Sosamma Mathew had issued a notice dated:5.3.07 to the opposite parties demanding compensation but the opposite parties sent reply raising false and frivolous contentions while so Sosamma Mathew died on 31.7.07.  Hence the complaint by her legal heirs.

4.      Opposite parties 1 to 3 filed joint version before the Forum.  They contended that the patient was admitted in the ICU of the 1^st opposite party on 1.2.07 with complaints of dyspnoea and pain in the neck and chest.  The Physician and Cardiologist attached to the hospital examined her X-ray chest revealed pleural effusion right side with pneumonitis.  ECG showed sinus bradycardia.  On admission itself the patient was sick.  Hence she was admitted in the ICU for intensive observation and treatment.  The patient had dyspnoea due to respiratory infection and bronchospasm.  She had pleural effusion and had slow heart rate-sinus bradycarida with diabetes mellitus and hypertension.  The patient was given appropriate antibiotics and bronchodilators without any ill effect for treating respiratory infection and bronchospasm.  She was under the care of Physician, Chest Specialist and Cardiologist for the heart problem.  Investigation was done to find out the cause of pleural effusion.  Pleural fluid aspiration was done on 1.2.07 and fluid sent for cytology and malignant cells were detected which was suggestive of malignant pleural effusion.

5.      CT scan of chest was done on 2.2.07 which showed evidence of mass lesion in the lung suggestive of bronchogenic carcinoma with pleural metastasis and mediastinal lymphadenopathy.  The CT chest findings were explained to the relatives and they were advised to get pleural biopsy done at RCC, Thiruvananthapuram for confirmation of the diagnosis.  On 4.2.07 the patient developed sudden onset chest discomfort followed by cardio respiratory arrest due to acute coronary syndrome.  She was resuscitated by the duty Physician and put on ventilator with informed written consent secured from the son.  She was intubated and connected to ventilator as a life saving support as she developed cardio respiratory arrest due to AC, Coronary Syndroms as a person who was having underlying pulmonary mass lesion with pleural effusion.  The patient’s condition was explained to the relatives.  She was intubated by the duty Physician and not by the 3^rd opposite party.  The patient developed coronary artery heart disease-AC coronary syndrome followed by cardio respiratory arrest due to the impaired circulation to the heart and was not in any way related with the medication that was given.  The patient was intubated and put on ventilator with informed written consent from the relatives as a life saving measure but for which the patient would not have survived.  She had 2 risk factors for developing coronary artery disease viz. diabetes mellitus and hyper tension in addition to disease to pleura and lungs and sinus bradycardia which could be due to primary cardiac pathology sinus node dysfunction. She was seen by the duty anaesthetist on 4.2.07 and thereafter daily for ventilatory management and their instructions were carried out.

6.      On 7.2.07 the patient was out on ventilation weaning mode and switched to ‘T’ piece with 10 liters of oxygen.  But after 3 hours patient developed respiratory distress and oxygen desaturation and hence reconnected to SIMV mode and ventilation continued to avoid hypoxic brain damage.  The condition of the patient was explained to the relatives on 8.2.07.  Patient’s relatives insisted for disconnecting the ventilator and removing the endotracheal tube.  The risk of doing so without step down weaning was explained to the relatives.  But as per their written request the patient was extubated at 9.50 am on 8.2.07.  She was discharged at request against medical advice as the relatives wanted to take her home.  The opposite parties have done their best medically in this matter to the best of their knowledge and ability and only because of the competent and timely care given by the team of doctors consisting of Physician, Cardiologist and Anaesthetist the patient could tide over the medical emergency.  The allegation that the complainants were not allowed to visit the patient while in the ICU is denied by the opposite parties.  They contended that the patient’s condition was informed to the relatives whenever required.  There was no medical negligence or improper management of the patient on the part of the opposite parties.  Only required medicines were given and the bills issued were normal.  No signed blank papers were obtained from the relatives as alleged.  The opposite parties obtained only the required papers.  There was no deficiency in service or unfair trade practice on their part.  The 1^st opposite party is duly insured with ICICI Lombard General Insurance Company during the period and the said insurance company is a necessary party to the proceedings.  The District Medical Officer, Pathanamthitta, Dy. Superintendent of Police and Circle Inspector of police also conducted detailed enquiry in the matter on the basis of a complaint made by the complainants to the Government and the findings on enquiry are infavour of the opposite parties. They prayed for dismissal of the complaint.

7.      Based on the version of opposite parties 1 to 3 the Cardiologist attached to the hospital of the 1^st opposite party was impleaded as additional 4^th opposite party and the insurance company was impleaded as the additional 5^th opposite party.  The contentions raised by the 4^th opposite party in his version were identical to the contentions of opposite parties 1 to 3.  The Insurance company remained ex-parte.

8.      Before the CDRF, Pathanamthita, the 3^rd complainant gave evidence as PW1.  4 more witnesses were examined on the side of the complainants as PWs 2 to 5.  Exts.A1 to A9 were marked on their side.  2^nd opposite party was examined on the side of the opposite parties.  Exts.B1 to B3 were marked on their side.

9.      The Forum found deficiency of service and unfair trade practice mainly because the opposite parties failed to discharge the patient,  though she was fit for discharge and accordingly directed the 1^st opposite party to return 50% of the treatment expenses as per Ext.A2 medical bills along with compensation of Rs.25,000/- and cost of Rs.3000/- to the complainants.  Hence the appeal by the aggrieved opposite parties 1 to 3.  The correctness of the conclusions of the Forum is challenged in the appeal.

10.    Smt.Sosamma Mathew the wife of the 1^st complainant and mother of the remaining complainants was brought to the hospital of the 1^st opposite party on 1.2.07 with complaint of pain in the neck and pleuritic pain on the right side of the chest for 2 weeks.  She had history of diabetes mellitus and hyper tension.  The patient was admitted in the hospital of the 1^st opposite party.  The ultimate diagnosis was that she had type II diabetes mellitus, hyper tension, bronchogenic carcinoma with pleural metastasis, malignant mesothelioma and coronary artery heart disease.  It was accordingly she was admitted in the ICU.  It is the case of the opposite parties that on 4.2.07 the patient developed sudden discomfort followed by cardio respiratory arrest due to acute coronary syndrome. She was resuscitated by the duty Physician and put on ventilator.  She was intubated and connected to ventilator as a life saving support.  The complainants have taken objection to the above procedure adopted by the opposite parties.  Unfair trade practice and deficiency of service is alleged saying that the condition of the patient worsened only due to wrong medication, medical negligence and improper management and care.  Even while alleging this it is admitted that the deceased was a critically and terminally ill patient.  It may be mentioned that CT scan of chest taken at the opposite party hospital on 2.2.07 itself showed evidence of mass lesion in the lung suggestive of bronchogenic carcinoma with pleural metastasis and mediastinal lymphadenopathy.  She was suffering from pleural effusion right side with pneumonitis.  ECG showed sinus bradycardia.  Pleural fluid aspiration was done on 1.2.07.   The cytology report showed malignant cells suggestive of malignant pleural effusion.  It is also an admitted case that pleural biopsy done at RCC, Thiruvananthapuram confirmed that the patient was having carcinoma right lung.  This being the condition of the patient, there is noting to disbelieve the contention that the patient suddenly developed cardio respiratory arrest and had to be resuscitated.  Thus it is obvious that intubation and none of the procedures adopted by the opposite parties could be said to be unnecessary.  There is also no evidence to show that unnecessary medicines were administered. The serious condition of the patient required sufficient medication.  All the tests conducted were necessary for the diagnosis of the ailments of the patient.  Infact the Forum itself found that no negligent treatment from the side of the opposite parties could be found.  There is also nothing to show that the opposite parties have conducted unnecessary tests and had prescribed unnecessary medicines.

11.    The learned counsel who appeared for the respondents contended that on 8.2.07 after the patient was discharged at request she walked away and was admitted in the Fellowship Medical Mission Hospital, Kumbanad where no life saving support was given.  So, he urged that though the patient was fit for discharge on 6.2.07 itself the opposite parties had retained the patient in their hospital with a view to make undue profit.  Ext.A3 is the discharge summary issued from the Fellowship Medical Mission Hospital, Kumbanad and Ext.A3(a) is a certificate issued by the medical officer attached to the said hospital.  It is seen from these records that she was admitted in the said hospital on 8.2.07 for palliative care and was discharged at request on 15.2.07 at 5 pm.  She was managed with oxygen inhalation SOS, fluid electrolyte balance, water bed, small dose of insulin and other basic supportive measures.  The discharge summary also shows that the patient had bronchogenic carcinoma with secondaries and Trop-T positive.   She was admitted for palliative care.  The above evidence itself shows that there is little merit in the allegation that the patient was fit for discharge on 6.2.07 itself and unnecessary treatment was given at the hospital of the 1^st opposite party.

 12.   It is also pertinent to notice that on the complaint of the complainants the District Medical Officer, Pathanamthitta was directed to enquire into the complaints.  Ext.A7 is the copy of the report submitted by the District Medical Officer.  From Ext.A7 it can be seen that the patient was on ventilator support for 5 days.  It appears from the report that the patient was admitted in the hospital of the 1^st opposite party as referred to by Dr.Gangadharan Pillai of the Geo hospital, Pathanamthitta on feeling chest pain.  The report of the District Medical Officer is that the patient was given all necessary care and treatment after due clinical tests.  The finding recorded is that the 1^st complainant is an Advocate Clerk and he or his family members were not in a position to bear daily expenses of Rs.5000/-.

13.    So, the real reason behind the allegations is that the complainants were not having sufficient financial ability to meet the hospital expenditure.  There is absolutely no evidence to show that the patient was medically fit for discharge even on 8.2.2007.  The only evidence available is that the relatives of the patient wanted the opposite parties to discharge the patient on 6.2.07 because the expenses were beyond their financial capacity to meet.  It is also pertinent to notice that on 8.2.07 when written request was given the patient was discharged against medical advice.  From the subsequently admitted hospital also discharge was obtained at the request of the relatives of the patient.  At the same time the condition of the patient brought out in evidence as per Ext.A7 itself would show that the patient was not fit for discharge even on 8.2.07.  In short there is no basis for the finding of the district forum that the claim of the opposite parties regarding the condition of the patient is beyond realities and is an exaggeration.  It is not for the relatives of a patient to decide the date of discharge of a patient.  That they were financially not sound is no reason for the hospital authorities to discharge a patient.  Had the patient died, that would have been a reason to attribute medical negligence and irresponsible behavior on the part of the hospital authorities.  The real reason as mentioned already for seeking discharge of the patient was that the relatives of the patient were not able to meet the expenditure in the hospital.  But this by itself is no reason to say that there was deficiency in service or unfair trade practice on the part of the opposite parties.  It is pertinent to notice that complainants had approached the Chief Minister perhaps with intention to get relief from the Chief Minister’s Distress Relief Fund and the complainants may be eligible for such relief.   But there is no basis for the conclusion that there was deficiency in service on the part of the opposite parties.   In fact the contention that but for the care and treatment given by the opposite parties the patient would not have survived appears to be true.  On the above conclusions it is clear that the Forum erred in passing the impugned order.  The complainants were not entitled to any relief.  Hence the appeal is liable to be allowed.

In the result the appeal is allowed.  The order of the CDRF, Pathanamthita in CC.121/07 dated:16.8.11 is setaside.  The complaint is dismissed. Considering the facts and circumstances of the case the parties are directed to bear their respective costs.

K. CHANDRADAS NADAR: JUDICIAL MEMBER

VL.