BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.
FA.No.1350 OF 2005 AGAINST C.D.NO.13/1999 District Forum-II, Hyderabad
Between:
The Oriental Insurance Company Ltd.,
Koti, (Hyderabad) Tirupathi.
(Added as per order in I.A.No.178/2002
dated 7-1-2003) ..Appellant/
O.P.No.4
And
1. Smt.N.Suneeja, W/o.Edwn Dayakar
H.No.2-2-185/52-1,
Ramakrishnanagar, Bagh Amberpet,
Hyderabad-500 013.
2. Dr.P.V.Chalapathi Rao,
Chairman, Durga Bai Deshmukh Hospital,
Research Centre,
Andhra Mahila Sabha, University Road,
Vidyanagar, Hyderabad-44.
3. Dr.P.M.Lentin
4. Dr.M.Laxmi Narasamma. Respondents/
Complainant/ Opposite parties
Counsel for the Appellant : M/s.S.Agasthya Sarma.
Counsel for the Respondents: Mr. G.Bhaskar-R1
Mr.P.Nageshwara Rao-R2 and R4.
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT.
AND
SMT.M.SHREESHA, MEMBER.
WEDNESDAY, THE TWENTY EIGHTH DAY OF JANUARY,
TWO THOUSAND NINE
Oral Order : (Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.D.No.13/1999 on the file of District Forum-II, Hyderabad, opposite party No.4 preferred this appeal.
The brief facts as set out in the complaint are that the complainant delivered male child by emergency L.S.C.S. and Tubectomy under G.A. on 24-10-1994 and the hospital bill was paid by the complainant. On 26-9-1998 when the condition of the complainant was serious, she was admitted in opposite party hospital when she underwent major operation for Ruptured Left Tubal Ectopic Pregnancy. The complainant’s brothers and their friends donated blood for her operation and she was discharged on 01-10-1998 and the bill amount of Rs.10,920/- was paid to opposite party hospital. The complainant submitted that after the operation done by the doctors i.e. opposite parties 2 and 3 on 26-9-1998 for ruptured tubal ectonic pregnancy in opposite party No.1 hospital. Her health condition became very bad and she was once again operated on 26-11-1999 at Hegde Nursing Home, Mooasrambagh and she spent an amount of Rs.12,450/-.The complainant submitted that opposite parties are put to strict proof of the allegation to establish the fact that ectopic pregnancy in tubectomised patients is more common ranging from 15% to 50%. The complainant submitted that due to the negligent attitude of opposite parties 2 and 3 in opposite party No.1 hospital, she was made to suffer physical and mental agony by spending huge amount of Rs.43,731/- towards medical and operational charges. She further stated that is unable to contribute her services to her family and has engaged paid servants for the said purpose. Hence the complaint for a direction to the opposite parties to pay compensation and medical expenses.
Opposite party No.1 filed counter stating that the Trust of Andhra Mahila Sabha is running the hospital as a part of social activity on no loss and no profit basis. It further stated that they obtained insurance from Oriental Insurance Company Limited for Medical Establishment, Professional negligence, errors and admissions and the same is covered by the insurance policies which were valid from 5-5-1994 to 4-5-1995 and therefore prayed to make the insurance company and subsequently O.P.4 is added as a necessary party in I.A.No.178/2002 dated 7-1-2003 and prayed to dismiss the complaint.
Opposite party No.2 filed counter denying the allegations made by the complainant. Opposite party No.2 stated that he is a Senior Consultant Physician and is in no way concerned with the surgical aspect since he neither performed the operation nor treated the complainant and prayed to dismiss the complaint against him with costs.
Opposite party No.3 filed counter denying the allegations made by the complainant. She submitted that the provisions of Consumer Protection Act are not applicable to opposite party No1. hospital and that opposite party No.1 hospital is run on ‘No profit No loss basis’ and being maintained by M/s.Andhra Mahila Sabha Trust, which is the society registered under the Societies Act. She further submitted that the complainant was admitted in opposite party No.1 hospital on 24-10-1994 for Lower Segment Caesarian Section and Tubectomy under General Anesthesia and subsequently the complainant was admitted on 26-9-1998 with ruptured Ectopic Pregnancy. She submitted that Ectopic Pregnancy is one in which the fertilized ovum is implanted and develops outside the normal uterine cavity and the failure rate of Tubectomies is 0.3 to 0.4% i.e. 3 to 4 per 1000. incidence of Ectopic Pregnancy in Tubectomised patients is 15 to 50% according to text book of Dr.D.C.Dutta (Page 192). In this case Tubectomy failure of woman have normal pregnancy or Ectopic Pregnancy and the patients cannot avoid the complications unless their uterus is removed and that there is no negligence on her part and prayed for dismissal of the complaint.
Opposite party No.4 filed counter stating that the complainant has not properly given the details of the case, in the absence of which it is difficult to fix the liability of opposite party No.4. They further stated that opposite party No.1 hospital is covered by insurance policy.
Based on the evidence adduced i.e. Exs.A1 to A48 and B1 to B7 and X1, Advocate Commissioner’s report, the District Forum directed opposite parties 1 to 4 to jointly and severally pay compensation of Rs.1,00,000/- to the complainant for mental agony, pain and suffering which she has been undergoing right from the year 1994 as a result of failure of operations conducted by opposite parties 2 and 3 in opposite party No1. hospital with interest at 12% p.a. from the date of complaint till the date of payment together with medical expenses of Rs.30,000/- and costs of Rs.1,000/-.
Aggrieved by the said order, opposite party No.4 preferred this appeal.
The learned counsel for the appellant/opposite party No.4 submitted that the cause of action accrued to the complainant was during the year 1994 and the main complaint was filed in the year 1999 without impleading this appellant and the same is barred by limitation. The petition to implead the appeal was filed on 14-3-2002 and three years has passed from the date of filing of the original complaint and therefore is barred by limitation. The learned counsel further contended in their counter filed in this appeal that the alleged medical negligence was not established in the instant case and despite the availability of affidavit evidence of the doctor, the District Forum has not taken into consideration this affidavit evidence and has come to a wrong conclusion. The learned counsel also relied on a judgement reported in 2008(4) SCJ 571 in SEENIVASAN v. PETER JEBARAJ AND ANOTHER in which the Apex court while discussing the limitation held that if any dependant is impleaded, subsequent proceedings against him shall have deemed to have begun only from the date of service of summons.
We have perused the material on record. The contention of the learned counsel that the District Forum has wrongly directed for impleading opposite party No.4 is unsustainable. The learned counsel contends that the order is dated 7-1-2003 and is filed subsequent to the expiry of the period of limitation and since the cause of action accrued during the year, 1994, impleading opposite party No.4 in the year 2003 is barred by limitation. We observe from the material on record that while the patient was admitted on 24-10-1994 for caesarian and Tubectomy operation, again after 3 ½ years on 26-9-1998 she had suffered from unbearable pain in the abdomen and was admitted once again in opposite party No.1 hospital and operated on the same day. It is the case of the complainant that she was operated again on 26-11-1999 at Hegde Nursing Home for ectopic pregnancy. It is pertinent to note that the appellant/opposite party No.4 has not raised this aspect of limitation in their counter before the District Forum. Even otherwise the C.D. was filed in 1999 and this C.D. was transferred from Hyderabad-I to Hyderabad-II on 16-8-2001 and the District Forum in I.A.No.128/2001 dated 7-1-2003, it directed for impleading this appellant/insurance company. No where has there been more than two years delay in this consequence of events and it cannot be said that the same is barred by limitation and the appellant/opposite party has not raised this contention before the District Forum at all. We also observe from the order of the District Forum in I.A.No.128/2002 that the counsel himself has fairly submitted that if the insurance policy is shown to him, he has no objection to be added as a necessary party. A copy of the insurance policy was furnished to the counsel in the open Forum and immediately he submitted that he had no objection for being added as a necessary party. To reiterate when no such pleading of limitation was taken before the District Forum and have been impleaded as a necessary party and to raise this issue now at the appellate stage is without any substantial grounds and is unsustainable.
The contention of the appellant/opposite party No.4 that there is absolutely no negligence on behalf of opposite parties 1 to 4 has not been substantiated by any medical literature or expert opinion. It is an admitted fact that the complainant underwent for operation for Ruptured Left Tubal Ectopic Pregnancy on 26-9-1998 as a result of which complications arose and she is unable to perform her normal domestic duties both as a nurse and house wife. It is the duty of opposite parties to establish what exactly happened in the nature of treatment as laid down by the Apex court in (2004) 8 SUPREME COURT CASES 56 in SAVITA GARG (SMT) v. DIRECTOR, NATIONAL HEART INSTITUTE that
‘when a prima facie case is established, it is the duty of the opposite parties to prove their case, since it is only the opposite parties who are aware of the exact line of treatment that has been given to the patient. It was also held by the Apex Court that once a claim petition is filed and the complainant has successfully discharged the initial burden that the hospital/clinic/doctor was negligent and that as a result of such negligence, the patient died, then in that case, the burden lies on the hospital and the doctor concerned, who treated the patient, to show that there was no negligence involved in the treatment.
It is the case of the opposite parties that tubectomy failure of women for normal pregnancy or Ectopic pregnancy and the patients cannot avoid the complications unless their uterus is removed and that opposite parties are not supposed to remove the entire length of tube or ovaries while performing tubectomy operation and the same has nothing to do with either L.S.C.S. or Tubectomy and therefore there is no negligence on their behalf and the concerned doctors are no way responsible for the complications. The District Forum has rightly observed that the contention of opposite parties 1 to 3 in their counter that Ectopic pregnancy in tubectomised patients is more common i.e. 15 to 50% is falsified by their own document i.e. Ex.B2 in which it is stated that there is 1 in 20 chances of repeat ectopic. Further under the head tubal pregnancy, it is stated that the influencing factors could be increased prevalence of chronic inflammatory disease, tubal plastic operations and IUCD users and this incidence varies from 1 in 300 to 150 deliveries. There is no material evidence on record to establish that opposite parties 1 to 3 have taken proper care and treated the patient as per normal standards and medical parlance. It is pertinent to note that the hospital and the doctor have not preferred any appeal while we observe that the order of the District Forum cannot be interfered in so far as medical negligence is concerned. However, we modify the order of the District Forum with respect to percentage of interest i.e. we reduce it from 12% to 9% while confirming the rest of the order of the District Forum.
In the result this appeal is allowed in part and the order of the District Forum is modified with respect to percentage of interest i.e. we reduce it from 12% to 9% while confirming the rest of the order of the District Forum. Time for compliance four weeks.
PRESIDENT. LADY MEMBER.
Dated 28-1-2009.
