BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                               : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU  V.R.                                             : MEMBER

C.C.No. 36/2012  Filed on 25/01/2012

ORDER DATED: 26/10/2022

ORDER

SRI.P.V. JAYARAJAN, PRESIDENT:

1. This is a complaint filed under section 12 of Consumer Protection Act 1986 and the matter stood over to this date for consideration.  After hearing the matter the commission passed an order as follows:
2. The case of the complainant in short is that the complainant developed a swelling in her left hand which was noticed by her during July 2011.  She was pregnant at that time and had given birth to a baby girl on 06/08/2011.  Severe pain in the left hand started after two months and when the pain and swelling became unbearable she consulted the 3^rd opposite party in the 1^st opposite party hospital of which the 2^nd opposite party is the Managing Director (subsequently amended as Chief Executive Officer as per order in IA No: 55/13 ) on 08/10/2011.  The complainant was advised to undergo general surgery by the 3^rd opposite party as the diagnosis was Neurofibroma of the hand.  The complainant was admitted in the 1^st opposite party hospital for undergoing surgery on 10/10/2011.  Excision was done under local anesthesia and she was discharged on 11/10/2011.  She was asked to go for review on 14/10/2011.  Even after the surgery the pain in her hand had not lessened and in fact it was worse than before.  The complainant again consulted the 3^rd opposite party who prescribed certain medicines and advised that the pain would go away in two to three days.  The complainant was very worried of taking the medicines prescribed as she was lactating and her child was only 2 months old.  She shared her apprehension with the 3^rd opposite party, but the 3^rd opposite party took a careless attitude and she continued taking the medicines prescribed.  The severe pain in the complainant’s left hand continued and when it become too unbearable that she was not even able to look after her infant, her parents took her to the Medical College Hospital, Thiruvananthapuram on 31/10/2011.  From the scan report it is evident that the treatment she was given in the 1^st opposite party hospital by the 3^rd opposite party was not proper and there was utter negligence and carelessness on the part of 3^rd opposite party.  The complainant has to undergo surgery again on 04/11/2011 at Medical College Hospital for Neurofibroma for which the 3^rd opposite party had treated her previously at the 1^st opposite party hospital.  She had to undergo severe pain which disrupted her life and the well being of her infant.  Now after her surgery and treatment at the medical college hospital, pain in her hand had subsided.  Due to the negligence in the treatment of the 3^rd opposite party the complainant had to undergo untold mental and physical agony, pain and loss of money.  This was caused solely due to the callous and gross negligence and deficiency in service in the wrong diagnosis made by 3^rd opposite party.  Alleging deficiency in service on the part of the opposite parties, the complainant approached this Commission for redressal of her grievances.

3. The opposite parties filed written version contending that the complainant was admitted to the hospital on 10/10/2011 and she underwent all necessary pre operative investigations and voluntarily consented for exploration.  Under all aseptic care and precautions, the 3^rd opposite party conducted exploration of the dorsum of left hand under local anesthesia.  Intra Operatively there were inflammatory signs and hence extensive exploration was not attempted, for fear of causing injury to smaller nerves, blood vessels and tendons, which might have caused permanent damage to thumb and index finger.  Hence with a plan to conduct re-exploration in future, after subsidence of infection and inflammation, exploration was completed and a soft tissue tumour like material removed was sent for biopsy.  The complainant and her relatives were informed about the exploration findings and the need for a re-exploration after settling infection and inflammation.  The complainant was discharged on 11/10/2011 with an advice to continue medicines.  The biopsy report came as Neurofibroma.  In subsequent reviews also there was swelling and oedema and she was advised to continue anti-inflammatory and analgesics medicines.  On 28/10/2011 pain and swelling found to have subsided and the complainant was advised re-exploration on the dorsum of left hand.  But she did not turn up for re-exploration as suggested and lost further follow up.  The 3^rd opposite party had not proceeded to conduct extensive exploration on 10/10/2011 for the obvious medical reason that there was inflammation and an extensive exploration in such a condition might have caused damage to nerves, blood vessels or tendons leading to complications amounting to permanent impairment of fingers.  The averments in paragraph 5 of the complaint shed light on the fact that the complainant had neglected the treatment advice given for re-exploration at the 1^st opposite party Hospital and she underwent the surgical treatment at Medical ‘College Hospital for the diagnosed Neurofibroma.  It was well explained to the complainant that the treatment for the diagnosed Nerofibroma was not completed by the exploration done earlier as there was inflammation and swelling in the area and had to be re-explorated after relieving pain and swelling.  The complainant voluntarily opted, further treatment at MCH, Thiruvananthapuram and underwent surgical treatment there.  The treatment given to the complainant at Medical College Hospital was not necessitated by any act or omission on the part of the 3^rd opposite party rather it was the continuation of treatment given at the First Opposite party Hospital. 

4. The evidence in this case consists of PW1 and Exts.P1 to P9 were marked on the side of the complainant.  Opposite Party No:1 filed affidavit but passed away before cross examination.  The legal heirs of OP No:3 was not subsequently impleaded.  Ext.D1 was marked from the side of the Opposite Parties. The case sheet of Medical College Hospital, Trivandrum was marked as Ext.X1.

5. Issues to be considered:

1. Whether there is any deficiency in service on the part of the  Opposite Parties?

2. Whether the complainant is entitle to the relief claimed in the
3.  
4. Order as to cost?

6. Heard both sides. Perused records.  issue Nos.1&2 are considered together for the sake of convenience.  To substantiate the case of the complainant, the complainant herself was examined as PW1 and Ext.P1 to P9 were marked.  Ext.P1 is the Discharge Summary dated 11/10/2011.  Ext.P2 is the original bill dated 10/10/2011.  Ext.P3 series are the pharmacy bills.  Ext.P4 is the original MRI scan report dated 31/10/2011.  Ext.P5 is the Copy of Discharge Card dated 08/11/2011.  Ext.P6 is the copy of case record.  Ext.P7 is the legal notice dated 12/12/2011.  Ext.P8 series are the Acknowledgement Cards.  Ext.P9 is the reply notice dated 19/12/2011.   Opposite parties documents also marked in Ext.D1.  Ext.D1 is the Case sheet for S.P Port Hospital.  Ext.X1 is the Case sheet of the complainant from Medical college Hospital, Thiruvananthapuram.   We have gone through Ext.X1 case sheet in respect of the treatment given to the complainant from the Medical College Hospital, Thiruvananthapuram.  It shows that re excision of tumour was done from there and the post operative period was uneventful.  The contention of the Opposite Parties is that the 3^rd opposite party had not proceeded to conduct extensive exploration on 10/10/2011 for the obvious medical reason that there was inflammation and an extensive exploration in such a condition might have caused damage to nerves, blood vessels or tendons leading to complications amounting to permanent impairment of fingers.  In paragraph 5 of the complaint shed light on the fact that the complainant had neglected the treatment advice given for re-exploration at the 1^st opposite party Hospital and she underwent the surgical treatment at Medical ‘College Hospital for the diagnosed Neurofibroma.  It was well explained to the complainant that the treatment for the diagnosed Nerofibroma was not completed by the exploration done earlier as there was inflammation and swelling in the area and had to be re-explorated after relieving pain and swelling.  The complainant voluntarily opted, further treatment at MCH, Thiruvananthapuram and underwent surgical treatment there.  According to the Opposite Parties, the treatment given to the complainant at Medical College Hospital was not necessitated by any act or omission on the part of the 3^rd opposite party rather it was the continuation of treatment given at the First Opposite party Hospital.   A perusal of Ext.D1, the case sheet of Opposite Party No:1 hospital in respect of the treatment of the complainant, reveals that  on 28/10/2011 the patient was advised for a re excision.

7. The Hon’ble Supreme Court in Dr.Laxman Balakrishna Joshi  v/s Trimbak Bapu Godbole and Another (AIR 1969 SC 128) observed that the duty owed by a doctor towards his patient, is to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a reasonable degree of care”.   The Hon’ble Supreme Court in Kusum Sharma & others v Batra Hospital & Medical Research Centre and others ( AIR 2010 SC 1050) held that “Just because a professional, looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.  Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession”.  Here in this case, the complainant had no case that the course of action chosen by the 3^rd  Opposite Party was not acceptable to the medical profession.  A careful perusal of Ext.X1 also does not disclose any such observations or conclusions. 

8.         In a number of medical negligence cases the Hon’ble Apex Court of the land held that: “medical practitioner can be only held liable, when the standard of care is reasonably  less than the reasonable care that should be taken from a competent practitioner in that field.”   The Hon’ble Apex Court further held that: “no negligence will apply on medical professional, when he performs his duty with the utmost care that should be taken, and he had taken all the precaution.”   Negligence is simply the failure to exercise due care. The three ingredients of negligence are as follows: 1) The Opposite Party owes a duty of care to the patient, 2) The Opposite Party has breached this duty of care and  3) the patient has suffered an injury due to breach.     

9.The Hon’ble National Commission in KS Bhatia Vs Jeevan Hospital { IV (2003) CPJ 9 (NC) } has held relying on decisions laid by the Apex Court and Privy Council in cases of medical negligence,  which specify that specific act of negligence has to be alleged and then proved that the specific act amounts to negligence.  As per settled law on the subject, the  complainant has to allege which action of the OPs was not as per accepted medical practices. What was done which should not have been done or what was not done which should have been done. This has to be supported by expert evidence or medical literature on the subject.   In the case on hand, the complainant has failed to adduce any medical proof supported by expert evidence or medical journals to substantiate her allegation of negligence leveled against the Opposite Parties.  The burden of proving that the doctor was negligent rests with the complainant. 

10. It is pertinent to note that from Ext.D1, it is evident that on 28/10/2011, the 3^rd Opposite Party has advised the complainant for a re excision.   The Ext.X1 case sheet in respect of the treatment of the complainant at Medical College Hospital, reveals that re excision was done on 04-11-2011. Hence it is evident that on 28/10/2011, the complainant was advised by the  3^rd Opposite Party regarding re excision.  The subsequent treatment adopted and followed from the Medical College Hospital, Trivandrum, is also re excision.   As the very same treatment advised by the 3^rd Opposite Party was done from Medical College Hospital, Trivandrum, we can not attribute any negligence on the part of the Opposite Parties.  

11.     In view of the above discussions, we find that the complainant has miserably failed to establish her case put forward against the Opposite Parties.  As per the dictum laid down by the Hon’ble Apex Court of the land and the Hon’ble National Consumer Commission, and in the absence of any expert evidence from the side of the complainant, we find that the complainant failed to establish her case and there is no evidence before this commission to suggest that there is any deficiency in service or medical negligence on the part of the Opposite Parties. 

12. In the result the complaint is dismissed. The parties have to bear their respective costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 26^th  day of October,  2022.

C.C. No. 36/2012

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

        DW1       :    Dr.Akbar (Filed Chief Affidavit, but before Cross Examination he

                            passed away)

4. OPPOSITE PARTY’S DOCUMENTS:

5. COURT EXHIBIT:

        X1         :  Case sheet for Medical college Hospital, Thiruvananthapuram.

                                                                                                                            Sd/-

                                                                                                                       PRESIDENT