Tamil Nadu

StateCommission

FA/597/2010

P.BALASUBRAMANIAM - Complainant(s)

Versus

SREE ABIRAMI HOSPITALS PVT. LTD., - Opp.Party(s)

SARVABHUMAN

29 Dec 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

                    Present: Thiru J. Jayaram,                                PRESIDING JUDICIAL MEMBER

                                  Tmt.  P. Bakiyavathi                            MEMBER

 

F.A. No. 597 / 2010

                                                                          (Against the Order in C.C. No. 161 / 2008,

dated 17-06-2009 on the file of the DCDRF, Coimbatore

Dated this the 29^th day of DECEMBER, 2015  

P. Balasubramaniam,                          ]

S/o Late Palanisamy,                          ]

Vadakku Thottam,                     ]

Navakkarai,                                        ] ..  Appellant / Complainant

Coimbatore                                        ]

 

                   Vs.

 

1. Sree Abirami Hospital (Pvt.) Ltd.,    ]

    Represented by its                          ]

    Managing Director,                         ]

    Dr. P. Periyaswamy.                       ]

]

2. Dr. P. Periyaswamy,                       ]

    No.33, Madukarai Road,                 ]

    Sundarapuram,                     ] ..  Respondents / Opposite

    Coimbatore – 641 024           ]                              Parties

   

   This Appeal coming up before us for final hearing on 05-11-2015 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following Order:

 

Counsel for Appellant:     -        M/s Sarvabhuman Associates

Counsel for Respondents:          -        M/s Anand, Abdul & Vinod.

 

J. JAYARAM, PRESIDING JUDICIAL MEMBER

            This appeal is filed by the complainant against the order of the District Forum, Coimbatore in C.C. No. 161 / 2008, dated 17-06-2008, dismissing the complaint.

The case of the complainant is that his mother late Thulasiammal was admitted on 11-06-2006 in the 1^st opposite party hospital with complaints of stomach pain. The 2^nd opposite party checked the patient and admitted her in the ICU and informed the complainant that proper medical treatment was going on as required and that a surgery had to be performed immediately along with other medical treatments. The 2^nd opposite party refused to reveal any details about his mother’s health problems and the condition and the details of the medical treatment. Further, the 2^nd opposite party refused to allow anybody to see his mother and thus preventing the complainant from knowing the actual health condition of his mother in the ICU. However, after repeated requests, the opposite parties allowed the complainant to see her and the complainant came to know that his mother’s health condition was serious and not stable due to the negligence of the opposite parties in not providing proper treatment to her. Therefore, the complainant shifted his mother on   13-06-2006 to KMCH Hospital, Coimbatore since his mother’s condition became very serious due to the wrong treatment given to her by the opposite parties and the complainant came to know that no surgery was performed on his mother as informed to him by the opposite parties that surgery was going to be performed after shifting his mother, as the opposite parties compelled and threatened to settle the bills raised by the opposite parties for higher amount in order to extract money even after the entire bills were settled already by the complainant. The 2^nd opposite party has collected the amounts for surgery and medicines and other charges without doing anything as assured.

2.       His mother was admitted in KMCH Hospital at Coimbatore as an inpatient from 13-06-2006 to 22-06-2006, and his mother after treatment died on 22-06-2006 in the hospital. The death is due to the improper treatment and the wrong diagnosis by the opposite parties at the initial stage. The opposite parties are responsible for the death of his mother on account of not diagnosing the problem correctly and not giving proper timely treatment which amounts to negligence and deficiency in service on the part of the opposite parties, and hence the complaint.

 

3.       According to the opposite parties, the patient was brought by the complainant to their hospital on 11-06-2006 and was admitted in the ICU with abdominal pain, vomiting and fever, and her problem was diagnosed as acute abdomen and the patient was admitted in ICU, and at that time itself the patient’s relatives were informed of the seriousness of the problem.

 

4.       The patient Thulasiammal was admitted in their hospital from 11-06-2006 to 13-06-2006, after which she was shifted to another hospital by the complainant, where she died after 10 to 15 days after the surgery. There is no negligence or deficiency in service on their part.

5.       The opposite parties consulted one Dr. Raja, M.S., (Surgeon), and one Dr. Palanivel (Anesthetist) for surgery. The condition of the patient was such that she was not in a position to be administered general anesthesia, and the surgery needed to be performed  on her was  with regard to bowel perforation which was not

possible without general anesthesia. Therefore, the only procedure to be adopted was to insert a peritoneal drain under local anesthesia, to remove the contaminated fluid present in the abdomen which is due to a hole in the intestine. The patient’s condition was not fit enough to take any definitive line of treatment and there was risk of many complications due to surgery under general anesthesia, and her condition might become critical after the surgery which could even result in death of the patient. There is no negligence or deficiency in service on their part.

6.       The District Forum considered the rival contentions and dismissed the complaint holding that there is no negligence or deficiency in service on the part of the opposite party.

7.       Aggrieved by the impugned order, the complainant has preferred this appeal.

8.       5 Additional documents were filed and marked as Ex.A18 to A22 on the side of the appellant.

9.       The complainant has filed this complaint against the opposite parties claiming compensation for the negligence and deficiency in service on the part of the opposite parties in treating and conducting surgery on the complainant’s mother resulting in her death.

 

10.     It is pertinent to note that no expert’s opinion is placed before the Forum and no expert’s evidence is adduced and so in these circumstances, we have to decide the case considering the available other evidence and invoking the doctrine of ‘res ipsa loquitur’, to the extent possible.

 

11.     In this regard, we rely on the following decisions of Hon’ble Supreme Court for our guidance:

 

V. Krishna Rao v. Nikhil Super Speciality Hospital

& Anr.   III-(2010)-CPJ-I-(SC)

 

“In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory”.                                            (Para 13)

 

 “In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself.  In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence”.                                                                (Para 47)

 

Jacob Mathew v. State of Punjab & anr.

2005 (6) Supreme Court cases. 

“Res ipsa Loquitur – is a rule of evidence which in reality belongs to the Law of Tort. Inference as to negligence may be drawn from proved circumstances by applying the rule”.

(Page 22)  

 

“Res Ipsa loquitur is a rule of evidence and operates in the domain of civil law, especially in cases of torts and helps in determining the onus of proof in actions relating to negligence”.

(Page 34)

12.     It is contended by the complainant / appellant that his mother was admitted in the 1^st opposite party hospital on 11-06-2006 as required by the 2^nd opposite party and the 2^nd opposite party informed the complainant that the medical treatment was going on as required and that a surgery had to be performed immediately along with other medical treatment for curing her ailment and that the complainant paid the amounts for the medical treatment and surgery as wanted by the 2^nd opposite party before starting the treatment. The opposite parties did not allow him or his father to see the patient in the ICU, and after much persuasion and repeated requests, the opposite parties allowed the complainant to see her and there he came to understand that her condition was not stable because proper and correct treatment was not given by the opposite parties and so the complainant shifted his mother to KMCH Hospital, Coimbatore on 13-06-2006 and he learnt that no surgery was performed on his mother as informed by the 2^nd opposite party while receiving payments.

 

13.     It is further contended by the complainant that the opposite parties collected money for the surgery and medicines and other charges without rendering any services. His mother would have survived if proper treatment had been given by diagnosing the problem correctly at the initial stage and properly treated which was not done by the opposite parties and his mother died on 22-06-2006 due to the negligence and deficiency in service on the part of the opposite parties.

14.     The opposite parties would contend that the patient was admitted in a critical condition on 11.6.2006 due to some problem in her stomach and she was given proper treatment in the ICU but meanwhile, the complainant shifted the patient to another hospital viz. KMCH Hospital, Coimbatore, where she died on 22-06-2006 after a long time after the surgery was conducted in the opposite parties hospital, and there is no nexus between the surgery performed by the opposite parties and her death.

 

15.     Admittedly, the complainant’s mother was admitted in the opposite parties hospital on 11-06-2006 complaining of stomach pain. According to the opposite parties, a surgery had to be performed in her abdomen immediately along with other treatments; and meanwhile she was shifted to another hospital by the complainant on 13-06-2006 and she was in the opposite party hospital as inpatient for two or three days only (11-06-2006 to 13-06-2006). The opposite parties would further state that the condition of the patient was such that she was not in a position to be administered general anesthesia for the surgery needed to be performed on her for bowel perforation. Therefore, a surgery was performed on the patient adopting a different method  known as ‘ABOMINOCENTESIS’.   

 

16.     The opposite parties have further stated that the problem was diagnosed as acute abdomen for which she was to be treated in emergency and the serious condition of the patient’s abdomen required hospitalization and treatment on an emergency basis.

 

17.     Further, it is pertinent to note that the opposite parties have admitted that they could not take a definitive line of treatment.  

 

18.     We have to note that the opposite parties had not conducted the surgery which they intended to do and according to the opposite parties they have adopted a different procedure. We further come to know that the opposite parties kept the complainant in the dark without providing any information of the patient’s health in the ICU, which amounts to deficiency in service on the part of the opposite parties.

 

19.     We have to further note that no proper Discharge Summary was furnished to the complainant, which amounts to further deficiency in service on the part of the opposite parties.

 

20.     The opposite parties have stated two conflicting versions regarding the surgery performed on the patient. The opposite parties have stated that the surgery was performed on the patient, and later they would say that the surgery could not be performed because the patient was not fit enough for general anesthesia and they would further say that they conducted surgery adopting another technique called ‘ABOMINOCENTESIS’. We find that this procedure has been adopted  by the  opposite parties without analysing the consequences.

 

It is further to be noted that the opposite parties have admitted that they could not plan the further course of action and they could not decide any definitive line of treatment.  

 

21.     On considering the entire materials on record, we hold that there is negligence and deficiency in service on the part of the opposite parties in not diagnosing the problem at the earliest point of time and not giving proper timely treatment at the initial stages to the patient and in not being able to decide the definitive line of treatment, as admitted by the opposite parties and also due to the other reasons stated above for the deficiency in service.

 

22.     The District Forum has dismissed the complaint holding that there is no medical expert’s evidence to establish the complainant’s contention and that there is no nexus between the treatment given by the opposite parties and the death of the patient after more than 10 days, after the surgery performed by the opposite parties.

23.     It is to be noted that though there is no direct nexus, yet it is a contributing factor for the death, since no correct diagnosis was done in time and except draining the contaminated fluid through a hole  no definitive course of treatment could be planned by the opposite parties, which amounts to further negligence and deficiency in service on the part of the opposite parties.

24.     It is significant to note that by adopting a different procedure the opposite parties have inserted a plastic tube into the abdomen to remove the contaminated fluid.  This is only a temporary ancillary measure while the main issue / the root cause is perforation (hole) in the intestine; but the opposite parties have not taken any steps to solve the root cause and this amounts to negligence and deficiency on the part of the opposite parties.

 

25.     For the aforesaid reasons, we hold that there is negligence and deficiency in service on the part of the opposite parties and therefore, the order of the District Forum is liable to be set aside.

 

26.     Now coming to the quantum of compensation, it would be appropriate for us to refer to the decision of the Hon’ble Supreme Court in the case of Ghaziabad Development v. Balbir Singh reported in (2004) 5 SCC 65 wherein the Court has held as follows:

 

“The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him”.

 

27.     Having regard to all the relevant factors we hold that the complainant is entitled to the medical expenses incurred by them viz. Rs.1,60,000/- and an award of Rs.3 Lac would be the just and reasonable compensation for mental agony and sufferings.

 

28.     In the result, the appeal is partly allowed by setting aside the order of the District Forum and directing the opposite parties jointly and severally to pay:

A sum of Rs.1,60,000/- (Rupees One Lakh and Sixty Thousand only) towards the medical expenses incurred by the complainant; and a sum of Rs.3,00,000/- (Rupees Three Lakhs only) as compensation for mental agony and sufferings, and Rs.10,000/- (Rupees Ten Thousand only) towards costs of proceedings.

Time for compliance: Two months from the date of receipt of copy of the order. In case of default to comply with the order, the amounts shall carry interest @ 9% p.a. from the date of default till compliance.

 

 P. BAKIYAVATHI                      J. JAYARAM         

           MEMBER                         PRESIDING JUDICIAL MEMBER     

 

List of Additional Exhibits filed on the side of the Appellant

 

Ex.A18.  22-06-2006    Discharge Summary of complainant’s mother

                                    issued by Kovai Medical Centre and Hospital

                                    Limited

Ex.A19.  13-06-2006    Bills issued by Kovai Medical Centre and

          To 22-06-2006    Hospital Ltd.

 

Ex.A20.  15-01-2007    Discharge Summary of the complainant’s

                                    father, Palanisamy

Ex.A21   22-06-2006    Death Certificate of Thulasiammal

 

Ex.A22.  31-01-2006    Death Certificate of Palanisamy.  

 

  P. BAKIYAVATHI                     J. JAYARAM         

           MEMBER                         PRESIDING JUDICIAL MEMBER