JUDGEMENT<br /> By Sri. Pampapathi, President:-<br /> <br /> This is a complaint filed by the complainant Nos. 1 & 2 against Opposite 1 & 2 U/sec. 12 of Consumer Protection Act for to award a compensation of Rs. 7,15,000/- with other reliefs as deems fit to the circumstances of this case.<br /> <br /> 2. The brief facts of the complainant’s case are that, their daughter by name Vijayalaxmi was admitted in the Nursing Home of opposite No-2 on 02-08-06 for treatment of abdominal pain. Opposite No-1 sent the complainant No-1 for to bring medicine and took Vijayalaxmi to operation theatre conducted operation without consent of the complainants and thereafter post operative treatment done for (10) days and again on 12-08-06 the second operation was conducted under the inevitable condition of complainants and treatment given till (8) days, thereafter her abdomin burst, exposed inner parts namely intestine and other organs came out of the stomach. The complainants have requested opposite No-2 several times regarding the health condition of their daughter. Opposite No-2 shown his negligence in treatment and proper advise. Thereafter they requested the doctor to send the patient to the higher hospital, but opposite No-2 thrown all case papers to the complainants and instructed them to leave the hospital immediately. Thereafter they took their daughter to VIMS on 28-01-06 at Bellary, the doctor checked the condition of the patient and expressed that health condition of her was beyond control and they are unable to handle the patient. Thereafter, they brought their daughter to their village and on 26-08-06 she died. There was clear negligence on the part of opposite No-2 in operating Vijayalaksmi and as well as in post operative treatment. Accordingly this complaint is filed by them for the reliefs as noted in it.<br /> <br /> 3. Opposite Party No-1 & 2 appeared in this case through their Advocate, filed written version by denying para-wise allegations made by the complainant. It is stated by them that Vijayalaxmi was brought to his Nursing Home on 01-08-06, she was seriously and acutely suffering for Entric Perforation with Peritonitis, he advised them to get immediate operation but they took back their daughter as they are not ready to take operation again on 02-08-06 she brought back to his hospital soon after admission, she was operated. She was under his care and treatment till 20-08-06 patient developed Faceal Fistula, as such on 12-08-06 Re-exploration of Faceal Fistula was done with consent of the complainant and attendants of her, and one post operative treatment. On 20-08-06 complainant No-1 got discharged his daughter Vijayalaxmi against medical advice from his Nursing Home, thereafter he do not know the condition of the patient. All other allegations made against him are denied. On 20-08-06 case papers of Vijayalaxmi were missing, and under suspicious circumstances, a complaint was filed before Sadar Bazar Police Station, proper treatment given to her in his Nursing Home. In support of this contention of Medical Literatures is filed and prayed for to dismiss the complaint among other grounds.<br /> <br /> 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:<br /> <br /> 1. Whether the complainants prove that, they admitted their daughter Vijayalaxmi in the Nursing Home of opposites on 02-08-06 on the complaint of abdominal pain, opposite No-2 doctor conducted operation on her without informing and without their consent or the consent of the patient, thereafter there was negligence in post operative treatment as such again on 12-08-06 one more operation conducted on Vijayalaxmi, there was negligence in post operative treatment, wounds not needed, it widened day by day. Inner parts of her stomach were exposed, opposite No-2 failed in giving proper treatment and advise thereafter complainants took Vijayalaxmi in the same condition as it was to VIMS Bellary. Doctors examined her and refused to admit her in the hospital due to bad condition of Vijayalaxmi. Thereafter the said Vijayalaxmi died on 28-06-06 in the village, therefore opposites found guilty under deficiency in their medical service.?<br /> <br /> 2. Whether complainant is entitled for the reliefs as prayed in his complaint.?<br /> <br /> 3. What order?<br /> <br /> 5. Our findings on the above points are as under:-<br /> <br /> (1) In the affirmative.<br /> <br /> (2) As discussed in the body of this judgement and as stated in the final order.<br /> <br /> (3) In-view of the findings on Point Nos- 1 & 2, we proceed <br /> to pass the final order for the following :<br /> <br /> REASONS<br /> <br /> POINT NO.1 & 2:-<br /> <br /> 6. To prove the facts involved in these two points, affidavit-evidence of complainant’s No-1 was filed, who is noted as PW-1. The documents Ex.P-1 to Ex.P-12, Ex.P-1(1) to Ex.P-(32) and Ex.P-2 (1) to Ex.P-(35) are marked. Affidavit evidence of opposite No-2 was filed, who is noted as RW-1. The document Ex.R-1 is marked and Expert Report is marked at Ex.C-1.<br /> <br /> 7. In the instant case some of the following facts are undisputed facts between the parties:-<br /> <br /> 1. It is undisputed fact that, Vijayalaxmi who is daughter of complainant No-1 & 2 was admitted as an <br /> in patient on 02-08-06 in the nursing home of opposite No-2 on the complaint of her abdominal pain.<br /> <br /> 2. It is also undisputed fact that, on the same day she was operated by opposite No-2 in his nursing home <br /> opposite No-1 for perforation with peritonitis (Entric) and she was under post operative care and <br /> treatment till 20-08-06. Further it is undisputed fact that on 12-08-06 re-exploration of Faceal <br /> Fistula was done with consent of attendants of her.<br /> <br /> 3. It is further undisputed fact that the said Vijayalaxmi was discharged from the hospital of opposite <br /> No-2 on 20-08-06.<br /> <br /> 4. The said Vijayalaxmi died on 26-08-06 due to the said disease.<br /> <br /> 8. As per the pleadings and evidence by opposite No-2-RW-1 and as per the case sheets of Vijayalaxmi maintained by opposite No-2 in hospital at Ex.P-6 and discharge summary card Ex.P-3, it is very much clear that, opposite No-2 not obtained the consent of the complainants or of any one of the attendants of the patient, either prior to the operation or after the operation dt. 02-08-06, the consent of complainant No-1 was obtained for the second operation dt. 12-08-06.<br /> <br /> 9. As per the Medical ethics, it is the duty of opposite No-2 to inform to attendants of patient regarding operation required to be conducted on the patient and to take their consent. If it was the case of emergency, then it was the duty of opposite No-2 to inform the same immediately after the operation but that was not done by him in this case.<br /> <br /> 10. It appears from the written version of opposite No-2 that these complainants came to his nursing home with patient Vijayalaxmi on 01-08-06, he examined the patient and advised to get immediate operation, but parents of her refused for operation and took her back. Thereafter on 02-08-06 they brought Vijayalaxmi to his hospital and admitted her and accordingly he conducted operation on 02-08-06.<br /> <br /> 11. This fact not stated by the complainants, in the light of the said circumstances, now we have to see as to whether complainants with Vijayalaxmi approached opposite No-2 doctor on 01-08-06 and refused to take his advice for operation and went back. It is the case of complainants that they came to the hospital only on 02-08-06 and admitted Vijayalaxmi in the nursing home of opposite No-2, now we have to see as to whether who is the correct in this regard. Ex.P-3 discharge summary card maintained by opposite No-2 in his nursing home clearly discloses that the said Vijayalaxmi was admitted in his hospital on 02-08-06 and not on 01-08-06 there are no records from the side of the opposites to hold that these complainants along with Vijayalaxmi approached the opposite No-1 on 01-08-06 itself and refused to under go operational treatment as advised by him. In such circumstances, we are of the view that complainants are correct in saying that they approached opposite No-2 and admitted Vijayalaxmi in the hospital of opposite No-2 on 02-08-06 and not on 01-08-06 as contended by the opposites. Further we have to see as to whether this opposite No-2 obtained the consent of complainants or at least he informed them regarding the emergency operation on Vijayalaxmi prior to operation or after it. The case sheets Ex.P-6 not discloses any of such facts, even after operation on Vijayalaxmi by opposite No-2 not got ratified by the parents. In such circumstances, we constrain to hold that the first operation dt. 02-08-06 was without consent of either complainant Nos- 1 & 2 or with the consent of Vijayalaxmi or attendants of her at any time.<br /> <br /> 12. The case history sheet Ex.P-6 reveals that, from the date of first operation i.e from 02-08-06 to 12-08-06 Vijayalaxmi was under post operative care and treatment of opposite No-2 (this fact is undisputed). Further from the date of second operation dt. 12-08-06 till the date of her discharge i.e, 20-08-06 she was in the post operative care and treatment of opposite No-2 so we have to see what kind of negligence of this opposite No-2 in that period. <br /> <br /> 13. One thing is very much clear from photographs Ex.P-8(1) and Ex.P-8(2) of patient Vijayalaxmi and the facts noted by expert in his report at Para-1 of Ex.C-1, it is very much clear that, the abdomin of Vijayalaxmi was burst while post operative treatment and care of RW-1 after second operation and inner organs of abdomin exposed. It appears to us from the experts report and from the allegations of the complainants and photographs of Ex.P-8(1) and Ex.P-8(2) that all inner parts of her abdomin exposed after burst while she was under post operative treatment under RW-1, when such being the horrific health condition of Vijayalaxmi, it was the duty of the RW-1 to give more attention to prevent further complications. The case sheets maintained by opposite No-2 in his nursing home which are marked on the side of the complainants as Ex.P-6 shows regarding the medicines prescribed to her Vijayalakshmi. But complainants are not serious about the medicines given to patient. The 2nd grievance of them is that opposite No-2 conducted the first operation without their consent and information and there after he obtained their consent under inevitable conditions for second operation as they have no other choice due to the serious health condition of their daughter and with regard to post operative treatment till discharge, in the light of such allegations made against opposite No-2 we have perused the written version of opposite No-2. In the written version and in the affidavit evidence of him he now where stated that his nursing home is equipped with proper and necessary instruments to conduct such serious operations including suitable operation theatre, he not disclosed that he is the qualified and experienced doctor for to conduct such emergency operations. However we can find some evidence regarding his qualifications and competence to conduct such operation in his affidavit-evidence. His name is shown with Master Degree in Surgery in the cause title of it, but he not in his affidavit-evidence that he equipped with all facilities including suitable operation theatre for to conduct such emergency operations. However we took note of his qualification and his age we hold that he is the competent person to conduct such operation. But that itself is not sufficient for opposite No-2 to escape from the clutches of law without convincing us that he has well equipped with all facilities including suitable operation theatre.<br /> <br /> 14. From Ex.C-1, we can see the reasons for abdominal burst of Vijayalaxmi removal of entire skin might have due to infection of wound. This fact has not been reveled by the opposites either in written version or in affidavit-evidence. Hence we are of the view that opposite No-2 intentionally not stated the real facts happened to Vijayalaxmi after operation dated 02-08-06 and thereafter of second operation.<br /> <br /> 15. The principles narrated in a ruling reported in AIR 2005 S.C. 3180 Jackob Mathew V/s. State of Punjab and another coupled with the above circumstances of this case leads to conclusion that opposite No-2 either he was not possessed requisite skill which he professed to have possessed or he did not exercise with reasonable competence in the circumstances of this case or he might not having equipments and operation theatre of minimum standards to conduct such kinds of operations.<br /> <br /> 16. Another ground which is required to be appreciated by this Forum is with regard to health condition of Vijayalaxmi to conduct two such serious operations within the short period of (18) days. Admittedly this patient brought to the nursing home of opposite No-2 with abdominal complaints. Ex.P-5(1) diagnostic laboratory report shows much lower WC count 2300 cells/cmm to the normal range of 4000 cells/cmm, blood urea shows higher then normal range. Ex.P-5(4) which is another diagnostic laboratory report dt. 08-08-06 which is (6) days after the first operation, this is Culture & Antibiotic Sensitivity Test/Report shows resistant of OFLOXACIN and sensitivity of SULBLACTM. This clearly shows wound infection after (6) days of the first operation, when such being the case how opposite No-2 conducted the second operation within the span of (12) days of the report at Ex.P-5 without getting second cultural report. No doubt he might have given medicines for to prevent for cultural growth but there was no such emergency to conduct second operation when there was cultural growth in respect of the first operative wound. All these facts not disclosed by the opposites in W.V. or in affidavit evidence, as such we are of the view that principles stated by their lordships in the ruling reported in AIR 2005 SC 3180 are applicable to the case on hand and thereby we came to a conclusion that wound infection which had given rise to burst abdomen resulted in exposing of the inner organs of the abdominal of Vijayalaxmi was due to negligence of opposite No-2.<br /> <br /> 17. As per the directions of Hon’ble Supreme Court Martin F. D.Souza V/s. Mohd. Ishafaq reported in 2009 CTJ 352 (Supreme Court) (CP) the allegations of the complainant were referred to the medical expert in the filed by name Dr. Abdul Azeem M.S.General Surgeon RGSS (OPEC Hospital, Raichur) to give his opinion on the basis of the request he submitted his report which is marked at Ex.C-1. Respondent filed documents at Ex.R-1.<br /> <br /> 18. The complainants have filed objection to this Expert Report, we have heard the objection of the complainants and the say of opposites with regard to expert report at Ex.C-1, as per the principles of the ruling Virak Hospital and Others V/s. Parminder Kaur and Others reported in 2009 CTJ 1023 (CP) (SCDRC) there was no need for the Consumer Forum to get the opinion of expert, in case of medical negligence which are already pending before it. The second decision came at later stage, however this Forum referred the case papers to the experts in pursuance of the directions in Para. No-117 of the judgment of Martin.F.D.Souza Case. Now we have expert opinion before us in the said circumstances we have taken note of the observations made by the expert opinion report at Ex.C-1, in the light of objection raised by the parties.<br /> <br /> 19. The learned advocate for opposites contended before us that the patient was under proper care and treatment by the opposite No-2 in his nursing home but complainants themselves got discharged patient against the medical advice for which the opposite No-2 is not responsible for the death of Vijayalaxmi.<br /> <br /> 20. In pursuance of this submissions we have referred expert report at Ex.C-1 and discharge summary at Ex.P-3 with the case sheets of Ex.P-6, we are of the view that there are no documentary evidences to say that complainants have got discharged their daughter Vijayalaxmi against the medical advice. No doubt they might have requested the opposite No-2 to discharge their daughter in such critical condition to take her to higher hospital for treatment with a hope of survival. The opposite No-2 cannot through his duties and responsibilities on complainants by taking defence that patient was discharged against medical advice we have not convinced by this defence. For the reasons that the these parents have witnessed the bursting of abdomen of their daughter and exposing of inner parts of the abdomen might have be reasons for them to request the opposite No-2 to discharge their daughter in such critical conditions only for to take her to higher hospital, there cannot be any other intentions of them in getting discharge of their daughter in such precarious condition of her, as such, we are not in a position to accept such contention of the opposites.<br /> <br /> 21. In view of the principles ruling reported in 2009 CTJ 352 (SC) (CP) Martin F.D.Souza V/s. Mohd. Ishfaq, we are of the view that this opposite No-2 conducted operation on Vijayalaxmi dt. 02-08-06 and 12-08-06 in his nursing home were he has no such minimum of facilities to conduct operation and to prevent future unknown complications.<br /> <br /> 22. In the light of the circumstances stated above and conclusion arrived at by us, we are of the view that observations made by expert in his report at Ex.C-1 in support of opposite No-2 with regard to treatment of Vijayalaxmi from 02-08-06 to 20-08-06 are not accepted. The above said circumstances clearly establishes the fact that there was negligence on the part of opposite No-2 by conducting one major operations on the girl aged about (12) years without informing and taking the consent from the complainants and made them to agree for second operation and thereafter he not took proper care and not provided proper treatment to her, as such we have rejected the expert report Ex.C-1 and also the case of opposites and thereby we answered Point No-1 in affirmative.<br /> <br /> 23. In this complaint complainants have prayed for to award compensation amount of Rs. 7,15,000/- in Para-11 of their complaint and in affidavit-evidence PW-1 they have shown compensation amount under different categories to the instant of Rs. 7,15,000/-. In support of this claim they have filed prescriptions given by opposite No-2 which are marked as Ex.P-1(1) to Ex.P-(32) they filed bills regarding purchase of medicines as prescribed by opposite No-2, those are marked as Ex.P-2(1) to Ex.P-2(35). All the above said bills are pertaining to the medicines purchased in between 02-08-06 to 18-08-06 the total bill amount works out to Rs. 36,116/- but the complainants have claimed an amount of Rs. 1,00,000/- towards medical expenses, in the said circumstances we have rejected the claim of complainants regarding the amounts shown towards medical expenses and we have accepted all the above said bills to the extent of Rs. 36,116/-, which is the amount recoverable from the opposite No-2 as he directly responsible for such expenditure, the complainants claimed an amount of Rs. 2,00,000/- due to the death of their daughter as they have lost love and affection of her daughter we cannot accept any documentary evidences in support of this claim. No doubt complainants have lost their love and affection of her daughter due to negligence of opposite No-2 but we cannot fulfill such loss in terms of monetary benefits, we have no any strict formula to his calculate loss of love and affection, however we have followed the principles noted in the Martin F. D. Souza Case and other related observations of the Supreme Court in other cases and granted an lumpsum amount of Rs. 1,00,000/- to the complainant recoverable from opposite No-2 towards loss of their love and affection. As regards to the mental agony and other suffering we have granted a lumpsum amount of Rs. 50,000/- to the complainant which is recoverable from opposite No-2. It is clear cut case of deficiency in service of opposite No-2, as such we have granted a lumpsum amount of Rs. 5,000/- to the complainant recoverable from opposite No-2 under this head and we have granted a lumpsum amount of Rs. 10,000/- to the complainant towards expenditure of medical attendants including all other miscellaneous charges, hence the complainant is entitled to recover a total amount of Rs. 2,01,116/-which is rounded to Rs. 2,02,000/- from all the heads, accordingly we answered Point No- 1 & 2. <br /> <br /> POINT NO.3:-<br /> <br /> 24. In view of our findings on Point Nos-1 & 2 we proceed to pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint filed by the complainants is partly allowed.<br /> <br /> The complainant No- 1 & 2 are entitled to recover a total amount of Rs. 2,02,000/- from the opposite No- 1 & 2 jointly and severally. <br /> <br /> Opposite Nos. 1 & 2 are hereby given one month time from the date of the judgement for making payment of the above total sum to the complainants. <br /> <br /> Intimate the parties accordingly. <br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 26-11-09)<br /> <br /> Sd/-<br /> Sri. Pampapathi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Gururaj, Member,<br /> District Forum-Raichur.<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />