CC Filed on 21.12.2009 Disposed on 05.10.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR. Dated: 05th day of October 2010 PRESENT: Sri. G.V.HEGDE, President. Sri. T.NAGARAJA, Member. Smt. K.G.SHANTALA, Member. --- Consumer Complaint No. 194/2009 Between: Sri. Kiran, S/o. Srinivasa Reddy, Aged about 9 years, R/at Kuppahalli Village, Dalasanur Post, Kasaba Hobli, Srinivasapur Taluk. (Since minor represented by his father Srinivasareddy as next friend) (By Advocate Sri. B. Lakshmi Prasad & others) .Complainant V/S 1. Sri. V. Muniswamy, S/o. Mariyappanavara Venkataswamy, R/at C. Hosuru, Nambihalli Post, Srinivasapur Taluk. 2. Sri. V. Krishnareddy, S/o. Mariyappanavara Venkataswamy, R/at C. Hosuru, Nambihalli Post, Srinivasapur Taluk. 3. R.L. Jalappa Hospital, Represented by Dr. K. Borappa, Medical Superintendent, R.L. Jalappa Hospital, Tamaka, Kolar. 4. Dr. Sriramulu, R.L. Jalappa Hospital, Tamaka, Kolar. (By Advocate for OP.3 & 4 Sri. K.V. Shankarappa) 5. Dr. Vijay B.N. R.L. Jalappa Hospital, Tamaka, Kolar. (By Advocate Sri. Chalapathi & others) .Opposite Parties ORDERS This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite parties to pay compensation of Rs.5,00,000/- for the medical negligence of OPs 3 to 5 while treating the complainant with costs etc. 2. The material facts of complainants case may be stated as follows: That the complainant who is aged about nine years was suffering from right sided parotid swelling since six months prior to attending a Free Medical Check-up Camp organized by OPs 1 to 3. The complainant attended that Camp on 05.05.2009 and after his examination he was advised to take further treatment in OP No.3 hospital. Accordingly on the same day he was admitted in OP No.3 hospital for Superficial Parotidectomy surgery. It is alleged that OP No.4 and OP No.5 conducted the operation. The complainant was discharged on 15.05.2009. It is alleged that due to the said operation the complainant could not blink the right eye and his right eye used to always open, even during sleep and he was not in a position to close his right eye and further that his mouth also twisted a little towards right side. It is alleged that these side-effects had occurred due to the negligence in conducting the operation. It is alleged that the complainant has to spend huge amount to set-right the problem and thereby he issued legal notice dated: 06.10.2009 calling upon OPs to pay compensation of Rs.5,00,000/-. Thereafter he filed the present complaint before this Forum on 21.12.2009. 3. In response to the notice issued by this Forum OPs 3 to 5 appeared through advocates and OP No.4 filed the version and OP No.3 adopted the version of OP No.4. OP No.5 did not file the version within the time allowed. OP Nos. 1 & 2 did not appear and they did not file any version. The contentions taken in the version of OP No.4 may be stated as follows:- It is admitted that during the Free Health Check-up Camp organized by OPs 1 to 3 the complainant was examined on 05.05.2009 regarding the swelling found in the right side of complainants face since six months, and it was found that it was Right Sided Parotid Swelling (FNAC : PLEOMORPHIC ADENOMA) and it was suggested for Superficial Parotiddectomy Operation and accordingly the complainant was admitted as in-patient in OP 3 hospital in Pediatric Ward. The prior Pathology Report dated: 04.04.2009 of Dr. Udaya Kumar, a Pathologist, relating to complainant showed PLEOMORPHIC ADENOMA (non-cancerous condition). After admitting the complainant pre-operative examination and tests were undertaken by competent persons in OP 3 hospital. It was noticed that the complainant had Eosinaphilia (allergic cell) count 9% which was corrected and the surgery was done on 11.05.2009. It is contended that Superficial Perotidectomy was the standard procedure for plemophic ademona i.e., removing superficial lobe of parotid gland preserving deep log and facial nerve. It is contended that the post-operated patient namely the complainant has developed facial nerve weakness on right side and was attended appropriately with medications and the complainant was discharged on 15.05.2009 on satisfactory recovery. The complainant was advised to appear again for follow-up and on 21.05.2009 the complainant came for follow-up with Histopathology Report which showed Mucoepidermoid Carcinoma (Cancers condition) for which the complainant was advised to go for Completion Parotidectomy, but the complainant was not ready to admit for further treatment. Further that on 22.05.2009 the complainant came for follow-up and he was advised the same treatment. But the complainant wanted to go to Kidwai Hospital, Bangalore, for Completion Parotidectomy and thereafter the complainant has not attended the Hospital for follow-up. It is alleged that during the stay of complainant in OP 3 hospital he was not neglected in any manner and the hospital staff and the Doctors had taken utmost care during all the time. Further it is stated that facial nerve weakness was due to cancerous condition of disease i.e., Muco-Epidormoid Carcinoma and not due to negligence or fault on the part of Surgeon/Anesthetist/Pediatrician/Pathologist. Further it is contended that the complainant was advised appropriately and to consult Surgeon for further management, but since 22.05.2009 the complainant did not turn-up for follow-up and treatment. It is contended that the case-sheet and other records clearly reveal that there was no deficiency in service in OP 3 hospital and that the complainant filed the present complaint with an ulterior motive. Therefore they prayed for dismissal of the complaint. 4. The father of complainant filed his affidavit in support of the allegations made in the complaint and filed copy of Discharge Summery issued by OP No.3 hospital and the complainant closed his evidence. OP No.4 filed his affidavit and also filed copy of Discharge Summery and also the copies of case-sheets and connected records maintained during the stay of complainant in the hospital as in-patient. The other OPs did not lead any evidence. 5. We heard the learned counsel for the parties. The following points arise for our consideration. (1) Whether the complainant proves that there was medical negligence on the part of OPs 3 to 5 while treating him? (2) If Point No.1 is held in Affirmative, to which reliefs the complainant is entitled to? (3) To what order? 6. After considering the records and the submissions of the parties our findings on the above points are as follows:- POINT No.1:- The complainant is aged about nine years. The complaint is presented by his natural guardian Father. It can be said that at all the relevant time the father of complainant accompanied the complainant during his stay in OP 3 hospital. In support of the allegations made in the complaint, complainants father filed affidavit. Admittedly complainants father is a layman so for as the medical field is concerned. It appears he resides in a Village and does agriculture. He may be knowing to read and write Kannada, but he may not be an educated person. The averments in the complaint as well as the contents of the affidavit inferred negligence on the part of OPs 3 to 5 only on the basis of the complainant subsequently developing some complication. The version filed by OP 4 shows that originally as per the report dated: 04.04.2009 of Dr. Udaya Kumar, Pathologist, the cist was in non-cancerous condition but the subsequent Histopathology report showed cancerous condition for which the complainant was advised to go for completion parotidectomy, but the complainant did not turn-up subsequently alleging that he would take further treatment in Kidwai Hospital, Bangalore. During argument OP 4 who was present submitted that if superficial parotidectomy was conducted it would not have caused facial nerve palsy and that only in case of Epidermoid Carcinoma (Cancerous condition) such facial nerve palsy would develop. Therefore according to him the alleged subsequent complications of not able to blink and twisting of mouth, would not occur at the first stage i.e., non-cancerous condition and such complication would arise only during the cancerous condition of tumor/lymph node. Therefore we think without leading expert evidence on the part of complainant, he could not prove the negligence on the part of OPs 3 to 5. It is admitted by complainant that he has been taking treatment in some major hospital at Bangalore for cancerous growth of cist found on the face. It is not possible to infer that the cancerous growth was due to the fault in performing the surgery by OP 4 and others. The complainants father had after filing his affidavit prayed time to lead expert evidence. After number of adjournments he closed his evidence. OP 4 filed his affidavit and when the matter was taken for argument the complainants counsel felt that expert evidence is necessary and he filed an application to lead Expert Evidence or to get an opinion of Expert on the basis of medical reports and case-sheets produced by OP 4. We allowed the request of complainants counsel and granted sufficient opportunity and finally the complainant submitted that he has no further evidence of any expert or he does not intend to name any expert to give an opinion on the basis of materials available on record. Therefore we hold that, on the part of complainant there is no evidence worth to be considered to infer medical negligence on the part OP 3 to 5. OP 4 is a qualified Doctor having certain years of experience and in his version as well as affidavit stated that there was no negligence on their part at any time and that the complainant was not ready to follow their medical advice. In view of these facts we think leading of expert evidence by complainant was necessary to discharge the initial burden of proving medical negligence alleged by him. The learned counsel for complainant was requested to show medical literature to establish the fault alleged to have been committed by OP 3 to 5 during surgery and treatment of complainant if any. He also failed to produce any medical literature on which we could have drawn some inference, inferring negligence on the part of OP 3 to 5. For the above reasons we hold Point No.1 in Negative. POINT No.2:- As Point No.1 is held in Negative, Point No.2 does not arise. POINT No.3:- Hence we pass the following: O R D E R The complaint is dismissed. Parties shall bear their own costs. Dictated to the Stenographer, corrected and pronounced in open Forum this the 05th day of October 2010. MEMBER MEMBER PRESIDENT
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