COMPLAINT FILED: 25.07.2008<br /> <br /> <br /> 14th OCTOBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1633/2008<br /> <br /> <br /> COMPLAINANT Narayanamuthaiah,<br /> S/o. Muthaiah,<br /> Aged about 32 years,<br /> Residing at C/o. Ganesha Provisional Store,<br /> Krishnareddy Layout,<br /> Govindareddy Building,<br /> Konappana Agrahara,<br /> Electronic City,<br /> Bangalore – 34.<br /> <br /> Advocate (Harish. A. Charvaka)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. St. Johns Medical College Hospital,<br /> Sarjapura Road,<br /> Bangalore – 34.<br /> <br /> <br /> 2. Dr. Sudeer Pai,<br /> Asst. Professor,<br /> St. John’s Medical College Hospital,<br /> Bangalore – 560 034.<br /> <br /> Advocate (N.C. Mohan)<br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to pay a compensation of Rs.4,50,000/- and for such other reliefs on an allegations of deficiency in service and medical negligence. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant due to low back ache approached the OP hospital for the necessary treatment in the month of January 2006. He was subjected to various tests including that of x-ray and it revealed a bilat spondylolusis C- grade II. It is also confirmed through MRI report. OP suggested the complainant to undergo for surgery. On 21.01.2006 the surgery was conducted by OP.2 the surgeon at OP.1 hospital and planted the plate coupled with screws and rods. Right from the date of the said surgery and implantation of the rod complainant was not comfortable. He did narrate his pain to OP, he was promised that the said pain will vanish in due course of time. On 27.01.2006 sutures were removed and he was asked to come up for follow up treatment after discharge. On 10.02.2006 complainant approached the OP with a some pain, puss formation was there it was cleaned and he was discharged on 14.02.2006. Actual cause for the continuance of pain is not explained by the OP. With all that he was discharged with a advise to come for follow up check up. Being not satisfied with the treatment given by the OP complainant was forced to approach Hosmat Hospital and took the opinion on 13.09.2006. The said hospital opined that the operation conducted by the OP.2 was not at all required. Ultimately the rods and screws were removed, complainant got some relief. Then he contacted the Narayana Hrudayalaya they have also opined that the operation conducted by OP.2 was not necessary. Thus complainant felt due to the carelessness and negligence of the OP, he was made to suffer both mental agony and financial loss. There is a negligence on the part of the OP. Complainant felt the deficiency in service on the part of the OP. Under the circumstances he caused the notice to OP to compensate him on 09.04.2007, there was no proper response. Hence he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP they are the renowned hospital having sufficient infrastructure and the doctors concerned are highly qualified and experts in the field with lot of experience. Actually the complainant approached the OP hospital at Out patient Department on 19.12.2005 with a history of low backache since 6 months. He was subjected to x-ray and then he was treated with a analgesics. He was advised to take bed rest and the physiotherapy, but it appears complainant could not get the expected relief with the non-surgical treatment given by OP. Hence OP advised for surgery. The surgery was conducted on 21.01.2006 and that was the standard method of treatment for the disorder suffered by the complainant. Complainant did recover well, hence he was discharged on 27.01.2006. Before discharge he was again subjected to x-ray which show the implantation were proper and alignment is proper. The wound was healing so also the bones. The other allegations of complainant with regard to medical negligence and carelessness are all false and frivolous. Complainant as and when came up for the follow up treatment, he was treated properly. The wound was cleaned, the puss was removed. It is further contended that post-operative infection is known complication of surgery of like nature. The actual reason for the same is unknown. As the complainant suffered L5-S1 with lysis, OP gave the proper treatment by implanting the rod. That treatment is accepted by the medical field. The other allegations are baseless. The entire complaint is devoid of merits. What made the complainant to approach the Hosmat Hospital and Narayana Hrudayalaya is not known to the OP. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP’s have also filed the affidavit evidence and produced the documents. OP served the interrogatories to the complainant, they were answered. Complainant did not cross-examine the OP nor served the interrogatories. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service and medical negligence<br /> on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant approached the OP hospital with a low back ache since 6 months, he was examined and subjected to x-ray and MRI. The said report revealed bilat spondylolusis C- grade II. It is also not at dispute that OP.2 is the expert in the field of Orthopedics an Associate Professor having experience of more than 10 years and performed more than 100 spine surgeries of like nature. OP.2 conducted the surgery on 21.01.2006 at OP.1 hospital in-situ fixation of L4/L5-S1 with pedicular screws and rods along with bone grafting. That is the standard method of treatment for such kind of disorder, as could be seen from the text book extract produced by the OP.<br /> <br /> 7. It is contended by the OP.2 that they did try to control the said pain by treating with analgesics bed rest, physiotherapy, traction as non-surgical treatment, but when complainant did not get the expected relief they took the decision to conduct the surgery. So that decision cannot be said as wrong. A Doctor has a discretion to chose the treatment with regard to the ailment and emergency in the better interest of the patient. The further records produced by the complainant, the x-ray reveals at the time of discharge the said implantation made is proper and alignment is in a correct position, bones were healing well, hence complainant was discharged. The evidence of the OP which finds full corroboration with the contents of the undisputed documents like hospital records has remained unchallenged. There is nothing to discard the sworn testimony of the OP. <br /> <br /> 8. As against this unimpeachable evidence of the OP, complainant has come up with an allegation that the operation conducted by the OP is wrong and there was no necessity. Complainant wants to base his allegations on the so called opinion expressed by the Hosmat Hospital Doctors where he took the subsequent treatment in the month of September 2006 that is nearly after 8 months from the date of first operation. Unfortunately complainant has not examined the said doctors who opined like that. What made the complainant to approach Narayana Hrudayalaya is not known. It is contended by the complainant that doctors of Narayana Hrudayalaya also expressed their opinion that the operation conducted by the OP is not at all required in any manner. Who are those doctors is not known, their affidavit evidence is not filed. So in absence of such corroborate expert’s evidence or evidence from the doctors concerned, as well as by production of the written opinion, the bare and vague allegations of the complainant in a cases of like nature rather alone cannot be believed. <br /> <br /> 9. On the perusal of the hospital records as and when complainant approached the OP he was attended to. When OP noticed formation of the puss it was removed, all the required treatment as contemplated is given. The text extract produced by the OP goes to show “presently standard treatment for adult patients with isthmic spondylolisthesis is in-situ instrumented fusion from L5 to S1, using autogenous cancellous bone graft” and that is the treatment given by the OP. It is also noted that there is a possibility of post-operative infection in instrumented fusion due to various reasons. Whether the complainant has taken proper care of the wound and followed the instructions and guidelines given by the OP is not known. So post-operative infection if any may be due to the carelessness of the complainant himself. Though OP attended all his pains and sufferings, what made the complainant to approach the Hosmat Hospital is not known. Viewed from any angle, in absence of production of expert’s evidence showing that operation conducted by the OP.2 was not in accordance with the known standard in the medical field, the baseless allegations of the complainant rather alone cannot be believed. We have closely scrutinized both oral and documentary evidence produced by the litigating parties, in our view complainant has utterly failed to establish the medical negligence as well as deficiency in service on the part of the OP’s.<br /> <br /> 10. The answers given by the complainant to the interrogatories served by the OP makes it abundantly clear that no fault lies with the OP. Unfortunately complainant has not taken such steps either to cross-examine the OP or to serve the interrogatories on the OP so as to cull out the truth. Under such circumstances the evidence of the OP has remained unchallenged. As already observed by us, the qualification, experience and competency of OP.2 is not at dispute so also the fact that OP.1 is a renowned hospital having sufficient infrastructure with nursing care dealing with such kind of ailments. Hence for these reasons we find the allegations of the complainant are devoid of merits. <br /> <br /> 11. A Doctor is not guilty of negligence since he acted in accordance with the practice accepted as proper by a reasonable body of medical man skilled in that field. It is known fact that the best skill in the worldly things some time went wrong in medical treatment or surgery operation. A doctor was not to be held negligent simply because something went wrong. There is no evidence to come to the conclusion that the OP fell below the standard of a reasonably competent practitioner in their field. The evidence has come that OP has acted in accordance with the practice regularly accepted and adopted. Medical negligence is to be established, it can’t be presumed. <br /> <br /> 12. The fact and circumstances of the case before us, show that OP.2 has attended the patient with due care, skill and diligence. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of complainant. Under the circumstances, we cannot but hold that the complainant has failed to prove the allegations against the OP’s. It will not be out of place to mention that doctors only treat whereas it is in the hands of the Almighty to cure. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. <br /> <br /> 13. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions also. A surgeon performing surgery is not gifted with an extra-ordinary skill nor he is expected to perform miracles. What is expected of him is whether the procedure followed by him is generally acceptable to the medical profession. The law does not require of a professional man that he be a paragon combining qualities of polymath and prophet.<br /> <br /> 14. In view of the discussions made by us in the above said paras, we find the complainant has utterly failed to prove the allegations of deficiency in service and medical negligence. Hence he is not entitled for the relief. Accordingly we answer point nos.1 and 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 14th day of October 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> p.n.g. <br />