Tamil Nadu

StateCommission

CC/95/2012

DR. P.K. PALANISAMY, PROFESSOR OF ENGLISH - Complainant(s)

Versus

THE CHAIRMAN, SAKTHI HOSPITAL AND RESEARCH CENTRE - Opp.Party(s)

T.ARUL RAJ

24 Feb 2015

ORDER

 

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

PRESENT :  THIRU.A.K.ANNAMALAI                         PRESIDING JUDICIAL MEMBER

                    TMT.P.BAKIYAVATHI                             MEMBER

                                                                                       C.C.NO.95/2012

DATED THIS THE 24^th DAY OF FEBRUARY 2015

                                                                            

                                                      Date of filing :  03.09.2012

                                                                                                                                          Date of order : 24.02.2015

1. Dr.P.K.Palanisamy,

    Retd Professor of English,

    S/o.P.Kandasamy,

    “Kantha Rangam” YCC Road,

    Kannankurichi, Salem-8.

2. P.Sakunthala,

    S/o.P.Kandasamy,

    “Kantha Rangam” YCC Road,                                                                                     M/s.T.Arulraj

    Kannankurichi, Salem-8.                                                                                              Counsel for complainants

 

3. M.Karthikeyan (Son of the deceased)

    Rep by his Grandfather P.K.Palanisamy,

    (Complainant-1).

                             -vs-

1.The Chairman,

   Sakthi Hospital & Research Centre,

   175-Big Street,

   Triplicane,

   Chennai-5.

2.Dr.Sivakumar,

   Sakthi Hospital & Research Centre,                                                                         M/s.P.S.Rishikesh

   175-Big Street,                                                                                                          Counsel for opposite parties 1 to 3

   Triplicane, Chennai-5.

3.Dr.Nalini Jayanthi,

   Sakthi Hospital & Research Centre,

   175-Big Street,

   Triplicane, Chennai-5.

4.S.Deeparani (2^nd Wife),

   “9/5/52, New Bus Stand Road,

   Jalakandapuram (P.O.),

   Mettur Tk, Salem District.

          The complaint filed by the complainant before this commission against the opposite parties praying to direct the opposite parties to pay sum of Rs.65,41,210/- with 18% interest from 10.9.2010 and  that Dr.Sivakumar and the Sakthi Hospital should be punished severely so that those medical quacks of similar kind would be afraid to indulge in such negligent activities. This complaint coming before us for final hearing on 07.01.2015 and heard the arguments on either side, and perused the records and passed the following order:

THIRU.A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER

          The complaint filed under Sec.17 of the Consumer Protection Act, 1986.

          The complainant praying for the directions to pay a sum of Rs.65,41,210/- as compensation with 18% interest from 10.9.2010 and also for loss and affection, funeral rites expenses Special conveyance loss of income of patient, loss of love and affection of complainants, loss of care of minor son etc and to punish the second opposite party for his medical negligence and for deficiency of service and for the costs alleging deficiency of service in giving treatment to the 1^st complainant’s son.

2.       The gist of the complaint is briefly as follows :

          The 1^st and 2^nd complainants are the parents of deceased patient Mohanavelu and the 3^rd complainant being the minor son of deceased Mohanavelu represented by the 1^st complainant.  The deceased Mohanavelu having post graduate qualification in various subjects and was employed under the Tamil Nadu Government Service as the Asst. Public Relations Officer in the Secretariat was residing with his wife S.Deeparani aged 28, at Door No.50, 2^nd floor, Big Street, Triplicane,  Chennai 600 005 and she had no issue.  The patient Mohanavelu having  illness on 23.8.2010 contacted the 1^st opposite party’s hospital and treated as outpatient.  On 3.9.2010 the 2^nd opposite party given two prescriptions for 5 days medicines to treat fever 102F and another doctor with his initials for 3days medicines to treat fever 101F and it was not known why two prescriptions were given for by two doctors, but the patient health did not improve in the course of treatment.  On 5.9.2010, the 2^nd opposite party admitted him in ICU and the medical charts to show normal vitals of health at 6.30am.  On 6.9.2010 the patient had cough with blood and the 2^nd opposite party so negligent failed to diagnose for the symptoms and lab test for typhoid taken at the advise of the 2^nd opposite party but the result was not given till the patient was shifted to Chennai Government Hospital on 10.50pm on 7.9.10.  The entry for 4.9.2010 and 6.9.2010 in progress sheet were all false the non entry of ICU fees instead of the entry of Deluxe Room fees in the Discharge Bill dated 6.9.2010 creates doubt about the ICU treatment and at the request of the patient at 9.44 am on 6.9.2010, discharge summary was given by the 2^nd opposite party made final diagnosis was Enteric fever (Typhoid) but did not suspected any further medical instructions for continuous treatment. At 6.33 pm in the evening the patient’s health become worse with breathing difficulty and the 2^nd opposite party admitted him in ICU under the Swine Flu symptoms under the category ‘C’ entered in the case sheet went unidentified spoke by the 2^nd opposite party and the real cause of illness was not at all diagnosed.  When the 1^st complainant came from Salem on 7.9.2010 at 5.00pm the 2^nd opposite party explained that his son was suffering from ARDS and he treat the patient on ventilation and make him well.  On 7.9.2010 the 3^rd opposite party Chest physician came only at 6.00pm even though with an inordinate delay and gave opinion of illness as ARDS as said by the 2^nd opposite party without making the time of opinion and gave opinion indefinite by putting ‘ARDS’ as question mark and the 3^rd opposite party invented the baseless history as “surgery done on the left side of brain for blocking leakage of blood” and the hospital did not specified the fact that it had already treated the patient for his two injuries one for his right elbow and other for left elbow on 8.8.2010 and thus they violated medical code even after the patient was shifted to Chennai GH at 10.50pm on 7.9.2010 one Lab test was taken on 8.9.2010 and requisition slips for some tests had also been sent on 8.9.2010.  Even though HINI test was written by some hand at 9.00 am on 7.9.2010 it was actually registered at 4.35 pm and the test result confirmed ‘swine flu+’. At the time of discharge at night the hospital obtained signature from the 4^th opposite party as if she is taking her husband in good health condition and on the next day she wrote at GH Chennai that her husband’s health condition is very serious came to know through the doctor.  On 10.9.2010 the patient died at 6.45a.m., due to swing flu.  The patient was treated first for typhoid and then ARDS without any specific investigation and thereby wrong treatment was given.  The 2^nd opposite party has not obtained any expert opinion or the infectious disease report and thereby to make sure of the correctness of Enteric Fever or ARDS to the patient and made the patient lose the right kind of treatment which aggravated the swine flu and if the tests were done earlier in the diagnosis of swine flu as per the various guidelines by instantly conducting even the lab test of a simple nose and throat swab or viral culture  test or  real time  RT-PCR, etc and taking 30 Lab. tests within 26 hours is a treatment with a different and this is more than serious carelessness and negligence of the 2^nd opposite party and thereby the complainant having come forward with this complaint claiming the above reliefs.

3.       The opposite parties 1 to 3 denied the allegations of the complainants in their written version except to admit the treatment given to the patient by them and contended that the complaint is not maintainable as the complainant 1 and 2 are not legal heirs of the patient Mohanavelu and the 3^rd complainant minor Son having his own mother as natural guardian without making her natural guardian the 1^st complainant filed this complaint as if he is the natural guardian and the 4^th opposite party is the 2^nd wife of the deceased who had not filed any complaint against the opposite parties 1 to 3 who is mostly affected and thereby and also the 3^rd complainant’s mother one Mrs.Sasirekha, 1^st wife of the patient as natural guardian filed Civil suit regarding  properties belonging to the patient Mohanavelu against the 1^st and 2^nd complainants and as far as the facts of the case is concerned on 23.8.2010 Mohanavelu come to the 1^st opposite party hospital for physiotherapy and on 3.9.2010 at about 6.48 am he came for sudden onset of fever.  The duty medical officer treated the patient with necessary medicines issued prescription for anti malarial and antipyretic drugs with the advice to review and thereafter the patient consulted the 2^nd opposite party in the evening again with temperature of 102F and antibiotic was added along with previous medicines.  On 5.9.2010 once again the patient visited the hospital and was admitted and at the time he had no history of blood with coughing only at night he complained about the same and x-ray –chest was already taken and he was given treatment.  On 6.9.2010 the 2^nd opposite party saw the patient for the first time after admission and before receiving the typhoid result at the request of patient due to work pressure he got discharged at 9.44 a.m., and the report was generated only on 7.9.2010 the patient got re-admitted on 6.9.2010 at 6.33 p.m. and he was given proper treatment and shifted to ICU in the morning on 7.9.2010 when he had breathlessness and the 2^nd opposite party sent the patient for investigation for swine flu on 7.9.2010 and considered the condition of the patient the Bharath Scan to come to the hospital for the test and all along the 4^th opposite party was accompanied with the patient.  On 7.9.2010 at 5.00pm when the 1^st complainant came and met the 2^nd opposite party he was explained the condition of the patient and the patient’s wife 4^th opposite party signed the consent form for artificial ventilation.  Meanwhile the 3^rd opposite party-a Pulmonologist having rich experience came from Chengalpat Medical College to certify the lungs condition and felt suspension of ARDS and await for swine flu test result.  ARDS is not a disease and it is only a syndrome which may cause by diffuse lung injury from many underlying medical and surgical disorders.  On 7.9.2010 in the morning patient’s attender was informed about the necessity of HINI test and the routine test was obtained from Bharath Scan people who have come to the hospital and conducted the test and only at 8.20p.m., the result was obtained and since the swine flu was confirmed and the patient was put on a ventilator and the patient had to be shifted to isolation ward to take further treatment and thereby opposite party is contacted various hospitals and government hospitals to accept the patient for further treatment and arrangements were made as the Government Hospital to accept the patient with ventilator and he was shifted to GH in an ambulance with a ventilator along with skilled and dedicated nurses risking the chance of infection.  At that time the patient was normal in shifting and notes certify the patient was conscious, a febrile with stable blood pressure and pulse and the 1^st opposite party coordinated with the GH about the condition of the patient and he died on 10.9.2010 after 2 ½ days in GH.  Due to H1N1 infection / bilateral broncho/Pneumonia / ARDS cardiac arrest.  The 2^nd opposite party even on his admission had taken all possible steps for giving treatment and taking tests and requested the Pulmonologist/3rd opposite party opinion and only the intensivist or an anesthetist to connect the patient to the ventilator and thereby the 2^nd opposite party made the right diagnosis and the drugs used for treatment have no adverse effect and the same drugs were used in Government Hospital also.  The only drug to work against the H1N1 was available only in the government department and thereby the patient is to be kept in isolation and immediately sent to GH for the same and the allegations are all false and the patient was not in ICU on 6.9.2010 and shifted to ICU only on 7.9.2010 when he had breathlessness.  The 1^st complainant was informed on 7.9.2010 at 5.00 p.m. by the 2^nd opposite party who had explained the condition of the patient in the ICU including the necessity for artificial ventilation and he was not at the hospital even after explained about it to stay and signed the concerned form and only the 4^th opposite party who was taking care of the patient signed the consent form and all the records are properly maintained and even at the Government Hospital there was no change in the diagnosis or management of the patient and followed as per the 2^nd opposite party’s diagnosis and there would be no cause of action to file the complaint and thereby no medical negligence or deficiency of service on the part of the opposite parties.

4.       The 4^th opposite party being the 2^nd wife of deceased Mohanavelu has not filed any separate version but sent letter stating that the complainants 1 & 2 are not competent to file the complaint when the deceased having diversed his 1^st wife Sasirekha and married 4^th opposite party as second wife and against the complainants 1 and 2 .  The 1^st wife has filed Civil suit also disputing between the 4^th opposite party and the complainants 1 and 2 relating to the property and thereby the complainants 1 and 2 are refusing the rights of the 4^th opposite party have no locustandi to file consumer complaint against the opposite parties 1 and 2.  Further she had already sent a letter dated 15.10.2012 in which she had stated that the opposite parties 1 to 3 gave very good treatment to her husband and the complainants 1 and 2 visited the hospital as guests and the doctors of opposite parties helped her to shift her husband to the Government hospital when she was alone and she was fully satisfied with the performance of the doctors. They were never fault at any point of time and she is grateful to all the doctors who attended her husband.  It is the fate that her husband died and prayed to record this written submission.  No separate proof affidavit was filed by her.

5.       Both sides have filed their proof affidavits and on the side of the complainant Ex.A1 to A47 were marked.  No documents were filed on the side of the opposite parties.

6.       The points are for consideration :

          1.Whether the complaint is not maintainable in view of the non joinder of

             parties or misjoinder of parties?

          2.Whether there was any negligence or deficiency in service while giving           

             treatment to the patient Mohanavelu, son of the 1^st complainant by the

             opposite parties 1 to 3 and because of the same the patient died?

          3.Whether the complainants are entitled for the claim of Rs.65,41,210/- as

             compensation with interest from 10.9.2010?

          4. To what relief?

7.       POINT NO.1:  In this complaint enquiry the opposite parties have raised an objection in the written version stating that the deceased patient had legally wedded second wife namely Deepa Rani, who had not chosen to file any complaint against these opposite parties.  She was arrayed as 4^th opposite party and as per the Hindu Succession Act only the widow is a Class I heir and the father is a Class II heir and in the class I heir, relatives can claim benefits on behalf of the deceased.  While considering these contentions since the deceased second wife being added as a 4^th opposite party have to raise objection to depend or accept the case of the complainants and the 3^rd complainant being the minor son representing by the father’s father 1^st complainant as grandfather. Under the Consumer Protection Act there is no need to follow such strict provisions under the Hindu Succession Act and any person affected as a consumer and the beneficiary as legal heir or representative can file the consumer complaint as per the provision under Sec.2 (2) (b) (v) “ in case of death of a consumer, his legal heir or representative can makes a complaint.” and in this case deceased Mohavavelu’s father filed this complaint as legal representative and thereby this complaint is well maintainable and accordingly this point is answered.

8.       POINT NO.2 :   In this complaint enquiry it is the allegations of the complainants that the deceased Mohanavelu, son of the complainants 1 and 2 and father of the 3^rd complainant was admitted in the 1^st opposite party hospital on 5.9.2010 for simple fever where he was given treatment by the 2^nd and 3^rd opposite parties till 6.9.2010 and due to delay in proper diagnosis and wrong treatment he was shifted to the General Government Hospital, Chennai on 7.9.2010, where he died on 10.09.2010 due to swine flu and for this the complainants alleged that there was delay in proper diagnosing and finding out the real cause of fever.  Whereas the opposite parties have contended that the patient actually came on 23.08.2010 for the purpose of physiotherapy subsequently, on 3.9.2010 morning he came on 6.30 a.m.,  with sudden onset of fever for which the duty medical officer prescribed antipyretic injection and to have basic blood tests and issued necessary prescriptions and thereafter the 2^nd opposite party was consulted in the evening with a temperature of 102F then only on 5.9.2010 he visited once again and treated as inpatient admitted in a ward and the patient at the time of admission on 5.9.2010 had no H/O blood while coughing but complained of occasional blood while coughing at night.  Further X-ray–chest was already taken and treatment was given.  The patient was treated by the Duty Medical officer as evidenced by record.  Subsequently on  6.9.2010, the 2^nd opposite party saw the patient for the first time advised further investigations and lab test for typhoid was also done on 5.9.2010 at the time of admission itself and due to the compulsion of the patient due to pressure of work in his government work and not staying in the hospital and got discharged refusing further investigation and hurriedly left at 9.44 a.m., on 6.9.2010 and only at 6.33 pm on the same day got re-admitted in the ward and further tests were carried out and shifted to ICU on the morning of 7.9.2010 when he had breathlessness and the 2^nd opposite party taking into the prevailing state of the possibilities sent the patient for swine flu investigation at the earliest period and usually the patient has to be sent directly to the concerned lab and by considering the case of the patient’s condition the laboratory persons were persuaded to come to the hospital and the test was carried out in the hospital itself and thereby at 5 pm on 7.9.2010 when the 1^st complainant came and was informed about the condition of the patient in the ICU including the necessity for artificial ventilation.  He left the hospital and only the 4^th opposite party /patient wife signed the consent form and who was all along taking care of the patient at that time.  The 3^rd opposite party being Pulmonologist experienced also consulted the patient and awaited the swine flu results felt it is to be possibly ARDS which is not disease and it is only a syndrome and after obtaining lab report from the Bharath Scan at 8.20 p.m., the patient was put on ventilator in view of the result as Swine Flu confirmed the patient has to be shifted with isolated ward as per norms and they contacted various private hospitals for admission but they refused admission and thereby after ascertaining the possibilities at Government General Hospital to accept the patient he was sent for further management to Government Hospital and at that time he was in fit condition to be shifted and the government hospital notes also certified under Ex.A1 at Page 112 that the patient’s condition and confirmed the same also and inspite of it the 1^st opposite party coordinated with the GH authorities even after discharge and on 10.9.2010 after 2 ½ days he died due to HINI infection / bilateral broncho/PHeumonia /ARDS cardiac arrest.  These are all contentions of the opposite parties and thereby that there is no negligence or deficiency in service on their part and these contentions and events and circumstances are not at all challenged by the complainant’s side without any acceptable materials. The only contention of the complainants is that because of the delay in diagnosing the patient made to die and the complainants relied upon various materials relating to H1N1 relating to the swine flu of Medical Council of India: Notification of World Health Organisation materials and Government Guide Lines under Ex.A8 to A20, 24 and also relating to ARDS diagnosis under Ex.A27.  While these materials are to expose the nature of Swine fly and related different types and diagnoses regarding the management and treatment etc.  We have to see whether there is any negligence on the part of the opposite parties in entertaining the patient/deceased Mohanavelu who has come for treatment to the hospital on fever on 5.9.2010 and was under the custody of the opposite parties 1 to 3 upto 7.9.2010.  It is the case of the opposite parties that the 4^th opposite party was taking care of the patient who was already with him and at 5 pm on 7.9.2010 when she was informed about the condition of the patient the 1^st complainant left out from the place whereas the  4^th  opposite party who was  taking care of the patient signed the consent  form  and  this  was  also  not denied by the complainants and on seeing the document under Ex.A1 Progrees Sheet at Page 63, in which it is recorded as follows :

          “v‹ fztiu (K.P.nkhfdntY) ešy ãiyæš miH¤J brš»nw‹.“

and signed by the 4^th opposite party which is disputed by the 1^st complainant stating that the 4^th opposite party was forced to sign but for which no materials available.  But the 4^th opposite party complimented the service of the opposite parties 1 to 3 in her letter sent to this commission.  On perusing the material on record under Ex.A1 case sheet dated 5.9.2010 at page 37 he was admitted on that date having complaints of fever 5 days, no cough  and it was suspected typhoid, test was made and the result date was mentioned as 7.9.2010 and as per Nurses chart he had complaints of fever, abdomen pain Temp.100F, X-ray, ECG and other test were prescribed and he was monitored continuously and on 6.9.2010 he was conscious and he had complaint of wheezing at 3.00 a.m and at 9.00a.m., the 1^st opposite party saw the patient and was advised to discharge at the request of the patient.  From these details it is clear on 6.9.2010 patient was not in the hospital after 9.00 a.m., and got discharged at his own request signed by the patient is also available and on perusal of the discharge summary, for the day it is mentioned that the patient continued to have temperature 101F was advised to continue hospitalization but as per request of the patient was discharged at request which is signed by the 1^st opposite party as per document Ex.A1 Page 39 & 47.  Once again in the Admission Form in Ex.A1 at Page 19 dated 5.9.2010 at 13.16 hours we find the following details he was admitted by mentioning the name of the next Kin : Deeparani.C (4^th opposite party) who has also signed in it and in the case sheet also it was recorded he was re-admitted as in patient and it is seen that the 3^rd opposite party opinion also informed ECG, ECO and other tests were carried out.  Tengue, Lepto fever were found to be negative on 7.9.2010 at 9.00 a.m. the patient was admitted in the ICU with cardiac monitor connected at 12.00 vital have to be checked he had severe fever cough and 2.00 pm he was conscious and other BP maintained due to drugs given and 5.30 pm he had Hypoxia Intubated done by the 2^nd opposite party and 8.00 p.m., on ventilated supported vital stable due drugs given.  Output maintained and at 10.50 p.m., it was recorded that the patient shifted to Government Hospital.  HINI positive.  Patient conscious. Vital stable. BP 120/80 Sao 84% maintained.  Even though as many as 30 tests were taken as alleged by the complainant that itself would goes to show that the opposite parties have not spared nothing to find out the cause of complications or the symptoms for the patient and since the patient was with them continuously from 6.9.2010 6.30 p.m., till 7.09.2010 till he shifted to Government Hospital.  The records would disclose whatever possible tests could be taken all were carried out including for fever of Tengue, Lepto except to find out that the 3^rd opposite party who is said to be the Pulmologist working at Chengalpattu was informed at 11.00 a.m., and the tested only at 6.00p.m., that itself only for opinion to rule out the possibilities of pulmonary disease and in the meanwhile through the Bharath Scan they have obtained swine flu test results which was received only in late hours on 7.9.2010 on the very same day immediately in view of the Protocol and other guidelines relating to the swine flu disease as the patient has to be shifted to isolated ward with specified nominated hospitals after ascertaining the readiness for accepting  the  patient and the patient was shifted  to  Government  Hospital, Chennai  on  7.9.2010 at 10.50 p.m., and thereafter he was in Government Hospital till 10.09.2010.  On perusal of the treatment records at Government Hospital, the 1^st opposite party sent a letter to the Medical Officer,, Corporation Division dated 8.9.2010 intimating the shifting of the patient in view of the swine flu patient and on perusal of the cause of death certificate issued by the Government Hospital Certificate at page 109 under Ex.A1 it is mentioned as date of admission on 7.9.2010 at 11.32 p.m., and date of expiry on 10.9.2010 at 6.45 a.m. cause of death mentioning as H1N1 Investigation (Positive….ARDS / Cardiac arrest) and the Government Hospital records at page 111 under Ex.A1 in the consent given by Deeparani / 4^th opposite party dated 8.9.2010 at 12.45p.m.,…..vdJ fztU¡F clšãiy äfΫ nkhrkhf cŸsJ v‹gij kU¤Jt® _y« bjçªJ¡bfh©nl‹.”  and on perusal of the entire case records relates to the Government Hospital, Chennai for the period from 7.9.2010 to 10.09.2010 as per Ex.A1 at pages 107 to 134 all the relevant materials were mentioned regarding the treatment were given to the patient and no where it is found that there was cause of delay in bringing the patient for further treatment from the 1^st opposite party hospital and since the patient was on ventilator he could not be shifted for CT-scan-chest as per the entries in the medical sheet dated 9.9.2010 and in the Admission Summary as per document under Ex.A1at page 124 it was mentioned that the patient was admitted under the complaints of fever one week; cough  expectoration, shortness of breath 2 days, PCR positive  for  HINI-X-ray chest revealed B/L fluffy opacities and ARDS patient was  put  on IDPV mode of ventilation viral antibiotics C.Tami flu, Ing.Deriphylin and other were given he was continuously monitored ;……..Despite these measures patient condition continued to deterioted ; and patient developed cardio arrest around 6.15 a.m., on 10.9.2010 and could not be resuscitated.  From these details we find that even in the government hospital every effort were taken to save the patient by all means and ways and inspite of the same the patient died.

9.       The complainants side relied upon the newspaper item in Dinamalar, Kovai dated 11.09.2010 the next date of death of the patient as per Ex.A4 in which it is stated that the patient Mohanavelu was admitted to the Government hospital in the advanced stage of condition of having difficult in breathing and phlegm in chest contents in heavy in this special ward with all the vital instruments for breathing treatment was given and inspite of the same due to the deceased critical condition of admission he died due to swine flu.  On the basis of it the complainants alleged that due to late treatment given to the patient, the patient collapsed as per newspaper report.  Though the said paper news is the interview given by Principal of the hospital given it cannot be accepted as whole gospel without any supporting document.  The opposite parties relied upon various precedence in supporting the case reported in (1) Dr.Laxman Balkrishna Joshi –vs- Dr.Trimbak Bapu Godbole and Anr reported in AIR 1969 SC 128

(2) Indian Medical Association –vs- V.P.Shantha and Ors reported in AIR 1996 SC 550 :: (1995) 6 SCC 651.

(3)  Jacob Mathew –vs- State of Punjab and Anr reported in AiR 2005 SC 3180 :: (2005) 6 SCC 1

(4)   Martin F.D’Souza vs. Mohd.Ishfaq reported in AIR 2009 SC 2049 ::(2009) 3 SCC1

5. Dr.Easwaran DNB, FRCS –vs- Tamil Nadu Medical Council and Another reported in (2013) 8 MLJ 707.

and contended that as per rulings and precedence unless it is found that the professional doctor may be held liable for negligence either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.  The complainants mainly aggrieved against the 2^nd opposite party who had throughout given treatment to the patient who is attached with the 1^st opposite party’s hospital.  But nothing is effectively proved against him on the basis of materials and hospital records produced by the complainants.  No expert evidence or report is filed to prove that the patient Mohanavelu died only because of wrong diagnosis or delay in treatment etc when the opposite parties have stated that he had had history of earlier convulsions.  The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. Further while considering the letter and communications sent by the 4^th opposite party to this commission which are treated as written arguments clearly revealed that these are civil litigation between the complainants 1 and 2 and 4^th opposite party relating to the properties estates of money receivable from the deceased Mohanavelu disputing the shares etc which are proved by the complainants documents under Ex.A28 to A37 would go to show that the 1^st and 2^nd complainants have not come forward with clean hand while filing the complaint alleging negligence against the opposite parties 1 and 2. But in the letter of the 4^th opposite party it is stated that the opposite parties 1 to 3 hospital they have given good treatment and did their best to the patient.  The 4^th opposite party was with the patient from 5.9.2010 to 10.9.2010 with the opposite parties hospital  and at Government Hospital and especially she being the most affected party due to the death of her husband but not come forward with any allegations against the opposite parties.  But giving good certificate for their service rendered would only makes to come to the conclusion that apart from not proving the allegations and also the complainants not come forward with the clean hands and thereby in view of the foregoing discussions and reasons considering the facts and circumstances of the case we are of the view that the opposite parties did their best and also did what competent doctors in exercising their  skill  in  the  profession have  done the same and no negligence or deficiency against the opposite parties 1 to 3 was proved while giving treatment to the patient Mohanavelu son of the 1^st complainant and because of the same the patient died and as no specific relief is prayed for against the 4^th opposite party also being the wife of the deceased patient no order could be passed against the 4^th opposite party and thereby this point is answered accordingly.

 10.    POINT NO.3 :     In this case the complainant has claimed a sum of Rs.65,41,210/- as compensation with interest at 18% p.a., from 10.9.2010 due to the deficiency of service on the part of the opposite parties.  In view of the findings in point No.2 it is clear that the complainants are not entitled for any compensation claimed and accordingly this point is answered.

11.     POINT NO.4 :   In view of the findings 1 to 3 against the complainant the complaint is liable to be dismissed as devoid of merits and accordingly this point is answered.

 

12.               In the result, the complaint is dismissed.  However each party do bear their own costs.

 

P.BAKIAVATHI                                                           A.K.ANNAMALAI

   MEMBER                                                       PRESIDING JUDICIAL MEMBER

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT :

Sl.No	Date	Descriptions
Ex.A1	03.09.2012	Copy of Medical records of Sakthi Hospital with letters of Sakthi hospital
Ex.A2	03.09.2012	Types copies of Medical records of Sakthi Hospital with critical contents
Ex.A3	10.09.2012	Copy of Death Certificate of patient K.P.Mohanavelu
Ex.A4	11.09.2010	Copy of the opinion of Dean Mohana Sundaram on his death by Thinamani 11.09.2010
Ex.A5	09.09.2010	Copy of Pay Certificate of the deceased K.P.Mohanavelu
Ex.A6	27.02.2009	Copy of Right Elbow X-ray cover
Ex.A7	08.08.2010	Copy of Left Elbow x-ray cover
Ex.A8	10.06.2004	Copy of Birth Certificate of patient’s minor son M.Karthkeyan
Ex.A9	10.05.2011	Copy of 100% Handicap Certificate of M.Karthikeyan
Ex.A10		Copy of a Note on swine influenza (HINI)
Ex.A11		Copy of all about Swine Flu: Symptoms, precautions, Treatment
Ex.A12		Copy of the symptoms of Swine Flu
Ex.A13	11.03.2002	Copy of Medical Council of India : Notification (MCI Code)
Ex.A14	10.08.2010	WHO: HINI in Post Pandemic Period by Director- General
Ex.A15	10.08.2010	WHO: Recommendations for the Post Pandemic Period
Ex.A16	Nov.09	WHO: Clinical Management of Human infection with HINI 2009
Ex.A17	21.08.2009	WHO: Recommended Use of Antiviral
Ex.A18	05.10.2009	Copy of Govt of India: Catgorisation of HINI cases into A,B,C
Ex.A19		Copy of Government of India: Objective Criteria: HINI
Ex.A20 series		Copy of Govt.of India: Guidelines for Contact Tracing of HINI
EX.A21series		Copy of Govt.of India: Clinical Management of Protocol & Infection control Guidelines
Ex.A22		Copy of Tamilnadu: Swine Flu (H1N1)
Ex.A23	07.08.2009	Copy of Govt of Tamilnadu Issues Guidelines to curb swine flu menace by the MED GURU
Ex.A24		Copy of Govt. of Tamilnadu:Focus is on breaking swine flu transmission by the HINDU
Ex.A25		Copy of Medical Chart
Ex.A26		Copy of Typhoid Fever Differential Diagnoses
Ex.A27		Copy of ARDS Differential Diagnoses
Ex.A28	30.01.2012	Copy of Compromise Deed filed : JM-4 Court, Salem
Ex.A29	09.04.2012	Copy of Plaint by complainant -3 in OS 181/2012 in PSJ Court, Salem
Ex.A30	03.01.2012	Copy of Counter by complainant 1 & 2
Ex.A31		Copy of Counter by OP-4
Ex.A32	21.02.2011	Copy of Application U/2 12 of DVA in CMP 1117/11. JM-4, Court, Salem
Ex.A33	05.10.2012	Copy of Legal Heirs Certificate
Ex.A34	03.09.2010	Copy of Leave letter of K.P.Mohanavelu
Ex.A35	11.02.2011	Copy of Notice of S.Deeparani (OP4)
Ex.A36	23.02.2011	Copy of Reply of complainants 1 & 2

Ex.A37	19.05.2010	Coy of Uterus Operation Discharge Summary of Sakthi Hospital
Ex.A38	08.07.2010	Copy of OP case Record of Sakthi Hospital
Ex.A39		Copy of Secondary School leaving Certificate
Ex.A40		Copy of Proceeding of the Director of Collegiate Education showing 60% physical disability
Ex.A41	19.12.1991	Copy of B.A (English) Degree certificate
Ex.A42	28.11.1995	Copy of M.A. (English) Degree certificate
Ex.A43	21.04.1997	Copy of M.A. (Defence and Strategic Studies) Degree certificate
Ex.A44	20.11.1997	Copy of M.A. (Journalism and Mass Communication( Degree Certificate
Ex.A45	18.02.2000	Copy of M.A. (Public Administration) Degree
Ex.A46	29.11.2001	Copy of B.L. (Law Degree) Degree Certificate
Ex.A47	25.05.2010	Copy of M.Phil (Master of Philosophy) Degree Certificate

 

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :   NIL

 

P.BAKIYAVATHI                                                       A.K.ANNAMALAI

    MEMBER                                                      PRESIDING JUDICIAL MEMBER