BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 16/01/2009

Date of Order : 21/01/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 19/2009

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the case of the complainant is as follows :

The complainant is working as an engine driver in Cochin Naval Base. He is an asthma patient. While so on 08-11-2008, he consulted the casualty doctor with complaints of breathlessness and sweating. He was admitted in the ICU. Dr. Ramakrishnan his consultant was not available on that day and hence the casualty doctor in charge attended the complainant. As per his direction, an injection was administered to the complainant on his right wrist by a nursing staff of the opposite party soon after the injection, the complainant felt discomfort over the right thumb, index finger and middle finger. Subsequently, severe pain was felt over the said portion and discoloration also was noticed. Immediately, he consulted Dr. George Thomas who is a neighbour. He had given some medicines, but could not subsidize the pain and discoloration. As per his advice, the complainant was admitted in the specialist's hospital, Ernakulam on 14-11-2008. He was discharged on 20-11-2008. They diagnosed the disease as impending gangrene ® thumb, IF & MF Ulcere lateral aspect of (R) wrist. Consequently, three fingers of the complainant became useless and looking ugly due to discoloration. All those complications were occurred only due to the negligence of the doctor and nursing staff who attended the complainant. The complainant is now totally disabled to do any manual work as an aftermath of the administration of injection to his right wrist. The complainant is aged 58 years, he has been put to severe mental agony, pain and hardships due to the negligent treatment received from the opposite party's hospital. The complainant is entitled to get a compensation of Rs. 1,35,000/- from the opposite party. This complaint hence.

2. The version of the opposite party :

This complaint is not maintainable in this Forum and can be adjudicated only in a Civil Court. The complainant is suffering from atheroseterotic vascular disease and hypertension and is under the treatment of cardiologist of the opposite party since 2005. He had been admitted in the hospital on various occasions. On most occasions, the complainant was admitted after a heavy alcoholic binge, he was very violent, restless and would not co-operate with the treatment and staff of the hospital. On 08-11-2008, the complainant was admitted in the hospital at 7.30 a.m. The casualty doctor administered the very same medicines which were given to the complainant on previous occasions. Thereafter at 10.45 a.m., Dr. Ramakrishnan also attended the complainant. The complainant insisted on discharge. Immediately thereafter, the nursing staff noticed swelling on his right palm and mild swelling and redness. Dr. Ramakrishnan prescribed medicines and referred him to Surgeon Dr. S.R. Mohan. Dr. Mohan examined the complainant and diagnosed the disease as cellulites. The complainant refused to get admitted in the hospital and so was discharged. The opposite party is not aware of the further treatment of the complainant till 28-011-2008. Thereafter, the complainant approached the opposite party hospital on several occasions for further treatment. There is no deficiency in service or negligence or laches on the part of the opposite party its doctors or nursing staff. The opposite party requests to dismiss the complaint.

3. The complainant and his witness were examined as PW's 1 and 2 and Exts. A1 to A5 were marked on his side. The opposite party and his witness were examined as DW's 1 and 2 and Ext. B1 was marked on their side. Both sides filed argument notes. Heard the counsel for the parties.

4. The points that came up for consideration are :-

1. Whether the complaint is maintainable in this Forum?

2. whether the complainant is entitled to get a compensation of Rs. 1,35,000/- from the opposite party?

5. Point No. i. :- The Hon'ble Apex Court in Indian Medical Association Vs. P. Shanta 1995 (3) CPR 412 held that, “service rendered at a non Government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and person who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Section 2 (1) (o) of the Act. Irrespective of the fact that the service is rendered free of charge to person who are not in a position to pay for such services. Free service would also be 'service' and the recipient a 'consumer' under the Act.” In the instant case, the opposite party does not have a case that the complainant has availed their service free of cost. In the above circumstances, we are of the firm view that this complaint is maintainable in this Forum.

6. Point No. ii. :- Admittedly on 08-11-2008, the complainant was treated at the opposite party hospital. During evidence, the complainant deposed that he has no complaints against the treating doctors, however, he is aggrieved against the staff of the opposite party who administered injection as prescribed by the doctors. PW2 a physician working in General Hospital, Ernakulam who had treated the complainant subsequent to the treatment at the opposite party hospital deposed that the medicine administered to the complainant should have been administered through the vain. Further, he opined that if it were injected through the artery that itself is a reason for forming gangrene. PW2 has treated the patient till 13-11-2008 and the complainant was referred to Specialist Hospital for better treatment. Subsequently, he had undergone inpatient treatment at the hospitals from 14-11-2008 to 20-11-2008. His disease was diagnosed at the hospital as per Ext. A3 discharge summary which reads as follows :

“Impending gangrene right thumb, IF & MF ulcers lateral aspect of right wrist.”

Again, he underwent treatment at AIMS Kochi from 10-02-2009 to 13-02-2009 evident by Ext. A4 discharge summary.

7. DW's 1 and 2 are the surgeon and medical officer who treated the complainant at the opposite party hospital. Nothing is forthcoming on the part of DW's 1 and 2 as to the reasons for the subsequent formation of gangrene on the right hand of the complainant, especially when swelling and redness were noticed at the outset. The Hon'ble Supreme Court in Smt. Savita Gang Vs. The Director, National Heart Institute IV (2004) CPJ 40 (SC), held that burden lies on hospital and concerned doctor who treated the patient that there was no negligence involved in treatment. There is nothing such in the instant case.

8. The Hon'ble Supreme Court also held in V. Kishan Rao. Vs Nikkhil Super Speciality Hospital III (2010) CPJ 1(SC) in para 46 reads as follows :

“The learned author at page 314, para 3-146 of the book gave illustrations where the principles of res ipsa loquitur have been made applicable in the case of medical negligence. All the illustrations which were given by the learned author were based on decided cases. The illustrations are set out below:

x x x x x

Where gangrene developed in the claimant's arm following an intramuscular injection (See Cavan V. Wilcox, (1973) 44 D.L.R. (3d) 42);

x x x x x”

The contention of the opposite party that the complainant has been consulting the doctors evenafter the entire episode is unsustainable since the complainant has stated that to get his medical expenses reimbursed he has had to approach the opposite party hospital.

9. In view of the above, we are of the opinion that there was negligence and lack of care on the part of the opposite party hospital, and therefore, they are liable for the injuries sustained by the complainant in consequence of the treatment rendered by them. Ext. A5 series medical bills goes to show that the complainant had to incur a total sum of Rs. 41,453.56 towards his treatment expenses. There is no evidence on record forthcoming to substantiate the other claims as stated in the complaint. We are of the opinion that a compensation of Rs. 50,000/- (Rupees Fifty thousand only) including the treatment expenses is enough to meet the ends of justice and to abate the agony of the complainant. Ordered accordingly.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry on interest @ 12% p.a. till payment.

Pronounced in the open Forum on this the 21^st day of January 2012.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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