IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 25th Day of March 2019
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, BSc,LL.B, Member
CC No.194/13
A.Asha : Complainant
W/o Anil Kumar,
Sree Vinayakam
Pada North, Karunagappally-690518
[By Adv.M.I.Alexander Panicker]
V/s
- The Director : Opposite parties
Gynaecologist
Dr.Nair’s Hospital
Asramam, Kollam-691002
[By Adv.V.Hariprasad]
- Dr.Pramod Roy John
Gynaecologist
Dr.Nair’s Hospital
Asramam, Kollam-691002
[By Adv.A.Sudheer Bose]
ORDER
E.M.MUHAMMED IBRAHIM , B.A, LL.M,President
This is a case based on a consumer complaint filed Under Section.12 of the Consumer Protection Act. The averments in the complaint in short are as follows:-
The complainant who is the Government employee now employed in Family Court, Chavara had some problem of bleeding and hence on 18.03.13 went to the 1st opposite party hospital for check up and treatment. The 2nd opposite party Gynaecologist, attended the complainant and directed her to take CT Scan and advised her to undergo hysterectomy at the earliest. She informed the matter to her husband who is working in Gujarath and obtained his consent to undergo operation. Again on 22.03.13 the complainant approached the 2nd opposite party and enquired whether she can avoid such operation. But the 2nd opposite party insisted to get admitted on 04.04.13. The complainant and her family had to yield for the direction and compulsion of the 2nd opposite party
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and hence got admitted for the said operation. However no mandatory tests were done by the 2nd opposite party before conducting operation. On 05.04.13 the 2nd opposite party subjected the complainant to undergo operation and thereafter discharged the complainant on 07.04.13 in a hurry manner even before healing the wounds and without any relief to the post operative pain. Discharge of a patient after hysterectomy within 2 days itself is a sheer criminal negligence. Soon after reaching at her residence the pain and sufferings worsened and had started loose motion several times, so that she was forced to rush to the said hospital again and was readmitted on 09.04.13.
Ultrasound scanning, blood test and urine culture etc. showed a high degree of infection on pelvis by clot of blood and WBC count showed double the limit. Hemoglobin reduced even up to 7.6g%. The tube put in urinary duct was one not sterile but was infected which aggravated the infection of the complainant. Abdominal surgery can cause collection of blood on pelvic region and pelvis getting infected. The normal and effective method of management was to drain out the clotted blood from the pelvic portion either through vagina or through rectum. Since the complainant was having loose motion, number of times and the patient got very weak and unhealthy, it was the duty of the doctors to drain out infected blood particles from pelvis at the earliest but in the said hospital, the 2nd opposite party tried only for antibiotic therapy. Even though consulted surgeons suggested to drain out the blood the 2nd opposite party had continued Antibiotics which worsened the health of the complainant. The 2nd opposite party and staff nurses accused and described loose motion as if it is due to some food poison and infection caused only because of fault of the complainant during home stay. The 2nd opposite party described loose motion as Diarrhea and Dysentery, which itself shows how scandalous such diagnosis is. Opposite parties and their staffs were hiding truth from the complainant and her relatives, which is against medical ethics. The loose motion was part of pelvic peritonitis and there was no point in accusing food poison or other infection. Doctors and staffs were mentally harassing the complainant so that her mental condition got upset and her physical condition
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deteriorated so that family of the complainant found quite unsafe in continuing treatment in the said hospital and hence the complainant was brought to KIMS Hospital, Thiruvananthapuram on 17.04.13. In the said hospital CT Scan was done and found a collection in pouch of douglus. Travagianal drainage of the abscess was done on 19.04.13. Urine culture showed Enterobacter Cloacs and it can be caused only by usage of not sterile urinary tubes inserted in your hospital. The complainant was discharged from the said hospital only on 24.04.13. Total treatment expenditure in KIMS Hospital was more than one lakhs rupees.
The complainant had to incure expences of more than 50000/- rupees in the 1st opposite party hospital as medical expenditure which was only due to the negligence and outdated treatment process in the said hospital. The pain and sufferings and the mental agony caused to the complainant can never be equated with money. The complainant as a patient hired the service of the opposite parties and suffered much due to the deficiency in service and unfair outdated trade practice. The complainant was prevented by her physical disabilities in taking care of her family. Due to her illness and poor health condition the whole family had to suffer a lot. The loss and injury caused to the complainant and her family was only because of criminal negligence of opposite parties and their staffs. Hence the opposite parties are liable to pay Rs.3,00,000/- as compensation, the details of which are also appended to the complainant. In view of the negligence of the 2nd opposite party doctor working in the hospital the 1st opposite party liable to compensate vicariously.
On 07/05/13 the complainant issued a notice to the 1st opposite party requesting to pay compensation to the tune of Rs.3,00,000/-. Against the said notice the 1st opposite party sent a reply notice dated 30.05.13 through their lawyer raising untenable conditions. The complainant again issued another notice on 18.06.13 to the 2nd opposite party who sent a reply denying the negligence and deficiency in service.
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The opposite party No.1&2 resisted the case by filing separate written versions. The 1st opposite party in its separate version raised written objection raising the following contentions.
The complaint is not maintainable either in law or on facts. It is frivolous,vexatious and devoid of truth or bonafides. There is no negligence or deficiency in service on the part of 1st and 2nd opposite party as alleged by the complainant. There is no wilful latches or negligence on the part of any of the opposite parties. The 1st opposite party hospital is having more than 50 years of unblemished existence in the medical field and it is having wide reputation among the general public in and around Kollam in general and throughout Kerala and other states in particular. The hospital employs only qualified competent and efficient doctors and they are concerned with the welfare of the patients only. More over the hospital management has advised and given directions to all the doctors and other staff members to extend best treatment, care and assistance to the patients and all the doctors and other staff members are doing the same.
The remaining contentions of the 1st and 2nd opposite party are more or less same which in short are as follows. The opposite parties would admit that the complainant came to the 1st opposite party hospital and consulted the 2nd opposite party at the OP department on 18.03.13 with complaints of severe excessive bleeding during menstrual period. She had a history of symptomatic treatment from elsewhere but without relief. Ultra sound scanning of abdomen revealed enlarged uterus with large fibroid pressing on the endometrium. Based on the USG report, the complainant was advised to undergo hysterectomy later on and she was advised iron tonic to improve Hb level. The complainant was having sufficient opportunity to take a second opinion regarding the hysterectomy. However the complainant on 04.04.13 with persistence of the same problems reported and was prepared to undergo hysterectomy. Hence she was admitted to the 1st opposite party hospital and posted for hysterectomy to
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the next day. The complainant underwent pre-operative anaesthetic check up and evaluation and found fir for hysterectomy. The 2nd opposite party had also informed the complainant and her bystanders about the pros and cons of hysterectomy and possible complications involved in the said surgical procedure. Informed consent was also obtained before proceeding with hysterectomy. Under all aseptic care and with due precautions the 2nd opposite party conducted total abdominal hysterectomy under spinal anaesthesia on 05.04.13. Intra operative and post operative periods were uneventful and the complainant had been kept under proper antibiotic cover and on 07.04.13 she was discharged in a perfect condition without any complaints. The complainant had reported to the hospital on 09.04.13 and admitted with complaint of abdominal pain and clinically assessed dysentery. There was post prandial hurry and she was found afebrile. The complainant was thoroughly investigated and started on medicines. On 12.04.13 the complainant developed fever and referred to the physician Dr.Amruthlal. The physician advised ultra sound scan of pelvis and it revealed collection of blood in the pelvis. Fever was settled down with antibiotic medication. Based on USG finding of blood collection in the pelvis, surgical opinion was sought and repeated scan was taken. Repeat scanning confirmed earlier findings and the complainant was advised drainage of the fluid collection. But the complainant was not willing for continuation of treatment at the 1st opposite party’s hospital and requested for discharge and accordingly she was discharged on 17.04.13.
Accumulation of blood in pelvic region causing infection is a common post operative manifestation seen in pelvic surgeries. This cannot be taken as due to any negligence on the part of the surgeon. At the time of re-admission with complaint of abdominal pain and dysentery clinically, the complainant was afebrile and she was managed conservatively as per accepted line of treatment. The complainant was later referred to the physician when she developed fever and had shown signs of sepsis and based on USG examination, collection of blood in the pelvis was detected. Fever subsided and the complainant had been
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under proper antibiotic cover and conservative management continued with medication on the basis of proper investigations. On the basis of scan report revealing blood collection, surgical consultation was done and based on repeat scanning pelvic peritonitis was confirmed and she was advised to undergo drainage of abscess rectally. The complainant had undergone the procedure advised to her by the surgeon till 17.04.13 at the 1st opposite party hospital. Hence the complainant’s decision to get discharged from the 1st opposite party hospital against medical advice has resulted in delaying the procedure for abscess drainage for two days. There was proper diagnosis based on investigations on the part of the 2nd opposite party when the complainant reported with post operative difficulties. The modality of treatment and initial conservative management with antibiotics and supportive measures based on physician’s opinion and surgical consultation was as per accepted medical practice expected from a reasonable doctor in the management of a patient in an identical situation. Further the procedure adopted at KIMS hospital was the same procedure advised to the complainant on 17.04.13. The 2nd opposite party had exercised reasonable degree of skill and expertise in diagnosis and treatment of the complainant and there was no negligence or deficiency in service on his part at any point of time in the treatment of the patient.
In view of the pleadings the points for consideration are:-
- Whether there is any negligence and deficiency in service on the part of the opposite parties?
- Whether the complainant is entitled to get compensation ? If so what would be the quantum of compensation to be awarded?
- Reliefs and costs.
Evidence on the side of the complainant consists of the oral evidence of PW1 and PW2 and Ex.P1 to P19 documents.
The 1st opposite party has not adduced any evidence either oral or documentary. Evidence on the side of the 2nd opposite party consists of the oral evidence on DW1&2,Ext.D1 and Ext.D2 series.
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The complainant and the 2nd opposite party filed notes of arguments. The 1st opposite party has also not filed any notes of arguments.
Heard both sides.
Point No.1&2
For avoiding repetition of discussion of materials these 2 points are considered together. Admittedly the complainant went to the 1st opposite party hospital consulted with the 2nd opposite party doctor at the OP Department on 18.03.13 with complaints of severe excessive bleeding during menstrual period. It is also an admitted fact that the complainant had a history of symptomatic treatment from elsewhere but without relief. Ultrasound scanning of abdomen revealed enlarged uterus with large fibroid pressing on the endometrium. The 2nd opposite party based on the USG report advised the complainant to undergo hysterectomy and also advised iron tonic to improve Hb level. The complainant again reported on 04.04.13 with persistence of the same problems reported and on the next day ie, on 05.04.13 after pre-operative anaesthetic check up, the 2nd opposite party conducted total abdominal hysterectomy under spinal anaesthesia. The complainant had been kept under proper antibiotic cover and on 07.04.13 she was discharged from the 1st opposite party hospital with a direction to appear for review. However the complainant again got readmitted at the hospital on 09.04.13 with the complaint of abdominal pain. On 12.04.13 the complainant developed fever and referred to the physician Dr.Amruthlal and on the advise of that doctor ultrasound scan of pelvis was taken and it revealed collection of blood in the pelvis. However the complainant has got discharged from the 1st opposite party hospital on 17.04.13 and got admitted at the KIMS hospital Thiruvananthapuram on the same day.
In the said hospital CT Scan was done and found a collection in pouch of douglus. Travagianal drainage of the abscess was done on 19.04.13. Urine culture revealed Enterobacter Cloacs. The complainant was discharged from the KIMS hospital only on 24.04.13.
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The crucial question to be considered is whether there is any negligence and deficiency in service on the part of the 2nd opposite party who treated the complainant at the 1st opposite party hospital. The complainant would allege deficiency in service on the side of the treated doctor and the hospital on two phases of her treatment. The first phase of treatment starts from 04.04.13 and ends with the discharge on 07.04.13. It is clear from the available materials that the complainant got admitted at the 1st opposite party hospital on 4.04.13 as advised by the 2nd opposite party doctor. According to the learned counsel for the complainant, without mandatory tests the complainant has been subjected to hysterectomy on 05.04.13 by the 2nd opposite party doctor. Though the complainant had undergone a major surgery as admitted by DW1&DW2 she was discharged from the hospital on 07.04.13 in a hasty manner without observing and ascertaining the common post operative chances of complications.
The learned counsel for the 2nd opposite party would argue that there is no deficiency in service or negligence on the part of the 2nd opposite party. It is further argued that a complaint under the Consumer Protection Act is entertainable only when the service of the doctor and hospital is denied or if there is any short coming or inadequacy in the quality of service, which is required to be maintained by or under any law for the time being in force. According to the learned counsel for the 2nd opposite party though the word deficiency is narrated with many adjectives, there is not at all a word “negligence”, to equate deficiency in service and hence even if there is negligence in the service of a doctor or hospital, that doesn’t meant that there is deficiency in service, especially when there is no law or enactment prescribing a particular standard for the service of a doctor. It is also argued that the skill and expertise of a doctor differs and it is not uniform. It varies from case to case and patient to patient. The complexity of the disease and treatment also differs in all respects, that merely because of something happened during or after receiving service, doesn’t mean that there is deficiency in service given by
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the doctor. According to the learned counsel for the 2nd opposite party the complainant has only a bald allegation of deficiency in service and for the alleged negligence on the part of the doctor, the remedy is to file a suit for damage based on tortious law.
The above contention of the learned counsel for the 2nd opposite party has been vehemently resisted by the learned counsel for the complainant and pointed out the evidence to the effect that the wounds were not healed and there was discharge through vagina and the complainant was suffering from severe pain even then she was discharged by the 2nd opposite party. By relying on Ext.P14 bill dated 07.04.13 the learned counsel for the complainant would argue that the 2nd opposite party doctors fee is Rs.6500/- only as surgeons fee and no other fee is seen collected for his post operative treatment and according to the counsel for the complainant in view of the above bill(Ext.P14) it can be safely inferred that the 2nd opposite party would get fee only for surgery and no fee will be given to the 2nd opposite party for the post operative treatment and that is the reason why the 2nd opposite party had discharged the patient on 07.04.13 without proper post operative observation and care from the 2nd opposite party. According to the learned counsel for the complainant there is criminal negligence and deficiency in service on the part of the opposite parties No.1&2 in discharging the complaint without rendering necessary post operative observation and care. It is clear from the oral evidence of PW1 that as on 07.04.13 her condition was not improved that the wounds were not healed and there was no relief for the post operative pain, even then the 2nd opposite party has discharged the complainant in a hurry manner.
The learned counsel for the complainant has further argued that without observing and ascertaining the chance of common post operative complications the complainant was discharged on the 3rd day even when the wounds were not healed and there was discharge through vagina and she was also having severe pain at the time of discharge. According to the learned counsel for the complainant 2nd opposite party would get fees only for surgery and not for after
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care service and that is the reason why patient was discharged in a hurry manner on 07.04.13 without any proper post operative observations and care of the treating doctor(2nd opposite party). The learned counsel for the complainant would further point out that the case sheet(Ext.D2 series) would not to disclose that anything has been observed for treating the 2nd opposite party at the post operative period. It is clear form the available materials that the act of discharge of the complainant who had undergone a major surgery and removed an organ like ovary in a hurry manner within 3 days of the operation would definitely amount and deficiency in service. The doctor who treated the patient alone knows the consequences and complications of such an operation and it is the duty and responsibility to make sure that such pain is not exposed to the risk of complications of the surgery. In view of the materials available on record it is clear that the discharge of the complainant on 07.04.13 in a hasty manner on the 3rd day of the major operation is nothing but negligence and deficiency in service on the part of the 2nd opposite party.
Now it is to be considered whether the complainant was treated properly on re-admission at the 1st opposite party hospital by the 2nd opposite party on 09.04.13 till she got discharge from that hospital on 17.04.13.
It is clear from the available materials that the patient who had undergone hysterectomy on 05.04.13 was discharged from the 1st opposite party hospital on 07.04.13 which is on the 3rd day of the operation. However after reaching her residence the complainant felt no relief for her abdominal pain. Moreover loose motion started so that she cannot eat anything. On finding that her condition is deteriorating the complainant was taken to the 1st opposite party hospital and there she was re admitted with complaint of loose stools. The case sheets would disclose how negligent the 2nd opposite party in diagnosing the condition of the patient as that of collection of blood at pelvis. On 10.04.13 his diagnosis is Abdominal discomfort. He started antibiotic and nothing was probed even if the patient complained of severe pain and fever. The Laboratory tests showed high risk of WBC. The 2nd opposite party who is
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stated to be having 40 years of practice as a gynaecologist and who is expected to diagnose the problem easily as collection of blood in pelvis, had very carelessly and negligently treated the patient with antibiotic. Same antibiotic is used by him even on 14.04.2013. Nothing is seen stated in Ext.D2 series case sheet to the effect that the 2nd opposite party diagnosed the problem of the complainant as Pelvic abscess with Sepsis except on the discharge notes, this would show a long way of negligence and incompetence of the 2nd opposite party as argued by the learned counsel for the complainant. It is also brought out in evidence that on 15.04.13 some other doctors had diagnosed signs of Pelvic Abscess and signs of septicaemia. Even thereafter the 2nd opposite party has not done anything to contain such problems but given one bottle of blood. According to PW1 only because of not subsiding the pain, fever, and loose stool she requested for discharge. The condition of the complainant is seen narrated in Ext.P7 to P9 documents. In P9 it is stated that her urine when cultured revealed growth of Enterobacter Cloaca. Enterobacter Cloaca is a bacteria which according to PW2 is formed from Catheter used which is unhygienic and unsterile. According to the learned counsel for the complainant the catheter used at the 1st opposite party hospital was unsterile and that can be the only reason for growth of such bacteria. This kind of infection caused to the complainant had caused fever and affected count of WBC. According to PW2 and DW1 and DW2, pelvic peritonitis and Sepsis are serious problems which if not properly managed and cured, it can be fatal.
The learned counsel for the 2nd opposite party has argued that there is no wilful negligence on the part of the treating doctor and the hospital. Hysterectomy surgery was done on 05.04.13 under spinal anaesthesia. The surgery was uneventful and she was discharged on 07.04.13 as there was no complaint at all. However the patient again reported at the hospital on 09.04.13 with complaint of abdominal pain and decentre. She was examined by the 2nd opposite party and started necessary medicine. The patient was also referred to physician Dr.Amruthlal on 12.04.13 and as per the joint decision of
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both doctors ultra sound scan was taken and it was revealed from the scan report there was a collection of free fluid in the pelvic region. It is also argued that on the basis of A5 ultra sound report the patient was advised drainage of fluid collection. But the complainant was not willing and also insisted to refer to KIMS hospital. According to the learned counsel for the 2nd opposite party though the complainant would allege negligence on the part of the 2nd opposite doctor who performed hysterectomy, on the ground that the subsequent development of free fluid and infectious stage in the peritoneum of the patient is nothing but the negligent operation of the doctor, the same is based on surmise and hypothesis. Actually accumulation of blood in pelvic region causing infection is a common post operative manifestation seen in pelvic surgeries. Hence according to the learned counsel for 2nd opposite party cannot be presumed negligence on the part of the surgeon as it is an accepted and common complication.
The learned counsel for the 2nd opposite party would further argue that on the basis of USG finding of the blood collection in the pelvic, surgical opinion was sought and repeat scan was taken and the same conformed earlier findings and the patient was advised drainage on the fluid collection. But the patient was not willing for continuation of the treatment at the 1st opposite party hospital and requested for discharge. Accordingly she was referred to KIMS hospital where she was undergone the procedure of drainage of abscess was done. Ext.P9 is the discharge summary issued from KIMS hospital where in it is stated that after evaluation trans-vaginal drainage was done under GA on 19.04.13. According to PW2 trans-vaginal drainage is a procedure or removal of the collection of blood through vagina which can be done by any gynaecologist or surgeon on any equipped hospital. PW2 was further deposed that trans-vaginal drainage is not a major laparotamy operation. However it is clear from the available materials that till the complainant was referred to KIMS hospital, the 2nd opposite party has not made trans-vaginal drainage for which there is facility at 1st opposite party hospital. Hence there is negligence and
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dereliction of duty on the part of the 2nd opposite party which amounts to deficiency in service.
However the learned counsel for the opposite parties would argue that the 2nd opposite party was ready to conduct trans vaginal drainage at 1st opposite party hospital. But the same was refused by the complainant. However this fact is not seen stated in Ext.P6 discharge card dated 17.04.13. The complainant when she was in the witness box as PW1 has also denied having refused to undergo trans vaginal drainage at the 1st opposite party hospital. According to PW1 that fact was not intimate to her by the 2nd opposite party instead he advised to continue antibiotic. In paragraph 4 of the proof affidavit the complainant has sworn deadly against the 2nd opposite party in the following words.
icn-bmb coXn-bn-ep-ff ]cn-tim-[-\-IÄ IqSmsX Xs¶ 5/04/13 \v henb [rXnbn Fs¶ Hm¸-td-j\v hnt[-b-am-¡n. Fsâ apdn-hp-IÄ DW-§p-¶Xn\p ap³]p-Xs¶ 07/14/13 \v Fs¶ ho«n-te¡v UnkvNmÀÖv sNbvXp. F\n¡v B kabw \à thZ-\-bpmbn-cp¶p. Rm³ A¯cw ]cm-Xn-IÄ ]d-ªn«pw 2þmw FXrI£n Fs¶ UnkvNmÀÖv sN¿p-I-bm-bn-cp-¶p. F\n¡v hb-dn-f¡w IqsS IqsS Dm-bn. £oWhpw aäpw IqSn-b-Xn-\m 09.04.13 \v Fs¶ hopw Sn Bip-]-{Xn-bn AUvanäv sNbvXp. Ultrasound scan càw,aq{Xw XpS-§nb ]cn-tim-[-\-bn F\n¡v `b-¦c infection DÅ-Xmbpw CSp-¸n\v càw I«-]n-Sn¨v InS-¸p-Å-Xmbpw WBC count Cc-«n-bn-e-[n-I-am-b-Xmbpw Ip. {ItaW 12.04.13 tebpw 16.04.13 se ]cn-tim-[-\-I-fnepw Fsâ \ne hj-fm-Ip-I-bm-sW¶v t_m[-y-s¸-«p. lotam-Kvtfm-_n³ 7.6% hsc Ipd-ª-Xmbpw Ip. Fsâ \ne \mÄ¡p-\mÄ hj-fm-Im³ XpS-§n-bn«v bmsXmcp ASn-b-´nc \S-]-Sn-Ifpw, Bi-zm-khpw 2þ-mw FXrI£n-bpsS NnInÕ sImv F\n¡v e`n-¨n-Ã. F\n¡v Bân-_-tbm-«nIv X¶-X-ÃmsX aäv bmsXmcp NnIn-Õbpw e`-y-am-¡n-bn-«n-Ã. F\n-¡p-mb hb-än-f¡w Rm³ ho«nÂt]mbn Blmcw Ign-¨-Xn-ep-m-b-Xm-sW¶v ]dªv Fs¶ Ipä-s¸-Sp-¯n. aäp kÀP³am-cp-ambn I¬k«v sNbvXv CSp-¸nse càw Hgp-¡p-I-f-tb--Xm-sW¶v D]-tZiw In«n-sb-¦nepw Snbm³ AXn\v {ian-¨n-Ã. Fsâ \ne IqSp-X IqSp-X hj-fmbn I-Xn-\m Rm³ UnkvNmÀÖn\v At]-£n¨v Xncp-h-\-´-]pcw KIMS Bip-]-{Xn-bn 17.04.13 \v AUvanämbn.
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Though PW1 was subjected to lengthy cross examination by opposite party 1&2 nothing material has been brought out to disbelieve the above version of PW1. Though the learned counsel for the 1st and 2nd opposite party has suggested that there are facilities at the 1st opposite party hospital to drain out the collection of blood through vagina and the 2nd opposite party offered such a procedure but the complainant has deliberately denied the same and got referred to KIMS hospital. As answer to the above suggesting question. PW1 has stated that on 17.04.14 she requested the 2nd opposite party to refer her to KIMS hospital as her condition was very worse. Further down she would answer that she was at critical stage while bring her to KIMS hospital.
Ext.D1 series is the case sheet starting from 09.04.13(subsequent admission) of the 1st opposite party hospital issued by the 2nd opposite party. It is true that in the discharge note contained in page No.2 it is stated that post respiratory pelvic abscess with sepsis there was no relief advise rectal drainage took discharge at request referred to KIMS. But the above facts has been written by another person in using another ink subsequently and not the person who prepared the said case sheet. The above endorsement is a subsequent endorsement is clear from the case sheet relating to the subsequent day(10.04.13) on that day doctor was noted the complaint of abdominal discomfort mild dysentery. There is no mention of any drainage of blood on that day. It is not clear from Ext.D1 series case sheet on any subsequent day on which day the doctor give such advise. In the daily reports stated in page No.15 of Ext.D1 series case sheet it is stated under the heading D/R patient is discharged at request. In Ext.P6 discharge card also there is no endorsement that the patient has refused to undergo any treatment offered by the doctor. In the circumstances the contention of the learned counsel for the 2nd opposite party that the complainant has refused to undergo the treatment offered by the 2nd opposite party at the 1st opposite party hospital and that is why the condition of the patient has become worse is having no leg to stand at all.
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The learned counsel for the complainant by relying on Ext.P16 prescription issued by 2nd opposite party doctor would show that the doctor has attempted to treat the complainant by giving injection by using the medicine shown in Ext.P16 which is having very damaging side effects. The said medicine prescribed by 2nd opposite party is antibiotic to subside bacteria. However the same medicine is having very high side effect. Without draining out the blood found at the pelvic region through vagina the attempt of 2nd opposite party was to give injection by using medicine stated in Ext.P16 and that is why her disease was not cured. In view of the evidence tendered by of PW1 coupled with prescription contained in Ext.P16 would improbabilise the case of the 2nd opposite party that he had advised the complainant to drain out the collection of blood through vagina but the complainant disobeyed his direction. It is clear from the above materials on record that the attempt of the 2nd opposite party was to give injection of medicine prescribed in Ext.P16 to cure the disease.
It is brought out in evidence that in the KIMS hospital, without any other mode of treatment they had drained out the blood from pelvis through Vagina and the patient was relieved of pain, fever and all complication and she was discharged on 24.04.13. It is clear from the available materials that the 2nd opposite party was not diligent or careful in treating such a patient to give her relief and cure even in spite of repeated serious complaints of pain and loose motion which amounts to deficiency in service and both the opposite parties are directly responsible for the damages caused to the complainant due to the above deficiency in service and medical negligence.
It is clear from the available materials that the treatment and care at the 1st opposite party hospital is not at all satisfactory as the tube inserted to collect urine was unsterilized the same caused infection. Due to the negligent and culpable lapse committed by the 2nd opposite party doctor at the 1st opposite party hospital the complainant has sustained severe mental agony apart from financial loss. Her husband has to avail leave for 4 months for attending her treatment without any pay. She has to pay Rs.50000/- as treatment
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expenses at the 1st opposite party hospital. In view of the financial loss, mental agony and sufferings the complainant claimed Rs.3,00,000/- as compensation. Though the complainant was subjected to severe cross examination nothing material has been brought out to disbelieve the above version of PW1 in the proof affidavit and Ext.P9 to P12,P15, P17,P18 and P19 series bills. In view of the medical expenses met by the complainant her mental agony brought out in evidence we come to the conclusion that the complainant is entitled to get compensation to the tune of Rs.2,00,000/- with interest at the rate of 9% per annum from the date of complaint till realisation and Rs.10,000/- as costs of the proceedings. The points answered accordingly.
Point No.3
In the result the complaint stands allowed in the following terms. Opposite party 1&2 are directed to pay Rs.2,00,000/- as compensation with interest @ 9% p.a from the date of complaint till realisation along with costs Rs.10,000/-.
Opposite party No.1&2 are directed to comply with the above directions within 30 days from the date of receipt of a copy of this order failing which the complainant is at liberty to recover Rs.2,00,000/- with interest @ 12% p.a from the date of complaint till till realisation with costs Rs.10,000/- from the opposite party No.1&2 and from their assets.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 25th day of March 2019.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
SENIOR SUPERINTENDENT
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Witnesses Examined for the Complainant:-
PW1 : Asha.A
PW2 : Dr.Firoz Khan
Documents marked for the complainant
Ext.P1 : Copy of notice issued to 1st opposite party
Ext.P2 : Reply notice of 1st opposite party
Ext.P3 : Copy of notice issued to 2nd opposite party
Ext.P4 : Reply notice of 2nd opposite party
Ext.P5 : USG of abdomen report
Ext.P6 : Discharge card
Ext.P7 : CT abdomen and pelvis KIMS Hospital
Ext.P8 : Whole abdomen sonogram report
Ext.P9 : Discharge summary KIMS Hospital
Ext.P10 : Statement of Bills KIMS Hospital
Ext.P11 : Bill of Rs.100& Rs.400
Ext.P12 : Bill of admission and advance
Ext.P13 : Lab report
Ext.P14 : Ultra sound of Pelvis(TAS)
Ext.P15 : In patient Bill
Ext.P16 : Prescription
Ext.P17 : Bill KIMS Hospital
Ext.P18 : Medical Bills
Ext.P19 : Medical bills
Ext.X1 series : Confidential Medical Record(KIMS)
Witness examined for the opposite party:-
DW1 : Dr.Pramod Roy John
DW2 : Mohan Nair
Documents marked for the opposite party:-
Ext.D1 series : Patient’s case record(confidential)
Ext.D2 series : Patient’s case record(confidential)
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Forwarded/by Order
SENIOR SUPERINTENDENT
