Date of filing: 06.12.2010
Date of Order: 20.06.2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE AT VELLORE DISTRICT.
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A. B.L., PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc. B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A. MEMBER - II
MONDAY THE 20th DAY OF JUNE 2022
CONSUMER COMPLAINT NO.46 / 2010
Mr. G. Jayakumar,
S/o. Gurunathan,
No. F-5, Police Quarters,
Gudiyatham Town,
Vellore District. …Complainant
-Vs-
The General Superintendent,
Christian Medical College & Hospital,
Ida Scudder Road, Vellore. …Opposite party
Counsel for complainant : Thiru. D.G.Prabakaran
Counsel for opposite party : Thiru. M. R. Ramanan
ORDER
THIRU. A. MEENAKSHI SUNDARAM, PRESIDENT
This complaint has been filed under section 12 of Consumer Protection Act, 1986. Directing the opposite party to pay a sum of Rs.5.00,000/- (Rupees five lakhs only) as damages for deficiency in Service and mental agony along with interest and to pay a sum of Rs.10,000/- towards cost of this proceedings.
1. The case of the complaint is briefly as follows:
The complainant was having some complaints in his left side stomach. On 13.08.2008, he has undergone checkup at C.M.C. Hospital. After check-up at C.M.C. RUSHA Hospital, the Doctors have informed the complainant that he is having Inguinal Hernia complaint in his left side of stomach. Based on the advice of the Doctors, the complainant got appointment on 27.08.2008 with CMC, Hospital. He has done all the diagnosis on the same date. On 10.09.2008 Dr. Shalon examined the complainant and he asked the complainant to come on 27.09.2008 for further treatment. As per the advice of Doctors complainant have to undergo a surgery on 30.09.2008. Dr. Shalon took the Complainant to Dr. George Mathew and informed that the complainant to undergo a surgery in the left side of the stomach on 30.09.2008. On 30.09.2008, at about 10.30 a.m., the complainant brought to the operation theatre and at about 12.00 hours he was brought back to the bed. After he became conscious, the complainant realized that the Doctors were done operation in his right side of stomach, instead of left side. He suffered heavy pain. Immediately, the complainant shouted with the Doctors stating that the operation was done in the right side of stomach instead of left side. But the Doctors have informed the complainant that the operation was done as per the instructions in the chart. When the complainant asked the Dr. Shalon, why you have operated me in the right side, instead of left side?. Dr. Shalon informed the complainant that “I have done it wrongly and “say very very sorry”. Dr. Shalon also informed the complainant that you have to undergo another surgery in the left side of stomach. On 01.10.2008, in the morning hours, Dr. Shalon, Dr. Vijay Abraham and other Doctors have examined the complainant. Again on 03.10.2008, the Doctors have informed the complainant to undergo another surgery in the left side of stomach. Since the complainant was having more pain in his right side, he refused to undergo another surgery in the left side of stomach. This news was published in the Newspapers and Televisions Channels. Angering upon the news published in the media, the Medical Superintendent Dr. George Mathew, Head of the Department of Surgery Unit III and other Doctors of the opposite party’s Hospital came to the Ward and directed the complainant to pay the bill amount of Rs.16,400/- within two hours and also informed that they will not give further treatment to the complainant. When his brother Mr. Rajasekaran requested the said Doctors to continue the treatment to the complainant, but they have not cared the same complainant was forcibly discharged from the Ward even without removing the stitches. On 04.10.2008, the complainant has lodged a complaint with the North Police Station, Vellore as against opposite party and their doctors for wrong operation done to the complainant and discontinue the treatment. At the intervention of the Superintendent of Police, he was again on 11.10.2008 admitted to the opposite party’s Hospital and on 12.10.2008, he had underwent a surgery in his left side stomach for left Inguinal Hernioplasty. On 19.10.2008, the complainant was discharged from the Hospital. He has paid a sum of Rs.28,000/- the medical charges through his insurer i.e., Star Health Allied Insurance. Due to the wrong operation done by the opposite party Hospital’s Doctors, the complainant was sustained severe pain and he could not able to continue his services in the Police Department for several months. The acts committed by the opposite party Hospital’s Doctors in doing wrong operations and forcibly discharging the complainant from the hospital are highly amounts to ‘Deficiency in Service’. On 18.11.2008, the complainant issued a legal notice to the opposite party demanding the Opposite party to pay a sum of Rs.10,00,000/- (Rupees ten lakhs only) to the complainant as damages. The opposite party received the said legal notice on 02.12.2008. The opposite party neither replied nor paid the compensation amount as demanded by the complainant. Hence this complaint.
2. The opposite party has filed the written version is as follows:
This complaint is barred by the provisions of Section 24-A of the Consumer Protection Act and the complaint is dishonestly intended to sensationalize the issue by false pleading and to get undue publicity that would tarnish the very fair name of this world-renowed Hospital. The complainant admitted that the first operation was done on 30.09.2008 and was discharged from the Hospital. Had there been any deficiency of service or negligence on the part of doctors of this Hospital, the complainant would not have chosen the very same Hospital for a second operation and paid for the same. The allegations against the Hospital and the Doctors are based on ignorance and misconception about the ailments that the complainant was suffering from and the wholesome treatment given at this Hospital. This is a world-known Multi-Speciality Hospital with expert Doctors on various fields of medicine for a lay-man like the complainant to make Vile allegations against the Hospital without any expert medical opinion cannot be countenanced at all. The complaint is in clear abuse of process of law and is not filed in accordance with the law as laid down by the Supreme Court in any case of alleged Medical Negligence. The complaint is liable to be dismissed on this ground alone. The documents filed by and relied on by the complainant themselves would show that the complainant was suffering from “Bilateral Inguinal Hernia” which means that he was suffering from Hernia occurring or appearing on two sides (as opposed to unilateral or one-sided). Inguinal Hernia is hernia in which a loop of intestine enters the inguinal canal (pertaining to groin), sometimes filing, in a male the entire scrotal sack – Document No.3, the Discharge Summary (for discharge on 04.10.2008, both filed by the complainant, would show that the complainant had “Bilateral Inguinal Hernia” for which the complainant was treated. The entire medical records maintained in the regular course of treatment would also show that the complainant had “Bilateral Inguinal Hernia” for which the complainant had treatment at this Hospital. There is absolutely no basis for the allegations that either the diagnosis made at this Hospital was wrongful or the treatment given at this Hospital. The opposite party submits that it was for the expert Doctor to consider and decide as to on which side operation was to be done first and on which side operation was to be done later, after first one. No medical man can be faulted for such judgment or decision and not even opinion and accused of negligence or deficiency of service by a lay-man like the complainant who is stated to be a police constable prone to suspect crimes in all human actions. As per the regards, Mr. G. jayakumar was referred from RHUSA Hospital for Inguinal Hernia. In this hospital at Vellore, he was seen by Dr. Nicholas on 27th August 2008. In the Outpatient Department during the first visit, he complained of swelling in the right inguinal region which he noticed for one month. As per the patient, the swelling increased in size on coughing and reduced spontaneously. He have history of having Asthma for 30 years and cough. The complainant was on Asthalin inhaler for the same. He also gave history of occasionally consuming alcohol. After examining the complainant, Dr. Nicholas found that he had a right direct inguinal hernia. Dr. Nicholas also found that complainant had a tender lymph node in the right submandibular region. Dr. Nicholas then advised the complainant to do Haemoglobin, total and differential white blood cell counts and blood borne viral screening tests. The complainant was also advised to take an anaesthesis outpatient clinic appointment. The opposite party submits that the complainant was reviewed in Surgery III department with results of the blood investigations, which were found normal. After discussion with Dr.Sam,. Dr. Nicholas referred the complainant to Shalom to give a date for the inguinal hernia repair, on 3rd September 2008. On 9th September 2008 the complainant was seen in the anaesthesia outpatient clinic and was cleared for the operation, with the advise to continue his medications. Dr. Shalom then saw the complainant and planned the operation for 30th September 2008. The opposite party submits that the complainant was admitted in Hospital on 29th September 2008. In the ward the complainant was re-examined. On re-examination complainant was found to have a 5 x 3 cm swelling in the right groin. This swelling spontaneously disappeared on lying down and had a cough impulse. There was also a cough implus on the left groin. There was also a cough implus on the left groin. The complainant’s genitalia was normal. And a diagnosis of bilateral inguinal hernia was made. During the preoperative ward rounds the decision was made to operate on the right side first, since that was the larger hernia. The complainant complained of pain over the operated-side for which analgesic was given. With injection Morphine (opiod analgesic) he had pain relief. On subsequent follow up the complainant complained of pain at the surgery site, but was feeling better. His pulse and blood pressure was normal, abdomen was soft and wound was clean. The complainant was discharged on 4th September 2008 from the Hospital. At the time of discharge his wound was healthy and was afebrile. On 11th October 2008, the complainant was readmitted for the left inguinal hernia repair. The complainant was re-examined in the ward and found to have healthy scar of previous surgery on the right-side and a cough impulse on the left inguinal region. On 13th October 2008, complainant underwent a left inguinal hernioplasty with mesh repair by Dr. George Mathew, Dr. Aravindan Nair and Dr. John Manipadam. The left inguinal hernioplasty was done under spinal aneasthesia. During surgery, complainant was found to have a small direct sac in the left inguinal region. This was also repaired with inguinal mesh hernioplasty (Lichenstein inguinal mesh hernioplasty). The complainant was received from the operation theatre at 1.15 PM. His blood pressure at that time was 128/80 mm Hg and pulse rate was 90/minute. He was afebrile and there was no bleeding from the wound or soakage of the dressing. His pain relief was good. He only complained of back ache. The complainant was no bleeding from the wound or soakage of the dressing. His pain relief was good. He only complained of back ache. The complainant was discharged on 19th October 2008. At the time of discharge his wound was healthy and he had passed motion. Subsequently he was reviewed in Surgery III outpatient department in October 2008. The complainant complained of fever with occasional chills. The wound was healthy and there was no evidence of local sepsis. His sutures were removed. On 3rd December 2008 he was examined and found that the wound had healed and there was no cough impulse. The opposite party submits that the complainant was given correct, proper and complete diagnosis and treatment and there was absolutely no basis for the allegation of negligence or deficiency of service. It is false to allege that any wrong operation was done or that any Doctor of this Hospital ever admitted having committed any wrong. The opposite party submits that there is no cause of action for the complaint and those pleaded in the complaint are all false, imaginary and unfounded. Therefore prays that this Hon’ble Commission may be pleased to dismiss the complaint.
3. Proof affidavit of complainant filed. Exhibits A-1 to A-21 were marked. Proof affidavit of opposite party RW1 – Dr. R. Selvakumar filed, Proof affidavit of RW2 – Dr. Sudhakar Chandran filed, Exhibit B-1 to series [Pages 1 to 87] marked on the side of opposite party. Written argument on behalf of the complainant and opposite party is being filed and oral argument of opposite party side heard. No oral argument of complainant side.
4. The Points that arises for consideration are:
- Whether there is any deficiency in service on the part of the opposite
party?
2. Whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief, the complainant is entitled to?
5. Point Nos.1&2: The Complainant was referred from C.M.C. RUSHA Hospital for Inguinal Hernia to the Opposite Party Hospital. He was attended by Dr.Nicholas of the opposite party on 27/08/2008. He was diagnosis for Bilateral Inguinal hernia. On 30/09/2008 operation was done by the opposite party hospital for the complainant on the right side of the stomach. But, the complainant alleged that the doctors of the opposite party wrongly done operation on the right side instead of left side. By the time, this news was published in the media. As a result, the opposite party was become furious and forcefully discharged the complainant from the hospital without clearing the stitches. They also not heeded the request of the complainant’s brother’s to continue the treatment. At intervention of the Superintendent of Police, on 12/10/2008 he underwent an operation on left side of stomach in the Opposite party hospital.
6. Per contra, the counsel for the complainant contended that the complainant was admitted to the opposite party hospital for treatment of Bilateral Inguinal hernia. Therefore, he has to be operated on either side of the stomach. It has been decided by the team of expert doctors of the opposite party to do the operation on the right side first. Accordingly, on 30/09/2008 the complaint underwent a right inguinal hernioplasty with prolene mesh [lichenstein’s inguinal hernioplasty]. Further he argued that it was for the expert doctor to consider and decide as to on which side operation was to be done first and on which side operation was to be done latter. No medical man can be faulted for such judgment or decision. In support of his contention he has submitted the following citations.
1. 2012(2) CPR 135
G. Azzi Kannammal and Anr.
Versus
M. Meyappan and Ors.
Held that,
“Doctors are the best Judge and they have to take decision which better and beneficial to patient”.
2. 2011(4) CPR 117 (NC)
Dr. B.H. Parmar
Versus
Dodiya Manharbhai @ Manubhai
Held that,
“Doctors can take on- spot decision in the best interest of patient”.
3. 2012 (3) CPR 306 (NC)
Ms. Swati Prakash Patil
Versus
Dr. Kiran Rajaram Vanasare & Anr.
Held that,
“Medical negligence cannot be presumed, must be proved”.
4. 2007(2) CPR 260 (NC)
N. Krishna Reddy
Versus
Christian Medical College and Hospital
Rep.by its Medical Superintendent & Anr.
Held that,
”Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service in service could be found against the affidavits filed by Hospital and Doctors”.
7. In the present, admittedly, the complainant did not produce any expert evidence to establish his contention that first the operation must be done on left side of stomach. He is also not a medical expert. He raised objection only based on his own knowledge without any medical backing. We do not find any basis on the allegation of the complainant that the Doctors are at negligent in deciding to operation on right side of the stomach first. Therefore, the allegation made by the complainant is untenable and could not sustain.
. However, when we go through the complaint, we find that after the news was published in the media. The opposite party abruptly stopped the treatment and asked the complainant to pay the bill and vacate the premises. For which, we did not find any specific reply from the opposite party’s written version. The complainant cannot be blamed for the news published in the media. It is bound and duty of the opposite party to continue the treatment tills his wound to heal. If at all if there was no truth on the news item, the opposite party can very well file defamation case against the media. The opposite party should not have stopped the treatment half way through. In the present case, the opposite party did not produce any documents for repudiating the allegation of the complainant. Merely because, the complainant case was reported in the news item, he cannot be victimized. The opposite party failed to prove that the complainant wantonly published the news in the media to tarnish the image of the opposite party. Further, we find that at the intervention of the Superintendent of Police only, the opposite party has done second operation for his whole relief. This was not denied by the opposite party anywhere in their counter.
To decide this issue we referred the following decisions and literature.
- Queen’s Bench Division, England Bolam
Versus
Friern Hospital Management Committee
Held that,
“Before I turn to that, I must explain what in law we mean by “negligence”. In the ordinary case which does not involve any special skill, negligence in law means this: Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action.
Who-so-ever chooses his profession, assumes the obligation to conduct himself in accordance with its ideals. A physician should be an upright man, instructed in the art of healings. He shall keep himself pure in character and be diligent in caring for the sick; he should be modest, sober, patient, prompt in discharging his duty without anxiety; conducting himself with propriety in his profession and in all the actions of his life. [Regulations 1.1.1 & 1.1.2., Chapter I] [1]
Maintaining good medical practice: The Principal objective of the medical profession is to render service to humanity with full respect for the dignity of profession and man. Physicians should merit the confidence of patients entrusted to their care, rendering to each a full measure of service and devotion. [Regulations 1.2.1. Chapter I] [1] Duties of Physicians to their Patient.
2.4 The Patient must not be neglected: A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. Provisionally or fully registered medical practitioner shall not willfully commit an act of negligence that may deprive his patient or patients from necessary medical care. [Regulations 2.4. Chapter II] [1]
‘Medical Negligence’ means negligence on the part of a doctor is simply failure to exercise due care. Negligence constitutes following three ingredients so far as the consumer case is concerned: (i) Doctor owes duty to take care of the patient. (ii) Doctor should not breach this duty of care. (iii) Otherwise, complainant has to suffer injury due to this breach.
We had relied also on the decision in the matter of -Parvatkumar Mukharjee vs. Ruby General Hospital and Anr. [7] decided by Hon.National Consumer Commission in respect of duty of noble profession.
It was held that the patient must not be neglected, once having undertaken the case, physician should not neglect the patient, nor should he withdraw from the case without giving notice……..sufficiently long in advance of his withdrawal to them to secure another medical attendant.
In the present case, the opposite party ought to have continued the treatment to the complainant as a professional without humiliating for publishing the news in the media. But they failed to do so. Therefore we find that there is a negligence on the part of the opposite party which resulted deficiency in service on their part of opposite party. Hence these point Nos. 1 & 2 are decided in favour of the complainant.
9. POINT NO.3: As we have decided that the Point Nos.1 and 2 that there is a deficiency in service on the part of the opposite party. The opposite party is hereby directed to pay a sum of Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand Only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost to the complainant. This point No.3 is also answered accordingly.
10. In the result, this complaint is partly allowed. The opposite party is hereby directed to pay a sum of Rs.2,50,000/- (Rupees Two Lakhs and Fifty Thousand Only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.5,000/- (Rupees Five Thousand Only) towards cost to the complainant, within one month from the date of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of this order to till the date of realization.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 20th June, 2022.
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MEMBER –I MEMBER – II PRESIDENT
LIST OF COMPLIANANT SIDE DOCUMENTS:
Ex.A1-10.09.2008 - Report
30.09.2008
Ex.A2- - Medical Bills-7 Nos
Ex.A3-04.10.2008 - Discharge summary
Ex.A4-04.10.2008 - Copy of complaint given by the complainant ‘s wife to North police
Station, Vellore
Ex.A5-04.10.2008 - C.S.R. No.276/2008
Ex.A6-07.10.2008 - Copy of the complaint given by the complainant’s wife to the
Hon’ble Chief Minister of Tamil Nadu
Ex.A7-07.10.2008 - Copy of the complaint given by the complainant’s wife to the
Hon’ble State Human Rights Commission, Chennai
Ex.A8-13.11.2008 - Acknowledgement card sent by the Hon’ble Chief Minister’s
Special Cell to the complainant’s wife
Ex.A9-24.10.2008 - Order passed by the Hon’ble State Human Rights Commission,
Chennai
Ex.A10-19.10.2008 – Preliminary Discharge Note issued by the CMC, Hospital, Vellore
Ex.A11-19.10.2008 - Discharge Summary
Ex.A12-29.10.2008 - Discharge Bill
Ex.A13-04.10.2008 - Paper News published in Dinakaran Tamil Daily (paper cutting
sheet)
Ex.A14-05.10.2008 - Paper News published in Dinakaran Tamil Daily (Paper cutting
sheet)
Ex.A15-06.10.2008 - Paper News published in Dinakaran Tamil Daily (Paper cutting
sheet)
Ex.A16-12.10.2008 - Paper News published in Dinakaran Tamil Daily (Paper cutting
sheet)
Ex.A17-14.10.2008 - Paper News published in Dinakaran Tamil Daily (Paper cutting
sheet)
Ex.A18-11.11.2008 - Copy of the letter sent by the complainant to the Superintendent
of Police, Vellore District, Vellore
Ex.A19-12.11.2008 - Postal acknowledgement card of the Superintendent of Police,
Vellore District, Vellore
Ex.A20-18.11.2008 - Office copy of the legal notice sent to the opposite party Hospital
Ex.A21-02.12.2008 - Postal acknowledgement card of the opposite party Hospital
LIST OF OPPOSITE PARTY SIDE DOCUMENTS:
Ex.B1 Series - Medical record one bound book
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MEMBER –I MEMBER – II PRESIDENT
