IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   11^th  Day of  January  2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.158/15

Mohanan                                           :         Complainant (Died)

S/o Janardhanan

Dhanya House

Thazhathu Cherry

Koottikkada P.O, Kollam.

Additional 1^st Complainant

B.Sudharmini

W/o Late Mohanan

Dhanya House

Thazhathu Cherry, Koottikkada.

Additional 2^nd  Complainant

Dhanya Mohan

D/o Sudharmini

Dhanya House

Thazhathu Cherry, Koottikkada.

Additional 3^rd Complainant

Anu Mohan

S/o Late Mohanan

Dhanya House

Thazhathu Cherry, Koottikkada.

[By Adv.G.Prasanth]

(Additional 1^st to 3^rd complainants are impleaded as per Order in IA.175/15 dated 16.12.15)

V/s

1. The Managing Director                      :         Opposite parties

         Ashtamudi Hospital and Trauma Care Centre,

        Mevaram

       Thattamala P.O, Kollam-691020.

        [By Adv.K.Y.Johnson]

2. Dr.Rachel Daniel

         Consultant Cardiologist & Physician

        Reg.No.21934

         Ashtamudi Hospital and Trauma Care Centre,

         Mevaram,Thattamala P.O, Kollam-691020.

        [By Adv.A.Sudheer Bose]

3. Mr.Sudhakar

        Worked as Doctor at Ashtamudi Hospital and Trauma Care Centre,

        Mevaram,Thattamala P.O, Kollam-691020.

         [By Adv.A.S.Naushad, Adv.R.Sreekandan Nair&Adv.C.Vijayakumar]

FINAL   ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          1. This is a case based on a consumer complaint filed U/s 12 of the Consumer Protection Act 1986. The complaint was originally filed by one Mohanan S/o Janardhanan, subsequently the complainant died on 22.08.2015 and his legal heirs were impleaded as additional complainants No.1 to 3 as per order dated 16.12.2015 passed in IA.175/15.

2. The averments in the complaint in short are as follows:-

 On 20.01.2010 the complainant went to the 1^st opposite party Ashtamudi Hospital and Trauma Care Centre, Mevaram, Thattamala, Kollan attracted by the advertisement made by the opposite parties to the effect that  "Pohn-X-ssieo tcmK ¢n\n¡v" (-{]-ta-lw, càm-Xn-k-½À²w, lrt{ZmKw, AanX sImfkvt{SmÄ, ]£m-LmXw apX-em-b-h-bv¡v) Ashtamudi Hospital and Trauma Care Centre and started routine check-up  and treatment under the 2^nd opposite party who treated the complainant for various life style diseases and caused him very familiar to 2^nd opposite party doctor.  On 26.10.2014 while the original complainant was attending a marriage function at Mulluvila Preethi Auditorium at about 3.30 pm, he felt a chest discomfort including sweating and shoulder pain.  Immediately he rushed to the opposite party’s hospital along with his relatives and went to casualty by walking.  Thereupon the original complainant was admitted at the ICU were the 3^rd opposite party was in-charge.  The complainant and his relatives enquired about the 2^nd opposite party under whom the complainant was undergoing treatment from 20.01.2010 onwards.  Thereupon the 3^rd opposite party and other hospital staffs intimated that the case of the complainant to the 2^nd opposite party who replied that she should not come today as it was Sunday and instructed the 3^rd opposite party to handle the complainants case.  After  check-up 3^rd opposite party informed the complainant’s relatives that it was a case of heart attack and thereafter 3^rd  opposite party administered some injections on the complainant and thereby the complainant became unconscious.  While he retained his consciousness on the next day he realized that 3^rd opposite party tied his hands and legs to the bed, pulled out his tongue for ventilator support and a Urinary catheter inserted his Urethra.  The next day 2^nd opposite party took the charge of treatment of the complainant and she shouted against the 3^rd opposite party  and warned the 3^rd opposite party which was overheard by the complainant.  On that day the 2^nd opposite party put off ventilator support and removed urinary catheter.  During removal of the ventilator the complainant has lost 3 teeth.  Thereafter he developed severe back pain and subsequently it caused weakness of muscles of the lower legs and started uncontrolled urination and bowl dysfunction. 

3.  On the 4^th day the complainant developed difficulties to open his mouth and swollen over his left cheek region.  On 31.10.2014 the complainant was sent to N.S Hospital, Palathara were 2^nd opposite party practices as a visiting physician to conduct Echocardiogram test and 2^nd opposite party arranged a consultation session with Dr.Jacob John an oral and Maxillofacial surgeon for the complainant.  As directed by Dr.Jacob John the complainant got admitted at N.S Hospital on 01.11.2014.  The 2^nd opposite party discharged the complainant from Ashtamudi Hospital on 31.10.2014 with the condition of abnormalities including lower limb’s weakness, uncontrolled Urination, fecal retention and facial swelling. Later the complainant was discharged from N.S.Hospital on 05.11.2014 after charging Rs.17837/- for the entire procedure.  But the complainant had lost 7 more teeth during the procedure.  At the time of discharge the complainant was instructed to come for a review on 08.11.2014 and referred the complainant to 2^nd opposite party who also advised the complainant to come for review on 08.11.2014 as instructed by Dr.Jacob John.  Accordingly the complainant appeared and the 2^nd opposite party given assurance to the complainant that his difficulties will be cured within 2 weeks but in vein.   The complainant again visited the opposite party on 24.11.2014 and raised his complaint.  Thereupon the 2^nd opposite party repeated the same answer and conducted casual check-up, fecal evacuation and prescribed repeated course of tablets for one month.  During the period the complainant developed bed sore because of constant urination and uncontrolled motions with bed ridden condition.  The complainant’s wife(1^st additional complainant) who was also suffering from various ailment struggled a lot to maintain her husband’s condition.  On the next visit ie, on 22.12.2014 the complainant requested the 2^nd opposite party to allow him to approach some other doctor for better treatment of his ailment.  She referred the complainant to Mr.Jacob John a Neuro Surgeon of her hospital.  He admitted the complainant to take an MRI Spine.  Accordingly the complainant as advised by the said doctor an MRI Spine at Desinganadu Scans.  After referring the MRI report and making other check-up the said Jacob John informed the complainant that the case is a neurotic disorder which is called “Cauda Equina Syndrome” and the said doctor informed him that the original complainant would have been better and cured if he received treatment at its early stage, but now there is no chance of recovery.

4.  The complainant and his relatives has obtained reliable information that 3^rd opposite party who left the 1^st opposite party hospital by the  time a quack doctor practiced at the 1^st opposite party hospital without any valid certificate from concerned authorities and he had been working as a duty doctor during night time and Sundays with the knowledge of the 1^st and 2^nd opposite parties that he is a quack doctor.  The 3^rd opposite party who is not a qualified doctor has been appointed at the 1^st opposite party hospital as his service is cheaper than a qualified doctor.  After this incident the 3^rd opposite party was removed from the service of the 1^st opposite party.  In a detailed investigation it is revealed that 3^rd opposite party conducted an unregistered clinic years before at Venpalakkara near Koottikada.  The 3^rd opposite party is now residing at Idukki district whose name was not included at the list of  doctors exhibited inside the opposite party hospital.

5.  Opposite party No.1&2 committed criminal negligence by permitting the 3^rd opposite party who is not a qualified doctor to conduct treatment of the complainant disregard to the life and safety of the complainant.  The opposite parties have prepared the discharge summary and other medical records with false information.  The pages of discharge summary were torned by opposite parties deliberately and inserted false readings in the discharge summary and thereby caused to disappear evidence and offence and also giving false information to screen offender.  The 2^nd opposite party attempted to manipulate the entire records connected with treatment of the original complainant as if the entire misfortune happened was just accidental but not due to their mistake.  The manner in which the Opposite party No.1&2 prepared the discharge summary and other connected records are in violation of the various regulations including Indian Medical Counsel (Professional Conduct, Etiquette and ethics) regulations 2002.  Discharge summary prepared by the opposite parties hospital for the same treatment it is mentioned by unknown doctor as “Dental trauma/facial space infection”.  “Cauda Equina Syndrome(CES) is a condition that usually requires urgent surgical treatment.  But in complainant’s case the opposite parties had referred the complainant before a neuro surgeon only after nearly two months of initial onset of CES and 2^nd opposite party not permitted the complainant to approach another medical expert for better treatment.

6. The onset of CES is evident from the 2^nd day of his admission stage and the same is revealed from the discharge summery of the complainant prepared by the opposite party itself and during the 2 months time the complainant visited 2^nd opposite party on several occasions and each time the 2^nd opposite party mislead the complainant by prescribing tablets which are only related with Blood Pressure and Cholesterol control.  The 2^nd opposite party prescribed ‘Alprax’ which belongs to a group of medicines called benzodiazepines which is not supposed to take if the patient have severe lung disease and severe muscle weakness.  Now the complainant is leading a miserable life, both legs are paralyzed, 10 teeth were lost, his kidney was damaged and he is under urinary catheterization, fecal retention and uncontrolled motion happening due to bowl dysfunction.  He lost his job and thereby sustained heavy loss for him and his family.  From 31.10.2014 onwards the complainant required help from others including Auto drivers, neighbors, relatives and friends for visiting hospitals and doing day to day activities since his both lower lymph paralyzed which is due to the culpable negligent act committed by the opposite parties.  There is gross inaction and wanton indifference to the complainant’s safety which is found have arisen from gross ignorance and gross negligence on the part of the opposite parties.  If the hospital fails to discharge their duties through their doctors, being employed on job basis it is the hospital which has to justify and not impleading a particular doctor will not absolve the liability of the hospital.  Hence the hospital as well as the doctors who treated the complainant are jointly and severally responsible for what happened including act of omission and commission of its employees.  If the complainant received proper consultation/treatment at the initial stage of  his admission no damage would have been happened on his entire body functioning and a wrong treatment made by the opposite parties lead the complainant’s life miserable.  The conduct of the opposite parties were far below that of the standards of a reasonable competent practitioners in their field.

7.Complainant sent a registered legal notice on 25.04.2015 to the opposite parties and the same were served on them but not so far sent any reply which itself shows that they have committed criminal medical negligence towards the complainant.  There is clear negligence, deficiency in service on the part of the opposite parties.  Opposite parties are jointly and severally liable to compensate for the pain, mental agony, cheating and permanent disability sustained by the complainant.  The complainant further pray to issue direction to the opposite parties to pay Rs.19,00,000/- as compensation and also prays to award costs of the proceedings.

8. Opposite parties No.1 to 3 resisted the averments in the complaint with tooth and nail by filing separate written version raising more or less same contentions.  The common contentions of the separate version filed by Opposite party No.1 to3 are as follows:-

9. The complaint is not maintainable either in law or on facts.  It is frivolous, vexatious and devoid of any truth.  There is no negligence or deficiency in service as alleged in the complaint.  Hence the complainant is not liable to get any relief from any  of the opposite parties either jointly or severally.  The complaint has been filed suppressing true facts for obtaining undue financial advantage.

10. However the opposite parties No.2 to3  would admit the treatment of the complainant at the 1^st opposite party hospital.  According to them the complainant was brought to the 1^st opposite party hospital on 26.10.14 with complaint of  left side chest pain of one hour duration with radiation to left arm.  He was a known case of diabetic, hypertensive, asthmatic with history of coronary artery disease.  He was a known smoker and ethanolic.  He was admitted at the 1^st opposite party hospital and conducted detailed evaluation and clinical examination and his ECG showed ST elevation in inferior leads consistent with inferior wall myocardial infarction.  After  explaining the risk factors and taking consent for thrombolysis therapy he was given inj.Streptokinase along with other medications and medical measures as per standard protocol in the management of Myocardial infarction.

 11.  The 2^nd opposite party had seen the patient at 4.30 pm on 26.10.2014 and the patient was found to be haemodynamically stable condition and advised to continue the same management.  The patient was under close monitoring of vitals and continued medicines.  At 11 pm the patient developed sudden onset dyspnoea which was immediately attended and treated with diuretics.  But during management the patient developed bradycardiac arrest and the same was immediately managed and resuscitated with inj.Atropine, inj.Adrenaline and cardio pulmonary resuscitation.  The patient was emergently intubated and connected to mechanical ventilator support and continued the management.  The blood investigation showed uncontrolled diabetes and features of renal failure.  In view of high risk for any re-vascularisation procedure the patient was medically managed and stabilized.  On 27.10.2014 at 8.30 am the patient became dynamically stable and he was weaned off mechanical ventilator.  The patient was shifted out of ICU in the evening on 28.10.2014.  On 29.10.2014 the patient was noted to have bilateral foot drop and neurological evaluation showed bilateral foot drop.  Steroids and physiotherapy started and X-ray spine was also taken.  Since weakness persisted, neurology consultation was done and detailed neurological evaluation was conducted and advised to continue the same medication and possibility of spinal artery thrombosis/spinal haematoma was considered.  He was also advised for MRI spine if clinical improvement was not satisfactory.  On 31.10.2014 the complainant was discharged with cardiac medications, insulin and steroids.

12. The complainant came to N S Hospital on 01.11.2014 and consulted maxillofacial surgeon Dr.Jacob John with complaints of pain and swelling over the left front and back region of the face and admitted at the said hospital.  The patient was diagnosed to have space infection involving canine, buccal and submandibular region.  He was started on medication for space infection.  He had multiple decayed root stumps and generalized periodontitis due to long standing diabetes which led to dental infection.  Dr.Jacob John advised tooth extraction and Incision & Drainage and referred him to the 2^nd opposite party for medical consultation and Echo showed inferior wall myocardial infarction and mitral regurgitation.  He was found medically fit for I&D and conducted the procedure under local anesthesia on 02.11.2014 and medical management for diabetes continued and he was discharged on 05.11.2014.

          13. The complainant came up for review with the 2^nd opposite party on 08.11.2014.  His neurological examination showed Gr.3 power both lower limb and hence advised to undergo MRI.  But the complainant did not undergo MRI as advised and later on 24.11.2014 also he was advised MRI since his neurological status was not improving.  On 22.12.2014 the complainant got admitted at the 1^st opposite party hospital for persistence of weakness.  He was attended and treated by Neuro Surgeon and MRI showed only degenerative changes and he was treated there till 24.12.2014.  During this hospitalization also, patient was attended by 2^nd opposite party.

          14. The complainant aged 63 years admittedly known smoker and ethanolic and was having a history of long standing diabetes mellitus, hypertension, heart disease(coronary artery disease-unstable angina) of 7 years duration, bronchial asthma and chronic kidney disease.  He presented with acute myocardial infarction with heart failure and he was resuscitated and required thrombolysis and mechanical ventilation as a life saving measure.  In view of acute MI and heart failure with history of diabetes and chronic kidney disease he was put in high risk category.  The management of the patient presented with acute MI was in strict regard to accepted and standard protocol and he was saved by timely management.  On 26.10.2014 the complainant developed sudden deterioration with bradycardiac arrest and he was timely resuscitated by emergency intubation and connected to ventilator support by duty medical officer and possibly loss of teeth occurred during the course of life saving procedure of emergency intubation.  The 2^nd opposite party is not liable or responsible for the same.

          15. In the course of management to save the patient from a life threatening condition he developed weakness of lower limb, bladder and bowel dysfunction due to spinal cord disease(spinal cord ischemia) consequent to cardiac disease.  MRI of the spine did not show any specific pathology requiring treatment by surgery or any other specific medical management.  The clinical picture of bilateral foot drop and urinary and bowel incontinence was suggestive of cauda equine lesion and there are multiple causes for the said condition in the background of acute myocardial infarction and thrombolysis with streptokinase possibly due to spinal cord ischemia or haematoma in spinal cord following thrombolysis.  Spinalcord ischemia can happen due to cardiac embolism, profound hypotension during cardiac arrest and atheromatous disease.  The patient with myocardial infarction and hypotension during cardiac arrest is at higher risk of developing spinal cord ischemia and it occurs due to factors beyond the control of the treating doctor.  Acute myocardial infarction is the cause for cardiac embolism.  The MRI of spine showed only degenerative disc disease and there was no indication for surgical intervention or other specific medical management at any stage of the disease except supportive measures as done in the case.  There was absolutely no negligence or carelessness on the part of the 2^nd opposite party at any point of time in the treatment of the complainant.  The complaint is purely an experimental product based on twisted facts for undue financial advantage of the complainant.  The 2^nd opposite party had treated the complainant in strict regard to accepted medical practice and there was no negligence or deficiency in service on her part and she is not liable to compensate the complainant.

          16. On 31.10.2014 the complainant was sent to NS hospital and he was arranged a consultation session with Dr.Jacob John and he directed admission on 01.11.2014 and thereafter the complainant was discharged from the 1^st opposite party is misleading and hence denied.  The statement that the 2^nd opposite pary had assured cure of the complainant’s difficulties within two weeks is unfounded and unsustainable and hence denied.  On 30.10.2014 the neurologist had seen the patient and diagnosed his condition due to conus cauda syndrome and possible causes like spinal artery thrombosis and spinal haematoma were discussed with the patient and his bystanders.  He suggested MRI spine if  there was no clinical improvement and no surgical intervention was found feasible in view of co-morbidities.  Hence the complainant was treated with supportive management as per accepted protocol.

          17. The 2^nd opposite party has no role in the appointment  of staff in the 1^st opposite party hospital and the statement that the 3^rd opposite party is a quack is ill motivated and hence denied.  The allegation that the 2^nd opposite party committed criminal negligence towards the complainant is also ill motivated and hence denied.  As per protocol the medical officer on duty first attends the patients brought to casualty and the 2^nd opposite party later attends as per call from duty medical officer.  In the complainant’s case the management of myocardial infarction with thrombolysis and other emergency supportive measures were standard and in strict regard to medically accepted practice and protocol.

          18. The allegation of manipulation of records raised against the 2^nd opposite party is highly ill motivated and hence denied.  The ground put forth by the complainant to attribute manipulation in treatment records are not tenable or sustainable and liable to be discarded.  The averments regarding physical discomfort and difficulties suffered by the complainant are not tenable and hence denied.  The complainant developed bilateral foot drop and urinary and bowel incontinence consequent to the disease condition and the 3^rd opposite party was a fraud by cheating the society with help of the 2^nd opposite party is highly ill motivated and hence denied.

          19. The dental infection caused to complainant was due to multiple decayed root stumps and generalized periodontitis subsequent to his long standing diabetes mellitus and ethanolism and has nothing to do with treatment given by the 2^nd opposite party for myocardial infarction.  The 2^nd opposite party has no role in the discharge summary issued after treatment done by maxillofacial surgeon and the complainant’s case that it was manipulated by the 2^nd opposite party is financially ill motivated and hence denied.  The modality of treatment of the diagnosed cauda equine syndrome was decided by the neuro surgeon and he did not find surgical management based on patient’s clinical condition for obvious co-morbidities.  The averment that the 2^nd opposite party did not permit the complainant to approach another medical expert for better treatment is unfounded and hence denied.  The allegation that wrong treatment of  the 2^nd opposite party led the complainant’s life miserable is ill motivated and hence denied.  Further allegation that the conduct of the 2^nd opposite party fell below the standard of a reasonable medical practitioner is also ill motivated and hence denied.

          20. The complainant has raised a claim in the nature of a personal action and the cause of action does not survive in favour of his legal representatives and hence the complaint is liable to be discarded on the preliminary issue of maintainability.  The amount quantified as damages is highly exorbitant, exaggerated and without any substance, merit or rationale behind it and hence denied.  In the light of the above mentioned facts the 2^nd opposite party is not liable to compensate the complainant either jointly or severally.

          21. Imposing of liability on hospitals and doctors for everything that happens to go wrong was held to mean doing disservice even to the community at large, and that the conditions in which hospitals and doctors have to work cannot be completely lost sight off.  The profession of  medicine perhaps is the field where results are not expected to be or could be guaranteed since a great deal of medical treatment, even if administered with all skill and care involves some degrees of risk and on occasion the medical treatment involves making a choice between competing risks.  The complainant has no cause of action against the 2^nd opposite party as stated in the complaint.  The 2ne opposite party is having qualification of MBBS, MD(General medicine), DNB(General Medicine), DNB(Cardiology), National Gold Medalist in DNB Cardiology with experience of 16 years as a Consultant Cardiologist and Physician.  Hence the complaint is to be dismissed with cost of the 2^nd opposite party.

          22. The 1^st opposite party deny the various allegations, insinuations  made by the original complainant.  The allegation that the search of the complainant for  a proper clinic continued till he located the 1^st opposite party with an advertisement seems to be artificial.  The advertisement was not intended to attract patients.  It was only a display of the fact that the hospital was extending service against life style diseases.  The averments in the complaint that the original complainant continued his treatment with the 1^st opposite party from 20.01.10 itself would indicate his complete satisfaction with 1^st opposite party hospital.  The challenges against medical records are absolutely false, mischievous and imaginary made with oblige motive of  building up a case against the 1^st opposite party hospital.  The case sheets reflects the factual details truly and correctly.  The allegation of violation of etiquette, non preparation of discharge summary by computer etc. are irrelevant and false.  The entire allegations of  fabrications, tampering with treatment records etc. are falseless and baseless.  The records maintained by the 1^st opposite party reflects the truthful and real state of affairs.  There was absolutely no negligence on the side of  any of the doctors or staff of the 1^st opposite party hospital.  The legal notice issued by the complainant was not responded since entire allegations are false and baseless.  The complainant is having absolutely no cause of action against the 1^st opposite party and the cause of action alleged is false and baseless.  The pecuniary claim raised in the complaint is exaggerated and unsustainable.  Even according to the original complainant he was aged 63 years jobless and without any income.  The additional complainants have not stated anything about their loss of dependency.  Hence the additional complainants are not entitled to get any compensation.  Personal caused of action does not partake the character of estate and does not survive to the successors.

          23. The 1^st opposite party would further contented that there was several reasons attributable to cauda equine lesion.  This is more so in the background of myocardial infarction and thrombolysis with streptokainase.  The patient’s case was spinal cord ischemia or haematoma in spinal cord.  This can happen due to cardiac embolism, profound hypotention during cardiac arrest and atheromatous disease.  These are matters beyond the control of any reasonably diligent and skilled doctors. 

          24. The 3^rd opposite party would further content that the complaint is ill motivated.  Neither the original complainant nor the legal heirs have any right or any authority to prefer a complaint like this against the 3^rd opposite party.  The various averments and other allegations raised in the complaint against the 3^rd opposite party are all absolutely false and extremely defamatory.  The 3^rd opposite party was not the doctor in charge of ICU on 26.10.2014 or on any other date.  According to the 3^rd opposite party on 26.10.2014 one Dr.Pradeep was in charge as the Casualty medical Officer and the complainant was attended by Dr.Pradeep at about 4 pm on that day and he was shifted to ICU and informed the cardiologist who is the 2^nd opposite party.  Within half an hour the patient was seen by the 2^nd  opposite party and given specified treatment.  The 3^rd opposite party was in cardiology on call duty.  At about 9 pm on 26.10.2014, the ICU staff informed the 3^rd opposite party about the patient and he met him at 9 pm and given proper orders as instructed by the cardiologist.  Thereafter the patient developed dyspnoea at 11 pm.  Immediately the CMO Dr.Pradeep informed the 2^nd opposite party and they done their best to save the precious life of the patient.  At about 9 pm on 26.10.2014 when 3^rd opposite party met the patient he was stable and comfortable  so what he done is just and proper in strict compliance with the accepted medical practice and protocol.  Since  Dr.Pradeep and other medical practitioners who attended the patient are not in the party array, the complaint  as such is bad for non-jointer of necessary parties.  The 3^rd opposite party has been impleaded unnecessarily and the complaint is bad for mis jointer of parties also.  The allegation that the 3^rd opposite party tied the hands and legs of the complainant to the bed pulled out  his  tongue for ventilator support, inserted urinary catheter etc.  is false and baseless. 

25.The patient was properly admitted by Dr.Pradeep and attended by the 2^nd opposite party and the entire treatment and other procedures were done only as per their instruction that too in strict compliance with accepted standards of medical practice and protocol.  There is no negligence or any deficiency of service on the part of the hospital or from anybody including 3^rd opposite party.  The allegations in the complaint that the 3^rd opposite party is a quack doctor without any valid certificate from  the concerned authorities etc. and also that he conducted an un reputed clinic years before are all highly defamatory and those averments are raised with an ulterior motive of  tarnishing the image, reputation and goodwill of the 3^rd opposite party who is highly qualified doctor having MBBS Degree from  Nagarjuna university obtained  in the year 1993.  He is registered with the Travancore Cochin Council of Modern Medicine bearing Reg.No.24637 from 30.11.1996.  He is also having Post Graduate Diploma in Health Science in Diabetology from Annamalai University in May 2011 and also having Post Graduate Diploma in Family Medicine from Christian Medical college, Velloor in the year 2013.  Along with all those academic qualification he is having professional experiences of more than 21 years including 4 years in KSA and 2 years in Oman.  He worked in different hospitals in the native place.  But till he never met  a complaint like this in his all carrier, though he was practicing as a regular doctor from 1995 to till now.  He worked in several reputed hospitals in different part of the state and now working as RMO and family medicine physician. 

26. In fact the 3^rd opposite party never carried out any treatment to the complainant as alleged in the complaint and never committed any criminal  or other negligence towards  anybody.  The opposite parties never prepared the discharge summary or other records with false information and never torned or inserted false readings or done anything as alleged.  The allegations regarding dental infection and other ailments, its responsibility etc. are all fabricated only for the purpose of this complaint.  None of the opposite parties  are responsible for what he alleged regarding his health conditions.  Further allegation that the conduct of the 3^rd opposite party fell below the standard of a reasonable medical practitioner is also ill motivated and hence denied.  The complainant crossed the entire limit and extends of what he can allege against opposite party in matters like this.  The 3^rd opposite party is a qualified and fulltime medical practitioner for the last more than 21 years who never committed any negligence or misconduct of any nature.  The original complainant committed grave criminal offence punishable by law which caused much mental stress, defamation, insult etc. which are irreparable in nature being so, it is the duty and responsibility of the additional complainants to withdraw those defamatory allegations against the 3^rd opposite party, on the other hand they will be liable and responsible for the offence committed and continuing against 3^rd opposite party and also to compensate the 3^rd opposite party for the same.

27. The complaint is not at all maintainable.  The amount of compensation claimed is also highly exorbitant and without any logic or base.  There is no cause of action against 3^rd opposite party who is a well qualified practicing doctor and he has not done anything alleged in the complaint.

28. In the light of the above pleadings the points that arise for consideration are:-

1. Whether the complaint is bad for non joinder of necessary parties?
2. Whether the deceased complainant has sustained any physical disability due to the act of the opposite parties and whether those physical disabilities culminated in the death of the deceased Mohanan?
3. Whether the opposite parties have properly maintained medical records provided in the medical counsel (Professional Conduct Etiquette & Ethic Regulations 2002)?
4. Whether there is any medical negligence and deficiency in service on the part of the opposite parties in respect of the treatment of the deceased Mohanan at the 1^st opposite party hospital?
5. Whether the complainant is entitled to get compensation as prayed for?
6. Reliefs and costs.

29. Evidence on the side of the complainant consists of the oral evidence of  PW1 to 3 &Ext.P1,P2,P3 series, P4 to P6, P7 series, P8& Ext.X1&X2 documents.  Evidence on the side of the opposite parties consists of the oral evidence of DW1 to 3, Ext.D1 to D5, D6&D7 series documents.

30. The learned counsel appearing for the legal heirs of the deceased complainant and opposite party No.1 to 3 have filed separate notes of argument, additional notes of argument and also advanced oral arguments.

Point No.1

          31. The specific case of the original complainant is that on 26.10.2014 as he felt chest discomfort, sweating etc. at about 3.30 pm himself along with his relatives went to the 1^st opposite party hospital and he was immediately admitted at the ICU by the 3^rd opposite party Dr.M.Sudhakar.  Admittedly the deceased complainant was under the treatment of the 2^nd opposite party Dr.Rachel Daniel, Consultant Cardiologist and Physician right from 20.01.2010.  But according to the original complainant even though he was affected with chest discomfort and sweating which are the symptoms of heart diseases he was got admitted at the 1^st opposite party by the 3^rd opposite party Dr.M.Sudhakar and  the matter was intimated to the 2^nd opposite party she did not turned up on the same day by stating that it was a Sunday and instructed the 3^rd opposite party to manage the case.  After  check-up 3^rd opposite party informed the complainant’s relatives that it was a case of heart attack and thereafter 3^rd  opposite party administered some injections on the complainant and thereby the complainant became unconscious.  It is the further case of the complainant that on regaining consciousness on the next day the complainant saw his hands  and legs tied up to the bed and pulled out his tongue for ventilator support and a Urinary catheter inserted his Urethra.

32. It is brought out in evidence that on the 2^nd day ie, on 27.10.2014 the 2^nd opposite party Cardiologist took over treatment, shouted at the 3^rd opposite party and removed the deceased complainant from ventilator and also removed urinary catheter.  During removal of the ventilator the complainant has lost 3 teeth.  Thereafter he developed severe back pain and subsequently it caused weakness of muscles of the lower legs and started uncontrolled urination and bowl dysfunction.  The above allegations are mainly against the 3^rd opposite party which was resisted by the 3^rd opposite party by filing a detailed written version.  The 3^rd opposite party was in cardiology on call duty.  According to the 3^rd opposite party on 26.10.2014 one Dr.Pradeep was in charge as the casualty medical officer.  The deceased complainant was attended by Dr.Pradeep at 4 pm and diagnosed Acute Mio Cardial Infraction.  The patient was immediately shifted to ICU and informed the Cardiologist who is none other than the 2^nd opposite party who at about 4.30 pm within half an hour seen the deceased complainant and given specific treatment.  However at 9 pm on 26.10.2014 the hospital staff attached to ICU informed the 3^rd opposite party regarding the case of the complainant who is at the ICU at that time.  At about 9 pm and given proper direction to the staff members of ICU as instructed by the Cardiologist there after the 3^rd opposite party came to know that the patient developed dyspnoea at 11 pm.  Immediately the CMO Dr.Pradeep informed the 2^nd opposite party Cardiologist and they done their best to save the precious life of the patient.  The specific contention of the 3^rd opposite party is that he met the deceased Mohanan at about 9 pm only and given direction to the staff of the ICU as instructed by the 2^nd opposite party.  It is the further contention of the 3^rd opposite party that at that time the deceased Mohanan was stable and comfortable and he gave proper orders as instructed by the 2^nd opposite party.  According to the 3^rd opposite party what he done was just and proper and in strict compliance with the medical protocol by keeping of ethics and good conscious  the 3^rd opposite party would further content that as Mr.Pradeep  and another doctor who attended the deceased Mohanan at the casualty has not been impleaded in the party array and therefore the complaint is bad for non joinder of  necessary parties.

          33. According to the learned counsel for the complainant Opposite party no.1&3 have been defending the case jointly by narrating a story of one Mr.Pradeep and contenting to hold that complaint is bad for non joinder of necessary parties.  According to them the said Pradeep was treating doctor of the complainant at the time of admission.  In paragraph 3 of the chief affidavit of DW1 it is seen stated that  one Mr.Pradeep was in charge of casualty medical officer on 26.10.14 and that he came to know about the complainant/patient as the staff informed him.  It is further to be pointed out that according to 3^rd opposite party Dr.Pradeep was in charge of casualty medical officer.  But he would further alleged that Dr.Pradeep treated the complainant in ICU also.  If that be so the Dr.Pradeep who was in charge of casualty attended the patient/complainant in the ICU throughout till 8.30 am on 27.10.14.  However no attendance register or any digital records has been brought to indicate that the said Dr.Pradeep was casualty doctor or doctor in charge of the ICU as claimed by the 3^rd opposite party.  But the 1^st opposite party has no such case.  Neither in the version nor in the chief affidavit of opposite party 1 there is no mention that Dr.Pradeep was the doctor who attended the complainant at the casualty or at the ICU.  Nowhere in Ext.D6 case sheet it is seen mentioned that as instructed by the 2^nd opposite party Dr.Pradeep had treated the complainant at casualty or at the ICU.  The said Dr.Pradeep has not been examined in this case as witness whether he is still in service or not is not deposed by any of the opposite parties.

          34. In view of the materials discussed above it is cristal clear that Dr.Pradeep is an  illusory character narrated opposite party No.1&3 to escape from their liability in treating the complainant at the casualty and ICU.  There is no merit in contenting that the complaint is  bad for non joinder of necessary parties.  The point answered accordingly.

Point No.2 to 4

          35. For avoiding repetition of discussion of materials these 3 points are considered together.  The complainant would allege medical negligence against opposite party No.1 to3.  1^st opposite party is the Managing Director of Ashtamudi Hospital and Trauma Care Centre, Mevaram, Thattamala, Kollam.  2^nd opposite party is Dr.Raichel Daniel, Cardiologist and Physician attached to 1^st opposite party and 3^rd opposite party is Mr.Sudhakaran, the then doctor attached to the 1^st opposite party hospital as on the date of treatment of the complainant.  The complainant would allege deficiency in service on the part of opposite party No.1 to3 in respect of his treatment at the 1^st opposite party hospital and as a result of medical negligence and deficiency in service on the part of the opposite parties the original complainant and additional complainant has suffered irreparable loss and injury including mental and physical agony, pain and sufferings and hence the original complainant sought Rs.19,00,000/- as compensation for the pain and sufferings, permanent disablement, mental agony etc. due to the negligent act committed by the opposite parties.  Unfortunately died during trial the wife and 2 children of the deceased were impleaded as additional complainants No.1 to3 as per order in IA.175/2015 dated 16.12.2015. 

36. According to original complainant he was in search of a clinic which is specialized in life style diseases and by seeing an advertisement of the 1^st opposite party hospital to the effect that "Pohn-X-ssieo tcmK ¢n\n¡v" (-{]-ta-lw, càm-Xn-k-½À²w, lrt{ZmKw, AanX sImfkvt{SmÄ, ]£m-LmXw apX-em-b-h-bv¡v) Ashtamudi Hospital and Trauma Care Centre.  On the    basis of    the above advertisement the

original complainant on 20.01.2010 went to the 1^st opposite party hospital took an OP ticket and started routine check up and treatment under the 2^nd opposite party who continuously treated the original complainant.  However on 26.10.2014 when the original complainant felt chest discomfort including sweating and  shoulder pain he reached 1^st opposite party hospital along with his family members by walking and reached at the casualty.  1^st opposite party admitted him in the ICU and the 3^rd opposite party was the doctor in-charge of the hospital as on that date.  As that day was Sunday 3^rd opposite party doctor was not available at that hospital  and on intimation regarding the admission of the complainant  the 2^nd opposite party directed the  3^rd opposite party to attend the complainant and intimated that she would attend the patient on the next day.  After the check up the 3^rd opposite party informed the complainant and his relatives that it was a case of heart attack and administered some injections to the complainant and thereby he became unconscious.  While he retained his consciousness on the next day he realized that 3^rd opposite party tied his hands and legs to the bed, pulled out his tongue for ventilator support and a Urinary catheter inserted his Urethra.  The next day 2^nd opposite party took the charge of treatment of the complainant and she shouted against the 3^rd opposite party  and also warned the 3^rd opposite party which was overheard by the complainant.  On that day the 2^nd opposite party put off ventilator support and removed urinary catheter.  During removal of the ventilator the original complainant has lost 3 teeth.  Thereafter he developed severe back pain and subsequently it caused weakness of muscles of the lower legs and started uncontrolled urination and bowl dysfunction.

37. According to the learned counsel for the 1^st opposite party the complainant has not been denied any of the treatment to be given under the normal protocol except visit of 2^nd opposite party on 26.10.14 at 4.30 pm.  In the light of the materials available on record we find no force in the arguments.

38.  The learned counsel for the 2^nd opposite party would argue that the complainant is not having any specific case of medical negligence against the opposite party doctors and instead of focusing of medical negligence, the complainant is misleading this Commission by alleging impropriety in the preparation and maintenance of Medical records.  In the light of the materials available on record we find little force in the above argument.  It is seen from the pleadings and evidence that the complainant has alleged specific case of medical negligence as well as improprietary in the preparation and maintenance of medical records.

39.Even though the contention of the opposite parties that 2^nd opposite party came and saw the complainant at about 4.30 pm on 26.10.2014 there is no answer for not treating the complainant on that day especially when his condition had became worsen at about 11 pm on 26.10.2014.  It is clear from the available materials that the 2^nd  opposite party did not turn up and treated the complainant at 1^st opposite party hospital on 26.10.2014 at 11 pm when the complainant sustained massive heart attack.

          40. According to DW1 if any doctor attended the patient while on treatment the nurse on duty wound mention it as ‘Seen By’(SB) in the nurse’s record.  In a specific question put to DW1 during cross examination she has answered that “nurse’s record  26.10.14 3.50 pm apX 27.10.14  8 am hsc 2^nd opposite party t]j-yâns\ I­-Xmbn tcJ-s¸-Sp-¯n-bn-«n-ÃtÃm? 4.25 pm \v 2^nd opposite party C³kp-en\pw aäpw ÌmÀ«v sN¿phm³ AssU-zkv sNbvXXmbn ]d-bp-¶p-­v. 

        41.In view of the above evidence it is clear that the nurse’s record would not indicate that 2^nd opposite party doctor has not seen the patient on 26.10.2014.  She might have given advice to DW1 or to the duty nurse to start insulin etc. As per Ext.D6 series nurse’s record it is evident that 2^nd opposite party had attended the complainant only at 8.30 am on 27.10.2014.  In the circumstances it is cristal clear that even if PW2 has attended the patient at 4.25/4.30 pm the patient who sustained a severe heart attack remained unattended by the specialized cardiologist for a long time till 8.30 am on the next day.  It is clear that 2^nd opposite party has attended the complainant only after 9.30 hrs ie, 8.30 am on 27.10.14 which according to the complainant amounts to deficiency in service.  We find much force in the above argument of the learned counsel for the complainant.  It is well settled that physician is free to choose whom  he or she will serve.  But once having undertaken a case the physician should not neglect patient nor should he/she withdraw from the case after without giving adequate notice to the patient and his family.  If the medical practitioner failed to act when she got information that the patient is in a critical stage PW2 who is a Cardiologist of the hospital wherein the patient was admitted and duty bound to attend the patient irrespective of the fact that it was a Sunday or a holiday especially when the patient was under her treatment for a pretty long period.  Non attending opposite  party No.2 who is the Cardiologist of 1^st opposite party hospital when the patient was at a critical stage definitely amounts to medical negligence and deficiency in service.

          42. As pointed out in point No.1 it is clear that the 3^rd opposite party has been attempting to escape from the liability by saddling on the responsibility of the medical negligence of treating the complainant (from the time of admission till on the next day morning when the 2^nd opposite party took over the treatment of the patient) on one Dr.Pradeep.  During cross examination DW1 has stated that              “ t]j-yâns\ Rm³ 9 aWn-¡mWv I­Xv.  ]ns¶ I­n-«n-Ã.  Rm³ ImWp-t¼mÄ t]j-yâv  stable and comfortable Bbn-cp-¶p.”  But the materials available on record would disprove the above claim of 3^rd opposite party/DW1.  Ext.D6series nurse’s record would prove the visit of DW1/OP3 on date of admission of the complainant.  It is clearly stated in D6 series document that “SB Dr.Sudhakar” as much as 5 times which would indicate that OP3 was very much available the hospital seen and treated the complainant throughout that night.  Reverse side of page No.12 of  Ex.D6 series case file would clearly indicate that the patient has made a complaint of pain.  The matter was informed to Dr.Sudhakar, sedation given.

          43.  In view of the oral evidence of  PW1&DW1 coupled with Ext.D6 case file of the patient the contention of the 3^rd opposite party that he had seen the patient only at 9 pm on 26.10.14 and at that time the patient was stable and comfortable is totally incorrect and the patient was treated by Dr.Sudhakar and sedation was given during that night as directed by the said Dr.Sudhakar is crystal clear from the available materials.

          44. It is also clear from the materials available on record that the 3^rd opposite party administered some injections to the complainant and thereby he became unconscious which stands probabilise by nurse’s record in Ext.D6 series case file that sedation was given on the advise of 3^rd opposite party.  It is also brought out in evidence through PW1 that while the patient/complainant regained his conscious on the next day he realized that his hands and legs to the bed, pulled out his tongue for ventilator support and a Urinary catheter inserted his Urethra and on the 2^nd day when the 2^nd opposite party took charge of treatment of the complainant she shouted against the 3^rd opposite party and the complainant overheard that the 2^nd opposite party has warned the 3^rd opposite party and also put off the ventilator support of  the complainant and removed the urinary catheter.  In the circumstances it is crystal clear that giving ventilator support and inserting urinary catheter were not necessary and that is why the 2^nd  opposite party immediately on taking  charge of the treatment of the complainant removed the same and shouted against the 3^rd opposite party who inserted the same unnecessarily.  It is also brought out in evidence that 3 teeth of the complainant were lost while removing  the ventilator support.  It is also brought out in evidence thereafter the complainant developed several back pain later caused weakness of muscles of the lower legs and started uncontrolled urination and bowl dysfunction. 

          45. It is evident from Ext.D6 series case file of the patient that both 2^nd and 3^rd opposite parties were there at ICU on the same  time and same day on 27.10.2014  and hence there is every chance of over hearing the shouting  made by 2^nd opposite party against 3^rd opposite party.  There is also no dispute regarding the fact that ventilator support and urinary catheter were removed.  On 27.10.2014 immediately after 2^nd opposite party attended patient.

          46. In view of the materials discussed above it is crystal clear that there is culpable negligence on the part of the 3^rd opposite party in giving proper treatment to the complainant when the complainant sustained a massive heart attack in the absence of  a qualified cardiologist.  Admitting patient having chronic heart diseases who sustained a massive heart attack at the hospital in the absence of a qualified Cardiologist or making available the Cardiologist(2^nd opposite party) immediately after knowing the fact that the condition of the patient is worse definitely amounts to culpable negligence on the part of the 1^st opposite party.  There is also lapse and latches on the part of the 2^nd opposite party in not attending the patient even after getting information that the patient/complainant has sustained a massive heart attack.

          47. The oral evidence of PW2 who is an experienced Neurologist and an expert in his filed who treated the complainant and issued Ext.P8 certificate has deposed that the service rendered by the clinic or hospital(1^st opposite party) as the case may be is not up to the mark and it involves some negligence on the part of the hospital.   PW2 has further opined that the complications and physical conditions of neurotic problems of the complainant started from 26.10.2014 itself.  But as per Ext.P2 discharge summary nothing is noted that the complainant has received a neurological evaluation from a Neurologist/ Neuro Surgeon.  It is only on 24.12.2014 the complainant has received a neurological consultation. According to PW2 “ Cu Akp-J-¯n\v XpS¡w apXte NnInÕ Int«­ tIkv BWv.  Hcp Neurologist sâtbm Neuro Surgeon sâtbm intervention XpS¡w apXte th­ tIkv BWv.”  The above evidence of PW2 coupled with Ext.P8 certificate would clingingly establish that Neurological consultation in proper time has been denied to the complainant which itself amounts to deficiency in service on the part of  Opposite party No.1 to 3. 

          48. In view of the above materials on record it is crystal clear that in 1^st opposite party hospital sufficient qualified and specialized doctor like Neurosurgeon are not available and in such case PW2 ought to have referred the patient to the Neurosurgeon at the earliest.  The non referring of the patient to the Neuro Surgeon at the earliest opportunity also amounts to medical negligence and deficiency in service.

          49. Yet another allegation of the complainant is that 2^nd opposite party had prepared Ext.P2 case sheet in a negligent manner and against the rules and regulations in this  behalf.  According to the learned counsel for the complainant Indian Medical Counsel(Professional Conduct, Etiquette and ethics) Regulations 2002 “every Physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment in standard Performa laid down by the Medical Counsel of Indian and attached as Appendix 3.  But in this case no such medical records has been prepared and maintained by the opposite parties and Ext.P2&P4 are not similar to that mandated by the above rule.  During cross examination of DW3/OP2 she admitted that Ext.P2 discharge summary was prepared by OP3/DW1.

          50. The learned counsel for the complainant disputes the correctness of Ext.P2 discharge summary on the ground that there is no mention of Neurologist seeing the patient.  It is to be pointed out that discharge summary form part of the entire P2 book.  There is not a separate discharge summary apart from Ext.P2 book wherein it is stated that B/L foot drop.  The oral evidence of DW2&3 would not indicate that the discharge summary  has been properly and regularly maintained by the hospital and doctors who all are treated the patient.

          51. The genuineness of Ext.D6 and D7 treatment registers are also disputed by the learned counsel for the complainant.  It is argued on behalf of the complainant the entries recorded in doctor’s case  sheet from Page No.4 to Page No.10 and Nurse’s record from Page No.11 to 14 are speaking contradictory set of facts about the treatment of the complainant.  Hence the genuinity of  page No.4 to 10 and Page No.15 to 16  Ext.D6 is to be doubted.  According to the learned counsel for the complainant the above pages are newly inserted in the old record.  The further allegation regarding Ext.D6 case file is that it has been produced not by the office staff of the 1^st opposite party as usual practice but produced by the Managing Director(DW2) himself claiming that he is the custodian of the records.  It is also pointed out that the doubted page number mentioned above in D6 series are contrary to the entries in Ext.P2 discharge summary book kept at the 1^st opposite party hospital. In view of the facts and circumstances of the case we find much force in the above argument of the learned counsel for the complainant.

          52. It is to be pointed out that Dr.Pradeep is the purported doctor who according to the 3^rd opposite party has treated the complainant on 26.10.2014 to 27.10.2014 8.30 am as per the instructions given by the 2^nd opposite party Cardiologist.  But nowhere in Ext.D6 case file the name of  Dr.Pradeep is mentioned nor regarding the instructions given by 2^nd opposite party to Dr.Pradeep.  The said Dr.Pradeep has also not appeared as a witness and gave evidence regarding his handwriting in Ext.D6 series case file if he was actually written the entries in D6 series from 4.30 pm to 26.10.14 to 8.30 am of  27.10.14.  The 3^rd opposite party ought to have examined the said Dr.Pradeep as a witness and prove his handwriting in the relevant page of D6 series case file.  In this connection it is to be pointed out the provisions u/s 106 of the Indian Evidence Act which casts duty on the opposite parties to establish  what is within their special knowledge.  But unfortunately the 3^rd opposite party has not taken any steps to examine the said Dr.Pradeep and examine as witness to prove the above contention.  Hence adverse inference has to be drawn against the 3^rd opposite party in this regard.

          53. The specific allegation of the complainant is that the 3^rd opposite party had given injection to him and thereby he became unconscious and when  he regained his consciousness he was under ventilator support and his hands and legs to the bed, pulled out his tongue for ventilator support and a Urinary catheter inserted his Urethra.  The complainant had deposed these aspects when he was examined as PW1.  The above case of the complainant stands corroborated by reverse side of Page No.12 of  D6  series treatment record which is the beginning of Nurse’s record.  It is clear from Ext.D6 record that between 6 and 9 pm on 26.10.2014 the complainant has suffered pain (complaints of pain) the nurse who was attending the patient informed the matter to 3^rd opposite party(DW1) Dr.Sudhakar and sedation was given at about 11 pm on the same day the complainant developed sudden dysphonia.  But the  case of 3^rd opposite party before this Commission is that he attended the complainant only at 9 pm and thereafter he has not attended the complainant.  The above contention of 3^rd opposite party in his version as well as when he was in the witness box is deadly against the contents of  the nurse’s records in Ext.D6 treatment record that was produced by the defends itself.  On perusal of the Nurse’s record contained in D6 treatment records it is clear that the 3^rd opposite party(DW1) has examined and treated the complainant as much as 5 times.

          54. Now the question to be considered is whether the physical condition of the complainant has been properly addressed by  opposite party No.1 to3 with proper consultation with the specialized doctors like Dentist and Neurologist and whether the physical disability due to the negligent treatment of the opposite parties lead to the death of  the complainant.

55. The learned counsel for the 2^nd opposite party has further argued that simply because the expected result has not come out or if there is some unexpected complications during or after the treatment the treating doctors cannot be blamed as if they were negligent.  The learned counsel for the 2^nd opposite party has further argued that the complainant has failed to adduce expert evidence to prove medical negligence.  It is further argued by the learned counsel for the 1^st opposite party relying on the decision of the National Commission reported in 2011(2) CPJ 36 that the complainant alleges medical negligence onus of proving the same squarely lies on him.

          56. In this connection the oral evidence of PW2 is very important.  PW2 Dr.Prakash.M is the experienced Neurologist attached to Benziger Hospital, Kollam.  The oral evidence of PW2 would show that the complication of the complainant and connected disease started from 26.10.2014 itself.  PW2 has further deposed that F\n¡v a\-kn-em-b-XnÂsh¨v tcmKn¡v lmÀ«v Aäm¡v h¶n-cp-¶p.  AXnsâ complication Bbn«v cà-k-½À²w Ipd-bp-Ibpw \s«-Ãn-\-I¯v kpjpav\m \mUn¡v tISv ]än-b-Xn-\m-em-Wv Cu AkpJw D­m-b-Xv.   Cu Akp-J-¯n\v XpS¡w apXte NnInÕ Int«­ tIkv BWv.  Hcp Neurologist sâtbm Neuro Surgeon sâtbm intervention XpS¡w apXte th­ tIkv BWv.”  We find no reason to disbelieve the above evidence of PW2 who is an expert in the field.  The above evidence of PW2 would clearly indicate that there is in action on the part of the opposite party No.1to 3 in giving timely treatment to the complainant which has resulted in the onset of new disease condition  on the complainant.  Discharge summary  contained in page No.17&18 of Ext.P2  Consultation Book would not contain anything that the complainant has received a neurological evaluation from a Neurologist/Neuro Surgeon.

57. It is further to be pointed out that the original complainant developed B/C Foot drop on 3^rd day ie, 28.10.14.  The opposite parties 1&2 would admit in their version as well as in their chief affidavit that on 29.10.14 the patient has noted to have Bilateral Foot Drop.  Even if it is considered that 2^nd opposite party diagnosed Foot Drop or Neurological problem of the complainant on 29.10.2014 there is inordinate delay till 30.10.2014 to examine the patient by Dr.Jacob John, Neuro Surgeon.  Why the 2^nd opposite party has not informed the matter to DW2 in time and make available the Neurological evaluation immediately she noted Neurological problem of  the complainant.  In this circumstances the opinion of PW2 that the Neurologic consultation or the intervention of Neuro Surgeon from very much required from the beginning assumes much importance.  It is crystal clear that there is inordinate delay in making available the Neurological consultation which amount to deficiency in service. It is clear from the discharge summary that the complainant has received Neuro consultation only about 2 months after the onset of neurotic problem.  Hence there is clear lapse and latches on the part of the opposite parties 1 to 3 in this regard.  Therefore it is crystal clear that the service rendered by the 1^st opposite party  hospital and 2^nd and 3^rd opposite party doctors are not up to the mark and it involves some negligence on their part for which the original complainant has suffered and subsequently died and therefore opposite party No.1 to 3 are liable to pay compensation to the legal heirs of the diseased complainant.

          58. The complainant would further allege that 2^nd opposite party had prepared Ext.P2 treatment record in most negligent manner against the rules prescribed in Indian Medical Counsel (Professional Conduct, Etiquette and ethics) regulations 2002.  As per Rule 1.3.1 every Physician shall maintain the medical records pertaining to his/her indoor patients for a period of 3 years from the date of commencement of the treatment in standard Performa laid down by the Medical Counsel of Indian and attached as Appendix 3.  But the opposite parties have not seen prepared and maintained in such records.  Ext.P2 Consultation Book is not kept as per rules mandated in this behalf.  The opposite parties have no consistent version who prepared the discharge summary found in Page No.17&18 of Ext.P2 Book.  DW3 during cross examination would state that Ext.P2 discharge summary was prepared by the 3^rd opposite party(DW1) at her instruction.  But 3^rd opposite party has no such case.  It is further to be pointed out discharge summary in Ext.P2 book it can be seen that Dr.Jacob John is the person who prepared the discharge summary.  The physical condition of the complainant when he was discharged from 1^st opposite party hospital is not seen from the purported discharge summary.  According to the learned counsel for the complainant the same has been willfully suppressed as the complainant was discharged when life threatening condition like foot drop, facial swelling due to infection, loss of teeth, uncontrolled urination etc. existed.   In Page No.1 of Ext.D6 also nothing has been  stated regarding the physical condition of the patient but the discharge status is shown as improved.  DW3 would admit  during cross examination that 31.10.2014 Â tcmKn¡v facial swelling , foot drop D­m-bn-cp-¶p and the fact that she was having facial swelling not noted in the case sheet or in the discharge summary.  The 2^nd opposite party has also not issued a case summary of the patient to the specialist at the N.S Hospital communicating her opinion in writing to the attending physician at the N.S Hospital which is undoubtedly a clear violation of the provision mandated in Chapter 3 Rules 36 of the Indian Medical Counsel (Professional Conduct, Etiquette and ethics) regulations 2002.

59. It is brought out in evidence through PW3 specialist/expert the case of the complainant required immediate attention and treatment of the Neuro surgeon/Neurologist.  But the materials available on record would indicate that no such immediate attention and treatment of  Neuro surgeon/Neurologist has been provided by the complainant with the onset of foot drop.  It is clear from the available materials that the complainant has sustained serious physical condition consequent to his admission in opposite party 1 hospital  and thereafter the medical condition of the complaint had not been improved and deteriorated day by day and finally  succumbed to the same. 

60. It is true that the complainant has not examined any expert regarding the medical negligence alleged in this case.  But according to the learned counsel for the complainant the principle of Res ipsa loquitur is applicable as held by Hon’ble Supreme Court in Kishan Rao V Vs Nikhil Super Specialty  Hospital and another reported in 2010 KHC 4333.  In view of the facts and circumstances of the case we find that the principle of  Res ipsa loquitur is applicable to the facts of this case and therefore even if the complainant is not examined any expert to prove medical negligence,  the materials available on record itself would indicate that there is medical negligence and deficiency in service on the part of the opposite parties No.1 to 3.

          61. The learned counsel for opposite party No.1&2 have vehemently argued before the Commission that as the complainant would allege medical negligence and deficiency in service on the part of the opposite parties No.1 to 3,  the question to be considered is whether any  of the doctors are incompetent or whether the treatment given to the patient  conformed to the accepted protocol or that the doctors failed in exercise of such care and diligence as  is reasonably expected of doctors of similar qualifications under similar circumstances.  An innocent error of judgment will not give rise to a conclusion of medical negligence.  The  main aspect to be considered is whether the patient was attended and treated by opposite party no.1 to3 and whether there is any negligence or dereliction of duty on  their part.  It is well settled that  actionable medical negligence is the neglect in exercising a reasonable degree of skill and knowledge.  The standard is that of an ordinary competent person exercising ordinary skill and diligence.  The main allegation of the complainant is that on 26.10.14 an inexperienced and quack (OP3) administered some injections and complainant fell unconscious.  The opposite parties would dispute the above allegations and would content that the same are baseless and against real facts.   But the materials discussed above would clearly probabilise the above allegations in the  complaint that due to the improper treatment given by opposite party No.2 &3 at the 1^st opposite party hospital has aggravated  the physical condition of the patient/complainant which ultimately lead to several complications and finally died on 22.08.2015 at his residence without recovering from his ailment.

          62.  The learned counsel for the 2^nd opposite party has vehemently argued that the patient has sustained Cauda Equina Syndrome(CES) because  of sequile of cardiac arrest and it was never due to the improper treatment on the part of  Cardiologist/Neuro Surgeon.  According to the learned counsel for the 2^nd opposite party the complainant has not adduced any independent expert evidence to prove any nexus between the CES and Cardiology treatment.   We find no force in the above contention in the light of the oral evidence of PW2 and Ext.P8 document. PW2 Dr.Prakash who specifically treated the complainant and issued Ext.P8 Medical Certificate in respect of the treatment of  Foot Drop.  In Ext.P8 it is stated that ischemia spine has been suspected.  It is to be pointed out that PW2 expert has stated as answer to a question that NnIn-Õ-bpsS after effect Bbn CES D­m-Imtam? Akp-J-¯nsâ `mK-ambn CES D­m-Imw.  He has further deposed that kpjpav\m \mUn-bpsS Ah-km-\-apÅ `mK-amWv Cauda Equina.  B `mK-¯v F´v Akp-J-ap-­m-bmepw AXv generalized ]d-bp-¶-XmWv Cauda Equina Syndrome .  B `mK-¯v £Xw ]äp-t¼mgpw cà-tbm«w Ipd-bp-t¼mgpw Ak-z-ØX sIm­pw demyelination F¶ Akp-J-¯nsâ `mK-ambn CES D­m-Imw. In view of the materials discussed above it is clear that the physical conditions of the complainant has not been properly addressed by 2^nd and 3^rd opposite party at the 1^st opposite party hospital.

63. The complainant would allege that the 3^rd opposite party is a quack doctor without any valid qualification and certificate issued by competent authorities.  It is further alleged that the 3^rd opposite party has conducted un reputed  clinic years before.  The 3^rd opposite party has totally denied the above allegations and imputation against him.  The learned counsel for the 3^rd opposite party has argued that all the above allegations are incorrect and highly defamatory and has narrated with ulterior motive of tarnishing his image, reputation and goodwill.  The 3^rd opposite party while examined him as DW1 has sworn in proof affidavit paragraph 6 that he is highly qualified having MBBS Degree from  Nagarjuna university obtained  in the year 1993.  He is registered with the Travancore Cochin Council of Modern Medicine bearing Reg.No.24637 from 30.11.1996.  He is also having Post Graduate Diploma in Health Science in Diabetology from Annamalai University in May 2011 and also having Post Graduate Diploma in Family Medicine from Christian Medical college, Velloor in the year 2013(Reg.No.1336/MG/2012).  Along with all those academic qualification he is having professional experiences of more than 21 years including 4 years in KSA and 2 years in Oman.  He worked in different hospitals in the native place.  But till he never met  a complaint like this in his all carrier, though he was practicing as a regular doctor from 1995 to till now.  He worked in several reputed hospitals in different part of the state and now working as RMO and family medicine physician.  Though the 3^rd opposite party has categorically sworn regarding his qualification and experience in paragraph 6&7 of the proof affidavit,  he has not produced any of the original certificate showing his qualification and experience.  He has produced only Notary attested copy to his certificates that to a Notary functioning in another district.  What prevented the 3^rd opposite party from producing the original of any of those degree or diploma certificate is not explained in this case.

64. As per Section 64 of the Indian Evidence Act a disputed fact has to be proved by adducing primary evidence except in cases mentioned u/s 65 of the Indian Evidence Act 1872.  The production of original certificate of degree and diploma are the primary evidence in this case.   But as per Section 65 of the Indian Evidence Act secondary evidence can be adduced only in 7 cases enumerated in that section as subsection(a) to (g) of that section.  It is well settled that a party who is intending to adduce  secondary evidence has to lay foundation for adducing secondary evidence.  In other words a party who is expected to prove a particular fact in his favour by adducing secondary evidence without producing primary evidence(original certificates in this case) he has to explain what prevented him from producing primary evidence.  But the 3^rd  opposite party has no case either in his written version or in his proof affidavit or when he was in the witness box that he is entitled to adduce secondary evidence to prove that he is not a quack doctor. It is true that the complainant has not disputed the above notary attest copies of the above document.  

65. However in page No.14 of the cross examination  (by the learned counsel for the 3^rd opposite party) PW1 would admit that 3^rd opposite party bpsS ]{XnI ]cn-tim-[n-¨ncp¶p.  BbXpsIm-­mWv sXfnhv kXyhmMvaq-e-¯n 3^rd opposite party s¡XnscbpÅ Bt£]w Hgn-hm-¡n-b-Xv.  The learned counsel for the 3^rd opposite party has vehemently argued that the 3^rd opposite party has never conducted any treatment on the complainant as alleged in the complaint and he never committed any criminal or other negligence towards the complainant or anybody and that the complainant developed bilateral foot drop, urinary bowel incontinence  consequence to the diseases conditions and the 3^rd opposite party cannot be held liable for the same.

66. However 3^rd opposite party would admit towards the end of the cross examination that he was at the casualty on call duty as on the date of admission of the complainant.  To a specific question put by the learned counsel for the complainant, DW1 has answered that A¯-c-¯n-epÅ emergency duty attend sN¿m-\pÅ \nb-a-]-c-amb qualification CÃ F¶p ]d-bp-¶p ? Academic qualification CÃ experience D­v.  The above admission of DW1 would clingingly establish that the opposite party has attended  the original complainant in the emergency ward without having sufficient qualification nor availed the service of a qualified doctor or without referring to the complainant to a higher centre.  The above misfeasance, malfeasance and nonfeasance of 3^rd opposite party definitely amounts to deficiency in service on his part.

67. In view of the materials discussed above it is cristal clear that there is medical negligence and deficiency in service on the part of opposite party No.1 to 3  in respect of the treatment of  the original complainant Mohanan at the 1^st opposite party hospital.  The points  answered accordingly.

Point No.5

          68. The main  prayer in the complaint is to award Rs.19,00000/- as compensation for the pain, sufferings, permanent disablement, mental agony and cheating due to the negligent act committed by the opposite parties.  In view of the facts and circumstances available on record we are of the view that complainant’s claim is highly exorbitant especially in view of the old age and also in view of the fact that the complainant was a man having previous diseases and was under the treatment of the 2^nd opposite party at the 1^st opposite party hospital right from 2010 onwards.

          69. It is also brought out in evidence that as a result of improper and negligent treatment of the original complainant he has sustained much  difficulties and his physical condition and his health condition has worsened which resulted in much mental agony  to the original complainant as well as to the additional complainants who are his wife and children and therefore they are entitled to get compensation on that count also.

          70. On evaluating the entire materials available on record including the age, status and previous ailment of the diseases and the mental agony sustained by the deceased and of the additional complainants we are of the view that compensation to the tune of  Rs.7,50,000/- would be  reasonable and sufficient.  The point answered accordingly.

          71. In the result complaint stands allowed in the following terms.

          Opposite party No.1 to3 are directed to pay compensation to the tune of Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) with interest at the rate of 6% p.a from the date of complaint to the additional complainants No.1 to 3 who are admittedly the legal heirs of the original complainant Mohanan who died subsequently.

          The opposite parties No.1 to 3 further are directed to pay costs Rs.10,000/- to the additional complainants.

          Opposite party No.1 to 3 are directed to pay compensation with interests and costs within 45 days from the date of receipt of a copy of this order failing which the additional complainants are at liberty to recover the compensation along with interest @ 9% p.a from the date of complaint till realization along with costs awarded from opposite party No.1 to 3 jointly and severally 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 Commission this the   11^th  day of  January  2022.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

          Stanly Harold:Sd/-

           Forwarded/by Order

          Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1    :           Anu Mohan

PW2    :           Dr.Prakash.M, Neurologist, Benziger Hospital, Kollam.

PW3    :           Dr.Jacob John, Maxillofacial Surgeon, NS Hospital

Documents marked for the  complainant

Ext P1 series     :   ECG dated 26.10.2014

Ext P2             :    Consultation book issued to the patient by the 1^st OP Hospital.

Ext.P3 series:  Medical Bill issued by 1^st OP hospital.

Ext.P4(S/P):    Copy of Discharge summary dated 05.11.2014 issued by the

                         Department of Oral and Maxillofacial Surgery, NS Hospital,  Kollam.

Ext.P5(S/P):   True copy of Discharge Bill dated 05.11.2014 issued by NS

                        Hospital, Kollam.

Ext.P6           :   Copy of lawyer notice dated 25.04.2015.

Ext.P7 series:   Postal acknowledgement signed by the opposite parties.

Ext.P8           :   Prescription issued by Dr.Prakash, Neurologist.

Ext.X1            :   Treatment certificate issued by PW2.

Ext.X2            :   Discharge summary of Mr.Binesh Kumar issued by OP2 from N.S

     Hospital, Kollam.

Witnesses Examined for the opposite party:-

DW1   :           Dr.Sudhakar, doctor in charge of Cardiology ICU.

DW2   :           Dr.Jacob John, Neurosurgeon, Ashtamudi Hospial.

DW3   :           Dr.Rachel Daniel, Consultant Cardiologist, Ashtamudi Hospital.

Documents marked for opposite party:-

Ext.D1:           Attested copy of certificate(Nagarjuna University)
Ext.D2:           Attested copy of certificate of registration(The Travancore-Cochin

 Council of Modern Medicine)

Ext.D3:           Attested copy of certificate(Annamalai University)

Ext.D4:           Attested copy of certificate(Christian Medical College, Vellore)

Ext.D5:           Attested copy of mark list(Christian Medical College, Vellore)

Ext.D6 series:  Case file of the patient from 26.10.2014 to 31.10.2014. (Ashtamudi

                        Hospital, 21sheets)

Ext.D7 series:  Case sheet from 22.12.2014 to 24.12.2014  (Ashtamudi Hospial).

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent