Date of filing :29-06-2007 Date of order :30-09-2009 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC61/07 Dated this, the 30th day of September 2009 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER Moideen Kuhi, S/o.Mammunhi, R/at near Railway 1st signal, Udyavar Po, Hosabettu Village, } Complainant Manjeshwar, Kasaragod.Dt. (Adv.A.Rajagopala, Kasaragod) The Managing Director, M/s Chaithra Medical Center, NH17, Vidyanagar, Kasaragod.Dt. } Opposite party (Adv. Mahesh.M, Kasaragod) O R D E R SRI.K.T.SIDHIQ, PRESIDENT The case of the complainant Moideenkunhi in brief is that inspite of his admission and treatment in the opposite party hospital, the chicken bone clogged in his throat was not removed and hence he compelled to undergo same procedure and treatment at Taluk Head Quarters Hospital at Kasaragod. Hence the complaint claiming a compensation for the loss and hardship sustained to him. 2. According to opposite party, the Managing Partner of Chaitra Hospital, (Though the name of opposite party is shown as Managing Director) the complaint is bad for non-joinder of necessary parties. Since the doctor who treated the complainant is not made as an opposite party in the proceedings. On merits it is the case of opposite party that the complainant approached with complaint of chicken bone clogged on his throat on 11-02-07 and he was admitted for removal of chicken bone (Foreign Body) at 8.30 PM. Since there was no house ENT Surgeon. Dr.K.K. Thomas of Taluk Head Quarters Hospital was called to attend the patient. Dr.Thomas attended and treated him at opposite party hospital. He performed esophagoscopy on the complainant to remove the foreign body i.e. stranded piece of chicken bone. However, the said ENT surgeon could not locate the foreign body. So the procedure was abandoned and check X-ray advised. The foreign body was not clear in the check X-ray. It was thought that the patient had swallowed down the foreign body. The complainant was totally asymptomatic and comfortable after operation. So he was discharged on 12-02-07 morning with advice to report the same ENT Surgeon if the pain or difficulty in swallowing recurs. The complainant reported back at the opposite party hospital on the same day with complaint of pain in the throat. Since they have no an in house ENT surgeon, the complainant was asked to consult Dr. K.K.Thomas who attended him on previous night. Subsequently Dr.Thomas removed the foreign body on 13-02-07 from Taluk Head Quarters Hospital, Kasaragod. 3. The complainant examined as PW1 and Exts A1 to A9 marked. The stranded chicken bone piece removed from the throat of the complainant marked as MO-1. For the opposite p[arty Managing Partner of opposite party adduced evidence as DW1 and Dr.K.K.Thomas who performed operation upon the complainant examined as DW2. An expert Dr.M. Venugopal Asst. Professor ENT Medical College, Calicut was examined as DW3. Exts B1 & B2 were marked on the side of opposite parties. 4. The following issues were raised for determination: a) Whether the complaint is bad for non-joinder of necessary parties? b) Whether there is any deficiency in service on the part of opposite party in treating the complainant? 5. The learned counsel appearing for the opposite party argued with much vehemence that the complaint is bad for non-joinder of necessary parties since the doctor who performed esophagoscopy from the hospital of opposite party was not an inhouse ENT surgeon and without impleading him a proper adjudication of the complaint is not possible. 6. The said argument is not sustainable in view of the decision of the Hon’ble Apex Court in the case of Smt. Savita Garg V. The Director, National Heart Institute reported in IV (2004)CPJ 40 (SC). The Hon’ble Supreme Court in that case held that. “Summary dismissal of the complaint on the question of non-joinder of necessary parties was not proper. In case the complainant failed to substantiate the allegation, then the complaint will fail. But not on the ground of non-joinder of necessary party. But at the same time the hospital can discharge the burden by producing the treating doctor in defence that all due care and caution was taken and despite that patient died. The hospital/institute is not going to suffer on account of non-joinder of necessary parties and Commission should have proceeded against the Hospital. Even other wise also the institute had to produce the concerned treating physician and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. Therefore, nothing turns in not impleading the treating doctor as a party. Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because to lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/hospital. Therefore in any case the hospital is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities. “ 7. In the light of the above decision it is clear that in a case of medical negligence the doctor/doctors who treated the patient is not at all a necessary party and hence no complaint can be thrown out at it’s threshold for the reason that the doctor is not made a necessary party. Hence this issue is found against opposite party. 8. The second issue to be determined is whether there is any deficiency in service on the part of opposite party hospital in treating the patient? 9. The opposite party has submitted that the complainant visited the hospital on 11-02-07 Sunday at 8.30 PM with the complaint of a chicken bone clogged on his throat. It is also admitted by them that there was no in house ENT surgeon in their hospital. So they sought the help of Dr.K.K.Thomas who is having the esophagoscope (an instrument used for the of removal of foreign body from the oesophagus) Dr. K.K.Thomas attended the patient on the same day of admission at 10.30 PM. But he could not locate and remove the foreign body and hence the procedure was abandoned. 10. A hospital or a treating doctor cannot be made liable because of the fact that the task they undertake to perform did not yield the desired result. 11. The complainant here in has no case that the opposite party has misinformed or suppressed the outcome of the operation performed on him. On the other hand complainant as PW1 deposed that on 12-02-07 the duty doctor at opposite party hospital told him that they could not remove the foreign body from his throat and they also told him that it might have passed in to his digestive system from his throat while doing the treatment and if it has passed down, it will go along with excretion. 12. DW2.Dr.K.K.Thomas and DW3 the expert witness of opposite party Dr. M. Venugopal, Asst. Professor, Department of ENT, Medical College Calicut, deposed the reasons for abandoning the procedure in oesophagus if the foreign body could not be located or removed. According to them if the surgeon were to insist on continuing the procedure even when he is unable to locate the foreign body that could lead to disastrous consequences. 13. Apart from their versions the authority on this subject Scots – Brown’s Fifth edition of Otolaryngology page 395 &396 and Broncho esophagology Section XIIII page 246 &247 by Chevalier Jackson also supports the evidence of DW2 and DW3, the expert witness. 14. As aforementioned a doctor or a hospital could not be held liable for negligence simply because some thing went wrong during the treatment or the surgery performed became a failure or the treatment could not procure the expected result. It may depends on so many factors. So far as the doctor treats the patient with reasonable skill, care, caution and diligence in the accepted line of management of treatment, no liability can be fastened on him attributing negligence. 15. In this case also we do not find any reasons to attribute negligence or deficiency in service in the treatment rendered by the opposite party hospital to the complainant. This issue is therefore answered accordingly. In the result, complaint fails and hence dismissed with no order as to costs. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1 Series . Cash bills. A2. 13-2-07 Prescription of Moideen Kunhi, Issued by Dr.U.S.Bhat A3.1-3-07 copy of lawyer notice. A4.(a) 12-3-07 reply notice. A4(b)20-3-07 reply notice A5.(a)A5(b) X-rays A6. Cash bill issued by Aramana Fathima Hospital A7.X-ray A8.12-2-07 Prescription of Moideenkunhi A9.Discharge summary of Moideen kunhi MO-1. Foreign body. B1.Admission record of Moideenkunhi, issued by Chaitra Medical Centre, Kasaragod B2. Photocopy of IP register Page Nos 124 & 125. PW1.Moideenkunhi DW1. Dr.Dineshkumar.K.K. DW2 Dr.K.K.Thomas DW3.Dr.M.Venugopal Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT | 
