This complaint coming up before us for final hearing on 25-07-14                                in the presence of Smt. A.P.Laly, advocate for complainant; Sri M.Purna Chandra Rao, Advocate for 1^st opposite party; Sri K.V.G.M.K.Rao, advocate for 2^nd opposite party and Sri B.K.Kishore, advocate for 3^rd opposite party,                           upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-      The complainant filed this complaint under section 12 of the Consumer Protection Act seeking compensation of Rs.20,00,000/- together with interest from the date of complainant on account of medical negligence said to have been committed by the opposite parties.  

2.   In brief averments of the complaint are these:

          The complainant is a government employee at Ongole, and contacted the opposite parties on phone for her examination.  After fixing an appointment the complainant approached the opposite parties on 13-03-13.  The complainant under went clinical examination and necessary tests at Kamaraju Diagnostics Centre on advice of the opposite parties.  The reports at Kamaraju Diagnostics Centre revealed that the complainant was suffering from Lt.PUJ calculus of 1.5 cm with hydro ureteronephrosis.  The opposite parties advised the complainant to admit in hospital within a short period for treatment.  The complainant got admitted in the hospital of Dr.Ranga Rao Nursing Home for treatment (1^st opposite party) on 19-03-13 by prior appointment.  The complainant deposited Rs.30,000/- as advised by the opposite parties.  The opposite parties allotted room No.103 to the complainant.  The complainant requested the opposite parties to provide laser treatment or endoscopic treatment or robotic treatment for removal of kidney stone.  The opposite parties promised that they will give treatment as required by the complainant.  The 2^nd opposite party on 19-03-13 gave essentiality certificate to the complainant.  On advice of the opposite parties the complainant purchased two bottles of B^+ve  blood from N.T.R. Memorial trust blood bank for Rs.2,000/-.  The opposite parties conducted surgery to the complainant improperly and negligently though not required.  The opposite parties did not utilize blood purchased by the complainant and kept in their custody.  The opposite parties erected stunt without removing stone in kidney in order to grab money to have wrongful gain.  The complainant was under the impression that the opposite parties removed stone in the kidney.  The opposite parties discharged the complainant on 29-03-13.  At the time of discharge the opposite parties sent the complainant to Jahnavi Imaging Digital Mammography and scan centre, Guntur for scanning.  After going through scanning reports the complainant questioned the opposite parties for not conducting laser treatment or endoscopic treatment or robotic treatment.  But the opposite parties gave reply arrogantly and threatened the complainant.  The opposite parties collected Rs.58,000/- at the time of surgery from the complainant.  The complainant incurred medicines worth of Rs.19,858/-.  The opposite parties required the complainant to come again for further surgery to remove stone from the kidney with an amount of Rs.1,00,000/- .  On that the complainant doubted and approached Dheeraj hospital and Mythry hospital, Ongole for treatment.  M/s. Sri Chandana Scanning Authorities, Ongole gave an impression of large Left Pelvic ureteric junction calculus (17mm) with moderate hydronephrosis and bulky uterus.  The complainant on 13-06-13 under went operation in Mythry hospital, Ongole and got removed the DJ stent and stone from the kidney without any surgery.  The complainant incurred Rs.65,000/- for her treatment at Mythry hospital.  The complainant got discharged from Mythry hospital on 16-06-13.  The complainant suffered mental agony during 13-03-13 - 13-06-13 on account of improper and illegal treatment given by the opposite parties.  The complainant estimated his suffering @ Rs 20,00,000/- lakhs .  The opposite parties gave reply with false allegations.  The complaint therefore be allowed.                       

3.   The 1st opposite party filed memo adopting version of the 2^nd & 3^rd opposite parties.  

4.      The contention of the 2^nd opposite party in nutshell is here under:

          The complainant approached the Forum by suppressing material facts and as such the complaint is not maintainable.  The 2^nd opposite party is an associate professor, in Government General Hospital, Guntur and is a consultant physician in the departments of skin, HIV, AIDS and VD while the 3^rd opposite party is a consultant urologist and surgeon in the 1^st opposite party’s hospital.  The complainant has been taking treatment for ART for the past five years from the 2^nd opposite party.  The complainant on 13-03-13 approached the 2^nd opposite party for treatment and gave details of her pain, suffering and urological problems.  The 2^nd opposite party after examining the complainant advised her to get scanning.  The complainant under went scanning in M/s. Kamaraju Diagnostics and obtained scanning report.  The scanning report disclosed stone at left pelvic ureteric junction. The 2^nd opposite party informed the complainant to approach urologist (3^rd opposite party).  The 3^rd opposite party examined the complainant and advised her to under go blood tests and IVP etc., after examining reports the 3^rd opposite party informed the complainant about condition of the left pelvic ureteric junction stone and advised for removal of stone from the kidney. The 3rd opposite party also informed the complainant that separate operation and open surgical instruments and kits are available in the hospital (1^st opposite party) as she is taking ART treatment and also non availability of endoscopic instruments for immuno compromised patients.  The 3^rd opposite party informed and advised the complainant for open surgery for removal of stone if possible.  After seeing the position of the stone and condition of the patient the 2^nd & 3^rd opposite parties in detail informed the complainant and her attendants regarding surgery and also advised them to approach another hospital where endoscopic surgery is available.  The complainant and her attendants requested to do open surgery by giving consent.  The opposite parties informed the complainant regarding high risk involved in doing surgery and obtained general consent.  The opposite parties conducted open surgery on 20-03-13 under general anesthesia. In the best interests of the complainant the 3rd opposite party placed DJ stent instead of removing stone at this juncture as stone in complainant’s kidney is in critical position;  as other wise stone in kidney may slip and go deep into the kidney and in such case removal of the stone is not possible .  The opposite parties discharged the complainant on 30-03-13.  At the time of discharge the opposite parties informed the complainant regarding surgery she under gone and advised her to under go ESWL treatment for left kidney stone after ten or fifteen days and  after removal of stone the DJ stunt will be removed.  The opposite parties collected reasonable amount and in view of the proposed surgery and follow up of ESWL treatment.  The complainant suppressed about she taking ART treatment for the last five years and it is a major factor in considering the type of surgery that has to be done.  The opposite parties issued essentiality certificate, bills to the complainant to enable her to have reimbursement.  The opposite parties treated the complainant with due care and diligence.  The 3^rd opposite party is a reputed surgeon.  The complainant filed this vexatious complaint with an ulterior motive and to blackmail the opposite parties with false allegations.  The opposite parties did not commit any deficiency in service. 

5.      The contention of the 3^rd opposite party in brief is thus:

          The 3^rd opposite party on 13-03-13 got a phone call from the 1^st opposite party to see the complainant, examined the complainant for her left kidney stone pain and advised her I.V.P. X-rays.  The 3^rd opposite party on 19-03-13 received phone call from the 1^st opposite party and went there to see the complainant, I.V.P. X-rays (taken at Ongole).  After seeing all the X-rays and reports the 3^rd opposite party counseled and motivated the complainant to go to higher centers because the complainant  had no option except for open surgery to remove stone as the complainant is on ART and did not have separate endoscopic instruments and laser equipment.  At that time the 3^rd opposite party explained the possibility of difficulty to remove the stone because it is very close to the kidney and it may slip into the kidney and that an attempt to remove stone may damage kidney and in such case the 3^rd opposite party will keep a stunt in kidney which may make easy to remove the stone later by ESWL procedure.  The complainant is not interested to go anywhere.  As the 3^rd opposite party has no separate endoscopic instruments for patients using ART proceeded for open surgery with informed and written consent.  After taking detailed and elaborate consent for open surgery, like (1) during surgery stone may slip into kidney and difficult to remove it and in that situation the 3^rd opposite party will keep stunt in the kidney for further stone breaking by ESWL treatment which may make easy for stone removal, i.e., after one week to one month of discharge and stone will be removed after one month of ESWL treatment.  (2)  Bleeding (3) infection of the kidney wound and sutures in patients using ART and (4) damage to the kidney. The 3^rd opposite party advised the complainant to get two units of B^+ve blood for surgery as the surgery involved major procedure.  To save and protect kidney the 3^rd opposite party kept stunt in the kidney through ureterotomy well below the PUJ.  One unit of blood was given during surgery and another unit on the next day.  The 3^rd opposite party immediately after surgery informed the complainant and her attendants what happened during surgery and advised the complainant and attendants for ESWL treatment within a month of discharge.  The complainant recovered well and wound healed.  The complainant was discharged from hospital on 29-03-13.  The 3^rd opposite party advised the complainant to come after a week for review and plan for ESWL treatment.  The complainant on 13-04-13 came for review checkup.  On that day the 3^rd opposite party advised the complainant for ESWL treatment after one week.  Subsequently the complainant did not approach the 3^rd opposite party.  The 3^rd opposite party performed the operation after thorough detailed explanation of pros & cons of surgery and after taking detailed consent preoperatively.  The 3^rd opposite party did not commit any deficiency in service.  The complaint therefore be dismissed.

6.  Exs.A-1 to A-20 were marked on behalf of the complainant and Ex.B-1 to            B-38 were marked on behalf of opposite parties.       

7.   Now the points that arose for consideration in this complaint are:

1.       Among the opposite parties who committed deficiency in service?

2.       Whether the complainant is entitled to compensation and if so to what amount?

3.       To what relief?

8.      Admitted facts in this case are these:

a) The second and third opposite parties are consultant doctors in the 1^st opposite party hospital.

          b) The complainant approached the 2^nd opposite party on 13/3/2013 for her ailment (Ex-A1)

          c)  The complainant had under gone clinical investigations on 13-3-13 and 19-3-13. (ExA2, 3 &5)

          d)  The complainant paid an advance of Rs30,000/- to the 1^st opposite party on 19-3-13 (Ex-A3)

          e)  The complainant secured two bottles of blood (Ex-A6)

          f)  The third opposite party did open surgery and placed DJ stunt in the kidney on 20/3/13 with out removing the stone.

          g)   The complainant was discharged on 29-3-13. (Ex-A11)

          h)  Exchange of notices between the parties. (Ex-A19&20)

          i)  The opposite parties on 29/3/2013 gave receipt for Rs58000/-           

              (Ex-A10)

          k. The complainant incurred Rs19,858/-towards medicines.(Ex-A12)          

9.      POINT No.1:-      In M. Perumal V/s Salem Polyclinic represented by Dr.K.N.Rao2013 (1)CPR 45 (NC) it was held

“It must be born in mind that it is the complainant and nobody else, who has to carry the ball in proving the initial negligence on the part of the hospital. Burden is therefore on the complainant that opposite parties acted negligently, carelessly in operating / treating her.

10.    In Kusum Sharma and others v. Batra Hospital & Medical Research Centre and others, (2010) (I) CPJ 29 (SC) the Hon’ble Supreme Court laid down guidelines for deciding negligence or deficiency of service in medical profession and they are reproduced under:

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence.   The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.   Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.    
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure.   Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

11. The complainant neither obtained expert report nor examined any other doctor to prove the stated medical negligence; on the other hand relied on medical literature. The learned counsel for the complainant contended that the respondent did not obtain any consent from the complainant or her son in writing for removal of the kidney stone.  The learned counsel for the opposite parties resisted the said contention by filing written consent which was incorporated in Ex.B-1 discharge summary.  During the course of arguments the learned counsel for the complainant disputed the complainant’s signature on those consent letters.  In this context a reference can be made to the averments made by the complainant in para 1 of her complaint.  For better extraction the same is extracted infra: 

          “At that time the complainant requested all respondents to treat laser treatment or endoscope treatment or robotic treatment for the removal of kidney stone”.   

12.    The said averments revealed that the complainant gave consent for removal of stone by surgery.  Under these circumstances the contention of the complainant about the respondent not obtaining written consent is devoid of merit. 

13.    The learned counsel for the complainant vehemently argued that the opposite parties did open surgery, placed stunt in stead of removing stone from the kidney in order to extract more money for wrongful gain.  The learned counsel for the opposite parties countered those arguments by contending that the 3^rd opposite party did open surgery as the complainant is on ART treatment for the last five years and placed stunt instead of removing stone at this juncture as the stone in kidney was at critical/ vulnerable position.

14.     The opposite parties gave reply (Ex.A-20) to the notice issued by the complainant.  In Ex.A-20 the opposite parties mentioned that the complainant has been taking treatment of ART for the past five years from the 2^nd opposite party.  The complainant in her complaint simply mentioned that the opposite parties gave reply with false and untenable allegations.  The complainant either in her affidavit or complaint have not specifically denied about she taking treatment of ART for the last five years from the 2^nd opposite party.  Even in Ex.B-1 discharge summery it was mentioned that the complainant was on ART for the last five years.  It can therefore be inferred that the complainant is on ART treatment for the last five years from the 2^nd opposite party.

15. Burden is on the complainant to prove that the procedure adopted by the opposite parties in placing stunt for removal of kidney stone is not at all warranted and unnecessarily performed operation.

16. 16.       In the material given by the complainant the following was mentioned: 

       a)Kidney stones (calculi) are jagged mineral deposits that form in the kidney and drop into the collecting system.  Stones often get stuck and block the flow of urine and cause severe pain and blood in the urine.  The kidney’s function is to filter the salts and minerals in the blood and produce the byproduct-urine.  Stones form when crystals coalesce.    

       b)Treatment of kidney stones depends of their size and location.  Stones under 4mm have a 90% chance of passing without surgery.  Stones bigger than 6mm only pass on their own 20%.  Stones typically get stuck at the narrow points of the ureter.  The first spot is the junction of the ureter with kidney (UPJ).  The next hold up spot is midway toward the bladder where the blood vessels to the legs cross the ureter.  The narrowest spot is at the junction of the bladder with the ureter (UVJ).  When stones get stuck here the symptoms of urinary frequency and burning are often experienced.         

c)Surgical Treatment: -

i) ESWL (extra-corporeal shock wave lithotripsy).  This a minimally invasive treatment typically performed as an outpatient.  Only IV sedation is needed to undergo ESWL.  The stone is visualized on X-ray and shocked up to 3000 times over about a 3o- minute session.  This approach is ideal for Calcium stones up to 2 cm. 

ii) Ureteroscopy with Lasertripsy: - if the stone is lodged in the ureter or ESWL was unsuccessful, this is highly successful approach.  This minor surgery requires general anesthesia for about 2 hours.  A fine fiber-optic scope is guided directly to the stone and a laser fiber is used to break the stone.  A stent is usually placed in the ureter afterwards and will be removed in one week in the office.

iii)Percutaneous Nephrostolithotomy (PCNI) :-  This is a major but closed operation requiring one or two days admission to the hospital.  This approach is best for large stone measuring more than 2 cm.  A small tube is placed directly in the kidney to remove large amounts of stone. 

iv)Open Surgery: - Open surgery is rarely performed for stones any more.  Only if there is severe kidney damage or anatomic abnormalities should open surgery be offered. 

v)Stent: - Ureteric stents are fine plastic tubes that are inserted into the ureter through the urethra.  They run from the kidney to the bladder and have a curl (pigtail) at each end to keep them in a safe place.  An anesthetic is required to put them in, and sometimes to remove them.  They are used in a number of different situations. 

vi) When a patient first comes with severe pain and an impacted stone, it is sometimes not possible to pass an ureteroscope and remove the stone immediately because of severe inflammation at the spot in the ureter where the stone has blocked.  Using  x-ray guidance we can usually place a stent past the stone.  This unblocks the kidney and relieves the server pain.  ESWL or ureteroscopy is carried out later. 

vii) If there is a large stone that is to be broken up so that there is a risk that the fragments may block the ureter before passing, a stent is often used to ensure the kidney doesn’t get blocked. 

Where a ureteroscopic stone removal has been incomplete or difficult, a stent is often used to prevent post-operative complications and help the lining of the ureter heal. 

Stents are used quite frequently in more complex cases, but they have their problems.  Although stents don’t worry some patients at all, they can produce quite marked discomfort when you pass urine.  They may give a constant urge to void hourly.  Symptoms often improve 48-72 hours and they often cause.

17.   Ex.A-11 is the discharge summery of the complainant dated   29-03-2013.  Ex.A-11 revealed that the complainant approached the opposite parties on 13-04-13 for review.  The opposite parties mentioned on the reverse of Ex.A-11 that wound healed well and advised the complainant to approach next week for ESWL treatment.  It was so mentioned in Ex.B-1 discharge summery also.

18.  It is to be born in mind that the doctor at Ongole removed stent and stone about more than two months after the opposite parties placing stent.  The complainant on 20-06-14 though sought time to obtain expert opinion did not take steps to obtain expert opinion for the reasons best known to her.  The complainant even did not file the affidavit of Dr.Noel John.K. of Mythry hospital, Ongole to establish that the procedure adopted by the opposite parties in placing sent is not at all warranted.

19.    In the medical literature filed by the complainant it was mentioned that the stents are used often frequently in more complex cases in spite of some problems. It was already observed that the complainant is on ART treatment for the last five years from the 2^nd opposite party. Under those circumstances we are of the considered opinion that the complainant miserably failed in discharging her initial burden to prove that the opposite parties unnecessarily placed DJ stunt instead of removing kidney stone straight away.   In view of the above discussion we opine that the opposite parties did not act negligently in treating the complainant and thereby did not commit any deficiency in service.  We therefore answer this point against the complainant. 

20.    Point No.2:- In view of above findings the complainant is not entitled to any compensation much less the amount claimed by her.  We therefore answer this point against the complainant. 

21.    POINT NO.3 :-  In view of the above findings in the result, the complaint is dismissed without costs. 

          Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 04^th   day of August, 2014.

MEMBER                                 MEMBER                                          PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:-

PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.