IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM U/C.P.ACT, 1986  AT NIZAMABAD.

Quorum : Sri Y. Krishna, M.Com.,     …. I/C PRESIDENT.

               Smt K. Vinayakumari, M.A., LL.B.,        …MEMBER.

DATED THIS THE 29^TH DAY OF JANUARY 2008

Date of filing of complaint : 17-10-2002

Date of Order : 29-01-2008

C.D. NO. 272  OF 2002

Between :-

1.      Sri. Narsing Rao  S/o late Sri Narayana, Hindu, age: 45 years, Occ: Nil.

2.      Sri.Laxminarayana @ Chintu S/o Narsing Rao, Hindu, aged 20 years, Occ: Tailor.

3.      Sri Sudheer S/o Sri Narsing Rao, Hindu, aged 15 years (Minor), Occ: Student, through his natural guardian, father and nearest friend Sri.Narsing Rao S/o late Narayana.

All R/o Kalyani Base, Yellareddy (V&M), Distrirct Nizamabad.

Complainant

AND

The Managing Director, Amruthalxmi Multi Speciality Hospital, Khaleelwadi, Nizamabad.

           Opposite Party

                    This Consumer Complaint Case coming on 28-01-2008 for final hearing Sri S.Jagan, Advocate for complainants and Sri G.Madhava Rao, Advocate for Opposite Party being absent, the arguments of both side advocates taken as heard and the matter having stood over for consideration till this day, this Forum made the following :

::   O   R   D   E   R   ::

(ORAL ORDER BY Smt.K.VINAYA KUMARI, MEMBER)

1.                 THIS IS A COMPLAINT FILED U/SEC.12 OF C.P.ACT, 1986 by Sri Narsing Rao & others.

2.                 The brief facts of the complaint/case are:

                    The complainants 1 to 3 are residents of Yellareddy Mandal, Nizamabad District.  The wife the of complainant No.1 had approached Dr.Sridhar, ENT specialist for her throat problem.  On the advise of Dr.Sridhar she approached opposite party hospital on 14-10-2000.  On the advise of the opposite party the wife of complainant No.1 joined as inpatient in the opposite party hospital and under went different tests as advised.  To the surprise of the complainants, opposite party hospital authorities conducted operation without consent of the family members.  On 16-10-2000 at 5.30 a.m. Surgery was conducted by Dr.Jagannath Rao and Anaesthesia was given by Dr.Damodhar Rao.  The condition of the patient was not informed to the family members inspite of their enquiry.  Even on 17-10-20000 the patient was kept in operation theatre and at about 6.00 a.m. on 17-10-2000 the family members were informed that the patient died and asked them to shift the body immediately and arranged an ambulance. 

3.                 The acts of Opposite Party in not informing about the condition of the patient and not explaining the cause of death of the patient is negligence and deficiency in service.

Due to negligence in performing the operation the wife of the complainant No.1 died and the Opposite Party is responsible for the acts of the doctors, who performed surgery on patient.

The complainant issued legal notice on 19-08-2002 calling upon compensation.  The Opposite Party received notice but did not give any reply.  Hence filed the present complaint.

The complainant is within limitation and within territorial and pecuniary jurisdiction.

Therefore prayed to direct the Opposite Party to pay Rs.4,00,000/- as compensation for causing mental agony and financial loss along with costs of the legal proceedings.

4.                 The Opposite Party filed detailed counter admitting that patient (W/o complainant No.1) Smt.Prabhavathi was admitted in his hospital and was operated on 16-10-2000 by Dr.Jagannath Rao and Dr.Damodhar for thyroid Adenoma and died on 17-10-2000 due to Cardio respiratory failure but denied all the other allegations of the complainants materially stating that Dr.Sridhar, ENT specialitst, Nizamabad diagnosed the ailment of the patient as thyroid Adenoma and the patient consulted the Opposite Party who is physician for treatment.  The Opposite Party treated the patient conservatively with medicines from 11-05-2000 till 30-09-2000.  As the condition of the patient was not improving as expected, the Opposite Party advised surgery for thyroid Adenoma for which the patient and her father gave consent.  In order to find out patient’s condition for surgery some investigations were done.  On 14-10-2000 the patient was admitted in the Opposite Party hospital for surgery.  The pre operative investigation done, revealed that the patient thyroid harmones level was normal and on the advise of Anesthetist one unit of blood was given to the patient and the surgery was postponed to 16-10-2000.  The surgery was performed on 16-10-2000 at 7.00 a.m. by Dr.J.Jagannath Rao under General Anesthesia and Dr.Damodhar Rao gave Anesthesia.

5.                 Though the operation was successfully completed on 16-10-2000 the patient had not completely come out of the relaxant.  After the surgery, the effect of the sedatives has gave and the patient had spontaneous respiration but the patient has not come into full consciousness and there was same delay and hence patient was intubated and to increase the level of enzymes two units of blood was given.  But there was no marked improvement.  The surgeon and Anesthetist were with the patient during post surgical period and were monitoring the condition of the patient.  All the emergency medicines in addition to the blood, calcium Gluconite and Hydro cortisone was given and the team of doctors tried their best to save the patient but on 17-10-2000 at 6.45 a.m. the patient died due to cardio respiratory failure and there is no negligence and deficiency in their service to the patient.

6.          Further contended the patient was kept in resuscitation room after surgery.  As lons as the patient is in resuscitation room, no relatives of the patient would be allowed.  Only after the patient is shifted into ICU one of the relatives would be allowed to see the patient.  All these precautions are taken in the interest of the patient.  In the present case as the patient as not re-gained full consciousness she was not shifted to ICU and therefore no relative was allowed into the resuscitation room but once in every two hours the condition of the patient was informed to the patient relatives.

Finally stated the services of surgeon and Anesthetist were requisitioned at the request of and in the interest of the patient therefore for the acts of surgeon & Anesthetist, the Opposite Party who runs the hospital under the name & style of Amruthalxmi Multi Speciality Hospital, Khaleelwadi, Nizamabad can not be made liable and as there is no deficiency in service on part of surgeon, Anesthetist to dismissed the complaint with costs.

7.                 During the enquiry the complainant filed his affidavit as evidence on behalf of himself and also on behalf of complainant No.2 & 3 and filed Ex.A1 to Ex.A15 documents.

Opposite Party filed his affidavit evidence and no documents marked.  PW1 (complainant) gave reply to the interrogatories filed by Opposite Party.

8.                 Arguments of both parties taken as heard.

9.                 The points for consideration are :

1)     Whether the Opposite Party hospital (vicariously) liable for the acts of surgeon and Anesthetist who performed surgery ?

2)     Whether the complainant is entitled for any of the reliefs prayed for ?

3)     To What relief’s ?

10.               POINT No.1 :-   The admitted, undisputed, proven facts as per the complaint, counter and evidence adduced on both sides are the Opposite Party is The Managing Director of Amruthalxmi Multi Speciality Hospital, Khaleelwadi, Nizamabad.  The Hospital is a multi speciality hospital having several specialists and the patient Smt.Prabhavati (W/o complainant) admitted in Opposite Party hospital on 14-10-2000 underwent investigations on 15-10-2000 and was operated on 16-10-2000 by Dr.Jagannath Rao and Anesthesia was given by Dr.Damodhar, and the patient expired on 17-10-2000 at 6.45 a.m. in the hospital.

          The point of dispute is the complainants 1 to 3 alleged that they admitted the patient Smt.Prabhavati only for investigation and did not give consent for surgery post operation, the condition of the patient was not revealed to the family members inspite of requests and ultimately the patient died due to negligence of the doctors and the Opposite Party who is the Director of the hospital is responsible for the acts of the doctors who conducted operation and hence prayed to direct the Opposite Party to pay compensation and in their evidence produced affidavit evidence of complainant No.2 along with Ex.A1 to Ex.A16 documents.

          The Opposite Party counters the allegation and contented that he is a physician and running the  hospital under the name and style of Amruthalaxmi Multi Speciality Hospital.  The services of surgeon and the Anesthesiologist were requisitioned at the request of and the interest of the patient and for the acts of surgeon and Anesthetist, Opposite Party can not be made liable.

          a) Hon’ble Supreme Court in the case of Savita Garg V/s Director National Heart Institute reported in VI (2004) SLT 385  clearly laid down that, irrespective of the way a particular Doctor is impleaded or not, if there is negligence on his part the hospital had to be held to have vicarious liability.

          b) The National Commission in Sushma Sharma V/s Bombay Hospital ruled that Hospital is vicarious liable for medical negligence on the part of doctor.

          c) Karnataka State Commission, Bangalore in case of Dr.Basappa Professor & HOD JSS Hospital V/s Sri. Krishnand held that medical negligence-vicarious liability of hospital.

          Keeping in view of the aforementioned judgement we are of the considered opinion that the Opposite Party is vicariously liable for the acts of the doctors in his hospital.  Accordingly this point goes favour of the complainant and against the Opposite Party.

11.               POINT No.2 :-  The Opposite Party in his affidavit evidence stated that the consent for surgery was given by both the patient Prabhavathi and also her father but did not produce the said documents.

                    In his detail affidavit the Opposite Party has stated that operation was successfully completed on 16-10-2000 and the patient had not completely come out of relaxants.  All the emergency medicines in emergency medicines in addition to blood was given to bring the patient in full consciousness and the doctors were present with the patient post operative till death on 17-10-2000 at 6.45 a.m.  and did their best to save patient but finally patient died due to cardio respiratory failure.  The Opposite Party in order to show that there was no negligence on his part ought to have produced the case sheet maintained in his hospital.  No records relating to the case sheet maintained in Opposite Party Hospital were produced before this forum to prove Opposite Party version and to disprove the allegation of the complainant.

          It is clear from the material on record that Opposite Party has failed to produce the consent Form and the even failed to produce the detailed record of treatment in their hospital despite the fact the patient stayed in the Nursing Home on dates 14-10-2000 to 17-10-2000.  The Karnataka State Commission, Bangalore in case of V.Shanbhag(Dr) V/s Shankar & another held that Opposite Party failed to produce any of Hospital records relating to case-sheet-prensiple of res-ipsa-loquitar applicable – Medical Negligence proved.

          The Delhi Consumer Disputes Commission, Delhi in Inderjit Singh Gulati and another V/s Khosla Hospital, Khosla Medical Institute & Research Society, Shalima Basha & others held that non furnishing of documents showing the admission, treatment given, cause of death and doctors who attended the patient as deficiency in service.

In the present case no documentary evidence have been adducted by the Opposite Party to discredit the evidence of the complainant.  For failure to produce any evidence by Opposite Party necessary and adverse inference shall have to be drawn against the version of the Opposite Party.  We are therefore of the opinion that the complainants proved their allegation in the complaint against the Opposite Party.

          Accordingly this point goes in favour of the complainants and against the Opposite Party.

12.               POINT No.3 :-  In view of our findings on the foregoing point No.1 & 2 and the reasons mentioned there in we are of the considered opinion that the complainant is entitled for the following reliefs.  The Opposite Party is directed to pay Rs.1,00,000/- with 9% interest from 17-10-2002 the date of filing complaint till the date of realisation.  Accordingly this point also go in favour of the complainant.

13.               IN THE RESULT, the complaint is allowed partly as under:

The Opposite Party is directed to pay:

a)     Rs.1,00,000/- (Rupees one lakh only) to the complainant 1 to 3 with interest @ 9% per annum from 17-10-2002 the date of filing complaint till the date of realisation.

b)    And also pay Rs.1,000/- towards the costs of the complaint.

c)     Four weeks to comply the above direction No.1 from the date of receipt of order copy.

                    Typed to dictation, corrected and pronounced by the Lady Member in Open Forum on this the 29^th day of January 2008.

MEMBER                                                                    I/C PRESIDENT

:: APPENDIX OF EVIDENCE ::

(Witnesses examined on behalf of)

For the Complainant :                                                        For the Opposite Party :

Affidavit of Complainants                                     Counter affidavit of Opposite Party

Filed as evidence                                                                                  filed as evidence                     

:: EXHIBITS MARKED ::

MEMBER                                                                    I/C PRESIDENT