Date of Filing : 16.07.2009
Date of Order : 08.07.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER
DISPUTES REDRESSAL FORUM,
SESHADRIPURAM, BANGALORE – 560 020
Dated 8th JULY 2011
PRESENT
Sri. S.S. NAGARALE, B.A., LL.B. (SPL) …. President
Smt. D. LEELAVATHI, M.A., LL.B. …. Member
Sri. BALAKRISHNA V. MASALI, B.A., LL.B.(SPL) …. Member
COMPLAINT NO. 1666 / 2009
Shashidhara.Y.C.
S/o. Chandrashekar.H.M.
Aged about 41 years,
R/at: No. 16/2, 3rd Cross,
K.B. Nagar, Mysore Road,
Bangalore – 560 026. ……. Complainant
V/s.
1. The Medical Superintendent,
Mallya Hospital, Vittal Mallya Road,
Bangalore – 560001.
2. Dr. Satish Babu,
Neurosurgeon & Consultant,
Mallya Hospital, Vittal Mallya Road,
Bangalore – 560001. …… Opposite Parties
ORDER
(By the President Sri. S.S. Nagarale)
This Complaint is filed by the Complainant u/s. 12 of the Consumer Protection Act, 1986.
2. The facts of the case are that on 01.09.2008 Complainant was proceeding towards Hanumanthanagar on his Two Wheeler and he met with an accident at mid night and was admitted to the NIMHANS Hospital for First Aid treatment. On 02.09.2008 at 8.00 AM Complainant was diagnosed for having severe head injury i.e., left front partial depressed fracture and large extradural hematoma in the left front parietal temporal region in NIMHANS Hospital. Complainant was discharged from NIMHANS Hospital on 03.09.2008 with instructions tobe observed in the general Hospital or general ward for proper care & treatment. As per the advice of the NIMHANS Hospital, Complainant got admitted in the OP1 Hospital under the care of Neurosurgeon Dr. Satish Babu OP2 who is consultant Doctor in OP1 Hospital. Complainant was admitted and treated as in-patient from 03.09.2008 to 15.09.2008 and was treated as out-patient on several dates as per the advice of OP2. On the next day morning, OP2 ordered for another C.T Scan and assured the Complainant that he would be discharged within 3-4 days. Complainant was having C.T. Scan report which was done in NIMHANS and OP2 could have looked into the said C.T. Scan and found the defects. But, OP2 without seeing the said report replied that he does not believe the others report. Complainant submitted that in the OP1 Hospital C.T. Scan was done for 5 times in a span of 12 days and the same was done only for monetary gain. Absolutely there was no necessity for the same which shows the quality of service of OP1 Hospital. Complainant submitted that OPs have not taken proper care while giving the treatment to the Complainant. Complainant was having weakness, dizziness, hearing loss while discharging from the Hospital. Friend of the Complainant Dr. Prakash requested OP2 to take ENT opinion, but without considering the same Complainant was discharged from the Hospital. In the discharge summary, it is made very clear that the Complainant was suffering from left LML Facial palsy and advice was not given for that and there was no mention about physiotherapy or medication for LML Facial palsy in the discharge summary and there was no mark about the precautions that the patient should take regarding LML palsy i.e., incomplete closer eyes, facial weakness & hearing loss. Complainant approached two ENT specialists and after examination, Doctor disclosed that there was transverse fracture left temporal bone of the tympanic segment of facial nerve. Complainant has incurred huge medical expenses of more than Rs.5.00 Lakhs. Complainant submitted that due to negligence and utter failure of OP2 in giving in-time & proper treatment, he undergone much sufferings and suffered huge financial loss. OPs have committed deficiency of service. The Complainant caused legal notice to the OP demanding for Rs.10.00 Lakhs as compensation for deficiency of service. OP instead of paying the compensation gave evasive reply denying the contents of the legal notice. Hence, Complainant prayed that OPs be directed to pay compensation of Rs.10.00 Lakhs towards deficiency of service rendered by them.
3. OPs 1 & 2 have filed separate defence version. OP1 in the defence version submitted that Complaint is devoid of any merits. It is true that the Complainant was admitted to OP1 Hospital on 03.09.2008 and the concerned duty Doctor was Mr. Satish Babu (OP2). Wife of the Complainant was carrying only written report of CT Scan conducted in NIMHANS Hospital and no film was present with her. Hence, OP2 informed that repeat CT Scan would be done in the OP1 Hospital. Complainant was subjected to CT Scan on 06.09.2008. The allegation that the Complainant was subjected to 5 CT scans is absolutely false, baseless & reckless. At no point of time Complainant was neglected. With respect to the request of Dr. Prakash for ENT opinion, it is submitted that worldwide facial nerve anatomy is equally well known to the Neurosurgeons and ENT surgeons. This can best be explained by the fact that numerous text books and journals on neurosurgery penned by neurosurgeons contained details of treatment of facial nerve injuries. With respect to Complainant visiting 2 ENT surgeons, it is not within the knowledge of OP. The averment that the Complainant put into huge medical expenses of more than Rs.5.00 Lakhs is false. Fracture in the case of Complainant is uncomplicated one and hence the same was managed conservatively. The allegations of the negligence are denied as false and baseless. Complaint is liable tobe dismissed on the ground of non-joinder of necessary parties. Admittedly, Complainant was admitted to NIMHANS Hospital on 02.09.2008. The subject proceedings are incomplete without NIMHANS as a party to the proceedings. Complainant has visited several other Hospitals and consulted other Doctors. Hence, Complaint is bad for non-joinder of all the Hospitals. Complainant was discharged from OP1 Hospital at the instance of his wife and he was advised physiotherapy. With respect to OPD, it is submitted that the Complainant has turned up to OP1 Hospital only 4 times. Complainant is guilty of negligence. Complainant got himself prematurely discharged from NIMHANS and got admitted to OP1 Hospital and Complainant also got discharged from OP1 Hospital that too prematurely and failed to follow-up with OP2 Doctor in OPD. Hence, Complaint is bad for Volenti Non Fit Injuria. Therefore, OP1 prayed to dismiss the Complaint.
4. OP2 Dr. Satish Babu has filed separate defence version stating that the Complaint was drunk while he was riding the Scooter on the date of accident and the same is evidenced from the discharge summary of NIMHANS Hospital. Facial palsy and consumption of alcohol has direct co-relation with each other and consumption of alcohol aggravates the chances of facial palsy. Treatment of facial paralysis is known to the neurosurgeons worldwide and he being a competent neurosurgeon is well aware of the diagnosis and treatment and hence complainant was not referred to ENT surgeon. Complainant had visited Dr. Suresh.H.S., eye surgeon who did not suggest surgery and treatment prescribed is only conservative. Dr. Sheelu Srinivas, ENT surgeon has opined that there is a high risk involved in the surgery and the same needs tobe discussed with the Complainant. Dr. Deepak Haldipur & Dr. Suresh did not advise any surgery and advised for conservative treatment and Dr. Suresh has advised to meet plastic surgeon. Dr. Sheelu Srinivas & Dr. C.B. Srinivas have advised surgery and as per their advise the complainant undertook a futile exercise of surgery in M/s. Koshys Hospital. With respect to surgery, the condition of the patient has not improved much in the post-operation status which is evident from the opinion of Dr. H.S. Suresh, Manasa Superspeciality Clinic dated 25.05.2009 and from the out-patient records of the OP Hospital clearly proves the point that the opinion of this OP Doctor is in the right perspective of treatment. For all the reasons sated above, OP2 has prayed to dismiss the Complaint.
5. Parties have filed affidavit evidence and documents. Arguments are heard. I have gone through the pleadings of the parties and the documents and the affidavit evidence.
6. In the light of the arguments advanced before us, following points have arisen for consideration:
(i) Whether the Complainant has proved deficiency of service on the part OPs?
(ii) Whether there was any medical negligence on the part of OPs in giving the treatment to the Complainant ?
(iii) Whether the Complainant is entitled for compensation?
(iv) What order & relief ?
REASONS
7. It is the case of the Complainant that on 01.09.2008 he met with an accident and he was admitted to the NIMHANS Hospital on 02.09.2008. It was diagnosed that Complainant was having severe head injury and he was discharged from NIMHANS Hospital on 03.09.2008. The Complainant submitted that he got admitted in the OP1 Hospital under the care of Neurosurgeon Dr. Satish Babu and he was treated as an in-patient in the said Hospital from 03.09.2008 to 15.09.2008. He has also taken treatment as out-patient on several dates in OP1 Hospital. The grievance or allegation made by the Complainant is that though he was admitted on 03.09.2008 in the OP1 Hospital, the Hospital authorities failed to give necessary & proper treatment in-time. Only on the next date of admission OP2 ordered for another CT Scan and it was assured by the OP1 Hospital that he would be discharged from Hospital within 3-4 days. The allegation of the Complainant that he was not treated promptly even after admission cannot be accepted as true & correct. OP Hospital has produced case sheet of the patient. As per the case sheet, it is true that on 03.09.2008 at 9.00 PM itself the patient was admitted and he was examined by the concerned Doctor. Therefore, it cannot be believed or accepted that the OP1 Hospital failed to give proper treatment in-time even after admission. The serious allegation made by the Complainant in his Complaint is that in the NIMHANS Hospital CT Scan was taken and based on that report OP Hospital could have gone into that report and started the treatment. Complainant submitted that during treatment in OP1 Hospital CT Scan was done for 5 times in a span of 12 days though it was absolutely not necessary and the Hospital Authorities have done this only for monetary gain. It is the case of the complainant that radiation of CT scan is hazardous to the health and it shows the quality of service rendered by the OP1 Hospital and there was exploitation by the Hospital in ordering CT scan though it was not necessary. Now we have to find out whether the allegations are true and whether the Complainant established or proved his allegations that five times CT scan was done in OP1 Hospital. On perusal of the records & documents produced by the Complainant, there is no record or any proof or documents to prove allegation that five times CT scan was done in the OP1 Hospital. Complainant has produced indoor patient Bill. In the said Bill, an amount of Rs.3,795/- is charged towards radiology. Except this Bill, Complainant has not produced any other Bill / Cash Memo to show that he has paid the amount for CT Scan. Therefore, from the indoor patient Bill, it establishes that only one time CT Scan was done in the OP1 Hospital. As per the case sheet of the patient, progress report and the doctors order, on 05.09.2008 Dr. Satish Babu ordered for CT Scan of brain and CT scan was done on 06.09.2008. Except this order of Doctor in the entire case sheet, there is no other order for taking CT scan. Therefore, from the case sheet maintained by the Hospital, it is clear that only one time CT scan was done in the OP1 Hospital. The allegation of the Complainant that 5 times CT scan was done in the Hospital cannot be believed or accepted. Complainant had admitted that CT scan report of NIMHANS Hospital was not taken with him while admitting the OP1 Hospital. Therefore, naturally OP1 Hospital had directed the patient to go for CT scan so as to start the treatment in accordance with CT scan report.
8. So, under these circumstances, the repeated allegations made by the Complainant that OP1 Hospital had taken CT scan 5 times for monetary gain is not acceptable and there is no basis for that allegation. Except these allegations, Complainant has not made any other allegations of medical negligence or deficiency of service rendered by the OPs. Before giving finding of the medical negligence, Complainant has to establish that Doctor did something wrong against medical practice or literature or failed to do something which in the given facts & circumstances in medical professional in his ordinary sense and prudence would have done or failed to do. Admittedly, Complainant has not taken any expert opinion in this case to find out the medical negligence on the part of OPs. Negligence cannot be attributed to a Doctor without proper proof and expert opinion. Medical professionals are not to be unnecessarily harassed or humiliated. Indian Doctors are held in high esteem over the world and medical profession is considered to be a noble profession. For giving finding on medical negligence and deficiency in service against Doctor, there must be cogent evidence. But, in this case, Complainant has not made out a case of medical negligence on the part of OPs. Even mere error of judgement cannot be considered as negligence in the legal sense. In the nature of present case, an expert evidence & opinion plays a vital role, but, in this case there is no expert evidence or report to examine and analyse the treatment rendered by the OPs. Professional negligence or medical negligence may be defined as reasonable degree of care & skill or willful negligence on the part of Doctor in the treatment of the patient. In this case, there is no evidence or any proof to show that OP2 has not taken reasonable care in treating the patient. What is the willful negligence on the part of OP2 in this case has not been pleaded nor proved by the Complainant. It is not the case of the Complainant that OP2 Doctor who treated him is not a qualified Doctor to perform his duties. The nature of medical professional is such that there may be more than one course of treatment which may be given for treating the patient. Medical opinion may differ with regard to the course of action to be taken by the Doctor in treating the patient. As long as the Doctor acts in a manner which is acceptable to medical profession and attended on the patient with due care, skill & diligence, in that case it would be difficult to hold Doctor to be guilty of negligence. As per the discharge summary, Complainant was admitted to the OP1 Hospital on 03.09.2008 and he was discharged on 15.09.2008. As per the case sheet dated 15.09.2008, it has been stated that patient was discharged on the request of his wife and advised for physio ambulation and facial physiotherapy was explained and possibility of long term improvements for facial weakness. All these things have been noted in the case sheet by Dr. Satish Babu in the progress report dated 15.09.2011. Therefore, the arguments of the Complainant that at the time of discharge he was not properly advised and physiotherapy was not explained & advised again cannot be accepted. Case sheet of the patient clearly establishes the advice given in respect of physiotherapy to the patient at the time of discharge on the request of the wife of the complainant.
9. Another allegation made by the Complainant is patient discharged from the Hospital without ENT opinion and after discharge from the OP1 Hospital he had gone to ENT specialist and taken treatment there, therefore Complainant is blaming the OP Hospital. Complainant has not pleaded in his Complaint or in the affidavit as to why ENT opinion should have been taken in his case. The Complainant has not produced any expert opinion to prove that OP Hospital has committed medical negligence in not taking ENT opinion in his case. If it was required of taking ENT opinion in the case of Complainant, OP1 Hospital definitely should have taken such opinion. Doctor who treats the patient is the best person to take opinion and the line of treatment according to their wisdom and well established medical practice. The Doctors who have treated the Complainant for ENT problem have not made any allegations or remark of deficiency of service or medical negligence on the present OPs. So, under these circumstances, not referring the Complainant to ENT specialist cannot be considered as medical negligence or deficiency of service. The Learned Counsel for the OP submitted that facial nerve anatomy is equally well known to the Neurosurgeons & ENT surgeons. Facial paralysis can be managed conservatively or by surgery. Dr. Satish Babu in his affidavit evidence stated that patient was diagnosed for having severe head injury and treatment protocol was followed by him as per specifications accepted worldwide and the same was in accordance with the accepted literature and international standards. In the evidence, he has further stated that the allegation that the Complainant was discharged without referring to him to the ENT opinion is perverse. In view of the fact, the problem exhaustively discussed in the literature of Neurosurgery and hence the subject is known to Neurosurgeon equally well. Under these circumstances, no negligence or deficiency of service can be attributed to OP2 in not referring the Complainant to ENT opinion. Taking into consideration of all the facts & circumstances of the case, evidence & documents produced by both the parties, it is not a case of medical negligence or deficiency of service so as to entitle the Complainant for compensation.
10. Complainant submitted that he has suffered lot in this unfortunate incidence. He met with an accident in the mid night of 01.09.2008 and on 02.09.2008 at 2.00 AM he was admitted to NIMHANS Hospital and taken treatment there and spent some amount for treatment. Thereafter he was discharged from NIMHANS and he got admitted in OP1 Hospital on 03.09.2008 as in-patient and he was admitted in the Hospital from 03.09.2008 to 15.09.2008. Complainant has produced cash Bill dtd. 09.08.2008 for Rs.54,776/- and Bill dtd. 15.09.2011 for Rs.68,099/- of OP1 Hospital. Complainant has taken treatment in different Hospitals. The Learned Counsel for the Complainant submitted that Complainant has suffered lot and he has spent more than Rs.5.00 Lakhs for his treatment in various Hospitals, he is still not fully recovered, he is put to medication throughout his life and he cannot do any job or business on account of his injury & suffering. Complainant had also filed Complaint before Karnataka Medical Council, Bangalore, and case is registered against OP. Show Cause Notice was issued to OP2 Dr. Satish Babu by Karnataka Medical Council on 22.02.2010 stating that why disciplinary action should not be taken under the provisions of the Karnataka Medical Registration Act. It appears enquiry is still pending before the KMC.
11. C.P. Act is a social & benevolent legislation enacted by Parliament of India to safeguard better interest of the consumers. Though in this case Complainant legally failed to establish medical negligence and deficiency of service on the part of OPs, but as a matter of humanitarian consideration and in order to meet the ends of justice and to render social justice, if an order is passed against OPs to pay a sum of Rs.1,00,000/- as consolation amount to the Complainant, that will not be out of purview / jurisdiction of the Consumer Court. OP1 Hospital is a well known & reputed Hospital in Bangalore rendering medical services to the people. I think & hope that Hospital will not be insensitive to human suffering and plight / difficult situation of the Complainant. If OPs pay Rs.1,00,000/-, it will be rendering great human service. This amount may contribute / help in mitigating the sufferings of the Complainant. With these observations and taking into consideration of the materials produced by both the parties and after considering the arguments of the Learned Advocates for the parties, I have to hold that the Complainant has failed to prove deficiency of service and medical negligence on the part of OPs. Therefore, on this count, Complainant is not entitled for compensation. However, on humanitarian ground and in order to render social justice, we are directing the OPs to pay a sum of Rs.1,00,000/- as consolation amount to the Complainant. In the result, I proceed to pass the following:
ORDER
Complaint is dismissed. However, OPs 1 & 2 are jointly & severally directed to pay a sum of Rs.1,00,000/- as compensation to the Complainant on humanitarian ground within 30 days from the date of this order. The Complainant has to withdraw his complaint filed before KMC, after receipt of compensation amount.
Send copy of this Order to both the parties free of cost immediately.
Pronounced in the Open Forum on this 8th day of July 2011.
Order accordingly
PRESIDENT
We concur the above findings
MEMBER MEMBER
SSS
