IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 178/08 DATED 14-10-2008<br /> ORDER<br /> <br /> Complainant M.R. Jayanth. K.V, <br /> S/o late K.V. Ananth, aged about 60 years, No.31/IB, IV cross, Gokulam Park road, Gokulam, Mysore-570002.<br /> (By Sri.B.G.Prasad, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. The Chairman and managing director M/s. Vikram Hospital and and Heart care, No.46, Vivekananda road, Yadavagiri, Mysore-570020.<br /> 2. Dr. Manjunath. M.D. Physician, M/s Vikram Hospital and Heart Care, No. 46, Vivekananda Road, Mysore-570020.<br /> <br /> (By Sri.L.S.M., Advocate for O.P.1 & Sri J.P Advocate for O.P.2)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 18-06-2008<br /> Date of appearance of O.P. : 04-07-2008<br /> Date of order : 14.10.2008<br /> Duration of Proceeding : 3 months 10 days<br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complaint who has approached this forum against the opponents is that, this is the case of Diabetes Mellitus since about 12 years, Hyper Tension since 3 years and also Bronchial Asthma and Ankylosing Spondylitis since 29 years. After discovery of his Diabetes condition in the year 1996 his son, who is a doctor was taking care of him. He was on regular medication follow up at M.V. Centre for Diabetes, Bangalore. After the check up on 25-7-2005 he was asked to go for review on 25-1-2006. In the meantime he had H/o cough for 2 weeks. He then approached first opposite party for treatment on 4-11-2005. He was admitted in first opposite party’s hospital with systemic hypertension, diabetes and acute on set of breathlessness. At that time all investigations were done and he was told that he was suffering from episode of Allergic Bronchitis which warranted one day stay in first opposite party hospital and he was under observation of second opposite party. On 5.11.2005 he was discharged with advice that he was a risk factor for developing a Heart Attack and he should take care. After his discharge on 5.11.2005 he was living normal life on the advice of doctors of first opposite party and he was instructed to go for review after 3 months. That he experienced severe chest pain on the night 2-9-2007, that on the morning 3-9-2007 he with his wife rushed to first opposite party hospital. He was subjected to routine examination in the presence of a physician of second opposite party. In the course of examination a lady doctor recorded his blood pressure and heart beat and pulse rate but no other diagnostic investigations like electro cardiogram and echo cardiogram were conducted. Consequent to the said examination the lady doctor prescribed him Tab. Ganaton OD 15, Dulcolax Suppositaries-10, T-Retoz 90-6 and assured there is nothing to worry and he was hale and healthy then he is experienced some relief, but continued to have short episodes of pain. On the advice of the doctor he ignored those episodes. Then his wife contacted her son who is insisted of taking of second opinion then he went to Bangalore on 4-9-2007 and approached a doctor in Bhagvan Mahaveer Jain Heart Centre, where doctors found through Coronary Angiography the presence of single vessel disease in the left Anterior Descending Artery which was amenable to precutaneous intervention and the doctors accused him for the delayed approach and told him that a substantial portion of heart had died for lack of blood supply and was adviced for hospitalization. Corornary Angiogram revealed that she had only single diseased vessel. It was dilated and stented by the Cardiology and doctors and told him if the same intervention had been done early he would have saved heart muscle. Thus it is alleged that the Opposite Parties did not exercise the basic due diligence in giving appropriate and timely treatment. That they have not applied their mind but treated casually. As a result he lost his health and incurred expenditure Rs. 3,00,000. His health condition would not have been so worse but for the negligence of the Opposite Parties is not conducting proper tests. He was a central exercise consultant engaged in giving advice on subjects but because of the bad health he has been for bidden by the doctors to take up such assignment. He was drawing a remuneration of Rs.4,00,000 per annum along with other perks as such he suffered loss of Rs.7,00,000/- for which the Opposite Parties are liable. He was also having experience in the Filament industry and he was giving advice for about 100 industries, but he has not been able to do so and therefore has paid for awarding damages Rs.7,00,000 to compensate his loss of earning and Rs. 1.5 lakhs for damages and litigation expenditure Rs.4,000.<br /> 2. The opponents have appeared through their advocates and filed separate version, but with same contention. The Opposite Parties in their version have stated that, they are not aware of the allegations of in the para No.1 to 5 but admitted having treated the complainant in Opposite Party No.1 hospital on 4-11-2005 with history of hypertention, diabitis, bronchial astma ankylosing, spondititis. It is further stated that during that period thorough evalucation was done as indicated in the discharge summary. At that time the complainant had sound heart without any cardiac ailment and he was adviced for review and follow up after one week at medical OBD but the complainant never turned up and took treatment elsewhere at Bangalore. They have further stated that have no knowledge of averments of para 7 and 8 of the complaint so also para No.9 and 10 and stated that first opposite party hospital is having internal medicine managed by qualified physician. They have admitted to on 3-9-2007, had seen the complainant, as OPD consultation (not under emergency) who had approached them with low back pain and on review of old records also shown that the complainant had ankylosing spondilits and denied other allegations of para 12. They have further stated that, the complainant did not complain of chest pain except complaint of low back pain, blotin of abdomen for which appropriate medicine was prescribed and the complainant was not treated for chest pain as such there was no need for cardiac evaluation. Therefore denying negligence on their part and stated that if the complainant had complained chest pain the first party being a superficiality cardiac hospital would have treated the complaint in that regard and thus the opposite parties denying all other allegations and any deficiency on their part have approached for dismissal of the complainant.<br /> 3. In the course of enquiry into the complaint the complainant has filed his affidavit evidence reproducing what he has stated in the complaint he has also got filed the affidavit evidence pressed it. One DayaShankar Rao Opposite Party No.1, Opposite Party No.2 has filed their affidavit evidence reiterating what they are stated in their version. The counsel for the opponent he has subjected the complainant for the track examination similarly the counsel for the complainant cross examined Opposite Party No.2.<br /> 4. Heard the counsel for the both the parties and perused the records. The complainant has produced the out patient slip dated 4-9-2007 with prescription slip also produced certain reports of M.V diabetes clinic of Bangalore and also case sheet of Mahaveer Jain Heart Hospital. The opponents have produced the case sheet of the complainant when the complainant need vein treatment to them between 4-11-2005 to 5-11-2005.<br /> 5. On perusal of the above materials following points for determination arise.<br /> 1. Whether the Complainant proves that the Opposite parties when treated him on 3-9-2007 failed to diagnose his cardiac disorders as the result he was subjected to severe health hazzard and therefore the opponents have caused deficiency in their services?<br /> 2. Whether the complainant proves that he is entitle for relief sought for?<br /> 6. Our findings are as under:-<br /> Point no.1 : negative<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- It is the case of the complainant that he was a diabetic patient was diagnosed in the year 1996 and was on regular medication and follow up in M.V. Center, Bangalore. That in the meantime, he had H/o cough for 2 weeks non-productive, therefore approached the first opposite party for treatment of the same on 04.11.2005. He was admitted to that hospital with hypertension, diabetes and acute onset of breathlessness and was discharged on next day on 05.11.2005 by systematic advice with a caution that hypertension and diabetes were risk factor for developing heart attack. After he was discharged from the first opposite party, he was leading normal life. After that he was asked to go for review by the first opposite party after 3 months. That on 02.09.2007 he experienced sever chest pain at night, therefore on the next day morning that is on 03.09.2007 he was rushed to the first opposite party hospital with his wife and he was examined in the presence of second opposite party by a lady doctor examining blood pressure and heart rate except that no other diagnostic investigations were done. On that day, he was prescribed some pain killers Ganaton OD-15, Dulcolax Suppositaries-10, T-Retoz 90-6 and he was assured nothing to worry and he was hale and healthy. Then his wife contacted his son, Doctor Aveek Jayant, who insisted upon to take a second opinion from another cardiologist, then they went to Bangalore on 04.09.2007, finally approached Baghavan Mahaveer Jain Heart Centre, where through angiography they found out presence of single vessel disease in the left anterior descending artery, which was amenable to purcutaneous intervention. Therefore, contended that opposite parties without proper diagnose delayed and when he approached the doctors at Bangalore he had only a single diseased vessel, it was dilated and stented by the cardiology team and they explained to him the intervention would have limited impact on his heart, because the affected area had died and they also told him that he approached them after delay and therefore he had to undergo bypass surgery incurring expenditure of Rs.3,00,000/- and therefore stated that the opposite parties have caused deficiency in their service.<br /> 8. Whereas the opposite parties have denied any short of negligence on their part and they have contended that on 03.09.2007, the complainant approached them as an out patient with the complaint of lower back pain and they have stated that the complainant never approached them with any chest pain or cardiac problem. The complainant in the affidavit evidence also contended as if he had approached the opposite parties with chest pain, but the opposite parties have strictly denied contending that if the complainant had approached them with the chest pain and that first opposite party hospital being a specialty hospital for cardiac problems, they would not have refused to subject the complainant for necessary tests and therefore the opposite parties have relied upon the out patient slip and the prescription they had given to the complainant and stated that the tablets were prescribed as per Ex.C.2 for the complaint of lower back pain. The complainant has not placed any materials before us to prove that he had approached the opposite parties with any cardiac problem or chest pain. Admittedly the opposite parties have treated the complainant as an out patient and prescribed medicines for lower back pain. The second opposite party in the witness box has stated if the complainant had told them of any chest pain he would have advised for ECG and Eco-cardiogram. The complainant in the complaint and also in the affidavit evidence has admitted that he was examined by the opposite parties on 03.09.2007 and they prescribed certain tablets with an assurance that he will get the relief. The complainant has also admitted with that he experienced some relief. Here, the complainant is not a layman or an illiterate, he has been under treatment for his diabetic mellitus, hypertension and ankylosing spondylitis since many years and he was also monitored by his doctor son. If the complainant had approached the opposite parties on 03.09.2007 with the chest pain and if he had not been subjected to any tests pertaining to his cardiac problem, he would not have failed to tell to second opposite party as to what his problem was and to subject him for necessary tests, but the complainant with a knowledge of the examination done by the doctors of first opposite party and the prescription given was for his lower back pain, he did not ask the opposite parties to subject him to ECG or Eco-cardiogram, therefore we do not find any substance in the contention of the complainant that he had approached the opposite parties on 03.09.2007 with a complaint of chest pain.<br /> 9. The complainant has also produced the case sheet of first opposite party hospital for the period of 04.11.2005 and 05.11.2005, even at that stage he was subjected to several tests including ECG and Eco-cardiogram and at that time the first and second opposite parties did not find any abnormalities in the heart was treated with anti hypertensive and with other medicines and it is stated that his stay at their hospital was un eventful and he was discharged. Therefore, it is not that the complainant had previous history of any cardiac problem and it was within the knowledge of so that second opposite party and he should have take a note of it and subjected the complainant for necessary tests. It is further admitted by the complainant, after he got discharged after one day admission on 05.11.2005 he did not go to opposite parties for review and for further follow up action. Thereafter he only approached the opposite parties on 03.09.2007 even at that time, the complainant shown to had approached the opposite parties with lower back pain. Further, the second opposite party in the cross-examination volunteered that the complainant was a known diabetic patient, even if such patients go to him with different ailments he will treat them for their complained problems and at that time he do not evaluate their heart every time unless clinically it is necessary. Therefore, the doctors can attend to a patient who approached them with any complaint of ill health, concentrating on the complained issue and take up thorough investigations in that regard. If during the course of such investigations or tests if a doctor or doctors come across any other problems, they may also attend to those problems and take care of them. It is not even the case of the complainant that he under went a master check up with opposite parties, hence the case on hand it is evident that the opposite parties had no occasion to examine the complainant for chest pain or for cardiac problem that being so, the complainant cannot complain of any deficiency in the service of opposite parties.<br /> 10. Under the provisions of Consumer Protection Act deficiency in the service can be complained of whenever a consumer approached a professionalist for a specific purpose and paid consideration and if the professionalist after attending to the consumer, causes any short comings, omission or deficiency then that professionalist could be held as liable under the Act, but not in a case where the professionalist had not accepted the cause of the consumer and the consideration for it. In the case on hand, the complainant has failed to prove that he had paid any consideration to opposite parties for treating him for chest pain on the contrary materials placed by the opposite parties before this Forum only go to show that the complainant had approached them for lower back pain, who prescribed certain medicines and it worked well on the complainant so for as the back pain is concerned. It is not the case of the complainant that even the medicines given by the opposite parties to him on examination on 03.09.2007 did work adversely on the other hand the complainant has stated that he got the relief from those medicines. That being so, the opposite parties cannot be held deficient for the work or any act, they did not perform. <br /> 11. The learned counsel appearing for the complainant in the cross-examination of second opposite party suggested that the prescription of tablet Retoz should not have been prescribed to a heart patient and it is further suggested that because of the consumption of tablet Retoz, the complainant suffered the cardiac problem called Myocardial infraction, but the complainant has not produced any literature or examined any expert to prove that tablet Retoz should not have been prescribed and that has caused cardiac problem to the complainant. Learned counsel arguing that the opposite parties have caused deficiency in their service submitted that when the complainant approached the opposite parties with chest pain they did not take up necessary investigations and thereby exhibited negligence, which amounts to deficiency in their service and in support of his arguments relied upon decisions of Hon’ble National Commission reported in 2008(II) CPR page 16, then 2008(III) CPR page 64, then 2008 (III) CPR page 71 and 1992(1) CPJ page 47. We have stated above that the contention of the opposite parties that the complainant had approached them on 03.09.2007 with lower back pain and they accordingly treated him and prescribed the medicines. We have also held above that the complainant has not complained any deficiency so far as prescriptions of those tablets for the complained problem. Even assuming for a while that the complainant had complain to opposite parties about his chest pain, but the opposite parties did not treat him for his chest pain, the complaint may have a remedy else where for the professional omission. Therefore if a doctor had refused to treat a patient that omission cannot be questioned under the provisions of the Consumer Protection Act. If there is any short coming negligence or deficiency in discharge of the duties by the professionalists after accepting consideration, that would fall within the ambit of the Act As such, we do not find any merits in the contentions of the complainant that the opposite parties have committed negligence or deficiency in not treating him for his chest pain. The decisions relied on by the counsel for the complainant, have no application to the facts of this case. Because, in the first decision though the doctor treated the consumer there he had treated him for, which he had no experience or competence, as such, the doctor therein was held liable. In the second decision the doctor found prescribed medicines without proper advise as how and when the medicines are to be taken particularly knowing that the patient was an Alcoholic, as such that doctor there is held deficient. In the 3rd decision, the doctor prescribed anti tuberculosis treatment drugs meant for ATT without ordering appropriate tests and it had resulted in jaundice, therefore the doctor was found negligent in his action. The last decision as we have held has no bearing on the facts of this case, as such we find no merits in the complaint and that the complainant has failed to prove the deficiency in the service of the opposite parties, as such we answer point no.1 in the negative and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 14th October 2008)<br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />