Date of Filing : 13-10-2005 Date of Order : 11-08-2009 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C.No.158/05 Dated this, the 11th day of August 2009. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER P.A. Aleema, W/o. Lainakalillath Thidil Moideenkunhi, } Complainant Anwar Manzil, T.B.Road, Housdurg, Kasaragod.Dt. (Adv. K.M.Sreedharan, Hosdurg) 1. United Hospital and Research Centre, Rep.by K.S.H.C. Pvt.Ltd, National Highway-17, }Opposite parties Dwaraka Nagar, Kasaragod. 671121. 2. Dr.manjunatha Shetty.K.M. M.S., DNB, Urologist and Transplant Surgeon, United Hospital and Research Centre, NH-17, Dwaraka Nagar, Kasaragod. 671 121, (Adv.M.Mahesh, Kasaragod.) O R D E R SRI.K.T.SIDHIQ, PRESIDENT Bereft of unnecessaries the case of the complainant is as follows. 1. Complainant Aleema had a problem of kidney stone and for the removal of the stone she approached the opposite party No.2. On consultation opposite party No.2 evaluated the stone with the aid of scanning and diagnosed it as a 17mm calculus and advised E.S.W.L.(Extra corporeal Shock Wave Lithotripsy) for the removal of the stone. It is a non-invasive method of treating urinary stones by generating shock waves outside the body and focusing them on the stones. By this procedure, the stones are fragmented into pieces small enough to pass out of the body through normal excretory channels. After the ESWL procedure done on 4-7-05 the complainant discharged on 6-7-2005. At the time of discharge opposite party No.1 told that the stone in the left kidney is crushed. The discharge summary was not given and told that it will be given when the complainant comes for the removal of the tubes. Subsequently as part of review she consulted opposite party No.2. As per his advice X-ray taken and on perusing the X-ray opposite party No.2 suggested that small pieces of crushed stone is still in the kidney and same can be removed by key hole surgery. It was also told her that some times open surgery will be necessary to remove the crushed parts of the calculus. Feeling suspicious in the words of Opposite party No.2, complainant had another USG scan from Kanhangad Heart Care and Scan Centre and found that stone having the size of 17mm noted in the left kidney in the earlier scan report is still there without any change. Even then the complainant consulted opposite party No.2 for the removal of tubes on 22-7-05. On that day also opposite party No.2 repeated what was advised during the earlier review on 19-7-05. Since the tubes had to be removed, the complainant has not questioned opposite party No.2 and requested to give discharge summary and duty doctors report. But opposite party No.2 and the duty doctor told that the same will be given after next surgery. 2. According to the complainant opposite parties have committed deficiency in the treatment rendered to her. She had to spent Rs.7965/- towards the hospital bills and other charges. That apart she incurred Rs.4000/- various other counts. She was also forced to consume large quantity of medicines and underwent administration of anesthesia. The opposite party No.2 was negligent in treating her and he has not exercised due skill and care in the treatment. The opposite parties would have plainly and frankly told her that the stone was not crushed and its reason and the same can be done by subsequent attempt or another method. Instead they have suppressed the fact of failure of the crushing of the stone and told that the stone is crushed at the time of discharge and later told that the remnants of crushed parts are there and those are to be removed by another operation. The advise of opposite parties to undergo another operation by paying separate fees whereby they can actually crush the stone and remove during the second time was to knock out fees twice from the complainant. There is not only deficiency in the service but also cheating on the part of opposite parties. Therefore the complaint claiming a compensation of Rs.50,000/- from the opposite parties. 3 Opposite parties filed version. According to opposite parties complainant consulted second opposite party for treatment of her kidney stone. The preliminary X-ray taken showed rounded stone in the left kidney which appeared less dense and hence the fragmentation with E.S.W.L appeared bright and the complainant also opted a noninvasive therapy. All the details were discussed in the presence of patient with her son Anwar. Thereafter DJ stenting was done and lithotripsy performed under anesthesia. The post operative period was uneventful and the complainant was discharged on 6-7-05 with advise to come for check up. On 19-7-05 complainant came to the hospital and the check X-ray taken showed that the calculus had not fragmented and it was conveyed to the patient and her husband and suggested a second sitting to ESWL or PCNL (Percutaneous Nephro Lithotomy) for the removal of stone. Apprehending the failure of a second sitting of ESWL if performed, and for the total clearance of stone PCNL was the only option. All these observations were noted in the discharge summary. Thereafter on 22-07-05 the stent was removed. It was noted in the discharge summary and prescription for the medicine was handed over to the patient’s husband and the fact that a PCNL was necessary was reminded to both patient and her husband who replied they would do the same after some time. There was no negligence on the part of the second opposite party in treating the complainant and he has exercised due care and skill as could be expected from any other urologists in similar circumstances. Failure of ESWL is an accepted possibility in urologic practice and it is not due to any lack of care and caution in treating the complainant. The complainant is not entitled to get any amount as compensation from the opposite parties. The complaint is therefore liable to be dismissed with the compensatory cost of opposite parties. 4. Complainant as PW1 filed affidavit in support of her case reiterating what is stated in the complaint. Exts A1 to A8 marked. Her husband was examined as PW2. On the side of opposite parties opposite party NO.2 was examined as DW1 and Exts B1 to B3 marked. Dr.Laxman Prabhu examined as DW2. 5. Both sides filed notes of arguments. The documents were carefully perused. The main grievance of the complainant is that inspite of doing the treatment, the kidney stone, has remained there intact and there is no result on the treatment done by opposite party No.2. It is also her case that opposite party No.2 has failed to disclose the outcome of the treatment in a fool proof manner. According to complainant, after performing ESWL opposite party No.2 made her believe that the stone is fragmented and for the removal of the fragments a second sitting of ESWL is necessary. 6. According to DW2 after ESWL procedure he advised to take check X-ray to know whether the calculus is fragmented or not. He frankly deposed that on 19-7-05 alone after taking X-ray he came to know that the stone was not broken. He further deposed that after ESWL he advised to undergo PCNL since ESWL was a failure. 7. PW1 deposed that her complaint against opposite party No.2 is that inspite of doing the treatment the kidney stone has remained there and there was no result in the treatment done by opposite party No.2. Except this complaint she has no other complaint against opposite parties. 8. In the argument notes filed on behalf of the complainant the learned counsel for the complainant tried to maintain that on 4-7-05 i.e. on the date of ESWL itself in Ext.B1 case sheet the entries showed is that calculus looked fragmented. This was further strengthened by the entries made on 6-7-05. On 6-7-05 it was entered that after review X-ray after 2 weeks second sitting ESWL if calculus fragments remained. So what is mentioned is that the fragments remained and not the fact that the stone is not crushed. According to counsel for the complainant this entry supports of the case of complainant. 9. DW2 the expert witness deposed that after ESWL procedure the stone becomes swollen or enlarged and the same can be visualized with C-Arm and one can get a preliminary idea whether the stone is broken or not. DW2 further added that at the time of discharge the doctor and patient will get an out come of the treatment subject to confirmation. Even after confirmation there may be subtle errors. The out come of the treatment will be communicated either to the patient or to some responsible person relating to patient. Usually preliminary idea based in the data gathered from C-Arm findings and discussions with the patient if the patient is in hospital. Preliminary Idea is formed very carefully and without any negligence. Usually such preliminary idea will be correct. 10. So according to learned counsel for the complainant DW1 has not formed a preliminary idea or finding and he did not make an attempt to know the out come of procedure it amount to negligence or deficiency in service on the part of opposite party No.2. 11. On an overall considerations of the facts and circumstances of the case it is came out that the treatment (ESWL) administered to the complainant was not achieved its desired result. 12. But can the opposite party No.2 be saddled with any liability for such a failure of treatment is the important aspect to be determined in this complaint 13. The Hon’ble Supreme Court of India is a number of decisions had reiterated what is negligence and how far it can be applied in the case of medical men. In this case the complainant attributes negligence on 3 aspects. 1) The ESWL Therapy administered to the complainant was a failure 2) The opposite parties could not able to say about the outcome of the treatment at the time of discharge 3) Opposite parties failed to supply the discharge summary and other documents at the time of discharge 14. At this juncture it is worth to mention that it is the obligation of the hospital or the doctor who treated the patient to supply all the records containing the treatment given including the medicines administered, nurses flow chart the notes of duty doctors and specialists and also the nature of operation etc, The Regulations 1.3.2 of Indian Medical Council (Professional conduct, Etiquelte and Ethics) Regulations 2002 provides that if any request is made for medical records either by the patients/authorized attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours. Therefore in case of non-supply of those records adverse inference could possibly drawn with regard to deficiency in service at the time of discharge. 15. Now coming to the grievance of the complainant is concerned, ,after ESWL the opposite party No.2 told her that the stone is fragmented and opposite party No.2 recorded his findings in Ext.B1. So evidently there is an error of judgment. Can this be considered as negligence? Certainly not. 16. No doctor can assure cent percent positive result in the treatment rendered by him. Negligence in the context of the medical professions shall be treated with a difference. A simple lack of care or an error of judgment is not proof of negligence on the part of doctor. So long as the doctor follows a practice acceptable to the medical profession of that day he cannot be held liable for negligence merely because the treatment could not achieve the desired result. If the doctor takes a reasonable skill care& caution in the treatment he cannot be held liable for negligence. 17. In this case there are no incriminating evidence to show that the doctor had failed to discharge his duties below the standards which makes him liable for deficiency in service. But considering the fact that discharge summary is not supplied to the complainant at the time of discharge, we find deficiency in service on the part of opposite party No.2. Therefore opposite party No.2 is liable to pay compensation to complainant on that ground. We fix Rs.5000/- as compensation for the said deficiency in service. Therefore the complaint is partly allowed and opposite party No.2 is directed to pay Rs.5000/- to the complainant along with a cost of Rs.2000/-. Opposite party No.1 is exonerated from liabilities. Time for compliance is limited to 30 days from the date of receipt of copy of order. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1. 11-6-05 Report of USG Scan of Abdomen and Pelvis with photo. A2. 20-07-05 ,, ,, A3. (a) to A3(l) Cash receipts. A4. 30-07-05 copy of lawyer notice. A5.(a) & A(5) postal acknowledgement cards A6.31-08-05 reply issued by DrManjunathashetty.KM to Adv.K.M. Sreedharan A7. 6-10-05 Prescription of Dr.Vikram Irniraya.K. A8. 18-07-05 Prescription of Dr. Manjunatha Shetty.K.M. B1. Admission Record issued by United Hospital & Research Centre, Kasaragod. B2. Detailed telephone bills issued to Dr Manjunatha shetty. B3. ,, ,, PW1. Aleema. PW2. T.Moideenkunhi DW1. Dr.G.G.Laxman Prabhu DW2.Dr. Manjunatha Shetty, Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
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