KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No.02/2010

JUDGEMENT DATED: 07.06.2024

PRESENT:

COMPLAINANT:

(by Adv. C.S. Rajmohan & Nithya)

Vs.

OPPOSITE PARTIES:

(by Adv. Sreevaraham N.G. Mahesh)

JUDGEMENT

SRI. AJITH KUMAR  D.  :  JUDICIAL MEMBER

          This is a complaint filed under Section 17 of the Consumer Protection Act, 1986 alleging medical negligence against two hospitals and its doctors with respect to the treatment given to the mother of the complainant.

          2.       1^st opposite party is the Managing Director/Proprietor of Upasana Hospital.  2^nd opposite party is the Senior Consultant of the very same hospital.  The initial treatment was availed from the 1^st opposite party.  Subsequently, she was referred to the 3^rd opposite party, Holy Cross Hospital where she has been treated by opposite parties 4 and 5.

          3.       The averments contained in the complaint are as follows:

On 25.02.2009 the mother of the complainant, Smt. Anasuya Devi was admitted in the 1^st opposite party hospital on account of a minor injury on her scalp due to a fall.  Immediately after admission, CT scan, brain was taken and no abnormalities noticed.  The wound was sutured and antibiotics were prescribed.  She continued treatment under the 2^nd opposite party till 03.03.2009.  When she was admitted, she was suffering from recurrent vomiting.  But no proper treatment was given by the 2^nd opposite party.  Though the patient continued in the hospital for seven days, no x-ray, ultrasound scan, MRI or endoscopy was carried out by the 2^nd opposite party to find out the cause of vomiting and syncopial symptoms.  At the time of discharge also the patient was suffering from vomiting, syncopial symptoms and abdominal distension.  No proper medical care and investigation carried out by the 2^nd opposite party.  While she was in the hospital, she had 7 to 8 episodes of vomiting in a day with abdominal distension.  Ultimately, she was referred to the 3^rd opposite party’s hospital for gastro enterology assistance. 

4.       On reaching the 3rd opposite party’s hospital at about 5.45p.m., the 4^th opposite party, a junior doctor had advised ‘Ryles Tube’ for the removal of fluid from the stomach.  Without taking proper care and precautionary measures, the 4^th opposite party had negligently inserted the tube in order to remove the fluid from the stomach which caused vagal shock and aspiration that resulted in her death.  The 4^th and 5^th opposite parties were negligent in providing treatment which led to the death of the mother of the complainant. 

5.       The inexperienced junior doctor, 4^th opposite party had inserted the Ryles Tube in a negligent manner which is the cause of death.  Huge amount was paid by the complainant for the treatment.  The mother of the complainant had underwent mastectomy twenty five years ago and she got completely cured.  The complainant had filed a petition before the Superintendent of Police, Kollam alleging medical negligence.  She would seek for compensation to the tune of Rs.25,00,000/-(Rupees Twenty Five Lakhs only) from the opposite parties.

6.       The 1^st and 2^nd opposite parties had filed joint written version with the following contentions:

They would concede the fact that on 25.2.2009 Smt. Anasuya Devi was admitted in the hospital with a history of an injury on the scalp due to a fall.  She was under the treatment of the 2^nd opposite party for the past fifteen years.  She had cancer and calcium cyst (right breast) and has been on regular treatment from Uthradam Hospital, Thiruvananthapuram.  She was suffering from chronic peptic ulcer and she has been under the treatment of
Dr. Narendra Nath, former Professor and Head of the Department, Medical College, Thiruvananthapuram. 

7.       The 2^nd opposite party was her local Physician and has been under the regular follow up for ten years for peptic ulcer, cancer breast and associated problems, respiratory infection, viral fever and bowel irregularities.  She was hospitalised for treatment about a year back for abdominal problems.  The recent admission was for the injury on the scalp following giddiness on account of a fall.  Since she was having injury on the scalp, she was immediately referred to Dr. Karunakaran who was a reputed Surgeon attached to the 1^st opposite party.  The Surgeon attended her immediately after providing necessary sutures to the wound and follow up advice was given.  CT scan – brain was taken, blood routine examination, liver function test and renal function tests were also carried out.  She was provided with proper treatment during the aforesaid period and she had recovered fully and sutures removed and she was advised to continue supportive medicines and medicines for ulcer.

8.       She was taken to the hospital by Smt. Usha Rajan who is her first cousin.  Smt. Usha had signed the consent for the admission in all the relevant documents.  The 2^nd opposite party has been discussing the clinical status of the patient with Usha Rajan and she was discharged on 03.03.2009.   There were no bystanders by name Geetha and Leela as alleged in the complaint.  There was no negligence or lack of care on the part of the 1^st and 2^nd opposite parties in providing treatment to the deceased.  It is incorrect to state that no advanced treatment was given to the deceased.  There was no prima facie evidence or credible opinion regarding the cause of death of Smt. Anasuya Devi as no postmortem examination by an expert was carried out.  Without a postmortem certificate none of the allegations levelled in the complaint would stand. 

9.       On 03.03.2009 the patient was brought by Usha to the casualty.  The patient was complaining of vomiting and haematemesis and severe gastro-intestinal bleed due to peptic ulcer.  So emergency care was given and  referred to gastro-enterology surgeon for better management.  There was no act of omission or negligence on the part of the opposite parties 1 and 2.  The entire allegations incorporated in the complaint are specifically denied by the opposite parties. 

10.     The Police had conducted a thorough investigation and reported that there was no negligence on the part of the 2^nd opposite party with respect to the treatment of the deceased.  The opposite parties would seek for the dismissal of the complaint.  They had caused production of the true copies of the case sheet and the treatment records of the deceased along with the written version.

11.     The opposite parties 3 to 5 had filed joint written version with pleadings as hereunder:

The averments contained in paragraph 1 to 5 are not directly related to these opposite parties.  On 05.03.2009 late Smt. Anasuya Devi was admitted in the 3^rd opposite party’s hospital on an advice by the 2^nd opposite party.  As per the reference, it could be seen that the patient was admitted in the Upasana Hospital with a history of vomiting 7 to 8 episodes of one day duration.  The vomitus was blood stained and the patient had also abdominal distension and general weakness.   She was admitted and discharged on 03.03.2009 for syncopial episodes, following a scalp injury.  The allegation regarding the failure to provide proper care and caution to the deceased is denied.  At the time of admission, the patient was having haematemesis and abdominal distension.  Ryles Tube aspiration was done and 1100ml of brown coloured fluid drained.  Aspirate was positive for occult blood and she was then shifted to MICU.  Biochemical parametres and other blood investigations showed evidence of hypoxia, acute renal failure and sepsis.  She was given Cefotaxime injection, received IV fluids, PPI, injection Metoclopramide and oxygen inhalation by mask.  She was also seen by consultants from medical and surgical gastroenterology. 

12.     Poor condition of the patient was informed to the bystanders and relatives of the patient and advised them for a reference to the higher centre.  The case was discussed with doctors of the KIMS hospital.  Referral letter was also prepared.  The relatives of the patient had also consulted with the doctors of KIMS hospital.  But no steps were taken by the relatives or bystanders to shift her to the hospital.  The patient developed hypotension on 06.03.2009.  Nephrology consultation was done.  In view of hypotension and worsening of renal functions, pneumonitis, septicemia, metastasis was suspected.  Antibiotics was changed to injection Meropenem.  General condition and vitals deteriorated and the patient developed cardiac arrest at 1.45 p.m.  She was intubated and revived with CPR, injection Adrenaline and injection Atropine.  Ventilatory support was provided.  In spite of all medications and supportive measures, the patient expired at 8 p.m.

13.     The allegation that the 4^th opposite party had negligently inserted Ryles Tube is denied.  She had given the treatment with utmost care after taking proper precautionary measures.  The 4^th opposite party is a doctor having five years experience.  There was no negligence on the part of the opposite party.  There was no deficiency in service as alleged.  These opposite parties would also seek for the dismissal of the complaint.

14.     On the side of the complainant PWs 1 and 2 were examined.  Exhibits A1 to A8 were also marked.  Opposite parties had examined DW1 and DW2.  Exhibits B1 and B2 were marked.

15.     Heard the counsel for both sides.  Written notes of arguments filed. Perused the case records.

16.     Now the points that arise for consideration are:

1. Whether there is any deficiency in service on the part of the opposite parties?
2. Whether the complainant is entitled to get compensation and if so, what is the quantum?
3. Order as to costs?

Point Nos. 1 to 3

          17.     The complainant had sworn in as PW1 in support of the averments contained in the complaint.  Exhibit A1 is the copy of the case sheet pertaining to the deceased.  As per Exhibit A1 it could be seen that the deceased was admitted in the hospital on 25.02.2009 with a scalp injury on the right parieto occipital region.  There was a query in the admission as “syncope (2-3 episodes) old CA breast operated”.  She had complaints of vomiting and pain following the intake of papaya juice.  Exhibit A1 would reveal that the patient was discharged on 03.03.2009.  Exhibit A2 is the copy of the referral letter issued by the 2^nd opposite party on 05.03.2009 to the gastro-enterology of the Holy Cross Hospital.  Exhibit A3 is the death summary issued by the 3^rd opposite party hospital.  The treatments provided to the patient are seen recorded in A1.  Exhibit A4 is the certificate of death issued by the Registrar of Birth and Death Adichanalloor Grama Panchayat that the deceased had succumbed to death on 06.09.2009 at the Holy Cross Hospital, Kottiyam.  Exhibit A5 is the copy of the death certificate pertaining to the husband of the deceased.  Exhibits A6 and A7 are one and the same which are the copies of letter issued by the Deputy Superintendent of Police, Kollam.  After conducting a detailed enquiry, the Police came to a conclusion that there was no negligence on the part of the opposite parties in rendering treatment to the deceased mother of the complainant.  Exhibit A8 is the copy of the letter sent by the complainant to the Minister of Health, Government of Kerala to conduct a detailed investigation with respect to the cause of death of his mother.

          18.     The 2^nd opposite party has testified before the Commission as DW1.  Exhibit B1 is the copy of the case sheet of the deceased.  The 5^th opposite party was examined as DW2.  Exhibit B2 is the case sheet maintained by the 3^rd opposite party with respect to the deceased.

          19.     The complainant would allege medical negligence against the 2^nd opposite party for the reason that no advance treatment such as x-ray, ultrasound scan, CT scan, MRI or endoscopy was done, though the patient was suffering from vomiting with syncopial symptoms.  According to the complainant there was total negligence on the part of the 4^th opposite party as she had negligently inserted the Ryles Tube for the removal of fluid from the stomach.  When the Ryles Tube was inserted, the patient collapsed and was immediately shifted to the ICU.  He would allege that the 5^th opposite party without examining the patient had entrusted 4^th opposite party,a junior doctor to insert the Ryles Tube to remove the fluid which had caused in her death. 

20.     According to the complainant, the version filed by the opposite parties 3 to 5 would clearly show that the deceased had 7 to 8 episodes of vomiting.  Even then, no proper treatment was given.  When the patient was discharged, in the discharge summary syncopial episode following vomiting and abdominal distension was noted.  According to the complainant, the testimony of the bystander who was examined as PW2 would prove the negligence on the part of the 1^st and 2^nd opposite parties.

21.     PW2 would state that when the deceased while undergoing treatment, was suffering with acute abdominal pain and even on consuming a spoon of liquid vomiting had occurred.  When she complained these facts to the nurses, they had advised her to administer Gelusil.  Blood stain was noticed in the vomitus when Ryles Tube was inserted.   The complainant would allege that there was dereliction on the part of DW1 in not prescribing endoscopy though the patient was suffering from chronic peptic ulcer as deposed by him. 

22.     According to the complainant the evidence on record would convincingly prove that the death of his mother occurred only on account of medical negligence on the part of the opposite parties in not providing proper treatment. 

23.     No postmortem examination was conducted.  There is no authentic document produced in support of the complaint to prove the actual cause of death.  No expert evidence is also forthcoming for substantiating the case of medical negligence.

24.     According to the opposite parties, the testimony of PW2 cannot be accepted as she was not a bystander as claimed by the complainant.  In Exhibit A1 one Usha Rajan was shown as the person who came along with the patient.  The evidence tendered would show that Smt. Usha Rajan was the real bystander.  PW2 is an interested witness who is none other than the employee of the cousin of PW1.  Evidence was adduced to prove that the deceased had underwent treatment for breast cancer and her right breast was removed.  It is also revealed that she has been undergoing treatment for peptic ulcer under Dr. Narendra Nath.  DW1 had given evidence that while the patient was in his hospital, she was allowed to take medicines as prescribed by the gastro-enterolgist, Dr. Narendra Nath.

25.     The complainant has no direct knowledge about the treatment given to the deceased as he was abroad at that point of time.  The complainant attributed medical negligence on the part of the opposite party in not conducting endoscopic examination.  According to DW1 endoscopic examination is an invasive procedure and it involves risk and as per his assessment there was no necessity for conducting endoscopy.  He did not resort to such a procedure as the patient was already undergoing treatment for peptic ulcer by a competent doctor.  DW2 has also given evidence with respect to the treatment given by him.

26.     When medical negligence is attributed, the initial burden is upon the complainant to adduce clear and cogent evidence and establish that there was negligence on the part of the doctors in providing the treatment.  The counsel for the opposite parties would place reliance upon an order of the National Commission reported in 2011 NCJ 673(NC) in “H.R.Megh Vs Dr.Chhachi Nursing Home”  the National Commission was inclined to hold that the Consumer Commission has to obtain expert opinion in each case of medical negligence as the expert opinion implies independent opinion which assumes propriety and impartiality. 

27.     A decision of the Supreme Court reported in (2010) 3 SCC 480 Kusum Sharma Vs. Batra Medical Research Centre & Ors. is also cited to argue that an expert professional from medical field would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

28.     The evidence adduced would reveal that Smt. Usha Rajan was the most crucial witness who was present when the deceased was admitted in the 1^st opposite party’s hospital.  The non-examination of the above witness is suspicious.  The complainant had examined PW2 who is an interested witness being a worker of the close relative of the complainant.  Exhibits B1 and B2 would show that all possible medical attention and treatment were given to the deceased when she was admitted to the hospitals. 

29.     Expert opinion is inevitable in deciding the case of medical negligence.  From the evidence tendered by the opposite parties through the testimony of DWs 1 and 2 coupled with exhibits B1&2 one can reach a conclusion that the doctors had provided treatment as per the medical protocol and there was no negligence on their part in providing treatment to the deceased.  The demise of the patient cannot be the sole criterion to reach a conclusion that the doctors were negligent.  An investigation was conducted by the Police with regard to the allegations of medical negligence and they reached a conclusion that there was no negligence on the part of the doctors in providing treatment to the deceased.  On a careful consideration of the entire evidence adduced we have reached a conclusion that the complainant has miserably failed to prove any deficiency in service attributed against the opposite parties.  Points are hence answered against the complainant.

In the result, the complaint is dismissed.  Parties shall bear their respective costs. 

SL

C.C.No.02/2010

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

  JUDICIAL MEMBER