FA.NO.89 OF 2005 AGAINST C.D.NO.609 OF 2003  District  Forum-I, Hyderabad.   

Between:

Nikil Super Speciality Hospital,

Rep. by its Managing Director,

Dr.Venkateswara Rao, aged 50 years

Gaddiannaram X Road,

Dilsukhnagar, Hyderabad-36                                 Appellant/

                                                                        Opp.party No.1

        AND

1. V.Kishan Rao,

    S/o.V.V.Rama Rao, aged 54 years,

    Govt. Service, R/o.Flat No.103,

    Gokul Ravi Apartments,

    Moosarambagh, Hyderabad036                          Respondent/

                                                                        Complainant

2.  New India Assurance Company Ltd.,

     Divisional office 5-2-1/4/2,

     Madan Mohan Building,

     R.P.Road, Secunderabad.                                 Respondent/

                                                                        Opp.party No.2

Counsel for the Appellant     : M/s.V.Gourisankara Rao.                                                                                                                                                                                                                                                                                                                                                                                                                                                    

Counsel for the Respondents:Mr.D.Jagadeeshwar Rao-R1

                                     M/s.S.N.Padmini-R2

FA.NO.1066 OF 2005 AGAINST C.D.NO.609 OF 2003  District  Forum-I, Hyderabad.   

Between:

The New India Assurance Co. Ltd.,

Divisional office 5-2-114/2,

Madan Mohan Building,

R.P.Road, Secunderabad.                                          Appellant/

    Opp. Party No.2        

And

1. V.Kishan Rao,

    S/o.V.V.Rama Rao, aged 55 years,

    Govt. Service, R/o.Flat No.103,

    Gokul Ravi Apartment,

    Moosarambagh, Hyderabad.

2. Nikil Super Speciality Hospital,

    Rep. by its Managing Director,

    Dr.Venkateswara Rao,

    Gaddiannaram Cross Road,

    Dilsukhnagar, Hyderabad.                                 Respondents/

                                                                        Complainants

Counsel for the Appellant     : M/s.S.N.Padmini                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

Counsel for the Respondents:Mr.Jagadeeshwara Rao –R1

                                     M/s.V.Gourisankara Rao-R2

      QUORUM:THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

                                                                AND

                              SMT.M.SHREESHA, MEMBER

FRIDAY, THE THIRTY FIRST DAY OF OCTOBER,

TWO THOUSAND EIGHT.

Oral Order :  (Per Smt.M.Shreesha, Hon’ble Member)

                                                                        ***

Aggrieved by the order in C.D.No.609/2003 on the file of District Forum-I, Hyderabad, opposite party No.1 preferred F.A.No.89/2005 and opposite party No.2 preferred F.A.No.1066/2005.  Since both the appeals arise out of the same C.D., they are being disposed of by a common order.

The brief facts as set out in the complaint are that the complainant, an officer in  Malaria Department admitted his wife in opposite party No.1 hospital on 21-7-2002 as she was suffering from high fever.  Opposite party made all necessary tests and opined that the patient had no malaria as their reports showed negative for malaria and started giving treatment for typhoid.  The complainant submitted that the patient did not respond to the medicines given by opposite party hospital and that opposite demanded huge amounts which were deposited by the complainant.  The complainant submitted that on 22-7-2002 opposite party injected saline to his wife but there were some particles in it and the same was brought to the notice of the opposite party hospital authorities.  The complainant submitted that on 23-7-2002 his wife complained of bad respiration and the complainant informed the same to hospital authorities, who immediately gave artificial oxygen.  The complainant submitted that he asked the hospital authorities to remove oxygen at it was not necessary at that particular stage but the hospital authorities without ascertaining the problem orally instructed the duty nurse to put artificial oxygen.  The complainant submitted that his wife was not having sufficient blood in her body and the opposite party hospital authorities were negligent in providing blood to her and though his wife was not responding to the medicines given by them and her condition was deteriorating day by day.  Therefore, the patient was shifted from opposite party hospital to Yashoda hospital, Malakpet where the Yashoda hospital authorities after conducting necessary tests came to the conclusion that the patient was suffering from malarial fever and that it was high time that the patient could be saved.  Ultimately the complainant’s wife died with cardiac arrest and with MOD’s Falciporal Malaria. 

The complainant submitted that the opposite party hospital authorities voluntarily decided to shift the patient from their hospital to Yashoda hospital and submitted that his wife was clinically dead in opposite party hospital itself and that Yashoda hospital authorities tried their best to save her.  The complainant submitted that opposite party hospital authorities have wrongly diagnosed the patient and gave treatment for typhoid when she was suffering from malaria.  Further the medicines provided by opposite party hospital authorities are found to be locally manufactured and have no value and importance.  The complainant further submitted that along with his wife, he admitted his daughter also in the opposite party hospital and she was also wrongly diagnosed but later she was also shifted to Yashoda Hospital where she was treated and survived by the said hospital authorities.   The complainant submitted that opposite party hospital is not having proper techniques and equipments and the signatures put by them on the pathology report is done by somebody else without proper experience.  The complainant submits that there is deficiency of service and negligence on the part of the opposite party and the death of his wife occurred due to negligent services of opposite party in treating the patient for typhoid fever when she was a victim of malaria. Hence the complaint for a direction to the opposite parties to pay compensation and damages of Rs.4,75,000/-, to refund Rs.20,000/- paid to opposite party and costs of the complaint.

Opposite party No.1 filed counter stating that the complainant’s wife was admitted in their hospital on 20-7-2002 in a bad condition with high fever at 3.00 p.m.  All necessary tests i.e. CPB, CUE, Malarial parasite test, typhoid test, blood sugar test, S.Electrolytes, ECG & Chest X ray and ESR test were done.  In CBP test it was found that the hemoglobin was 8.8% and blood sugar was found to be 200 mg. The liver function test was done on 21-7-2002 wherein it was found that the patient was suffering from Jaundice and typhoid.  They denied that they collected huge amounts from the complainant.  They submitted that the complainant paid Rs.1,000/- as advance and also denied that saline had anti bodies in the bottle and submitted that I.V.fluids and medicines used by them were of reputed brands.  Opposite party submits that after considering all the above reports, opposite party advised the patient and the complainant for anti-diabetic treatment but they refused to follow the instructions advised by the doctors stating that she is already taking treatment from outside doctors.  On 20-7-2002, Dr.Rajanadam, Consultant Physician of opposite party examined the patient and advised various investigations  but the patient and the complainant refused to undergo the tests stating that the patient was brought only for simple fever and all these investigations are not at all necessary.  Though the patient is a know hypertensive and tests already done revealed sinus Tachycardia, ventricular Ectopics, Liver function test and ultra sonograph abdomen test revealed that the patient had jaundice and Hepato Spleno Megaly which is associated with hypertension and diabetis in a serious condition but the complainant and the patient did not co-operate with the opposite party and the consultant and did not allow them to give necessary treatment stating that the patient was brought only for fever and it is the duty of opposite party and doctors to treat only for fever and not for related diseases.  The attitude of the complainant and the patient made it very difficult for the opposite party and the doctors to manage such high risk cases.  Opposite party submitted that on 21-7-2002, Dr.Uma Devi, Consultant Gastroenterologist spoke to the complainant  personally and informed the cardiac status and the condition of the patient but he refused saying that she is already investigated by Dr.Sampath Kumar, Cardiologist and nothing need to be done in opposite party hospital.  Day today progress of the patient was informed to the complainant by opposite party and its doctors and the complainant did not co-operate with the doctors.  Opposite party submits that as per their reports, the patient was having decreased Hb% and in view of the fact that the patient was suffering from jaundice and typhoid, it was not advisable to transfuse blood.  On 24-7-2002 doctors suggested to do test for blood sugar and serum electrolyte but the same was refused by the complainant  and doctors suggested for I.V.fluids but the patient refused.  On 24-7-2002 patient developed retro sternal pain and was put on oxygen and necessary medicine given and risk explained to complainant and at the stage the complainant wanted to shift to Yashoda Hospital and according the patient was shifted  and a doctor of the opposite party also accompanied the patient to Yashoda Hospital to help the patient  to get immediate medical care without any delay.  They denied that they did not diagnose the patient properly and submitted that the patient originally suffered from jaundice and typhoid but subsequently developed malarial fever also and submitted that they have provided best treatment and taken all precautions and care  in treating the complaint and prayed for dismissal of the complaint.

Opposite party No.2  filed counter denying the allegations made in the complainant and submitted that the complainant’s wife was admitted in the hospital and all tests including gall bladder, kidneys were conducted and it was opined by opposite party No.1 hospital that the patient had no malarial fever as the reports also show negative for malaria.  Hence they started giving treatment for typhoid as per the advice of the doctors. They further submitted that the complainant has no locus standi to seek relief from them and if opposite party No.1 issued a policy called Professional Indemnity Policy and as he is denying medical negligence on his part, the policy will not come into operation and submitted that there is no privity of contact between the complainant and them and sought for dismissal of the complaint.

Based on the evidence adduced i.e. Exs.A1 to A37 and B1, deposition of R.W.1 and the pleadings put forward, the District Forum allowed the complaint in part directing opposite parties 1 and 2 to pay Rs.10,000/- towards medical expenses together with compensation of Rs.2,00,000/- and costs of Rs.2,000/-.

Aggrieved by the said order, opposite party No.1 preferred F.A.No.89/2005 and opposite party No.2 preferred F.A.No.1066/2005.

The learned counsel for opposite party No.1 contended that the complainant has not adduced any opinion of expert nor examined any expert to establish that the services rendered by him suffer from deficiency and relied on the judgement of Hon’ble National Commission wherein it was held that medical negligence cannot be presumed and  that the same has to be established by adducing evidence of an expert.   They submitted that all necessary investigations were carried out at the time of admission and the complainant signed Ex.B1 case sheet giving his consent for treatment at the time of admission.  They submitted that at the time of admission, the patient had fever since one week, vomiting, loose motions 3 days back, fever with chills, body pains, head ache, fever was intermittent.  History of the patient shows that she is Hypertensive, diabetic for which regular treatment  was taken.  The provisional diagnosis was Pyxexia for evaluation + HTN with D.M. with Malaria.  The investigations carried out at opposite party No.1 hospital revealed that malarial parasite was negative and Widal test STO indication of Typhoid fever.  The E.C.G. reports revealed that the patient was suffering with Sinus Tachycardia ventricular ectopics.  Ultra sound scanning revealed that the patient suffered from Hepato Megaly (enlargement of liver).  They submitted that at the time of admission while prescribing 4 other injections and I.V.fluids and duty doctor also prescribed and administered Inj. Lariago for malaria.  Later on the patient was examined by a Physician, Dr.Rojanandam  and at the time of his inspection, there were no chills and he advised various investigations and he diagnosed that the patient was suffering with Hypertension with pyrexia, Hepatitis with Detxydration.  Dr.Rojanandam M.D. advised 2-D echo of the heart and LFT but the complainant refused to refer his wife to 2-D echo and cardiologist opinion and therefore he referred the patient to Gastro-Enterologist and cardiologist opinion.  The patient was seen on 21-7-2002 at 8-00 p.m. by Dr.Umadevi, Gastro-Enterologist and she advised ultra sound scanning, P.T. tests, motion tests, HBSAG, 2-D echo anti HEG,  and she diagnosed that the patient was suffering with typhoid, toxic hepatitis or acute chloctysistis.  Dr.Umadevi also recorded in the case sheet that the husband of the patient was informed about cardiac status but he refused to take the opinion of Cardiologist stating that the patient was already investigated by Dr.Sampath Kumar.  They submitted that the patient was examined and monitored from time to time but the complainant and his wife were not co-operating with the treating doctors and refused to take oral and I.V. fluids from previous day and upon persuasion by Dr.Umadevi they agreed to undergo only serum Billy investigations though RBS repeat LFT, serum electrolytes were advised.  In view of failure on the part of complainant and her husband to undergo necessary investigations and to take oral and I.V. fluids inspite of best treatment and care, the patient was sweating at 9.30 am. and was shifted to A.M.C. but even by 12.20 p.m as her condition was not improving the patient was shifted to Yashoda Hospital, Malakpet at 12.30.  The counsel for opposite party No.1 submitted that history of patient and Ex.A26 death summary clearly reveal that the patient was administered inj. Chloroquine among other drugs and Inj.chloroquine is nothing but the generatic name of Inj.Lariago.  He also submitted that the District Forum committed material irregularity and illegality in relying upon the sole sentence from evidence of R.W.1  that “I have not treated the case for Malaria fever”.  He submitted that R.W.1 is the Managing Director of O.P.No.1 hospital, who gave affidavit and hence he was examined but he never treated the patient, Dr.Rojanandam and Dr.Umadevi and other duty doctors treated the patient  and he also stated ‘that the deceased was treated by a physician’ and relying on the first sentence the District Forum allowed the complaint.  He submitted that there is incubation period of malarial parasite and blood test for malarial parasite on one day may not manifest in the presence of malarial parasites may accept later on.  As such the District Forum cannot say that Ex.A1 report of Yashoda hospital was right and allow the complaint and prayed to allow the appeal.

The learned counsel for opposite party No.2 submitted that the District Forum erred in allowing the complaint and by fixing the liability against the insurance company along with opposite party No.1 though there is no liability whatsoever against them. Opposite party No.2 submitted that in the counter of opposite party No.1, he denied any negligence in treating the wife of the complainant and therefore claiming any benefit under the said policy does not arise..  The evidence of R.W.1 shows that as per the tests conducted by them, the patient is not suffering from Malaria, therefore, they did not treat her for Malaria and the treatment was given for typhoid, and Forum observed that there is negligence on the part of opposite party No.1, which is not sustainable.  The learned counsel for opposite party No.2 further submitted that the patient is a diabetic and suffering from Jaundice and died due to cardiac respiratory arrest, therefore, it cannot be held that there is negligence on the basis of unproved medical reports alleged to have been taken at Yashoda Hospital as the reports showed that the patient suffered from Malaria etc.  The learned counsel further submitted that the complainant failed to file any report from any competent doctor to show that his wife died due to negligence and for the wrong treatment on the part of opposite party No.1 and he did not choose to examine any of the doctors who treated her at Yashoda Hospital to prove that his wife died due to negligence of opposite party No.1 alone.  He also submitted that the District Forum failed to give any reason whatsoever for fixing compensation of Rs.2,00,000/- and prayed to allow the appeal.

The facts not in dispute are that the patient was admitted in opposite party No.1 hospital on 21-7-2002 at 3.00 p.m. with high fever and all tests like C.B.P., C.U.E., Malaria, Typhoid test, blood sugar, E.C.G., chest x-ray and E.S.R. were done.  At the time of admission, the patient had fever since one week, vomiting and loose motions  since three days, chills, body pains and head ache.  The patient’s history shows that she is hypertensive and diabetic for which regular treatment was taken.  The provisional diagnosis was pyrexia with Hypertension, D.M. and Malaria.  It is the case of the complainant that opposite party No.1 opined that the patient had no malaria as their reports showed negative for malaria and started treatment for Typhoid and that the patient did not respond to any of those medicines and on 22-7-2002 i.e. the next day after admission, opposite party No.1 injected saline which had some particles in it.  The complainant further submitted that on 23-7-2002, his wife complained of bad respiration and the same was informed to the hospital authorities, who gave artificial respiration.  The complainant further submits that since the patient’s condition was deteriorating from day today, the patient was shifted from opposite party No.1 hospital to Yashoda Hospital on 24-7-2002 and ultimately the patient died with cardiac arrest,  MOD and flasiforial Malaria.  The learned counsel for appellant/opposite party No.1 submitted that the investigations carried out at their hospital revealed that Malarial parasite was negative and widal test was indicative of Typhoid.  E.C.G. reports reveal that the patient was suffering from sinus tachycardia ventricular ectopics.  The patient also suffered from enlargement of liver.  The physician examined the patient and as there were no chills at that time, he advised various investigations and diagnosed that the patient was suffering with pyrexia and Hepatitis but never stated that the patient was suffering from Malaria.  It is the appellant/opposite party No.1 case that the complainant refused to refer his wife to 2 D echo and Cardiologist opinion. The patient was referred to a Gastro-Enterologist and was seen on 21-7-2002 by the Gastro-Enterologist, who advised ultra sound scanning, P.T, motion test, 2-D echo and diagnosed that the patient was suffering from Typhoid, toxic hepatitis and acute cholecystitis.

It is the appellant/opposite party No.1 case that the complainant and the patient did not co-operate with the treating doctors and refused to take oral and I.V. fluids and refused to undergo the necessary investigations.  The learned counsel for appellant/opposite party No.1 submitted that the District Forum only based their conclusion on the evidence of R.W.1, who stated that ‘he has not treated’ the case for Malarial fever.  R.W.1 is the M.D. of opposite party hospital, who has never treated the patient and it is the physician, who has treated the patient.  It is the appellant/opposite party No.1 case that there is incubation period for the malarial parasite and the blood test for malaria parasite on one day may not manifest in the report.  In Ex.A26, which is Yashoda hospital death summary, in the patient history of illness, it is stated that patient had fever since 8 days, dysnea  and was treated with Monocef, Cifran and Chloroquin.  The patient is a known diabetic and not hypertensive.  The contention of the complainant that opposite party No.1 hospital did not treat the patient for Malaria is unsustainable on the ground that the very discharge summary of Yashoda Hospital wherein the patient was shifted on 24-7-2002 stated that the patient was treated with Monocef, Cifran and Chloroquin.  Chloroquin is a drug admittedly used for Malaria.  There is also no expert opinion to state that the line of treatment adopted by appellant/opposite party No.1 hospital is wrong or is negligent.  The District Forum relied on the deposition of R.W.1 wherein the M.D. of opposite party No.1 hospital stated that he has not treated the case for malarial fever but just below this statement, he also stated that the patient was treated by the physician.  We also observe from the record that investigations conducted i.e. Ex.A17 showed malarial parasite negative and Ex.A18, which the C.B.P. showed the hemoglobin 8.8 gms% and E.S.R. was 130 mm. Ex.A19 is the blood sugar report.  The liver function test, E.C.G., chest x-ray, and ultra sound scanning were also done as per the case-sheet.  In the treatment advised, inj. Lariago is also given as per Page 3 of the case sheet.  Therefore, on the basis of investigations made, we conclude that even though the initial investigations showed negative for malaria, the appellant was diligent in treating the patient for malaria as inj. Lariago was prescribed along with I.V.Cifran, Pantocid and therefore the contention of the complainant that the patient was not treated for Malaria and treated only for typhoid cannot be sustained.  To reiterate, the discharge summary of Yashoda hospital wherein the patient was shifted on 24-7-2002 and died also says that the patient was treated by chloroquin which is an anti malarial drug.  Exfacie, we do not see any negligence on behalf of appellant/opposite party No.1 and it is for the complainant to establish that the doctor has not undertaken the duty of care which he ought to have done as per the standards of medical parlance. 

We rely on the judgement of the apex court with reference to duties of the doctors to the patients, the National Commission in TARUN THAKORE v. Dr.NOSHIR M.SHROFF in O.P.No.215/2000 dated 24-9-2002 reported in Landmark judgements on Consumer Protection P-410 held as follows:

            “The duties which a doctor owes to his patient are clear.  A person who holds himself out ready to give medical advise and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose.  Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.  A breach of any of those duties gives a right of action for negligence to the patient.  The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.  Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires”

In INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 the court approved a passage from Jackson and Powell on Professional Negligence and held that”

            “The approach of the courts is to require that professional

            men should possess a certain minimum degree of competence

            and that they should exercise reasonable care in the discharge

            of their duties.  In general, a professional man owns to his client

            a duty in tort as well as in contract to exercise reasonable care in

            giving advise or performing services”.

Supreme Court then opined as under:

            “The skill of medical practitioner differs from doctor to doctor.  The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient.  Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution.  Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence”.

Based on the evidence adduced, the material on record and the pleadings put forward, we are of the opinion that the complainant has failed to establish that there was any negligence on behalf of appellants/opposite parties and therefore  F.A.No.89/2005 is allowed.  F.A.No.1066/2005 is appeal preferred by the insurance company to indemnify the appellant/opposite party for the policy taken by him.  Since the complainant has failed to establish any medical negligence against appellant/opposite party No.1 and as F.A.No.89/2005 is allowed, F.A.No.1066/2005 is also allowed accordingly.

In the result both the appeals are allowed and the order of the District Forum in C.D.No.609/2003 is set aside.  There shall be no order as to costs.

                                                                                    PRESIDENT.  LADY MEMBER.

                                                                                                 Dt. 31-10-2008.