Kerala

StateCommission

A/13/496

M/S NIRMALA MEDICAL CENTRE - Complainant(s)

Versus

V.P. GOPALAKRISHNAN - Opp.Party(s)

GEORGE CHERIAN KARIPPAPARAMBIL

27 Nov 2014

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL NO.496/2013

JUDGMENT DATED :27.11.2014

 

(Appeal filed against the order in CC.No.360/2011on the file of CDRF, Ernakulam order dated : 13.02.2013)

 

PRESENT

 

SRI.K.CHANDRADAS NADAR             : JUDICIAL MEMBER

 

1. M/s.Nirmala Medical Centre,

Muvattupuzha – 686 661

Rep.by administrator,

Sr.Joviet,

D/o.Joseph                                                          APPELLANT

 

2. Dr.Sony P.Jacob

Cardiologist,

M/s.Nirmala Medical Centre,

Muvattupuzha – 686 661

 

(By Adv.Sri.S.Reghukumar &

Adv.Sri.S.George Cherian

Karippaparambil)

 

VS.

 

V.P.Gopalakrishnan,

S/o.Parameswaran,

Vachalil,

Poovakkulam kara,                                               RESPONDENT

Veliyannoor Panchayat,

Kottayam District

 

 

 

 

JUDGMENT

SRI.K.CHANDRADAS NADAR    : JUDICIALMEMBER

          Appellants were the opposite parties in CC.No.360/2012 in the CDRF, Ernakulam. The complainant alleged that he approached the Kooothattukulam Co-operative Hospital for treatment when chest pain developed due to gas trouble on 14.07.2009. They referred him to a cardiologist and accordingly on 15.09.2009 the complainant consulted the second opposite party a cardiologist in the first opposite party hospital. Without conducting any medical test, the second opposite party admitted the complainant in the ICU of the hospital and treated him for seven days as inpatient. The complainant continued treatment for a month. There after on 10.08.2008 the complainant approached the cardiology department in the Medical college hospital, Kottayam. They conducted necessary tests. Upon conducting tests like ECG. Echo, TMT and Blood test, it was found that no treatment was necessary. The complainant had to suffer lot of inconvenience and financial loss due to the careless treatment of the opposite parties. Hence he sought a compensation of Rs.4,19,318/-.

          2.      The opposite parties in their version admitted that the complainant approached them on 15.07.2009. Dr.James Mani, a Civil Surgeon suspected ischaemic heart disease and referred him. On the same day he consulted the physician in Rajeev Gandhi Co-operative Hospital Koothattukulam. He also suspected ischaemic heart disease. Both doctors have prescribed cardiac medication. The patient was a chronic smoker with history of two episodes of epigastric discomfort, On admission ECG was taken which showed no significant changes. But the follow up two ECGs had clearly shown high possibility of coronary heart disease unstable angina. Since the patient was presented with clinical history with significant ECG changes, Stress ECG (tread mill test) was not advisable. As per the standard practice TMT is to be done in the follow up treatment period. Considering the associated acid peptic disease (ulcer) tablet aspirin was continued and antacid was started. The second opp.party gave standard treatment to the complainant. Opp.parties charged only Rs.5313/- towards treatment Rs.4,19,318/- is claimed as compensation without any basis. There was no deficiency in service on their part.

          3.      Before the consumer forum the complainant gave evidence as PW1. Exts.A1 to A6 were marked on his side. The second opposite party gave evidence as DW1. One witness was examined on the side of the opposite party as DW2. Ext.B1 was marked on their side. The consumer forum after referring to Supreme Court decisions and the evidence recorded observed thus “relying on the reliable dicta of the higher wisdom of the upper judiciary, we are unable to sustain the cause of the complainant since it run contra. ". But went on to direct refund of hospital expenses of 4,435.22 and payment of compensation of Rs.20,000/- observing that the complainant had to go through unnecessary inconvenience due to the deficiency in service on the part of the opposite parties. But the actual finding appears to be that there was no deficiency in service. The opposite parties challenge the correctness of the conclusion of the consumer forum. The short question is whether the order of the consumer forum can be sustained.

          4.      The complainant has produced Ext.A1 discharge summary issued from the department of cardiology of the first opp.party hospital. It is seen that he was admitted in the said hospital on 15.07.2009 and was discharged on 21.07.2009. It is noted that he had history of epigastric discomfort and he was a  c/c smoker. It is seen from the discharge summary itself that investigations were done relating to his blood and the test results are noted. Further ECG and two repeat ECGS were done. The patient was admitted and was finally discharged when stabilized and ambulated. The grievance of the complainant is that the opposite parties rushed to the conclusion that he had cardiac problems without doing necessary tests and was given medicines for cardiac problems. This according to the complainant was quite unnecessary and put him to unnecessary sufferings and financial loss. It is his further case that the doctors at Kottayam Medical College correctly diagnosed that there was no heart problem for him. So the deficiency in service alleged is incorrect diagnosis of his ailment. Ext.A3 are two op tickets respectively dated 10.08.2009 and 07.10.2009 issued from the Medical College Hospital, Kottayam. In the op ticket dated 10.08.2009 clinical history is noted as unstable angina on 14.07.2008 and diagnosis was epigastric discomfort. It is also pertinent to notice that as PW1 the complainant admitted that actually he approached Rajeev Gandhi Co-operative Hospital, kotthattukalm first and the civil surgeon had suspected heart ailment for the complainant. He was referred to a cardiologist. Instead of going to a cardiologist immediately he consulted his family surgeon Dr.James Mani, who also gave the same advice to consult a cardiologist. It was accordingly, the complainant approached the opposite parties. It is not that no test at all was conducted before prescribing medication for angina. The complaint is that all the tests like Echo cardiogram, and TMT were not done before prescribing the medicines. But for that matter a decision is not possible without having regard to the nature of the ailment suspected. A treadmill test is not advisable when cardiac problem is suspected until it is stabilized. So also it would not be desirable to give no treatment at all till all the tests were done. When a doctor having regard to all clinical symptoms and necessary tests suspects unstable angina there is no other option but to start treatment immediately. That alone was done by the opposite parties in this case. The question is as observed by the consumer forum itself relying on the decision of the apex court in Jacob Mathew Vs. State of Punjab, a professional can be held liable for negligence on one of the two findings either he was not possessed of the requisite skill which he professed to have possessed or he did not exercise reasonable competence in the given case the skill which he did possess. The standard to be applied for judging whether the person charged has been negligent  or not would be that of an ordinary competent person exercising ordinary skill in that profession.

          5.      The consumer forum it seems  relying on the ‘ dicta of upper judiciary ’ found that the complainant has no sustainable case yet observed that there was deficiency in service for no valid reason. Obviously, the consumer forum failed to apply the dicta in the background of the facts disclosed in the case and the only expert evidence is furnished by the deposition of DW2. He is a qualified cardiologist working in the Lissy Hospital, Ernakulam. He deposed that two of the medicines prescribed at the first opposite party hospital were for coronary heart disease. He also deposed that from Ext.A4 it can not be said that the patient had not suffered coronary heart disease earlier. On going through the records he was of the opinion that the patient was given standard treatment at the first opposite party hospital and reasonable care was taken by them. So also as per Ext.B1 case records blood tests to be done as a standard measure had been done. So the only expert evidence available does not support the allegations in the complaint. It is settled law that erroneous diagnosis need not necessarily be negligent diagnosis. The available evidence clearly indicates that a reasonably prudent doctor would have suspected heart ailment with the clinical symptoms and the significant changes in the repeat ECGs. So it can not at all be said that the opposite parties were negligent in treating the complainant. The complainant has no case that the second opposite party did not possess the requisite skill to treat patients presented with such symptoms. Under the above circumstances, a complainant can not be compensated merely for the unnecessary inconvenience due to mistaken diagnosis. So the complaint is really devoid of merit. Hence the appeal is liable to be allowed.

In the result, the appeal is allowed. The order of the consumer forum Ernakulum in CC.No.360/2011 dated 13.02.2013 is set aside. The complaint is dismissed. The parties are directed to bear their respective costs in this appeal.

 

K.CHANDRADAS NADAR : JUDICIALMEMBER

Be/

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

 REDRESSAL COMMISSION

 SISUVIHARLANE

 VAZHUTHACAUD

THIRUVANANTHAPURAM

 

APPEAL NO.496/2013

JUDGMENT

DATED :27.11.2014

 

                                                                                                                                                           BE/