IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - 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 346/09 DATED 18.02.2010<br /> ORDER<br /> <br /> Complainants 1. Smt.Naveena Bharathi, <br /> W/o Late M.Doreswamy, <br /> 2. Kum.Pallavi.D., <br /> D/o Late M.Doreswamy<br /> 3. Pavan.D., S/o Late M.Doreswamy<br /> All are R/at D.No.1500 Ch-67, <br /> 6th Cross, K.R.Vanam, Mysore.<br /> (By Sri. V.M.Prasad, Advocate)<br /> <br /> Vs. <br /> Opposite Party Dr.K.C.Gurudev, <br /> Consultant Nephrologist,<br /> Vikram Hospital,<br /> Yadavagiri, Mysore.<br /> <br /> (By Sri. J.M.Ayanna, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 11.09.2009<br /> Date of appearance of O.P. : 20.10.2009<br /> Date of order : 18.02.2010<br /> Duration of Proceeding : 3 MONTHS 28 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainants have filed the complaint under section 12 of the Consumer Protection Act, alleging medical negligence against the opposite party, seeking direction to pay a sum of Rs.19,60,000/-.<br /> <br /> 2. In the complaint it is alleged that, husband of the first complainant and father of second and third complainants by name Doreswamy was working as Professor, Geology at Cauvery College, Gonikoppal. He was diabetic patient. In the year 2006, due to abdominal pain, he approached the opposite party and took treatment at B.M.Hospital, Mysore. Opposite party is Nephorologist. On 22.04.2006, one Dr.Ravikumar referred Doreswamy to Kannan Diagnostic Centre, Mysore for Ultrasound KUB region. The report revealed an impression bilateral renal parenchymal disease Grade-I nephropathy. On the basis of that report, opposite party further referred Doreswamy to Kannan Diagnostic Centre for renal Doppler. The report revealed mild increase in corticalechoes of both kidneys Grade-I nephropathy and there is no need to worry and at that stage, dialysis was not required. The opposite party suggested some diets. The directions were followed. Doreswamy started to attend to his work. In the month of February 2007, due to etching and weakness, Doreswamy approached opposite party and got admitted in B.M.Hospital, Mysore on 06.02.2007. After taking treatment under opposite party, he was discharged on 14.02.2007. During the treatment in the said hospital, Mini laparotomy was done and CAPD catheter was inserted. Doreswamy was advised for dialysis on every Saturday. On 23.02.2007, due to sudden onset of severe breathlessness, Doreswamy was admitted to B.M.Hospital, Mysore and continued to take treatment as in patient up to 27.02.2007. On 21.04.2007, once again Doreswamy was admitted to B.M.Hospital, Mysore and discharged on 25.04.2007 with continued dialysis. As per the direction of the opposite party, Doreswamy had to go for dialysis twice in a week. Opposite party called upon the complainants and their relatives and suggested to go for kidney transplantation, since it was case of end stage renal disease. On 08.08.2007, opposite party declared blood group of Doreswamy as A positive. He called upon the complainants and their relatives for donation of the kidney. As per the direction of the opposite party, the blood group of donor must be A positive. The blood groups of the relative of Doreswamy did not match and two of them matching, but on account of diabetic patient and handicapped person could not donate their kidneys. Then, opposite party directed the complainants for alternative arrangements. One Kum.Latha well wisher and friend of the family of the complainants was voluntarily willing to donate one of her kidneys. Her blood group was A positive. Samples of Doreswamy and donor Latha were sent to Anand Diagnostic Laboratory, Bangalore for cross-matching. Commentary on the said laboratory was ‘cross-match negative’. Then, opposite party convinced the complainants and their family members that, the transplantation will be done at Vikram Hospital, Mysore. Aslo, opposite party convinced, that hospital has better medical facilities than B.M.Hospital, Mysore. The complainants believed the words of the opposite party. On 08.08.2007, with all documents proposal for approval of the government for transplantation was sent to the Chairman of the committee. Thereafter, opposite party started to neglect the treatment towards Doreswamy. Also, he expressed that he cannot undertake renal transplantation from donor Latha since she is not relative of Doreswamy. Opposite party also convinced the complainants that, the Government is strict regarding human organ transplantation other than the relatives and that the dialysis process to continue till his last. In this regard, the complainants incurred heavy expenditure. Condition of Doreswamy was deteriorating. Cardiac problem was also started. For further treatment, Doreswamy approached Apollo BGS Hospital, Mysore. On 01.03.2008, blood grouping of Doreswamy was done in that hospital and found AB positive. The doctors at Apollo BGS Hospital suggested that, A positive or B positive blood group person can donate kidney. Accordingly, first complainant donated one of her kidney to her husband Doreswamy. Few days he survived, but died on 13.07.2008. The complainants requested the opposite party to return all documents of the deceased. Also, they explained to the opposite party about deficiency in service that, without ascertaining the blood group properly unwontedly deceased had to undergo dialysis and his health condition deteriorated and huge expenditure was incurred. The opposite party admitted his mistake and agreed to compensate the loss. Opposite party gave evasive reply to the legal notice of the complainant. On these grounds, it is prayed to allow the complaint. <br /> <br /> 3. In the version, the opposite party has contended that, initially Doreswamy was registered under Dr.Manjunath Shetty at Vikram Hospital and on examination, made a diagnosis of diabetic nephropathy, chronic renal failure and smaller sized kidneys. He advised dietary restrictions and medications. Few more tests were asked. Thereafter, opposite party examined Doreswamy. Doreswamy was advised to tender himself for examination by a gastroenterologist as his symptoms were disproportionate to the degree of renal impairment. Accordingly, Dr.Vadhwa examined Doreswamy on 25.04.2006. Doreswamy, was subjected for a procedure, such as upper G.I. endoscopy and colonoscopy on 26.04.2006. After discharge Doreswamy did not go back to Vikram Hospital. For these reasons, it is contended by the opposite party that, allegation of the complainant on 24.04.2006 opposite party informed the patient that the deceased is in Grade-I stage and not required any dialysis, is made with an intention to file the present complaint. It is stated that, on 29.08.2006, Doreswamy approached this opposite party at B.M.Hospital, Mysore complaining loss of appetite. He was advised to conservative treatment as his renal impairment did not warrant any intervention. On 30.01.2007 Doreswamy consulted opposite party at Vikram Hospital with complaints of vomiting and loss of appetite. He was diagnosed to have Uremia and was advised renal replacement therapy. On the same day, again Doreswamy was consulted opposite party at B.M.Hospital. There was discussion has to who all could be prospective donors. The family members were asked to get blood grouping done. They come up with the report, stating that, Doreswamy is A positive blood group and that of the complainants did not match. Then, Doreswamy informed that, they would enquire the blood group of his near relatives. In this back drop, in the first week of February 2007 Doreswamy had approached the opposite party with a complaint of weakness and etching. Since prospective donor was not identified, patient was admitted in the B.M.Hospital, Mysroe. CAPD catherization was done by Dr.Madappa. Doreswamy was discharged on 12.02.2007 with an advice to undergo haemodialysis. It is stated that, Doreswamy had blood test report as A positive, which fact has been intentionally suppressed by the complainant. All other material allegations are denied. Also, it is contended that, opposite party has professional protection insurance policy from National Insurance Company. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, complainant has been examined as C.W.1 and a witness who is Pathologist in Apollo BGS Hospital, Mysore as C.W.2. Various documents are produced. On the other hand, opposite party has been examined as R.W.1. For opposite party also, certain documents are produced. We have heard the documents of both the learned advocates for the complainants and opposite party and perused the records. <br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainants have proved any medical negligence and deficiency in service on the part of the opposite party and that they are entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Negative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The grievance alleged by the complainants in the complaint is that, the opposite party without ascertaining the blood group of Doreswamy, wrongly declared his blood group as A positive, which resulted delay in kidney transplantation and as a result of which, he died.<br /> <br /> 8. The complainants on the basis of the document No.7 on page 112, copy of the letter addressed by the opposite party to the Chairman, Authorization Committee for transplantation of Human Organs, Vidhana Soudha, Bangalore has declared the blood group of Doreswamy as A positive. Said letter is dated 08.08.2007. The certificate is at document No.8, which is also of the same date. In fact, the blood group of Doreswamy was AB positive. In this regard, the medical certificate issued by Apollo BGS Hospital, Mysore is produced at document No.12 at page 128. Thus, the complainants have alleged medical negligence on the part of the opposite party.<br /> <br /> 9. There can not be any dispute that blood grouping has to be done by pathologist. That is admitted by first complainant-CW1 in her cross-examination. Also, it is admitted fact that, opposite party is not pathologist, but nephrologist. This fact is also admitted by C.W.1 in her cross-examination. In view of these admitted facts, the point would be, whether in fact the opposite party-nephrologist has diagnosed the blood group of the deceased or otherwise.<br /> <br /> 10. Document No.11 on page 127 is the report of Anand Diagnostic Laboratory singed by pathologist Dr.Sujay Prasad. The blood group of Doreswamy is mentioned in this report as A positive. <br /> <br /> 11. The first complainant-C.W.1 in her cross-examination at 8th page has deposed that, she do not know, whether her husband was sent by the opposite party to any pathologist for blood grouping. On the other hand, the opposite party in his chief-examination has specifically stated that, Doreswamy did possess a report from the pathology laboratory disclosing his blood group as A positive. This statement is not challenged in the cross-examination. In the report of the Anand Diagnostic Laboratory, document No.11 noted above, there is mention that, patient was referred by Dr.Gurudev who is the present opposite party. Considering the oral and documentary evidence, manifestly it is clear that, the opposite party had referred Doreswamy to pathologist and the Anand Diagnostic Laboratory has diagnosed the blood group of Doreswamy as A positive. At the cost of repetition, C.W.1 pleads ignorance that, opposite party had referred her husband to any pathologist. Considering these aspects, it is clear that in fact opposite party did not diagnose the blood group of Doreswamy, but pathologist of the Anand Diagnostic Laboratory.<br /> <br /> 12. C.W.1 in her cross-examination in the middle of 9th paragraph has stated that, looking into their blood grouping, the opposite party told blood group of her husband as A positive. At the end of 8th paragraph she states that, she do not know as on the date of issuance of the certificate by the opposite party on 08.08.2007, whether there was any report of the pathologist or not. The report of the pathologist, the document No.11 is dated 20.06.2007. Hence, it is clear that as on 08.08.2007, when the opposite party certified the blood group of Doreswamy as A positive, in fact there was report of the pathologist to that effect. At the end of 10th paragraph, further C.W.1 has admitted the suggestion that opposite party accepted reports of blood grouping from various places that they had brought. At the end of 11th paragraph, C.W.1 further admitted that, on 04.08.2007 her husband had sworn to an affidavit regarding the blood grouping. In 12th paragraph, she admits the blood grouping reports referred to in the affidavit of her husband, are with them. In the middle of that paragraph, further she pleads ignorance that whether her husband was aware of his blood group as A positive. Also she states as on the date of swearing the affidavit by her, she knew the blood group of her husband as A positive. In 13th paragraph of the cross-examination, she pleads ignorance that, her husband had submitted report to Collegiate Authority and his blood group was mentioned as A positive. Also, she pleads ignorance that, while submitting the report, her husband knew his blood group as A positive and on the basis of pathology report, her husband has mentioned his blood group in the report. The copy of the report has been produced at page 184, wherein the blood group of deceased is mentioned as A positive. At the end of 14th paragraph, C.W.1 has admitted and stated that on the basis of blood group reports, the opposite party has given his report to the Authorization Committee. <br /> <br /> 13. On the other hand, the opposite party in his chief-examination in the middle of 3rd paragraph has stated that, Doreswamy and his family members were asked to get blood grouping done and the following days, they came with the report, stating Doreswamy blood group is A positive. This statement has not at all been challenged in the cross-examination. As noted here before, the opposite party in the middle of 6th paragraph has stated that, Doreswamy had already secured blood test report, which disclosed his blood as A positive. This statement also is not challenged. Similar statement is made by the opposite party in the chief-examination at paragraph 12 and that is also not disputed.<br /> <br /> 14. Hence, considering evidence on record referred to above, the alleged grievance of the complainants that the opposite party wrongly diagnosed the blood group of Doreswamy, cannot be believed and accepted. In fact, pathologist has diagnosed the blood group of Doreswamy much prior to issuance of the certificate by the opposite party on 08.08.2007. In addition to the pathology report referred to above, Doreswamy himself had declared his blood group as A positive and the report was submitted to Collegiate Authority and even affidavits were sworn to.<br /> <br /> 15. Hence, consideration of other allegations and evidence in detail is not necessary. However, we would like to make formal reference of the same. The first complainant-C.W.1 in her cross-examination at 15th paragraph has stated that, the opposite party delayed transplanting of kidney of Latha and the complainants had requested the opposite party to transplant the kidney of Latha. The witness further states, that is the subject that the opposite party has neglected. <br /> <br /> 16. Hence, as alleged and stated by the first complainant, the negligence on the part of the opposite party is non-transplanting of the kidney of the Latha to Doreswamy. Opposite party in his chief-examination at 10th paragraph amongst other facts has stated that, the Government has given direction to all the hospitals that, if donor for transplantation is not from the same family and are not relatives, the hospitals should own the responsibility for the accurate address of the donors and further opposite party states, he questioned the donor regarding the nature of relationship and address and it was informed that, she is not a close relative and she has offered to donate her kidney for monitory benefit, which is against the law under section 19 of the Transplantation Human Organ at 1994. This statement is not challenged in the cross-examination. Hence, in view of that statement of the opposite party doctor, the alleged negligence deposed to by first complainnt-C.W.1 noted above, cannot be termed as negligence or deficiency in service, because the complainants cannot compel the doctor to do an act contrary to law.<br /> <br /> 17. It is the case of the complainants that, cause of death of Doreswamy is delay in transplantation of the kidney. Firstly, considering the entire evidence on record, no delay can be attributed on the part of the opposite party and secondly, there is no evidence to hold that cause of death is delay in transplantation of the kidney. To hold the opposite party negligent, it is necessary for the complainants to prove the cause of death was due to delay in transplantation of the kidney. So also, there is no opinion of the expert on the point.<br /> <br /> 18. For the complainants, a CD is produced said to have been containing the conversations between the complainant and the opposite party wherein as claimed, opposite party has admitted his mistake. Transcript of the same also is placed on record. Considering the said conversations, it cannot be held that, the opposite party has voluntarily admitted his negligence or deficiency in service. Analyzing the entire conversations at the most, it can be said that, opposite party has made a statement that if at all there is any mistake on his part, then he is ready to reimburse the expenses or to pay the compensation. Hence, the said CD will not help the complainants to hold the opposite party negligent, unless negligence is proved.<br /> <br /> 19. Considering the facts, evidence, and the discussion made here before, we are of the opinion that, the complainants have failed to prove the negligence or deficiency in service on the part of the opposite party. <br /> <br /> 20. Accordingly, our finding on the above point is in negative.<br /> <br /> 21. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> <br /> 2. There is no order as to costs.<br /> 3. Give a copy of this order to both parties 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 18th February 2010)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <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 /> <br />