Tamil Nadu

South Chennai

CC/214/2005

N.D.Manchar - Complainant(s)

Versus

Wisdom Hospital's Pvt Ltd., - Opp.Party(s)

V.Balaji

09 Nov 2017

ORDER

                                                                        Date of Filing :   07.04.2005

                                                                        Date of Order :   09.11.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.214/2005

THURSDAY THIS  9^th DAY OF NOVEMBER 2017

 

N.D. Manchar,

No.6, Subbiah Naidu Street,

Vepery,

Chennai 600 007.                                            Complainant

                                        ..Vs..

 

1.Wisdom Hospital’s Pvt. Ltd.,

Rep. by its Managing Director,

17, Mahalinga Chetty Street,

Mahalingapuram,

Chennai 600 034.

 

2. Malar Hospital,

Rep. by its Managing Director,

NO.52, 1^st Main Road,

Gandhi Road,

Adayar, Chennai 600 020.                              Opposite parties

 

 

Counsel for Complainant         :   M/s. V Balaji & A.Sermarj         

Counsel for opposite party-1   :   M/s. A.J.AJawad & another   

Counsel for opposite party-2   :   Exparte

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.5,00,000/- towards medical expenses, mental agony, loss of future earning and pain & suffering and also to pay a sum of Rs.5,000/- as costs of the complaint.

 1. The averment of the complaint in brief are as follows:

         The complainant submit that he was admitted into the first opposite party hospital, the untrained, unqualified attender, administered the injection in his left hand.   Because of wrong administration of injection his left forearm become cold and he was developed onset of pain in the left upper limb.   When the pain was in tolerable he was crying in the hospital for immediate help.  The inhumane staffs treated him badly and not at all done any alternative medicine for reducing pain.  His left forearm  became swelling and skin colour has changed.    When the time is running, his finger lips, cyanosed, forearm becomes tense and cold.    Neither staff nor doctor attached with the first opposite party has attended the complainant which leads to formation of gangrene.     Further the complainant state that sensing the wrong administration of injection leads to gangrene, the complainant was shifted and admitted into second opposite party hospital  after 23 hours from the administration of wrong injection.   The 2^nd opposite party diagnosed as acute left brachial artery Thrombosis with irreverstible Ischemia.   As a life saving measure, the 2^nd opposite party has amputated left forearm below elbow.   No fault of complainant he has lost his left forearm below elbow.    As such the act of  the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

2.    The brief averments in Written Version of  the  1^st  opposite party is  as follows:

The  1^st opposite party deny each and every allegations except those that are specifically admitted herein.    The 1^st opposite party submit that the complainant was admitted in the 1^st opposite party hospital on 12.5.2004 for his problem of chronic alcoholism and drug addiction.    But the complainant on his own insistence was discharged on the next day itself against the medical advice.  The complainant was a very difficult patient due to chronic addiction and he was un-cooperative and never allowed the doctors to initiate treatment in the 1^st opposite party hospital; no injection was administered to the complainant as alleged by him.  Further the 1^st opposite party also state that  the amputation of left forearm of the complainant is not due to negligence of the 1^st opposite party or due to any treatment given by this opposite party; no treatment was commenced due to  non co-operation of the complainant.   The said problem of left forearm to the complainant may be due to injection of some psychotropic substance by the complainant himself as he is a confirmed drug addict.    Further the 1^st opposite party also state that the complainant was admitted for detoxification  to get  rid him of his addictions; and it is well known that such detoxification programme cannot be started unless the patient co-operates whole heartedly.   In this case the complainant has not co-operated and behaved inhumanly.      Hence there is no deficiency in service on the part of the 1^st opposite party and the complaint is liable to be dismissed.

3. Inspite of service of notice the 2^nd opposite party is called absent and set exparte.

4.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A3 marked.  Proof affidavit of 1^st opposite party filed and Ex.B1 to Ex.B6 marked on the side of the 1^st opposite party.

5.   The points for the consideration is: 

1. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards medical expenses a prayed for ?

 

2. Whether the complainant is entitled to a sum of Rs.3,00,000/- towards mental agony and Rs.2,00,000/- towards loss of future earnings and Rs.1,00,000/- for pain and suffering with cost of Rs.5000/- as prayed for ?

 

6. POINTS 1 & 2 :

          Both parties  filed their respective written arguments.  The learned counsel for the complainant contended that this is a typical case of medical negligence.  The 2^nd opposite party who has given substantial treatment remained exparte.     The complainant was admitted into the first opposite party hospital for treatment on 13.5.2004 and paid a sum of Rs.2,000/- as advance as per Ex.A1.  The contention of the complainant is that   When the complainant was in the first opposite party hospital for treatment he was administered the injection in his left hand with unqualified staff resulting left forearm becomes cold and the complainant have developed swelling; skin colour has changed and  intolerable pain.     The hospital staff also treated the complainant badly since the complainant is admittedly a drug  addict   When the  time is running his finger lips cyanosed; forearm becomes  terse and cold which leads to gangrene.  Hence the complainant was compelled to shift into second opposite party hospital on 14.4.2004.  Wherein the life savings medicines were administered even then the complainant’s left forearm below elbow amputated due to gross negligence on the part of the opposite parties.   Thereafter on 22.2.2005 the complainant requested the 1^st opposite party as per Ex.A3 to issue discharge summary / case sheet but till date the 1^st opposite party has not furnished any record.     The complainant is claiming a sum of Rs.1,00,000/- towards medical expenses.  But the complainant produced only receipt for Rs.2,000/- alone.   The complainant has not produced any medical bills for such forearm amputation expenses.   Equally the complainant has not produced any documents to prove the alleged loss of employment and earning power. 

7.     As per decision reported in

Part III, Section 4 of the Gazette of India, dated 6.4.2002

Medical Council of India, Notification

 

 

Held that

1.3.2. 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

Which amounts to gross violation it is apparently proved.

Further the learned counsel for the complainant contended that as per Ex.B2 injection were prescribed and the patient got discharged on 4.00 pm.   Not against the medical advice.    In Ex.B3 the date of admission is corrected.   As per decision  reported in

II (2013) CPJ 134 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

VINOD KUMAR GUPTA (DR.)

 

Vs

Ruplal Yadav & Anr.

Held that

In these circumstances, the only probable cause of gangrene may be the injection dated 3.2.2008.   It is not improbable nor proved to have occurred due to any other cause.

Further the learned counsel for the complainant contended that the case of medical negligence the legal terms is applicable.  

8.     The learned counsel for the complainant cited a decision reported in

II (2014) CPJ 5 (SC)

SUPREME COURT OF INDIA

ASHISH KUMAR MAZHMDAR

 Vs

AISHI RAM BATRA CHARITABLE HOSPTIAL TRUST & ORS.

Held that

The learned Trial Judge came to the conclusion that, having regard to the layout of the room and the location of the window and also having regard to the precarious health condition of the plaintiff on the day of the incident (he was running high fever), it was not possible to accept the contention of the defendant that the plaintiff had himself jumped out of the window resulting in the injuries sustained.  On the contrary the learned Trial Judge came to the conclusion that the facts established by the evidence on record attracted the principle of resipsa loquitur and therefore, it was for the defendant to prove the absence of any negligence and due care and attention on its part. 

9.   The contention of the 1^st opposite party is that the claim of the complainant is imaginary & exorbitant.  The frivolous litigation made by the complainant with a sole intention of making un lawful gain. The contention of the 1^st opposite party is that the complainant was admitted in the 1^st opposite party hospital on 12.5.2004 for his problem of chronic alcoholism and drug addiction.    But the complainant on his own insistence was discharged on the next day itself against the medical advice.  The complainant was a very difficult patient due to chronic addiction and he was un-cooperative and never allowed the doctors to initiate treatment in the 1^st opposite party hospital; no injection was administered to the complainant as alleged by him.   But on a careful perusal of Ex.A2 it is seen that the complainant was administered with injection resulting left forearm becomes cold and the complainant have developed swelling; skin colour has changed and  intolerable pain.    Further the contention of the 1^st opposite party is that  the amputation of  left forearm of the complainant is not due to negligence of the 1^st opposite party or due to any treatment given by this opposite party; no treatment was commenced due to  non co-operation of the complainant.   The said problem of left forearm to the complainant may be due to injection of some psychotropic substance by the complainant himself as he is a confirmed drug addict.  But the opposite party is duty bound to prove such activities of the patient when the complainant is admitted.    Further the contention of the 1^st opposite party is that the complainant was admitted for detoxification  to get rid him of his addictions; and it is well known that such detoxification programme cannot be started unless the patient co-operates whole heartedly.   In this case the complainant has not co-operated and behaved inhumanly.    The 1^st opposite party could not commence treatment during the stay of the complainant in the 1^st opposite party hospital and was discharged against the medical advice;    since the 1^st opposite party has not given any treatment;  the question of prescription of any injection never arise.   The complainant also has not produced any document except Ex.A2 for such treatment.   The present complaint is baseless and malafide.  But the law is well settled that the opposite party doctors and hospital are duty bound to prove that they are not negligent in treatment; when the patient is under their custody.   Considering the facts and circumstances of the case this forum is of the considered view that  the opposite parties 1  and 2  are jointly and severally liable to pay a sum Rs.50,000/- (Rupees Fifty thousand only) towards amputation of left forearm to the complainant and shall pay compensation of Rs.1,00,000/- (Rupees one lakh only) towards financial suffering; loss of earning with cost of Rs.5,000/-  (Rupees five thousand only) to the complainant and points are answered accordingly.

        In the result, the complaint is allowed in part.  The opposite parties 1  and 2  are jointly and severally liable to pay a sum Rs.50,000/- (Rupees Fifty thousand only) towards amputation of left forearm to the complainant and shall pay compensation of Rs.1,00,000/- (Rupees one lakh only) towards financial suffering; loss of earning with cost of Rs.5,000/-  (Rupees five thousand only) to the complainant.

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

 

           Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 9^th day  of  November 2017.  

 MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1-  13.5.2004 - Copy of Receipt.

Ex.A2-               - Copy of discharge summary.

Ex.A3- 22.2.2005  - Copy of Ack. Card.

 

Opposite parties’ side document: -   

 

Ex.B1- 24.11.2003         - Copy of Resolution.

Ex.B2- 12.5.2004  - Copy of reference letter of TT Ranganathan Clinic.

Ex.B3- 13.5.2004  - Copy of Discharge summary of complainant.

Ex.B4- 30.10.2004         - Copy of second discharge summary of complainant.

Ex.B5- 23.2.2005  - Copy of letter from complainant to 1^st opposite party.

Ex.B6- 12.5.2004 &

           30.10.2004          Copy of details of medical treatment of complainant.

 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.