A.M. Mathew vs. Director, Karuna Hospital and others 1999 CCJ 960

Kerala State Consumer Disputes Redressal Commission, Thiruvanthapura,

The complainant took his minor son aged 81/2 years on 8.3.1995 to the opposite party No.1 hospital following fever and cold. The opposite party No, Dr. Lucy Jacob, examined the child and prescribed paracetamol injection to be administered on the buttocks. The opposite party N. 3 Staff Nurse, Mini Devassia, gave the injection as per the direction of the opposite party No. 2 Immediately the boy developed foot drop on his left leg. The leg was paralysed.Hewas admitted in the hospital for treatment. Injections were given and physiotherapy was tried for two days. Finding no improvement, at the request of the complainant the boy was referred to the Medical College Hospital, Kottayam on 10.3.1995. The refer letter was addressed to Dr. Madhusudhanan, neurologist, Medical College Hospital. The boy was admitted on 11.3.1995 in the Medical College Hospital and treated there till 30.3.1995. Dr. K. Surendran of the Medical College Hospital diagnosed the symptoms as sciatic nerve palsy. The boy cannot walk properly even after more than two months' treatment. He was advised to walk using short leg calipers. In spite of further treatment in the Medical College Hospital and thereafter under the ayurvedic system no marked improvement was seen. The left leg remins still disabled. The cause of palsy, according to the complainant, is because the injection needle entered into the sciatic nerve, as a result of the negligence of the opposite party No. 3 in administering the injection. He spent about Rs. 25,000 towards medical expenses alone and further amounts are required for continuous treatment, even though the chances of complete recovery are almost completely ruled out. The complainant demanded Rs. 4,00,000 as compensation by notice dated 16.5.1995. The notice was replied separately by each of the opposite parties. All of them denied liability. Hence, the above complaint was filed claiming compensation against the opposite parties.

The opposite parties appeared and filed separate versions denying liability. All the opposite parties contended that the Forum has no jurisdiction and the complaint is not maintainable. Further elaborate evidence and examination of medical experts and reference to medical books and journals will be necessary and hence the appropriate forum is the regular civil court. In the joint version filed by the opposite party Nos.1 and 2 it is stated that the child was brought to the hospital at 6.30 p.m. on 8.3.1995 with high temperature. Dr. Luch Jacob examined the patient and found that the child was suffering from follicular tonsillitis (acute) enlarged and congested due to acute viral or bacterial infection. To bring down the temperature paracetamol injection was prescribed and the opposite party No.3 administered the injection at the upper outer quadrant of the left buttock. Soon after the injection the child found it difficult to stand on his leg. The opposite party No.2 was informed and further treatment ill 10.3.1995 was given to him and thereafter for better treatment he was referred to the famous neurologist Dr. Madhusudhanan of the Medical College Hospital, Kottayam. But the complainant took the child to another Dr. Surendran who diagnosed the symptom as sciatic nerve palsy. Extreme care was taken by the opposite parties in the treatment. There is no negligence or deficiency in serve on their part. The diagnosis of Dr. Surendran cannot be accepted. Sciatic nerve palsy can occur due to different reasons. In this case the child was brought sometime before consequent on the fall from a cycle. Sciatic nerve palsy can be caused by hitting the buttock on any hard substance. It can also be caused by viral infection. But in any event the injection did not cause palsy as it was done by a qualified and experienced nurse and as the needle did not touch the sciatic nerve. The claim for compensation is false and baseless and the complaint should be dismissed. The opposite party No.3 in her version while reiterating and adopting the above contentions of the other opposite parties further submitted that no consideration was paid to her and she is an unnecessary party and there is no cause of action against her.

After perusing the evidence and hearing the arguments the District Forum dismissed the complaint on the ground that injury to sciatic nerve is possible for several reasons and in the present case the injury cannot be pinned down to the injection and the appearance of the external symptoms may not appear immediately and the complainant had failed to prove that the disability was caused due to the injection.

Aggrieved by the above order dated 23.10.1996, the complainant has come in appeal. In a recent decision in Harjot Ahuluwalia v. Spring Meadows Hospital, 1998 CCJ 405 (NC), the National Commission held that the hospital is responsible for the acts of its employees and so negligence can be attributed to the functionaries and authorities of the hospital and the hospital is liable for the consequences. The facts are almost similar to the present case and the principle laid down there is squarely applicable to the present case and the principle laid down there is squarely applicable to the present case also. In the reported case an unqualified nurse gave intravenous injection in the absence of a resident doctor. The child immediately collapsed and went into cardiac arrest. Further it was found that the nurse mistakenly noted the name of the medicine and asked the minor's father to purchase it. He brought the medicine and gave it to the nurse who injected the medicine intravenously and consequently the mishap occurred. The National Commission observed that there was a clear lapse on her part, she was otherwise duty bound to give the intravenous injection under the direct control and supervision of the resident doctor.

The above discussion the Commission unequivocally held that, will lead us to the conclusion that the minor had suffered on account of negligence of the opposite party No.3 who was an employee of the hospital. Hence, we hold that the opposite party No.1 hospital is liable to pay damages. The next question is regarding the amount of compensation to which the complainant is entitled. In the lawyer's notice Rs. 4,00,000 is claimed as damages. In his evidence the complainant says that he had spent Rs. 50,000 for the treatment of the child and further treatment is required and in spite of it the chance of full recovery is meagre. Considering all the circumstances we feel that an amount of Rs. 1,00,000 will be reasonable compensation and we award the same. The opposite party No.1 is directed to deposit the amount of Rs. 1,00,000 in the name of the child in a scheduled bank as a fixed deposit. The father who is the natural guardian of the boy is permitted to draw interest on the deposit and utilise the same for the education and future treatment of the child. The child will be eligible to withdraw the amount on his attaining majority. In addition to this the complainant will be entitled to a further sum of Rs. 5,000 towards treatment expenses and compensation for mental agony. Time for deposit is one month from date of this order. The appellant is also entitled to costs of the proceedings before us. Fix the same at Rs. 1,000. The appeal is allowed as above".

RECENT COPRA JUDGEMENTS

P.R. Sumangi vs. Kairali Medical Centre and another 1999 CCJ 1050

Kerala State Consumer Disputes Redressal Commission, Thiruvanthapura,

This petition is filed under Section 12 of the Consumer Protection Act, claiming compensation of Rs. 8,50,000 claiming medical negligence on the part of the opposite parties.

The complainant is the mother of one S. Lakshmi, aged 9, studying in 4th standard in the lower primary school, Nedumankavu. On 5.11.1994, Lakshmi fell on the floor of the school causing swelling on the left hand and knee. Immediately, the complainant and Vijayamma who is a teacher of the school took Lakshmi to the opposite party No.1 hospital and the doctor who was present at that time did some first aid and prescribed certain pain killing tablets. On 18.11.1994 the child developed pain in her left hand and knee and there was swelling also in the left hand. The complainant's cousin Vijayan again took the child to the opposite party No. 1 hospital, Kairali Medical Centre and the opposite party No.2 was present at that time. The doctor asked them to take X-ray immediately. The child was taken to the X-ray centre at Christian Medical Centre, Pathanamthitta and they again went to the opposite party No.2 with X-ray and the opposite party No.2 asked them to bring plaster. Accordingly, they brought plaster from Adoor and plastering was done on 19.11.1994 at 8. p.m. Soon after the plastering was over, the hand started swelling up and the golden bangle worn by the child could be removed only by cutting. The child also developed pain in the hand and opposite party No.2 gave 3 or 4 injections to reduce the pain. The colour of the palm became black. The opposite party No.2 applied an ointment and said that the black colour was due to the application of ointment and assured them that it can be removed by applying infrared. At that time there was no blood circulation and the hand became paralyzed. The matter was reported to office bearers of opposite party No.1 and the Secretary of the opposite party No.1 immediately came and asked the opposite party No.2 why it happened. The opposite party No.2 shouted at the complainant and asked her to get out of the room and told her that he is a doctor and knew what has to be done. She requested the opposite party to hand over the child so that she could take the child to some other hospital. The opposite party No.2 shouted at her again and asked her to take the child anywhere and he refused to give any reference letter or case sheet.

The aggrieved patient claimed that all this happened because of criminal negligence of the opposite party No.2. The opposite party No.1 is vicariously liable for the criminal negligence and indifferent conduct of the opposite Party No.2 as he was appointed by them without even enquiring the qualification and experience of the opposite party No.2. The opposite party No.2 did not possess the required knowledge or expertise in orthopaedic treatment and he has treated the innocent child which caused untold misery and mental agony to the child as well as to her parents. In fact there was no need to plaster the hand since there was no crack on the bone. The child was discharged from the hospital on 12.1.1995 with advice for future treatment. It is on these allegations the complaint was filed, claiming a total compensation of Rs. 8,50,000 under different heads.

A version was filed by the Secretary, Kairali Medical Centre, Charity Hospital, Angadical South, denying the allegations. It is further stated that complainant is not a consumer and the opposite party No.1 is a charitable society, registered under the Travancore-Cochin, Literary, Science and Charitable Societies Act, 1955. As per its memorandum of association and bye-laws, the society is to be represented by its President in all legal proceedings by or against the society. The Secretary is unnecessarily made a party. The society is functioning as a charitable society without any profit motive and no fee for the treatment is expected or charged.

The opposite party No. 2 produced certificates he was qualification and experience and on the basis of the certificates he was appointed in the medical centre on probation and there was nothing wrong with the treatment given by him and the complainant voluntarily accepted treatment from him without the knowledge and consent of the opposite party No. 1. Hence, the opposite party No. 1 is not vicariously liable. The compensation claimed is also very high. In the circumstances it was prayed that the complaint is liable to be dismissed.
The following points arise for consideration :
1. Whether the complainant is a consumer ?
2. Whether there is any deficiency in the treatment given to the daughter of the complainant at the opposite party No. 1 hospital by the opposite party No. 2 ?
3. If so, what is the relief to which the complainant is entitled ?
4. What is the order as to costs ?

If the patient is suffering from bleeding disease, ischemic contraction can occur. From the available details of treatment given in Exh. P-2 there is nothing wrong in it. The evidence of independent expert witness also would show that there is no material to come to a conclusion that it is on account of want of care or negligence on the part of the opposite parties that the complications arose. As a matter of fact, as we have pointed out earlier, it is quite possible that the complications arose on account of faciotomy.

The foregoing discussion would show that the complainant has not succeeded in establishing that there is any deficiency on the part of the opposite parties. In view of this finding, the third point does not arise. Accordingly, the Commission dismissed the complaint.

RECENT COPRA JUDGEMENTS

C. Anjani Kumar vs. Madras Medical Mission and another 1999 CCJ 915

Tamil Nadu State Consumer Disputes Redressel Commission, Chennai

The complainant as diagnosed by the St. Marthas Hospital, Bangalore, suffered from an illness known as congenital heart disease large P.D.A. He came to the opposite party l heart disease large P.D.A. He came to the opposite party No.1 Madras Medical Mission Hospital for treatment. There he was operated upon on 22-6-1992 by a team of doctors headed by Dr. V. V. Bashi, the opposite party No.2. Now, according to the complainant the operation has resulted in the permanent loss of voice due to paralysis of the left vocal cord and this has happened due to the negligence on the part of the opposite parties. He would state that immediately after the surgery when he was in the I.C.U. he lost his voice but he was told by the doctors and the nurses that it would have happened due to the insertion of tubes during the surgery and it would be normal after 15 to 20 days. But even after the discharge on 30-6-1992 the hoarseness of voice continued. The opposite party No.2 doctor opined that at the time of the operation there would have been a slight injury to the nerve and he advised an E.N.T. check up and when, accordingly, E.N.T. check up was done the vocal cord paralysis was detected. Even thereafter it was told to the complainant that the voice would be normal in 6 months time. It was not at any time explained to him that there were chances of injury to the nerve or the risk of losing voice.

On account of the loss of voice he is undergoing untold sufferings in many ways. On these allegations the complainant claimed for an award for Rs. 50,000 for medical expenses, Rs. 7,00,000 for further medical expenses that he would have to incur for medical treatment abroad and Rs. 8,50,000 for compensation for mental agony and disrepute, all aggregating to Rs. 16,00,000.

The opposite party No.1 hospital would contend that it takes special cure to ensure that the doctors employed by its possess the necessary qualification and competence for the job, and the opposite party No.2 was employed as full-time senior consultant who holds post-graduate qualifications in cardio-thorasic and is also a Fellow of the Indian Association of Cardiac Surgeons. Special care is taken to explain to the patient about the details of the surgery and possible complications through the doctors and nurses and only after this the consent of the patient for the surgery is obtained. This opposite party denies the alleged negligence on the part of the opposite parties.

The opposite party No.2 would contend that surgery for old patients with P.D.A. is extremely complicated as it involves division and suturing surgery and then his consent was obtained for surgery. During the surgery for closing the P.D.A. the focus is on avoiding injury to the ductal tissue which si friable as a tear may result in uncontrollable haemorrhage and the patient could bleed to death on the operation table itself. In spite of the best care of surgeons during surgery there could be some inadvertant pressure of injury on the laryngeal nerve which is closely associated with the ductus.

The question that arises for consideration is whether there was any deficiency in service on the part of the opposite parties and if so what relief the compliant can be granted.

It may be relevant here to note that as soon as opposite party No. 2 had heard about the impairment of voice he had referred the patient to the ENT specialist. In these circumstances it is very difficult to hold that there was deficiency in service on the part of the opposite parties during the surgery or during the postoperative period.

The Commission, while summing up held that, the complainant would say that he has not been informed before the operation about the chances of the impairment of the vocal cord due to the surgery. But the opposite parties would refute this, and the complainant has signed Exh. B-2, consent letter, wherein it is stated that, "I also understand that the procedure(s) may result in complications (which have been known to occur after the procedure(s) to which I am consenting), even though the utmost care, judgment, and skill are used. I understand that all anaesthetics involve risks and that serious injury or death have been known to occur. No guarantees have been promised to me from this procedures(s)". Further, as seen supra, it has not been categorically proved that the laryngeal nerve has been injured during surgery and, therefore, this plea of the complainant has no force. Considering all these facts we hold that the complainant failed to prove deficiency in service on the part of the opposite parties and, therefore, there is no merit in the complaint.

In the result, the complaint is dismissed.

RECENT COPRA JUDGEMENTS