Dr. S.N. Numboodiri vs. Haneefa 1999 CCJ 906

Kerala State Consumer Dispute Redressal Commission,
Thiruvananthapuram

On 16-3-1991 the complainant's daughter aged 4 ½ years was taken for treatment to the dispensary run by the opposite party and the child was under the treatment of the opposite party till 15-4-19d was under the treatment of the opposite party till 15-4-1991. Inspite of the treatment given by opposite party the condition of the child deteriorated on account of negligence on the part of the opposite party. On 23-3-1991, 7-4-1991 and 15-4-1991 the opposite party examined the child and he prescribed medicines and also conducted urine test. The opposite party received consultation fees and the value of the medicines by way of consideration. He gave allopathic medicine and ayurvedic during the period of treatment. He did not make arrangements for blood test and he also did not exercise reasonable care and skill expected of a doctor. He knew hepatic B type is serious than A type and no step was taken to make investigation to find out what is the type of jaundice. The child developed swelling on the legs in the first of treatment. Though her condition became worse, the complainant was not advised to seek better treatment. On 15-4-1991 the complainant was as to take the child to Medical College. She was the only child of the complainant. Due to unskillful treatment, the child died and the complainant was put to irreparable loss and injury. She claimed a compensation of Rs. 99,000/-.

A version was filed by the opposite party that he had been in the medical profession for the last 35 years. He is the owner of the dispensary and he had got qualification of DAM and DMS. He is having a laboratory for conducting routine examination. On 16-3-1991 the patient was brought to the hospital being a case of jaundice. On laboratory examination of the urine of the patient, bile pigment was found to be positive added with excess of bile salt. Her oral condition was found to be satisfactory. After due examination of the patient, he diagnosed it as a case of jaundice. The patient went with the case sheet. He did not find it necessary to examine the blood of the patient. The general clinical feature and also the result of the urine test did not disclose any symptoms warranting a blood test and the physical was also found to be satisfactory not requiring any treatment as an in patient. After prescribing medicine opposite party to gave elaborate instruction to the complainant about the need for bed rest in the house and also about the diet to be followed and complainant was asked to bring child after 7 days and the child was brought on 23-3-1991. Urine was examined and it was found that there were only traces of bile pigment and bile salt was found to be nil and it reveled that the treatment was progressing in the right direction and the patient responding to the medicines administered to her. Same course of medicine was repeated urine was examined and re-tested and it revealed total absence of bile salt and bile pigment and patient was relief of the ailment and their after noting was heard and after 5 months he received a notice send through an Advocate dated 98-1991 stating that child was admitted to the Medical College in a fully conscious stage and discharged on request on 3-7-1991 and child died on 15-7-1991. We do not know what transpired after the child discontinued his treatment.

The District Forum after consideration of the evidence in the case came to the conclusion that there is negligence on the part of the opposite party in the matter of investigation. In that view it passed an order directing the opposite to pay to the complainant a sum of Rs. 25,000. Feeling aggrieved by the said order the opposite party has filed Appeal No.533 of 1995 and not being satisfied with the amount of compensation and the finding entered by the District Forum, the complainant has filed Appeal No.662 of 1995.

The Commission held that the evidence clearly indicate that the opposite party committed clear deficiency in the matter of conducting investigation and also treatment. As indicated above he has not explained for what ailment he it treated and whether medicines prescribed by him were for the ailment of jaundice. He has also administered both allopathic and ayurvedic medicines simultaneously which itself has to be treated as deficiency. No proper investigation was conducted by him and the test resulted on 15-4-1991 cannot be true and it is to be held that even the laboratory attached to the hospital is not a standard one. Exh. A1 series showed bile salt was not nil, bile pigment was nil and that would not indicate the patient was alright. But the evidence of PW2 and documents produced in this case clearly show that patient was suffering from jaundice and the condition of patient was getting deteriorated. S in the circumstances we have no hesitation to hold that the opposite party has committed deficiency in conducting investigations and administering proper medicines. He is also committed deficiency as he mixed up both allopathic and ayurvedic medicines in the treatment of the patient. On a careful consideration of the evidence we have no hesitation to hold that the opposite party failed to make proper investigation and has not exercised reasonable skill and care in the treatment of child and administering proper medicines.

RECENT COPRA JUDGEMENTS

Rajeev Kumar vs. Dr. U.K. Biswas and another 1999 CCJ 1556

Bihar State Consumer Disputes Redressal Commission, Patna

Complainant consulted Dr. U.K. Biswas, opposite party No. 1, on 17-11-1994 for severe pain in abdomen who referred him to Dr. Hari Ram Yadav, opposite party No.2, for barium meal X-ray and to Dr. Dilip Choudhary, opposite party No.3, for ultrasound scanning besides advising him for T.C. and D.C. of W.B.C. routine test of urine and stool. The complainant alleged that the opposite parties wrongly diagnosed him for gastric ulcer and enlarged liver. On the basis of wrong investigation reports the opposite party No.1 kept on treating him for a long time for a disease he was not suffering from. When his condition started deteriorating he came to Patna where he consulted Dr. R.N. Gupta, Associate Professor of Medicine in P.M.C.H., who referred him to a surgeon. He thereafter consulted Dr. Moti Lal Singh, Surgeon, at Patna who advised him for operation of appendix after necessary investigation. He was operated upon by Dr. Nirmal Kumar Sinha on 10-9-1995 at Patna, according to the complainant, clearly indicated that it was not a case of either gastric ulcer or enlarged liver but it was appendicitis for which he was operated upon. He is now all right after following right line of treatment. He was thus subjected to harassment, mental agony and unnecessary heavy expenditure because of wrong treatment by the opposite parties for a long time. The complainant being a lawyer, claims to have suffered professional loss also. He has prayed for award of compensation of Rs.6,00,00. Photocopies of relevant documents were filed along with the complainant petition.

The opposite parties denied the allegation in their show-cause on affidavit stating that the complainant consulted opposite party No.1 on 17-11-1994 with complainant of pain around umbilicus for last one year along with loose bowel and heartburn. On physical examination the opposite party No.1 found tenderness just below umbilicus. There was no pain, no tenderness, no muscle guard, no lump in right iliac fossa which may be a symptom of appendicitis. Further the complainant had no history of nausea, vomiting, anorexia and constipation. He rather complained of loose motion. The opposite party No.1 in order to correctly diagnose the ailment referred him for investigation. The opposite party No.1 in order to correctly diagnose the ailment referred him for investigation. The ultrasound scanning was was performed by opposite party No.3 who found enlarged liver. The total leucocyte count was 8,800 which was not raised above the normal level. In appendicitis total leucocyte count may be higher then 10,000 cells per cmm. in 90 per cent cases. His deferential count was normal. Routine examination was normal. He, therefore at that stager excluded the possibility of appendicitis.

It is found that opposite party No.2 and opposite party No.3 have not effectively defended themselves, against allegation of the complainant although based only presumption. The complainant also has not brought on record any such documentary evidence which could falsify the two investigation reports. Although all the opposite parties had jointly repudiated the allegation of the complainant in the complainant petition but there is not specific assertion that the two reports were based on actual barium meal X-ray and ultrasound scanning respectively in reply to the points raised in the rejoinder of the complainant.

In view of the above discussion we hold that the complainant ha failed to establish the charge of negligence or carelessness on the part of the opposite party No.1. No compensation, therefore, can be allowed to him from opposite party No.1. The treating physician, opposite party No.1, had considered the investigation reports furnished by opposite party Nos.2 and 3 as credible and had used the same in diagnosing the disease. But the opposite party Nos.2 and 3 have not repudiated the allegations brought against them. Lack of due care, therefore, on the part of opposite party No.2 and opposite party No. 3 is attributable to them. Though the complainant has claimed Rs.6,00,000 as compensation from the opposite parties jointly, he has not given the basis for calculation of the said amount. Furthermore, separate amounts have not been claimed as compensation from each of the opposite parties. The details of expenses incurred by the complainant in his treatment have also not been given by the complainant. In view of what has been pointed out above, the ends of justice will be met if a token amount of Rs. 250 is allowed to the compalinant to be paid by opposite party Nos.2 and 3 jointly. Accordingly, opposite party Nos.2 and 3 are directed to pay a token compensation of Rs. 250 to the complainant within one month from the date of receipt of this order failing which they shall be liable to pay interest thereon at the time of 15 per cent annum from the date of filing of the compalinant petition. The compliant petition is partially allowed to the extent indicated above. There is no order as to costs.

RECENT COPRA JUDGEMENTS

Tomarino Marcel D' Cruz vs. Management of St. Joseph's Boys Higher Secondary School
and Others 1999 CCJ 1043

Tamil Nadu State Consumer Disputes Redressal Commission, Chennai

The complainant, Tomarino Marcel D' Cruz is a minor represented by his father. The petitioner minor boy was a student in the opposite party No.1 school at Coonoor. He was a boarder in the hostel of the institution. On 25-10-1992 at 6 p.m. due to a fire accident in the school ground, the petitioner boy's right eye was injured. The school authorities including the opposite party No.2, Vice Principal, attended on the boy and the boy was taken to the opposite party No.3 hospital and there, the opposite party No.4 doctor treated the boy Evisceration was done, i.e. the whole eye was removed by operation. According to the complainant, even though the boy's parents were living in Wyanad at about 140 kms. Away from the school, without giving information about the accident to his parents, the school authorities have allowed the operation to be performed on the boy. The operation was not done properly and on account of that the boy had lost one ye of his. The school authorities have wrongly allowed the students to play with crackers in their school premises. It was due to the negligence on the part of the school authorities and the improper and the negligent manner of treatment including the operation that was given to the boy, the boy has lost his eye. His parents also have suffered mental pain and agony. On these allegations, the complainant was filed claiming compensation under different heads totalling in all to Rs. 10,15,500.

The opposite party Nos. 1 and 2 filed their written version contending that since it was a Deepavali day, the boarders in the hostel were celebrating the festival by screening movies, bursting crackers and having special dinner between 7 p.m. 7.30 p.m. But unfortunately, at about 6.15 p.m. one of the boys had lit a small rocker cracker which had gone in the wrong direction and hit the eye of the petitioner boy who was standing at above 50 feet away. He was immediately taken to the school hospital. Then he was rushed to Emmanuel Eye Hospital. Since unfortunately no doctor was present there, the boy was taken to the opposite party No.3 hospital and there, the opposite party No.4 treated the boy. Since the opposite party No.4 doctor treated the boy. Since the opposite party No.4 doctor stated that the boy had to be immediately operated upon the school authrorities gave consent for the same. In the circumstances of the case, whatever was best was done to the boy and, therefore, there was no deficiency in service on the part of he opposite party Nos. 1 and 2. The school had paid the bill amount of Rs.4,860 for the medical services rendered to the boy and also they have paid a sum of Rs. 10,000 to his parents when he was being taken from the institution for possible future medical treatment. Therefore, it is not correct to say that there was any deficiency in service on the part of the opposite party Nos.1 and 2.

The opposite party Nos. 3 and 4 in their written version would contend that the opposite party No. 4 doctor was well qualified being an MBBS and D.O.M.S. to perform eye operations. On seeing the boy, the opposite party No.4 felt that a detailed examination without anaesthesia was not possible. Therefore, after giving general anaesthesia, the examination was done. It as noted that the right eye had been shattered to pieces and the eye had been totally damaged on account of the fire cracker rocket hitting the eye. The contents of the right eyeball were missing. In other words, technically the perforating the performing injury had caused an expulsive hemorrhage. A portion of cornea and sclera along with the internal contents of the eye, i.e. aqueous humor, crystalline lens, vitreous humor, a portion of the choroid and retina were all extruded out by the torrential hemorrhage occurring under the retina - a condition called as explusive hemorrhage.

The point that arises for consideration is whether there was any decency in service on the part of the opposite parties as alleged.

It is admitted that while the accident happened at 6.30 p.m. they were informed at about 8 p.m. According to opposite party Nos. 1 and 2, the opposite party No. 4 doctor told them that immediately an operation has to be done and, therefore, per force they had to give their consent for the same since otherwise there was a possibility of disastrous results happening. In consideration of these facts and circumstances, the Commission held that it would appear very clear that it cannot at all be said that there was any deficiency in service on the part of the opposite party Nos.1 and 2.

Coming to the opposite party Nos.3 and 4, there is absolutely no allegation in the compliant against the opposite party No.3 hospital except stating that the hospital was not sufficiently equipped for the operation. That allegation has been repudiated by them. Apart from that, there is nothing to substantiate the same. Therefore, there is no case at all against the opposite party No.3 hospital.

Since evisceration was the only remedy, that was done and the opposite party No.4 doctor had taken all necessary tests before the operation. The complainant has not let in any evidence to rebut the said claim of the opposite party No. 4 doctor in the written version filed by the opposite party No.3 and 4. The opposite party No.4 doctor has examined himself as a witness and he has given evidence substantiating what has been stated in the written version. He has categorically stated that if the operation had not been done on that date, it could have been disastrous and he would cross-examination that would discredit the evidence of the doctor in the chief examination. Therefore, there is nothing to show that there was any deficiecny in service on the part of the opposite party No.4 doctor. Accordingly, the compliant is dismissed.

RECENT COPRA JUDGEMENTS

Nirmala R. Parab and another vs. Dr. Kalpana Desai and others 1999 CCJ 1296

Maharashtra State Consumer Dispute Redressal, Commission, Bombay

The complainant Rajaram S. Parab is the father of Ashwini Rane, and he filed this complaint on behalf of his daughter, who is like a living vegetable. The case of the complainant is that his daughter Ashwini A. Rane was under medical treatment and care of the Dr. Kalpana Desai, from fifth month of her pregnancy since she had a previous history of three miscarriages in the seventh month of pregnancy and the doctor had put sutures on the womb of the patient and informed the complainant that sutures will be removed on 2-5-1990 and the approximate date of delivery would be 12-5-1990.

On 23-4-1990, Ashwini Rane was admitted to clinic with labour pains and was informed that an immediate Caesarean operation was necessary. Opposite party No.2, Dr. Janak V. Golwala was called in to attend by the doctor and at 1 p.m. Rane delivered a baby boy. Within a span of half an hour, four doctors rushed into the operation theater and after repeated enquires with the nurses, the complainant was told that the patient may need to be admitted to another hospital where better equipment and facilities for emergency treatment were available as the blood pressure had suddenly fallen and so is the pulse. The patient was shifted accordingly to the Mata Laxmi Hospital in Sion in ICCU in unconscious State. After five days, complainant shifted his daughter to Lion Bappa Hospital on the advice of opposite party No.1 as he could not afford the high expenses . He had shifted the patient again after 18 days to the Lokamanya Tilak Hospital at Silon as the patient was still in coma. Eventually the doctors told him to shift the patient to his home with the hope that she might regain consciousness in the homely atmosphere. His daughter is a living vegetable in bed at house and is being treated still by Dr. Ramani, Dr. Yogesh Parikh and Dr. B.S. Podwal. According to the complainant, the patient is reduced to this stage of brain death due to hypoxia of brain. Complainant prayed for Rs. 10,00,000 as compensation from the opposite parties and also for expenses from time to time for the recurring expenses for bringing up the child and exemplary damages to the daughter. He has attached the reports and the medical bills along with the complaint to substantiate his claim for damages.

On behalf of opposite party No. 2, Dr. Janak V. Golwala, learned Advocate Mr. Hegde stated that the doctor obtained a consent letter from the patient and having consented to be responsible for the consequences of anaesthesia being administered, the applicant is now estopped from claiming damages. To start with, we do not agree with opposite party No. 2 regarding the maintainability of this complaint on the basis of parents not having the locus standi and only the child of the patient being legal heir could file this complaint. Parents are maintaining the upkeep of the patient who is help less and remains as a vegetarian in bed. Parents are required to spend for the medical treatment of the daughter and hence can claim the compensation. Another contention of opposite party No. 2 that the patient signed the consent form knowing risks or involved in anaesthesia based surgery and so cannot later claim any damages arising out of the even is not acceptable to us. Merely signing the consent form does not exclude doctor's responsibility if he is negligent in carrying his duties. We do not accept these above contention raised by opposite party No.2.

After discussing the standard method treatment, as elucidated in medical literature here above referred to, we find that the method of treatment adopted by both Dr. Desai and Dr. Golwala is fully supported by the contemporaneous medical cases papers. They have given the details as to how the treatment was given then there was possibility of cardiac arrest. Necessary injection were given, necessary message was carried out, endotracheal tube was inserted for air passage and all such steps as necessary to meet the emergency were quickly adopted and followed. Treatment, therefore, given by doctors was the established treatment and there was, therefore, no question of negligence. It cannot be lost sight of that the patient was taken out of cardiac arrest and survived. In normal course, the end would have been fatal but because of the timely treatment, the patient could be retrieved from cardiac failure. When the doctors found that the patient could be put under better management with necessary infrastructure, the patient was advised to be removed to another hospital where ICU facilities were available.

We would generally observe that the patients have the tendency to blow out of proportion the grievance against the doctors. When the patient does not recover, the patient presumes that doctors are responsible for his ill health. They spare no opportunity to blame the reputation of the doctors. In this case, the father of Ashwini approached Medical Council, approached also the press and the video media and has thus tried to injure the reputation of the doctors. We have indicated here before that the doctors gave the appropriate treatment at the appropriate time. It is unfortunate that Ashwini could not revive to normalcy but then that stage of health has to be attributed to the patient and not to the doctors. We, therefore, censure the contention of the complainant, who has mudslinger the reputation of both the doctors. However, without any more comments, we pass the following order: The complainant is dismissed with however, no order as to costs.

RECENT COPRA JUDGEMENTS