Christian Medical Centre vs. A. Shajahan III (1998) CPJ 242
The short question that arises is whether before operating the complainant, who was aged 65 years, for cataract of the left eye on 22.3.1996 he was asked whether he was suffering from diabetes. It is not in dispute that at the time when the complainant was operated he was diabetic. The learned Counsel for the petitioner / appellant does not dispute the fact that before the petitioner was operated he was not asked whether he was a diabetic. But he states that all tests were conducted and they did not disclose that he was suffering from diabetes. However the learned Counsel for the petitioner /appellant himself states that if the complainant was on anti-diabetic medicines the tests conducted on him would not disclose that he was suffering from diabetes. The complainant was subject to a second surgery on 28.3.1996 and his left eye was removed. In the appeal before us, under the heading "Brief facts of the case" the tell tale facts as to what happened after 22.3.1996 are stated as follows :
"The operation was successful and the vision to left eye was much more than the right eye. He was discharged on 24.3.1996. The respondent herein again visited O.P. Department on 25.3.1996 with complaint of pain and watering in left eye. On examination, it was found that the eye was infected. He was treated as out patient with powerful antibiotics. He came again on 26.3.1996. He was given suitable medicines. He again came on 27.3.1996 and informed for the first time that he was diabetic for the past four years and was on anti-diabetic medicines. He again visited on 28.3.1996. It was noted that his urine was showing sugar and the infection in the eye was not controllable. He was advised for removal of the left eye. On his consent, it was removed. On his request, he was allowed in the hospital and discharged on 3.4.1996. Subsequently, he visited the Hospital on 6.4.1996; 10.4.1996 and 22.5.1996. On 22.5.1996, he took away the O.P. Card. He gave notice and filed complaint before the reply could be given. After enquiry, the President of the District Forum rules that there was no negligence on the part of the hospital, while the two Members felt otherwise."
The facts of the present case establish that the appellant did not take proper precautions to ascertain whether the complainant was suffering from diabetes before conducting the cataract operation on his left eye. There can be no doubt that this constitutes negligence and amounts to deficiency in service. Admittedly the complainant was diabetic and the precautions that had to be taken in the case of diabetics while operating for cataract were not taken in the case of the complainant on 22.3.1996. Admittedly the complainant was not asked whether he was a diabetic before he was set for operation on 22.3.1996. No error of judgment was involved. It was a negligent oversight, but the direct consequence was that a second operation for removal of the eye became necessary. That, in all probability, could have he avoided if the necessary precautions to be taken in the case of diabetics were taken.
The Commission held that, in the present case it was negligence on the part of the doctor in not enquiring whether the complainant was a diabetic. The doctor cannot take shelter on the fact that the complainant himself did not reveal before the cataract operation was performed on him that he was a diabetic for the past four years. This is not a case where the patient was asked and yet he did not give information as regards his ailments. Doctors treating illiterate patients and patients coming from villages, especially when they belong to the neglected strata of the society, have to question the patients and elicit information about their health and general condition. In fact this is the normal practice adopted by doctors in respect of all patients. As held by the Supreme Court in V.P. Shantha's case medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care and they are not immune from a claim for damages on the ground of negligence. In the result we find that the order of the District Forum finding that there was deficiency in service on the part of the appellant and in awarding Rs.. 25,000/- as compensation to him and costs of Rs.. 500/- is justified and cannot be faulted.
RECENT COPRA JUDGEMENTS
Salinder @ Surender vs. Dr. Vijay Gupta & Ors. III (1998) CPJ 352
Haryana State Consumer Disputes Redressal Commission, Chandigarh
According to the complainant, on 10.8.1995 while driving a scooter he suffered an accident in which his left ankle and leg got entangled between the scooter and a Kikkar tree. He was shifted from his village to the clinic of Dr. Vijay Gupta where he remained admitted for a couple of days and was discharged on 12.8.1995. Later on he was shifted to the clinic of Dr. Pradeep Kohli at Jagadhari on 18.10.1995. According to him, Dr. Vijay Gupta was negligent in treating him as he did not exercise proper skill and competence while treating him and discharged him from his clinic in an unsatisfactory condition. Feeling aggrieved against this, the complainant claimed compensation amounting to rupees two lacs for physical pain, mental torture etc. Since Dr. Vijay Gupta was insured with the Oriental Insurance Company at Karnal, the complainant also impleaded the Insurance Company as opposite party No.2.
In his written reply, Dr. Vijay Gupta pleaded that he was M.D. Orthopaedics and had 20 years' experience in Government Hospitals and was a consultant Orthopaedic Surgeon of repute and eminence. It was also claimed that he was handling all major orthopaedic procedures and had rich experience in the line while running his clinic which was equipped with the most modern and latest equipment. On merits, it was further pleaded that he had exercised due skill and competence while treating the complainant and that there was no fault or deficiency in service on his part. Finally, it was also pleaded that complications like infection and exposure of bone in such cases of crush injury / fracture etc. generally occur and that could not be attributed as deficiency in service or negligence on the part of the doctor.
After thoroughly perusing the record and the evidence available in the case, we do not find any merit in the appeal. Dr. Vijay Gupta is a known Orthopaedic Surgeon and Consultant in the line having rich experience of more than 20 years. It is proved on record that he is running Orthopaedic Clinic for quite sometime, which is equipped with the most modern and latest medical equipment. It is also established on record from the evidence of dr. S.K.Moda and Dr. Pradeep Kohli that the treatment given by Dr. Vijay Gupta to the complainant was the best one which is generally given in such like cases of orthopaedic surgery. Therefore, the Commission observed that, we have no hesitation in holding that the complainant has failed to establish any deficiency in service on the part of Dr. Vijay Gupta. Consequently, there being no legal infirmity in the detailed and well reasoned order passed by the learned District Consumer Forum, the same is upheld.
RECENT COPRA JUDGEMENTS
C. Sivakumar vs. Dr. John Arthur & Another III (1998) CPJ 436
Tamil Nadu State Consumer Disputes Redressal Commission, Chennai
The complaint C. Sivakumar, doing Plus Two by correspondence course is a permanent resident of Viswareddipalayam in Villupuram Taluk. He was having urinal trouble. For this, he approached the 1st opposite party Dr. John Arthur who was working in Primary Health Centre, Radhapuram, on 10.6.1993. The 2nd opposite party was working as a compounder there. The 1st opposite party advised for testing urine. According to the complainant, the 2nd opposite party on 17.6.1993 told him that the 1st opposite party was ready to perform operation on the petitioner and agreed to cure the urine blockage by performing operation and advised him to meet the 1st opposite party. Upon this the complainant went to the 1st opposite party. He demanded a sum of Rs.. 300/- for the operation. The complainant paid a sum of Rs. 150/- undertaking to pay the balance amount after successful operation. Then on the same day the 1st opposite party took the complainant to D.S. Clinic and at 7.30 p.m. he performed operation on the penis of the complainant. The case of the complainant is that in the said D.S. Clinic the operation theatre was not fully equipped with modern facilities for performing this sort of major operations. The further case of the complainant is that after the operation thee was over-bleeding from the region of penis and hence the 2nd opposite party took the complainant to the Government General Hospital, Villupuram and there they were advised to take the complainant to Jipmer Hospital, Vellore. However, the opposite parties took the complainant to Ashwini Hospital. Then the petitioner was taken by the opposite parties to Jipmer Hospital where he was admitted on 18.6.1993 at 10.30 a.m. in the casualty ward. There the petitioner came to know that his penis had been cut and removed by the improper and negligent operation performed by the opposite parties. The Jipmer Hospital authorities reported the matter to the police. Since the penis was permanently damaged they made a hole as a temporary device to pass urine. In the Jipmer Hospital the complainant was treated as an in-patient from 18.6.1993 to 13.7.1993. The further case of the complainant is that his penis has been permanently damaged and on account of that he has to pass urine only through the temporary hole and there is no possibility to get his penis in its normal condition. The further case of the complainant is that due to the negligence on the part of the opposite parties, he had been rendered impotent permanently and is unable to pass urine and not to have sexual intercourse due to which he has been deprived of having any issues. On these allegations the complaint has been filed for an award of Rs.. 10 lakhs to be paid by the opposite parties.
The Commission reasoned that, it is not disputed by the opposite parties what the complainant says that his penis has been cut off and that has caused disability to pass urine. The complainant as PW 1 has clearly deposed so. This has not been challenged in the cross-examination. The complainant has filed MO4 as the photo showing the present position of his penis. This photo shows that almost the entire penis had been cut off and only a small stump has been left. We ourselves personally saw the organ and found the photo to be true and correct. It is not the case of the opposite parties that such cutting of the organ was necessitated in any way. These facts and circumstances lead to irresistible conclusion that a gruesome tragedy had happened to the complainant only due to the gross negligence or utter carelessness on the part of the 1st opposite party who was to treat the complainant for his urine trouble. Now, as seen above the penis has been almost totally cut off. For the complainant the penis has become a dead and lost organ. He has been rendered, as he would claim, impotent. He is not able to pass urine in the normal way, but through only an artificial hole made. The complainant is a boy of just 23 years. He bewails that he cannot marry and have issues. Certainly the loss and trauma the complainant suffers cannot be adequately described in words. Indeed no amount of financial compensation would equate the loss. Considering all these, we award a compensation of Rs. 8,00,000/-. This amount shall be paid by the 1st opposite party only because the 2nd opposite party, even according to the complainant, just assisted the 1st opposite party as the compounder.
RECENT COPRA JUDGEMENTS
Kashiram Bhimrao Kamble vs. Dr. Udaya A. Patil & Another III (1998) CPJ 614
Maharashtra State Consumer Disputes Redressal Commission, Bombay
The appellant Shri K.B. Kamble has preferred this appeal against the order of the District Forum, Sangli in Case No. 1238/1994 rejecting his claim for compensation in respect of death of his wife Kasturi aged 4 compensation in respect of death of his wife Kasturi aged 45 years. The appellant has alleged that his wife was taken by fever and she was, therefore, admitted to the Hospital of the respondent No.2 Dr. P.R. Kulkarni. Dr. Kulkarni examined her and gave Ampicillin Tablets and Cosavil Tablets. He prescribed these tablets to be taken thrice in a day for two days. On 27.8.1994 in the evening, Kasturi again visited the opponent's Hospital. Initially, she was treated by Dr. Kulkarni on 28.8.1994 and as stated on the next day, she visited the Hospital of Dr. Kulkarni and complained about the same eye trouble. Dr. Kulkarni referred her to respondent No.1 Dr. Uday A. Patil who is an eye-surgeon. Dr. Patil prescribed Kasturi some treatment. But on 28.8.1994, she developed some rashes on her face and swelling on her eye-lids. Dr. Patil, therefore, told her to stop all medicines. She was admitted to the Hospital of the respondent No.2 Dr. Kulkarni for Steven Johnson Syndrom, in which the patient's skin gets peeled off (loss of skin). Kasturi was in the Hospital of Dr. Kulkarni upto 10.00 p.m. on 1.9.1994 and during this period, she was examined by Dr. Naik, Dermatologist. As the appellant felt that no proper treatment was given, he removed her to Wanless Hospital in the mid-night of 1..1994. She was in the Wanless Hospital for about 4 days and it is said that she died on 5.9.1994 at about 8.30 p.m. The cause of death was "Septicemia due to 75% skin loss due to drug reaction and this is known as Stevan Johnson-Syndrom.
The complainant complained that both the respondents gave wrong treatment and that they administered anti-biotics without giving a test dose and this has caused the death of his wife on account of Stevan Johnson Syndrom.
The Commission held that, we find that complainant and his wife have been the regular patients of Dr. Kulkarni and Dr. Kulkarni contended that during all the period running in about couple of years, he never saw or witnessed any allergy to anti-biotics in the case of Kasturi. Dr. Kulkarni, therefore, has no reason to suspect that ampicillin will cause her allergy.
Kasturi had improved in the Hospital of Dr. Kulkarni. The appellant took her away to Wanless Hospital without any justifiable cause. Apart from that it can be gathered from the evidence of Dr. Shahpurkar, Dr. Chadda, Dr. Takale that the treatment so given to Kasturi in the Hospital of Dr. Kulkarni was proper in the given circumstances of the case.
In view of this, it is difficult to conclude that either of the respondents were responsible for the death of Kasturi. No negligence is seen in the administration of medicines. The District Forum has also discussed another circumstances about the actual treatment given to Kasturi and it is held that the treatment was proper and within the required parameters.
RECENT COPRA JUDGEMENTS
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