BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT PUDUCHERRY
Consumer Complaint No.35/2006
Dated this the 12th day of November , 2007.
Anna Marie W/o Motchanathan, aged 56, residing at No.1,
Dr. K. Sivadasan, M.D. (Ortho), aged about 47 years, having hospital under the name and style of
THIRU A. ASOKAN, B.A., B.L.,
FOR THE COMPLAINANT: M/s K. Parasuraman, S. Narasima Bala-murugan, S. Ganesh Gnanasambanthan, Advocates.
FOR THE OPPOSITE PARTIES: M/s L. Sathish & Doraissamy, Advocates.
O R D E R
(By Tmt. Selliammal, Member.)
This is a complaint u/s 12 of the Consumer Protection Act, 1986 (hereinafter called the “Act”) praying to direct the opposite parties to pay Rs.3 lakhs as compensation for negligence and deficiency in service, Rs.3 lakhs as compensation for pain and suffering and mental agony together with interest @ 12% p.a. and direct the opposite party to pay the same within thirty days of the order by the Forum.
2. The case of the complainant is as follows:
The complainant submits that on 16.05.2004 she met with an accident and immediately she was admitted in the opposite party’s private hospital on the same day at about 02.15 pm. The opposite party examined the complainant and on seeing the X-ray, he had diagnosed that she had posterior dislocation on her right elbow and she was treated by the opposite party. The opposite party dressed the arm with Plaster of Paris (POP) and prescribed tablets and medicines and discharged her on the same day and advised her to come for review after 15 days and Rs.1,350/- was charged for the treatment. She took medicines regularly as prescribed by the opposite party and within a week she had developed severe pain in the abdomen and also pain with irritation while passing urine and suffered due to urinary infection because of heavy dosage of medicines taken by her as prescribed by the opposite party. So, she was admitted in the
Dr. R.V. Krishnakumar gave opinion that the complainant required open reduction and the elbow movement unpredictable after surgery and so she had decided to go for a super specialty hospital for further management and on 15.07.2004 she got admitted at
3. The opposite party in his version denies all the allegations and averments of the complainant as false. The opposite party submits that he had taken a professional indemnity policy for doctors with the National Insurance Company at
4. In support of the respective cases, CWs.1 & 2 were examined and Exs.C1 to C19 were marked on the side of the complainant and RW1was examined and Ex.R1 was marked on the side of the opposite party.
5. The points for consideration are:
1) Whether the complainant is a 'consumer' or not?
2) Whether there is any deficiency in service on the part of the opposite party?
3) To what relief the parties are entitled?
6. POINT No.1:
The complainant was admitted in the opposite parties
This point is answered accordingly.
7. POINT No.2:
The complainant submits that on 16.05.2004 she met with an accident and was admitted to the opposite party’s hospital on that day at about 02.15 pm. This is proved by Ex.C1. The opposite party examined her by X-ray and he diagnosed as posterior dislocation on her right elbow and treated her and applied POP & dressing and prescribed tablets and medicines and the complainant was discharged on the same day and advised to come for review after 15 days and a sum of Rs.1,350/- was charged for the treatment is proved through Ex.C12 (4), (7), (8), (9) & (17). But the opposite party alleges that the complainant was referred to his hospital by Krishna Nursing Home vide their letter dt.15.05.2004 under Ex.R1(1) which was brought by her on 16.05.2004. The opposite party states that at that time when she joined his hospital, she had severe pain and immediate steps were taken by him as there was complete loss of rotational movements in the elbow. X-ray was taken to confirm the diagnosis and as she had head injury, neuro-surgeon’s opinion was sought. The complainant’s joint was reduced by the opposite party and an above elbow POP slab was applied with IV compose. As she is a hypertension patient, injection fortwin was given and as she had head injury, general anaesthesia was not given to her. A check X-ray was taken with POP and the reduction was found to be satisfactory. She was discharged with analgesics such as paracetamol, some vitamins and chymoral forte which reduce tissue oedema and they are the simplest combination of patented drugs. Exs.C1 & R1(1) to (8) prove that the opposite party had taken care and gave treatment to the complainant as referred above. The complaint and her evidence itself res ipso loquitor, i.e. speaks for itself, that as per the advice of the opposite party, she had not attended the opposite party’s hospital for review after 15 days. The complainant alleges that after one week of the treatment and taking the medicines regularly as prescribed by the opposite party, she had severe pain in the abdomen and also pain with irritation while passing urine and thus she had suffered from urinary infection by taking the heavy dosage of medicines prescribed by the opposite party. So, she was admitted on 24.05.2004 at
Dr. R.V. Krishnakumar. The opposite party filed Ex.R1(24) which shows the admission and discharge and the treatment and medicines given to the complainant.
8. By going through the evidence of CW1, we come to know that she was admitted in the opposite party’s hospital for dislocation in her right elbow on 16.05.2004 and after the removal of POP she attended physiotherapy for about five days. It is clear from the words of the complainant that “after discharge I did not visit the opposite party and took physiotherapy with the opposite party. After that I consulted Dr. Krishnakumar but not taken physiotherapy treatment under him.” She also alleges that the opposite party had not taken X-rays prior to or after the removal of POP. But afterwards, she says that, the first X-ray taken on 16.05.2004 was with the hospital. So, it is quite clear that after her discharge, the complainant had not visited the doctor in order to intimate her condition in her elbow after the removal of POP, but she had undergone only physiotherapy treatment. As a doctor, the opposite party had instructed her to come for review, which she had failed to do so. It is printed at the backside of the prescriptions that if any complication arose, they advised the patients to approach the doctor immediately. As per this advice, if the complainant had really suffered, she would have intimated it to the opposite party. But she had not done so. Whereas, she had deposed that she had urinary infection due to the over dosage of medicines prescribed by the opposite party. But RW1 had not admitted it in his evidence. The complainant herself in her evidence stated that she had taken treatment for removal of stones from kidney one year before her treatment from the opposite party. Thus, the complainant had failed to prove the fact that urinary infection was caused only due to the medicines prescribed by the opposite party. She also alleges that the opposite party had failed to take X-ray after the removal of POP and thus caused gross negligence in not giving proper treatment and care which caused permanent disability and mental agony and sufferings to her for which the opposite party is liable to compensate for it. But the opposite party denies it. CW2 in his evidence stated that in Ex.C4 he had opined that the range of movements in the right elbow was 30o to 40o and she might require open reduction and the range of movements was unpredictable even after surgery. He also agrees that if the patient had a jog of movements before treatment and by treatment if it comes to 30o to 90o of lexion, it could be termed as an improvement in the rotational movement of that particular joint. “He also agrees that in the case of dislocation of elbow joint, the first line of management would be closed reduction and physiotherapy treatment. He also evidenced that if the patient does not do physiotherapy as instructed by the orthopaedician, there is a possibility of the reduction in the degree of rotational movements. “Further, he states that there is nothing wrong in the line of treatment given by an orthopaedic in case of dislocation of elbow joint, if he has done the closed reduction just followed by physiotherapy.” Even after consulting CW2, the complainant went to the opposite party’s hospital and then to
9. Breach of duty in not taking the X-ray is to be proved by the complainant as observed in 2002 – CPJ National Commission page 157. The act of the opposite party caused damage is to be proved as observed in 1) 1998 I CPJ National Commission, 2) 2002 – CPJ National Commission, 3) 201 – CPJ National Commission. As per 2003 – 1 CPJ National Commission, the conservative method is followed and it is the discretion of the doctor to choose the treatment and as such there is no medical negligence.
10. We must decide whether there is deficiency in service on the part of the opposite party with regard to the procedure adopted by him or not. Before deciding it, let us know what is medical negligence: “Medical negligence is defined as lack of reasonable care and skill or wilful negligence on the part of a doctor irrespective of acceptance of a patient, history taking, examination, diagnosis, investigation, treatment – medical or surgical, etc., resulting any injury or damage to the patient. Damage means physical, mental or functional injury to the patient. “The Hon’ble Supreme Court also put reliance on the following observations of House of Lords in the case of Bolam v. Frien Hospital Management Committee (1957) WLR 582 – (1957) 2 ALL England Law Reporter 118 (QBD), where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not in the test of the man on the top of a claphan omnibus because he has not got this special skill . . . . . . . .” “The test is the standard of the ordinary skilled man, exercising and professing to have that special skill. A man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art,” as observed in SCDRC page 638. The Bolam Test envisages the duty of care in the following terms:-
a) A duty of care in deciding whether to undertake the case;
b) A duty of care in deciding what treatment to give;
c) A duty of care in his administration of that treatment.
Bolam Test was accepted with approval in the following judgments:
1) Sidway v.
2) Indian Medical Association v. S.V.P. Shantha & others (1995) 6 SCC 651; and
3) Jacob Mathew v. State of
11. In order to prove medical negligence, the onus of proof lies on the person making such an allegation as it was held in (NCDRC) P.604. It is not for the doctor to prove that he acted with sufficient care but for the patient to establish that the doctor was negligent while treating the patient as observed in SCDRC, Page 665. In the case on hand, the complainant took treatment as an inpatient and then she was asked to come for review and advised to do physiotherapy daily. But without attending the doctor, the complainant continued the physiotherapy treatment. In between, she had approached RW2 for second opinion and he had suggested for open reduction. During this time, the complainant was an outpatient and so it was only her duty to approach the doctor to know about her condition and for further treatment from the opposite party. Thus, the opposite party had done his duty with proper care without any negligence on his part. She was also recommended to a neurologist by the opposite party. Even after going for the second opinion to another doctor RW2, the complainant approached the opposite party, who had given treatment to her without any hesitation. Since the complainant had faith on him only, she had approached him again and again. Doctors are having duty of care in deciding what treatment is to be given to the patient. It was observed in 2007 JMC National Commission, New Delhi:
“Two medical texts suggest two different methods of treatment – Doctors free to adopt one of the procedures – the treating doctors followed Bolam test having requisite skill – Appeal is dismissed.”
In the case on hand, RW2 had given evidence that the procedure followed by the opposite party is followed normally. But he never alleges that the treatment given by the opposite party is a wrong one. Thus, this point is not proved by the complainant. As the opposite party had followed the normal procedures, there is no medical negligence and he cannot beheld liable.
12. Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against the affidavit filed by the doctors. It was held in Mrs. Kiran Balan Ront v. Christian Medical College and Hospital & Others – 2003(1) CPR 238 (NC) and in 2007 JMC 219 Madhyapradesh State Commissionand in 2006 JMC 98, the Karnataka State Consumer Disputes Redressal Commission, Bangalore – No evidence of any expert that course of treatment was erroneous – No negligence or deficiency in service. The same view was held in 2007 MLR 457 National Commission, Delhi – No expert evidence that doctor was negligent and in 2007 MLR 490, Karnataka State Consumer Disputes Redressal Commission, Bangalore and in 2006 JMC 84 National Consumer Disputes Redressal Commission, New Delhi observed that medical negligence has to be proved by proper medical expert evidence and not merely on statement of patient. In the case on hand also to prove the case of the complainant no expert has been examined.
13. In 2007 MLR 760, Madhypradesh State Consumer Disputes Redressal Commission, Bhopal – Fracture – Close reduction Procedure – A five-year old child met with an accident and suffered compound fracture and supracondylar humerus left side with vascular deficit – Doctor did not close reduction with general anaesthesia – Restriction in movement, an expected phenomena – Procedure of close reduction well recognized by the Medical Science – No deficiency on the part of doctor in treating the child. In the case on hand also the opposite party had done the close reduction, the procedure used is recognized by the Medical Science. Thus, there is no deficiency in service on the part of the opposite party, because the skill of doctors may differ from one doctor to another. But if they adopt the procedure which is administered by the medical world as per the treatment, then there is no negligence at all.
14. In 2007 JMC 174 – National Consumer Disputes Redressal Commission, New Delhi – First surgery of the complainant for asymptomatic for over three years was successful – No complaint at all from him when complainant visited for his regular treatment and he was advised to come again after five days – He did not turn up – Contributory negligence on his part – Right line of treatment provided by the hospital and orthopaedic surgeon – Complaint dismissed. In the case on hand also the complainant, after her first admission, was asked to come for review and to take physiotherapy treatment, but as per her evidence, she went for physiotherapy treatment, but she never met the doctor. So, the opposite party is not liable for it. Further, the complainant is an outpatient after her first admission. Right line of treatment is given by the opposite party is accepted and agreed by RW1 during the course of his evidence.
15. The learned counsel for the complainant argued in accordance with the complaint averments. She had not examined the expert to substantiate her case. She even failed to file necessary medical texts as proof for the case. They filed only one sheet of a chart, which was also not marked and it is also not a full text. Furthermore, as alleged by the opposite party, the complainant had filed the plan for the supracondylar treatment which is the treatment given for the childhood is clearly proved through 2007 MLR 760 – Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal, the facts of which have already been stated above. So, in no way the complainant has established her case. The opposite party has proved that he had taken proper care and had given proper treatment and there is no breach in his service as he had followed the conventional method which is the normal one and accepted by the medical world as per the medical text. No material has been brought on record to state that the opposite party is not a qualified surgeon or selection of treatment or its administration was not as per practice followed by large number of professionals in such cases. It is settled by a number of decisions of the Hon’ble National Commission as well as the Hon’ble Supreme Court of India that while treating a patient, if the doctor in charge adopts the conventional method and manner of treatment as prescribed by text and followed by specialists of the line and during the treatment even if the patient does not respond and death takes place, the doctor attending the patient cannot be accused of any negligence or deficiency in service as it was held in Master Sabam Kashyap v. Dr. (Mrs) Sarala Madhan – 1 (1999) CPJ 505. Hence, the opposite party had proved his case through his evidence and documents filed by him. Further, Ex.C19 shows how the right elbow of the complainant is affected and rectified. Due to the above said reasons, the opposite party is not liable to compensate the complainant, as there is no deficiency in service on his part.
The point is answered accordingly.
16. POINT No.3:
Since Point No.2 is answered in favour of the opposite party, this point is also answered in favour of the opposite party.
17. In the result, the complaint is dismissed. No costs.
Dated at Pondicherry on this the 12th day of November, 2007.
CW1 – Annamarie (complainant)
CW2 – Dr. Krishnakumar
OPPOSITE PARTY’S WITNESSES:
RW1 – Dr. K. Sivadasan, (Opposite party).
Ex.C1 – 16.05.2004 – Medical bill by Sri Sai Kirupa Hospital.
Ex.C2 – 09.06.2004 – Discharge summary of Annamarie.
Ex.C3 – 24.05.2004 – Discharge summary of Madhava Hospital.
Ex.C4 – 12.07.2004 – Prescription of Dr. R.V. Krishnakumar.
Ex.C5 – 05.06.2004 – Medical bill by Sri Sai Kirupa Hospital.
Ex.C6 – 27.07.2004 – Discharge summary by Miot Hospital.
Ex.C7 – 04.08.2004 – Discharge summary by Miot Hospital.
Ex.C8 – 11.12.2004 – Certificate by Miot Hospital.
Ex.C9 – 26.01.2005 – Advocate notice issued by complainant to opposite party.
Ex.C10- 24.02.2005 – Reply by Sri Sai Kirupa Hospital.
Ex.C11- (series) - Cash bills by Miot Hospital (14 Nos).
Ex.C12- (series) - Cash bills for purchase of medicines and lab charges (18 Nos.)
Ex.C13- (series) - Medical Bills of Sai Kirupa Hospital (11 Nos.)
Ex.C14- (series) - Medical Bills of Madhava Hospital (18 Nos.)
Ex.C15- (series) - Medical bills of Madhava Hospital (10 Nos.)
Ex.C16- 15.07.2004 – Lab report of Miot Hospital.
Ex.C17- (series) - Prescriptions of complainant (8 Nos.)
Ex.C18- (series) - Recipes (6 Nos.).
Ex.C19- 12.07.2004 – X-ray.
OPPOSITE PARTY’S EXHIBIT:
Ex.R1 – 15.05.2004 – Case-sheet pertaining to complainant produced by RW1.