VF.A.No.47 OF 2007 AGAINST C.D.NO.122 OF 2004 DISTRICT CONSUMER FORUM-II HYDERABAD

Between
Langapothu Praveen Kumar Reddy
S/o L.Narapa Reddy, aged about 28 years
presently R/o C/o B.Subba Reddy
Dr.No.26-32-37, 6th Lane, A.T.Agraharam
Guntur-004

Appellant/ complainant
A N D
1. Poornima maternity and Nursing Home
rep. by Superintendent Dr.No.7-1-619/A/3
Gayathri nagar, Srinivasa Nagar Colony(East)
Ameerpet, Hyderabad-038

2. Dr.Prasad P.N.
C/o Poornima maternity and Nursing Home
Dr.No.7-1-619/A/3, Gayathri Nagar,
Srinivasa Nagar Colony(East)
Ameerpet, Hyderabad-038

3. The Branch manager
New India Assurance company Limited
2nd Floor, madan Mohan Buildings
R.P.Road, Secunderabad

Respondents/opposite parties

Counsel for the Appellant Sri S.Sasidhar

Counsel for the Respondents No.1&2 Sri K.Janardhan Reddy
Counsel for the Respondent No.3 Sri S.N.Padmini

QUORUM: HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

&

SRI R.LAKSHMINARSIMHA RAO, MEMBER

MONDAY THE EIGHTEENTH DAY OF JANUARY

TWO THOUSAND TEN

Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
The unsuccessful complainant is the appellant. The appeal is filed challenging the order of the District Forum in C.D.No.122 of 2004 whereof the District forum dismissed the complaint holding that the appellant failed to produce documentary evidence that the opposite parties committed deficiency in service in regard to providing treatment for the fractured hip of the appellant.

Briefly stated the facts of the case are that the appellant underwent surgery for fracture to his left hip and thigh in the month of November 1999. The appellant was treated as inpatient in the respondent no.1 hospital for the period from 1.11.1999 to 4.12.1999 during the course of which period operation was performed by a group of doctors on 13.11.1999 in the respondent no.1 hospital where the implants were removed by the doctors later in the month of August 2001. After the implants were removed the appellant reported pain and difficulty in walking. The doctors in the respondent no.1 hospital advised for physiotherapy and bed rest for the appellant for about 10 months. The appellant was unable to attend to his normal pursuits due to persistence of internal disability as a result of which he lost his job and an income of Rs.4,000/- per month. The appellant incurred an amount of Rs.one lakh towards hospital expenditure, pre-operative and post-operative expenses. The appellant suffered mental tension and physical pain. He had got issued legal notice dated 18 .4.2003 to the respondents in response to which they got issued reply dated 23.4.2003.

It was contended on behalf of the respondent no.1 hospital that the appellant underwent surgery for fracture on 13.11.1999 in respondent no.1 hospital and he came after two years for removal of the implants in the year 2001. The appellant got issued notice for which the respondent no.1 has got issued reply dealing with all the facts. The respondent no.2 was working with Yashoda Hospital as also with the respondent no.1 hospital. The respondent no.2 performed surgery on the appellant and attended to post operative treatment as also he advised for discharge of the appellant on 23.11.1999. The appellant expressed his inability to pay the charges and continued to be as an inpatient till 4.12.1999. In all the appellant had paid a sum of Rs.17,000/- and at the time of discharge he was hale and healthy. There was no complaint of pain from him at any time subsequent to discharge from respondent no.1 hospital. After two years the appellant got removed the implants through the respondent no.2 in the month of August 2001. Thereafter the appellant did not comply nor did he come again with any problem to the respondent no.1 hospital. There was no negligence or deficiency in service on the part of the respondent no.1 hospital. Hence, prayed for dismissal of the complaint.

The respondent no.2 contended that he is not aware of the legal notice got issued by the appellant to the respondent no.1 hospital. The appellant in the first instance was admitted to the Yashoda Hospital for fracture of hip where the respondent no.2 was attending as an Orthopaedic surgeon. On the eve of operation the appellant expressed his inability to pay the expenses and got discharged against the medical advice. The respondent no.2 is also a visiting panel doctor of respondent no.1 hospital. The appellant by making enquiries approached the respondent no.1 hospital and requested the respondent no.2 to perform the operation. After the operation that was performed on 13.11.1999, the respondent attended to the appellant’s post operative treatment. He was discharged on 4.12.1999 by making initial payment, a sum of Rs.10,000/- towards doctors fees, hospital charges and implant charges and thereafter he had paid an amount of Rs.7,000/-. The respondent no.2 has been practicing medicine for the last two years in corporate hospitals and he has been working as Associate professor in Osmania Medical College, Hyderabad. The appellant has not approached the respondent after the operation for a period of two years for periodical check up. He consulted respondent no.1 hospital only for removal of the implants after removal of which the appellant did not complain any pain or suffering for a period of three years.

It was contended on behalf of the respondent no.3 that the respondent no.2 had not reported the respondent no.3 insurance company either the treatment to the appellant or filing of the C.D.No.122 of 2004 by the appellant. The respondent no.3 was impleaded only at the stage of final hearing of the case. There is no privity of contract between the appellant and respondent no.3 insurance company. The insurance policy was issued only for reimbursement. Therefore, no joint and several liability should be directly fastened on respondent no.3 insurance company. The amount claimed is excessive and the appellant is not entitled to receive any claim. There was no deficiency in service of the part of the respondent no.2. Therefore, respondent no.3 company can neither indemnify the acts of respondentno.2 nor reimburse the amount or any payment of compensation to the appellant as there was collusion between the appellant and respondent no.2.

In support of his case, the appellant has filed his affidavit and documents Exs.A1 to A6.

On behalf of the respondents, the respondent no.2 has filed his affidavit. Exs.B1 to B6 were marked on behalf of the respondents.

The point for consideration is whether the impugned order suffers from mis-appreciation of fact or law?

The appellant underwent surgery for fracture of his hip on 13.11.1999 in the respondent no.1 hospital. He was discharged on 4.12.1999 from the respondent no.1 hospital. Prior to performing operation certain investigations as blood sugar and blood group, bleeding time etc., were conducted in the respondent no.1 hospital and the same are evidenced by Ex.A3 as also percentage haemoglobin by Ex.A5. The case sheet Ex.B1 indicates the course of treatment and the condition of the patient etc., as also the anesthetist note which was recorded at the time of performing the operation. During the stay of appellant in the respondent no.1 hospital medicine were prescribed and his temperature, functioning of lungs B.P., pulse rate etc were regularly checked by the doctors in respondent no.1 hospital. In fact, the appellant has no grievance against the respondents’ no.1 and 2 in regard to the pre-operative stage and operative stage of the treatment.

The grievance of the appellant is that after the operation he reported pain and difficulty to walk for which the respondent no.2 as also respondent no.1 informed him that pain will subside in due course. When he approached the respondent no.1 hospital in the month of August 2001 for removal of implants, they were removed and even after removal of the implants, the pain has not subsided. The appellant has submitted that he was advised to consult an expert for second opinion. Further, it is the contention of the appellant that the experts opined that he needs surgery afresh in an orthopedic hospital otherwise the appellant would be left disabled. The respondents no.1 and 2 denied any negligence during the post operative stage of the treatment. At this stage, the appellant has filed an application in I.A.No.421 of 2005 to refer him to an expert orthopedician for his opinion in regard to the operation and mode of treatment given to him by the respondent no.2 in the respondent no.1 hospital. Unfortunately the petition was dismissed by the District Forum.

The appellant contends that had the District Forum allowed the application he would have been referred to an expert who would have expressed his opinion on the negligence and deficiency in service committed by the respondents. We see force in the contention of the appellant as the expert’s opinion is the basis for coming to a conclusion whether the doctor or the hospital is negligent in giving treatment to the appellant. The appellant cannot be deprived of an opportunity to prove his case. Hence, we feel it a fit case to be remanded to the District Forum for denova enquiry

In the result the appeal is allowed setting aside the order of the District forum. The complaint is remitted to the District Forum to decide the matter by giving opportunity to both sides to adduce evidence and dispose of the matter within three months from the date of receipt of the order. Both parties are directed to appear before the District Forum on 29.01.2010 without insisting on fresh notice. No costs.