A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.



F.A. 967/2006 against C.D 123/2003, Dist. Forum-I, Hyderabad



Between:



Md. Yahiya Qureshi

S/o. Md. Ilious Qureshi

Age: 35 years, Civil Contractor

H.No. 1-2-58, Hasad Street

Narayankhed, Medak Dist. *** Appellant/

Complainant

And



1). M/s. Yashoda Super Speciality Hospital

Rep. by its Managing Director

Malakpet, Hyderabad



2) Dr. B. Mahender Reddy

Chief Surgeon,

M/s. Yashoda Super Speciality Hospital

Malakpet, Hyderabad



3) The New India Assurance Company Ltd.

Divisional Office at 5-2-174/2

Madan Mohan Buildings,

R.P. Road, Secunderabad



4) The National Insurance Company Ltd.

Rep. by its Branch Manager

4th Floor, Taramandal Complex

Saifabad, Hyderabad. *** Respondents/

Opposite Parties



Counsel for the Appellant: M/s. Gopi Rajesh Associates

Counsel for the Resps: M/s. P. Keshava Rao (R1 & R2)

M/s. M. Jeevan Reddy (R4)





HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

SMT. M. SHREESHA, MEMBER

&

SRI K. SATYANAND, MEMBER





WEDNESDAY, THIS THE TWENTY SEVENTH DAY OF MAY TWO THOUSAND NINE



Oral Order: (Per Hon’ble Justice D. Appa Rao, President)



*****





1) The unsuccessful complainant is the appellant.











2) The case of the complainant in brief is that he is a resident of Narayanakhed of Medak District. When he had pain in abdomen, vomiting with giddiness, cold clammy extremities he approached R1 Yashoda Super Speciality Hospital, Malakpet on 10.2.2001 which in turn directed the complainant to R2 Dr. B. Mahender Reddy, Civil Surgeon for treatment. R2 had suggested him to admit in the hospital as in-patient. He diagnosed as ‘acute abdomen peritonitis duodenal perforation’ and suggested to undergo Laporotomy by which he could open the abdomen for the purpose of diagnosis to find out the actual disease. Besides that he had suggested several investigations for which he deposited Rs. 35,000/- besides further expenditure of Rs. 8,000/-. When R2 was about to conduct Laporotomy for which he had to incur an expenditure of Rs. 1 lakh and when he was ready to undergo the operation, his family doctor Dr. Venkatesham visited the hospital , after going through the case sheet, he opined that the doctor had diagnosed wrongly. He made him to discharge from R1 hospital. He got him admitted in Sai Vani Hospital under the supervision of Dr. Sudhaker. He diagnosed that he was suffering from ‘Acute Pancreatitis Sec to Colecystitis” and gave treatment. On that he became alright, and was discharged from the hospital on 15.2.2001. Since R2 had diagnosed wrongly and made him to pay abnormal amounts, he issued notice for which he gave reply with false allegations. Therefore, he filed the complaint claiming Rs. 5 lakhs towards compensation for mental agony, and financial loss etc.

















3) R1 and R2 hospital authorities and the doctor respectively filed written version resisting the case. They denied each and every allegation made in the complaint. While admitting that the complainant was admitted in their hospital with a complaint of sudden onset of pain in the abdomen, vomiting with giddiness, cold clammy extremities, on examination, he was diagnosed as having Pancreatitis. After explaining the line of treatment and various investigations, he was subjected to tests like C.T. Scan, Serum analysis and ultra sound scan. They all suggested negative towards Pancreatitits. On that he was advised for exploratory Laparotomy, alternatively, Peritonitis was suspected. In fact, he was administered IV fluid, O2 inhalation injection. When ultra sound examination of abdomen was taken free fluid was found in the abdomen. Pancreas was found normal. A major surgical profile was also done. Since the tests show negative towards Pancreatitis he was suspected with hollow viscous perforation and there was need for emergency Laparotomy. Since there was no improvement in his condition, he was shifted to AMC unit. He was referred to Dr. Shashikanth, Cardiologist. It was found that he had no cardiac problem. Thereafter, he was referred to Dr. Samar, Gastroenterologist, where serum analysis was conducted. CT scan of abdomen was taken. It was found that Pancreas was normal. Since it was suspected that he was suffering from hollow viscous perforation or acute appendicitis, he was advised for exploratory Laparotomy for which he did not give consent and latter he left the hospital against medical advise. There was no negligence either on his part or on the part of hospital and necessary tests were conducted. No wrong diagnosis was made. The claim was exaggerated. The allegation that one Dr. Venkatesham visited the hospital and opined that the diagnosis was wrong. At the time when he was discharged, no endorsement about the said allegation was made in the case sheet. The complainant left the hospital against medical advise. The hospital was insured for professional indemnity with R4. Therefore, they prayed for dismissal of the complaint with costs.



4) Though R3 was initially impleaded, after coming to know that R4 was the insurer, it was impleaded as proper party. It filed a memo adopting the counter of R1 & R2.



5) The complainant in proof of his case filed his affidavit evidence and that of Dr. Venkatesham and got Exs. A1 to A21 marked, while R1 & R2 filed the affidavit evidence of R2 the doctor and got Ex. B1, admission record maintained by R1 marked.



6) The Dist. Forum after considering the evidence placed on record, opined that the very record filed by the complainant did not disclose that R2 had diagnosed wrongly. Dr. Venkatesham who filed affidavit alleging wrong diagnosis was not produced for cross-examination. Since R2 had taken all precautions by conducting various tests, it cannot be said that the complainant was diagnosed wrongly. There was no expert evidence to show that R2 had diagnosed it wrongly. Consequently, the complaint was dismissed, however, without costs.



7) Aggrieved by the said decision, the complainant preferred this appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The fact that the complainant was made to spend huge amounts for unnecessary tests and finally diagnosed wrongly. In fact, he was suffering from ‘Acute Pancreatitis Sec to Colecystitis”. He was diagnosed as ‘acute abdomen peritonitis duodenal perforation’. He was unnecessarily made to spend huge amounts and therefore he was entitled to compensation. Dr. Venkatesham a third party filed his affidavit evidence stating that it was wrong diagnosis. Therefore, he prayed that the appeal be allowed.







8) The point that arises for consideration is whether R2 diagnosed wrongly and was liable to pay compensation?





9) It is an undisputed fact that on the intervening night of 9/10.2.2001 the complainant admitted in the hospital of R1 while he was suffering from upper pain in abdomen with vomiting etc. R2, on examination suspected Pancreatitis. It is also not in dispute that various tests were conducted in order to rule out any other problems and confirm the exact ailment with which the complainant was suffering from. R2 had diagnosed ‘acute abdomen peritonitis duodenal perforation’. In the discharge summary marked as Ex. B1, it was categorically mentioned that he needs hospitalization for further management. R2 Dr. R. B. Mahender Reddy, Chief Surgeon attached to R1 hospital had administered medicines, got various tests conducted and diagnosed as Pancreatitis and advised exploratory laparotomy. The complainant did not agree, excused himself and got discharged. Later, he himself admitted in Sai Vani Hospital where one Dr. Sudhaker and Dr. Indra Mohan diagnosed it as ‘Acute Pancreatitis Sec to Colecystitis” vide Ex. A3. Though the complainant was discharged from R1 hospital on 11.2.2001 at about 5.40 p.m., on the very same day, he admitted himself in Sai Vani Hospital, complaining “pain in the abdomen, vomitings since two days. “ It looks as though he did not inform about his treatment in R1 hospital. The discharge summary issued by Sai Vani hospital, marked as Ex. A3 discloses that he was having “Acute Pancreatitis, Sec. to holecystitis.” Though number of investigations were conducted in Sai Vani Hospital as evident from Ex.A3, for the reasons not known, the said record was not filed. Only the bill he paid towards the treatment amounting to Rs. 6,400/- was filed.











10) R2 diagnosed it as ‘acute abdomen peritonitis duodenal perforation’. The doctors in Sai Vani Hospital diagnosed it as ‘Acute Pancreatitis Sec to Colecystitis’. From this he alleges that R2 had wrongly directed him to undergo unnecessary laporatomy operation incurring an amount of Rs. 1 lakh, However, when he joined in Sai Vani Hospital without any operation he was cured.



11) R2 filed his affidavit evidence alleging that he made correct diagnosis and he got all the tests conducted to rule out various ailments.



12) The complainant did not dispute about the credentials of R2. Though R2 had filed his affidavit confirming the diagnosis and the treatment made by him as evidenced from the discharge sheet Ex. B1, no effective cross-examination could be made to show that he diagnosed wrongly. Importantly, the complainant did not examine the doctors of Sai Vani Hospital who attended on him to confirm that the diagnosis made by R2 was incorrect, instead he filed a third party affidavit of Dr. K. Venkatesham who said to be his family doctor at Narayankhed of Medak District. Except alleging that diagnosis of R2 was made without any signs or symptoms in order to extract money, he did not tender himself for cross-examination. There is no reason why the complainant did not examine Dr. K. Venkatesham in order to prove that the diagnosis made by R2 was incorrect. No doubt Dr. Venkatesham has given his own reasoning in order to state that R2 made wrong diagnosis, but he did not tender himself for cross-examination. Had he been cross-examined, R2 might have proved that his diagnosis was correct. Importantly, the complainant ought to have examined the doctors of Sai Vani Hospital to prove that R2 had diagnosed wrongly, which made him to pay unnecessary amounts towards various tests. The evidence of PW1 was contradicted by R2 by examining himself before the Dist. Forum.





Except suggesting that his diagnosis was incorrect no expert evidence or medical authorities were suggested to state that his diagnosis was incorrect and was made only to extract money. It is not as though R2 did not refer him to any Gastroenterologist. Evidently, he was referred to Gastroenterologist who himself made investigations. It is not in dispute that C.T. Scan was conducted on the complainant. When suggested to R2 that C.T. scan of abdomen will not reveal that the patient was having acute Pancreas, he denied it. He also asserted that serum analysis is necessary for diagnosing acute Pancreatitis. Because all the tests were negative he advised laparotomy surgery. No doubt, while R2 diagnosed as ‘acute abdomen peritonitis duodenal perforation’, the doctors at Sai Vani Hospital diagnosed as ‘Acute Pancreatitis Sec to Colecystitis’. Unless any medical expert is examined, it cannot be said that such diagnosis was incorrect. It is not known why the complainant did not examine any of the doctors of Sai Vani Hospital, in order to prove that the diagnosis made by R2 was incorrect. It is not sufficient to show that some other doctors made different diagnosis. From that it cannot be concluded that first diagnosis made by R2 was incorrect. In this context it is relevant to rely a decision of Supreme Court in Jacob Mathew Vs. State of Punjab, (2005) 6 SCC-1.

“A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.”





13) To sum up the complainant has not alleged that R2 and other doctors who conducted investigations were not competent to evaluate or diagnose the disease. No evidence was let in to show that R2 or any other doctor was negligent while making investigations that they were unnecessary. The complainant by filing discharge summary made by Sai Vani Hospital, cannot be made to say that investigations made by R2 were unnecessary and were made only to extract money. The affidavit evidence of third party, whom the complainant refers was not examined before the Dist. Forum, nor tendered for cross-examination in order to show that there was negligence on the part of R2 in diagnosing the ailment of the complainant. It is not sufficient if two doctors make two different observations in regard to a disease. What all the complainant had to prove is that there was carelessness or negligence in arriving at the findings.



14) The decision of Supreme Court in Indian Medical Association vs. V.P. Shantha should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed:





“In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man’s control.”















15) No doubt the complainant was undoubtedly made to pay the amounts to a tune of Rs. 43,000/- for various tests. However, the ailment was neither diagnosed nor sub-sided. Later, by spending Rs. 6,400/- at Sai Vani Hospital, he got the ailment subsided and cured. However, we cannot rule out a remote possibility of unnecessarily subjecting him to various tests which made him to pay huge amounts. There is a tendency to make money by referring to various unwanted and unwarranted superfluous tests. This has become order of the day. However there is no definite evidence in this regard in this case. On mere conjunctures we cannot order compensation. The Supreme Court taking cognizance of this fact in Martin F. D’Souza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) held :

The courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.



It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.



Since the complainant could not establish any medical negligence on the part of R2, we do not see any mis-appreciation of fact by the Dist. Forum in this regard.

















16) In the result the appeal fails and is accordingly dismissed. However, no costs.



1) _______________________________

PRESIDENT







2) ________________________________

MEMBER







3) _________________________________

MEMBER

Dt. 27. .05. 2009.

BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.



C.D. No. 28/2004

Between:

1) T. Anandam.

S/o. T. Venkatramaiah

Age: 65 years, Retd. LIC Officer
R/o D.No.27-2-142, Balajinagar
Nellore-524 002

(Expired)



2) T. Girija Kumari

W/o. T. Anandam

Age: 61 years, Housewife
R/o D.No.27-2-142, Balajinagar
Nellore-524002

(Expired)



3) T. V. Rajani Kanth

R/o. Plot No. 102

Bhagavan Residency

Vidyanagar Colony

Near Vivekananda Nagar

Kukatpalli, Hyderabad.



4) T. Satish Kumar,

H.No. 10-5-338/8

Thukaram Gate

Lalaguda, Secunderabad-17.



5) T. Bhaskar

R/o. Flat No. 4,

1st Floor, Lakshmi Apartments

Maruti Nagar

Vijaywada-520 004.



6) Smt. CH. Ramavani

W/o. CH. Vibhunandan

R/o. Flat No. 2,

Self Finance Colony

Vanasthalipuram

Hyderabad-500 071.



7) Smt. P. Yashodhara Devi

W/o. P. Venkata Ramana

H.No. 27/2/408,

Balajinagar

Nellore-524 002.



8) Smt. Thokalapudi Kiranmai

W/o. T. Harinath

R/o. 1/395, Malavya Nagar

Gudur, Nellore Dist.



9) T. Panduranga Vittal

R/o. Sai Nilayam

Near Yalamandya Hostel

Balajinagar

Nellore-524 002. *** Complainants

And



1. M/s. Yashoda Super Speciality Hospital

Rajbhavan Road

Somajiguda, Hyderabad.



2. M/s. New India Assurance Company Ltd.,

Hyderabad. *** Opposite Parties





Counsel for the complainants: M/s. O. S. Sastry

Counsel for the OPs: M/s. G. Venugopal Rao (OP1)

Smt. S.N. Padmini (OP2)



CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER



WEDNESDAY, THIS THE TWENTY FIFTH DAY OF MARCH TWO THOUSAND NINE



Oral Order: (Per Hon’ble Justice D. Appa Rao, President)



*****



1) This is a case of medical negligence.



2) The case of the complainants in brief is that Smt. T. Girija Kumari, is the wife of first complainant and mother of complainant Nos. 3 to 9. She was aged 61 years admitted on 19.11.2003 in R1 hospital on the advise of Dr. Somanath, Cardiologist for open heart surgery as she was having Myxoma (tumor) in the heart by paying fee. At that time, she was hale and healthy and walking on her own. On 20.11.2003 angiogram was conducted however without taking proper precautions. She got brain as well as paralytic stroke on the right side upper and lower limbs. She lost her speech. All this was due to negligence of doctors. The hospital had realized Rs. 70,000/- from the insurance company without conducting any operation. Though her condition was not improved she was discharged on 2.12.2003 after collecting the amounts. He spent Rs. 50,000/- towards angiogram, medicines etc. for which no bill was issued. It was the responsibility of the doctors to restore her to normalcy. No progress was made in her health in spite of spending Rs. 25,000/- per month towards medicines. Since she became invalid due to their negligence they claimed Rs. 26,21,379/- out of which Rs. 25 lakhs towards damages with interest and costs.





3) The respondent hospital resisted the case. While denying each and every allegation of negligence alleged by them, it admitted that Smt. T. Girija Kumari was admitted on 19.11.2003 for open heart surgery as she was suffering from L.A. Myxoma. In fact she was suffering from breathlessness and heaviness in the chest for the past 45 days. It was aggravated by walking and doing household works. She was having puffiness in the face besides sinusitis. She was a known diabetic and hypertensive for the past 15 years. A team of doctors attended on her. It was found that she was suffering from HTN DM type-II and L.A. Myxoma. On an urgent basis she was operated. L.A. Myxoma is a tumour found inside the left atrium of her heart. It requires urgent surgical removal to avoid complications which are life threatening. The most common complications is its dissemination of small tumour particles to different parts of the body resulting in damage to various organs. These complications were explained to the patient, attendants and CAG was performed on 20.11.2003. However, the patient had developed major stroke while in ICCU. Immediately the patient was evaluated by Neuro-physician diagnosed as left MCA territory stroke. CT scan of brain was done on 20.11.2003 itself showed normal. She was taken for Intra Cranial Angio which showed occluded MCA. Through the catheter Urokinase was administered, Post Urokinase the MCA territory was completely opened up. Again CT scan was done on 21.11.2003 which showed IC bleeding. During her stay there was GI bleed. The endoscopy revealed erosive gastritis. She did not take proper precautions during post angiogram. On 2.12.2003 as there was some slight improvement she was discharged. The amounts were collected for conducting various tests and treatment. The allegation that no bill was given is false.











She was given most advanced form of treatment as per medical procedure. Since the stroke was a known complication in LA Myxoma it was not liable to pay any compensation. Though the doctors advised her to come after three days, she never cared or bothered to visit the hospital. She did not come for further check up. There was negligence on its part. Therefore it was not liable to pay any compensation and therefore prayed that the complaint be dismissed with costs.



4) Opposite Party No. 2 filed counter resisting the case. It put the complainant to proof of each and every fact in regard to medical negligence attributed against the doctors. While admitting that it has issued a policy covering professional negligence, the evidence discloses that there was no negligence on the part of R1 hospital or the doctors. Finally it alleged that if any compensation were to be awarded, its liability may be fastened exclusively against opposite party No. 1 and the amount has to be restricted as per the terms and conditions envisaged under the policy. Accordingly it prayed for dismissal of the complaint with costs.



5) The complainants in proof of their case examined complainant No. 1 as PW1, her sons T. Rajanikanth and T. Satish Kumar as PWs 2 & 3 besides Dr. Kurapati Penchal Sudheer, Homeopathy Medical Practioner as PW4, and got Exs. A1 to A83 marked. Refuting their evidence the respondent hospital examined Dr. H. S. Somanath, Senior Cardiologist working in the respondent hospital and got Exs. B1 & B2 marked.



6) The points that arise for consideration are :

a) Whether there was any negligence on the part of doctors in conducting surgery?

b) Whether the complainants are entitled to any compensation?

c) If so, to what amount?











7) It is an undisputed fact that Smt. T. Girija Kumar aged 61 years was admitted in the respondent hospital on 19.11.2003 complaining breathlessness aggravated by walking and doing household works for the past 45 days. Immediately RW1 Dr. Somanath, a Cardiologist attached to the respondent hospital after considering her various ailments Hypertension, Diabetes Mellitus type-II and L.A. Myxoma operated on an urgent basis after conducting CAG. L.A. Myxoma is a tumour found inside the left atrium of her heart. After conducting the operation she was kept in ICCU where she had a stroke. This is a known complication informed to the husband as well as to her sons even before operation. Later C.T. Scan of brain was done which showed normal. She was taken up for Intra Cranial Angio which showed occluded (L) MCA. Through the catheter Urokinase was administered. Post Urokinase the MCA territory opened up completely. CT Scan was repeated on 21.11.2003 which showed IC bleeding. After treating her conservatively and as her condition was improved she was discharged on 25.11.2003 at her request with a direction to come again for evaluation, and treatment if any. However she did not come.



8) Originally Smt. T. Girija Kumari as well as her husband filed complaint on 2. 7. 2004 claiming compensation on the ground that operation was not conducted properly which led to stroke and paralysis. It was almost 7 months after her discharge. It is not known as to the post operative treatment taken by her after she was discharged from the respondent hospital. Subsequent to the filing of the complaint she died on 13.6.2005 and her sons and daughters were impleaded as parties.























9) It may be stated the fact that consent of the patient as well as her husband was taken is evidenced from consent letter wherein it was mentioned “in order to evaluate the blood supply of my heart and its valves and or correction of the same. I voluntarily agree to undergo cardiac cauterization test/PTCA/valvuloplasty in the Department of Cardiology.”. She also “ agreed to undergo emergency surgery if any abnormality is found during the procedure.” The contention was that consent was taken for payment of medical bills only. This is evidently not true. A perusal of record shows that separate financial consent was taken evidenced from Ex. B1.



10. RW1 Dr. H. S. Somnath, Senior Cardiologist conducted the operation with the assistance of several doctors. . The doctors who attended on her were:

Dr. H. S. Somnath, MD., DM, Senior Cardiologist.

Dr. S. K. Jaiswal, MD., DM, Consultant Neuro Physician

Dr. Govind R. Verma, MD. (Med), DM (Gastroenterology)

(Consultant Gastroenterologist, Hepatologist & Therapeutic Endoscopist.



The following diagnosis was made on 19.11.2003 itself vide Ex. A1.

DIAGNOSIS:

Hypertension

Diabetes Mellitus Type-2

LA Myxoma





11) At the cost of repletion, we may state that CAG preceding surgery was conducted on 20.11.2003 as this was described in the summary as:



Post procedure the patient became drowsy and aphasic with right hemiplegia. Patient was immediately evaluated by Neuro-physician and diagnosed as Left MCA territory stroke. CT Scan of the brain was done on 20.11.2003 showed normal. After discussing with patient’s attendants patient was taken up for Intra Cranial Angio which showed occluded (L) MCA. Through the Catheter – Urokinase was administered. Post Urokinase the MCA territory opened up completely. C.T. Scan was repeated on 21.11.2003 which showed IC bleed. Hence Ant-- platelets, Heparin was stopped. During hospital stay patient had GI bleed. Endoscopy revealed Erosive Gastritis.



From 21.11.2003 to 25.11.2003 she was maintained on drugs and she was discharged on 25.11.2003 on request



12) It is not in dispute that various amounts were collected evidenced under various bills Exs. A1 to A79. It looks as though later she was admitted in Rama Paralysis Hospital and Physiotherapy Centre from 17.1.2005 to 12.2.2005 and spent an amount of Rs. 9,900/- vide Ex. A80 and later consulted Dr. C. S. Srinivasa Raju of Bollineni Super speciality Hospital, Nellore vide Ex. A81 and some other doctors.



13) The complainants did not examine any of the doctors from whom she had taken treatment or follow up treatment after the operation conducted by RW1, to prove that the operation that was conducted by him and his team were not in correct lines, which led to stroke and paralysis. By the time she was admitted in the hospital she had LA Myxoma i.e., tumour inside the left atrium of her heart. However although she was taking treatment from a Homeopathy practitioner for such an ailment. It is not known whether he is competent cardiologist to treat such ailment. It is not as though an alternative medicine should not be taken except allopathic treatment. However, when allopathic treatment has been taken it is the bounden duty to prove that proper treatment was not given for such ailment.



14) Curiously to prove the said fact Dr. M. Sudhir, a Homeopathy Practitioner was examined as PW4. He stated that he was treating her for Gastritis and Right side sciatic pain. He gave treatment for a period of five years. In 2003 when she complained of heaviness in her upper abdominal region he found that she was suffering from Hyper Acidity and Gastritis. In the fist week of November, 2003 when she came with a complaint of heaviness in her chest region, he suggested her to go to a multi speciality hospital. It is obvious that PW4 could not detect that she was suffering from LA Myxoma. Even otherwise, he did not maintain any record for the treatment given by him



from 1996 to 2003. He himself admitted that he had treated her for gastric pain only. He stated that “She was diabetic and hypertensive which were treated by an allopathic doctor right from 1996.”



15) PW1 did not say who gave allopathic treatment nor the said doctor was examined in order to find out as to the exact treatment that was given for treating LA Myxoma. When the entire medical record discloses that it was LA Myxoma, PW4 went to the extent of stating that “the said super speciality hospital doctors did not conduct Echo Cardiogram. Their diagnosis that she was suffering from L.A. Myxoma is incorrect. They did not mention that they have given anti coagulant drugs before taking angiogram”. He denied the suggestion that he diagnosed wrongly as gastric pain when she had been suffering from chest pain. He also denied the suggestion that though she had been suffering from the above ailments from 1996 onwards, he did not treat her properly and it became complicated.



16) Except this evidence, there is no other evidence to suggest that the line of treatment given by RW1 and other doctors and the operation conducted went in wrong lines, that led to stroke and finally paralysis. When she had survived for about 7 months after a major operation, she must have taken treatment somewhere else. As we have earlier pointed, infact she had taken treatment from Manipal Hospital, Bangalore vide Ex. A76, Paralysis Hospital and Physiotherapy Centre, Vijayawada vide Ex. A77 and Bollineni Super speciality Hospital, Nellore vide Ex. A81. All these doctors ought to have been examined to state that the treatment rendered by RW1 was deficient. Though the said doctors were not examined, they obtained a certificate from Dr. A. Sudhakar Reddy, Neuro Surgeon, Tirupathi who certified that she was suffering from “Right Hemiplegia & Aphasia due to CVA (L) MCA territory (Brain stroke). She was bedridden, and requires prolonged treatment for nearly one year. She was advised to have physiotherapy and Naturopathy also to improve her health.”



17) We reiterate that these doctors must have been examined to prove that the operation or treatment was not rendered properly. These allegations were refuted by RW1 by tendering himself for cross-examination even. PW4 is not competent to state that the treatment administered by an allopathic doctor RW is in wrong lines. RW1 a cardiologist conducted several tests bleeding, clotting profile, renal function test, routine cardiac check up, X-Ray, Electro Cardiograph, MRI, CT Scan, 2D Echo and Doppler. He himself admitted that tumour could not be removed as the very CAG was conducted for removal of said tumour. He admitted that Neuro Radiologist and Radiologist were not present at the time when he conducted CAG. He denied the suggestion that administering haperin is mandatory. He asserted that Urokinase was administered in order to dissolve the blood clot.



18) In the light of evidence of RW1, which could not be contradicted by the complainants by examining any of the doctors, the question remain for consideration is whether there was any negligence on the part of RW1 in performing the operation?



19) It is not in dispute that RW1 is a competent cardiologist and authorised to treat these cases.

The basic principle relating to medical negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 as follows :



“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 is not the test of the man on the top of a Clapham 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.”



Bolam’s test has been approved by the Supreme Court in Jacob Mathew’s case.







In Halsbury’s Laws of England the degree of skill and care required by a medical practitioner is stated as follows :

“The practitioner must bring to his task a reasonable degree of skill

and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”

(emphasis supplied)



20) At the cost of repetition, we may state that it is not the case of the complainants that RW1 is not competent surgeon to undertake surgery. The complainants did not examine any doctor to state as to the usual and normal practice was not adopted. The Supreme Court recently in Martin F. D’Souza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) after referring to the entire case law on the subject observed :



There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometime end in failure e.g. the operation on the Iranian twin sisters who were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent.



Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.









21) We do not intend to reiterate but suffice it to say that there was no evidence to state that RW1 had treated the patient negligently and contrary to the procedure.



22) Learned counsel for the complainants contended that RW1 did not take any tests before undertaking CAG. Neuro Radiologist and Radiolgist were not present at the time when he conducted CAG due to which she developed Hemiplagea and Aphasia. Without conducting 2D Echo they came to the conclusion that the patient was suffering from L.A. Myxoma. He contended that RW1 admitted that haperin was administered after CAG was done. He contended that Myxoma is established by Echocardiography or pathologic study of embolic material. Contrast angiography is not necessary. Except taking these contentions no expert evidence was placed in order to prove that RW1 had acted negligently while conducting CAG.





23) In support of his contention he filed some excerpts printed from the article Coronary Artery Bypass Graft Surgery by Lori De Milto, Angela M. Costello. No doubt, it was mentioned the tests used to diagnose coronary artery disease include:

Electrocardiogram stress tests, cardiac catherization, imaging tests such as a chest X-Ray, echocardiography, or computed tomography (CT) blood tests to measure blood cholesterol, triglycerides, and other substances.





Since those tests were not conducted he alleged that RW1 was not correct. A perusal of the literature filed by the learned counsel for the complainants did not in any way rule out that CAG should not be administered where the patient was suffering from diabetes, L.A. Myxoma. What all it was stated is that the risk of complications from cardiac catheterization is higher in patients over the age of 60 those who have severe heart failure or those with advanced valvular disease.





24) On the other hand the learned counsel for the respondent relied a Scientific Letter, written by Bilimsel Mekup on Diagnosis and Surgical Treatment modalities in Cardiac Myxomas. He opined that:

“Cardiac myxomas are frequently seen between the 3 and 6 decades of life and more commonly observed in female population ….”. The surgical resection of myxoma is a selective treatment method. Due to sudden death and embolic complications the patients should be urgently operated once the myxoma is diagnosed. He also relied the literature to explain what is stroke (Cerebrovascular accident), what are the symptoms of a stroke? How is a stroke treated? and literature on angiogram.



25) We do not intend to dwell on the said literature but suffice it to say that Cardiac myxomas are frequently seen between the 3 and 6 decades of life and more commonly observed in female population. It was suggested that the patients should be urgently operated once the myxoma is diagnosed. Since it is a known complication RW1 had treated accordingly.



26) Learned counsel for the complainants contended that while conducting CAG RW1 has used the reused catheter and that was one of the reasons why the operation had failed resulting in stroke and subsequently paralysis. RW1 admitted that label on the catheter Ex. A83 shows that catheters are for single use only. However, PW1 could not prove that reused catheter has caused the complications. RW1 asserted that Angiographic Catheter reuse at Haemodynamic Department reveal that there will not be any significant difference if reused catheters were used. In support of his contention he filed an article written by Scherson B A., Dighero T.H.







“There were no significant differences in any of the variables studied, between the age group in which reused catheters were used and the group with new catheters.” May be there cannot be any complications. Ethically RW1 ought not to have used the reused catheter. It is not known whether the said catheter was used on any patient. We do not intend to state that RW1 was professionally guilty in using the reused catheter but it is a question of ethics. In the light of fact that there is no proof that he used the reused catheter. assuming that it was reused, it could not have been the reason for failure of the operation.



27) The learned counsel for the complainants contended that Surgical excision is usually curative and contrast angiography is usually not necessary. The same was refuted by some other literature, which we have already pointed out that the procedure adopted by RW1 was more efficacious than the one suggested by the learned counsel for the complainants.



Assuming it to be true, a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.





28) To sum up there is no evidence to show that RW1 was negligent in conducting the operation and treating the patient. The complainants had failed to examine the doctors who issued the certificates Exs. A65 & A67. They did not examine any independent doctor to prove the negligence or defect in conducting CAG. The medical literature filed in this regard does not in any way establish that the line of treatment given by RW1 was contrary to the medical practice. On the other hand it supports. PW4 a Homeopathy practitioner was neither a cardiologist nor competent to speak about the operation or the treatment given by RW1. But for the operation she would not survived for so long. We do not see any evidence, much less credible evidence to suggest that RW1 was guilty of medical negligence.



29) We have considered the evidence in detail along with literature and since there is no evidence challenging the evidence of RW1, we are of the opinion that there was no negligence on the part of RW1 in conducting the operation as was held by the Supreme Court that “It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.”



30) We do not see any merits in the complaint. In the result the complaint is dismissed. However, in the circumstances of the case no costs.







PRESIDENT LADY MEMBER





APPENDIX OF EVIDENCE

WITNESSES EXAMINED FOR



COMPLAINANT OPPOSITE PARTIES



PW1; T. Anandam RW1; Dr. H. S. Somanath

PW2; T. Rajanikanth (Senior Cardiologist )

PW3; T. Satish Kumar

PW4; Dr. Kurapati Penchal Sudheer

(Homeopathy Medical Practitioner )



DOCUMENTS MARKED FOR COMPLAINANT:

Ex. A1; 25.11.2003; Discharge Summary issued by Op1 hospital.

Ex. A2;



Ex. A3 to Series of bills

Ex. A65;

Ex. A66; Prescription issued by Dr. K.S. Jaiswal of

OP1 hospital.





















Ex. A67; 07.04.2004 Medical certificate issued by Dr. A. Sudhakar Reddy

Of SVRRGG Hospital, Tirupathi.



Ex. A68; 18.06.2005 Certificate of death issued by Municipal Corporation

Nellore.



Ex. A69 to -- Series of bills.

Ex. A79



Ex. A80; 12.02.2005 Receipt issued by Paralysis Hospital & Physiotherapy

Centre, Vijyawada for Rs. 9,900/- for the treatment

given from 17.1.2005 to 12.2.2005.



Ex. A81; 19.11.2004 Receipt issued by Bollineni Super Speciality Hospital

Nellore towards consultation fee.



Ex. A82; 04.01.2005 Receipt issued by Dr. Y. Sanjeeva Rao, Nellore

for Rs. 100/- towards consultation fee.



Ex. A83; - Cardiovascular Angiographic Catheters.







DOCUMENTS MARKED FOR O.P. No. 1







Ex. B1 Original Case sheet No. 1 & 2.

&

Ex. B2













PRESIDENT LADY MEMBER

Dt. 25. 3. 2008.

Consumer Case No.781/2007

Between:-

• M/s. Yashoda Hospital,

Rep. by its Chief Medical administrator,
Malakpet, Hyderabad.

• Dr.B.V.G.Swamy, Consultant Chest Physician,

Yashoda Hospital, Malakpet,
Hyderabad. …Petitioners/Opposite parties
And

• A.Anand Babu, S/o.Late Sri Venkateswarlu,

Aged 31 years

• A.Suresh Babu S/o.Late Sri Venkateswarlu,

Aged 36 years

• Smt.B.Sudha Rani, W/o.B.Rajasekhar,

Aged 33 years

• Smt.A.vijayalakshmi W/o.Late Sri Venkateswarlu

Aged 52 years
All are residents of H.No.263, EWSH,
New Santoshnagar, Saidabad, Hyderabad.

• ICICI Lombard, No.3-6-365/A/B,

Sama Towers, Himayathnagar, Hyderabad. …. Respondents/Complainants

• The Sr.Divisional Manager,

The New India Assurance Company Limited,
#6-3-862/A/B;2nd floor, Lal Banglow,
Green Lands, Ameerpet, Hyderabad.

• The Sr.divisional Manager,

The New India Assurance Company Limited,
IV floor, 4-1-825, Lakshmi Estate, P.B.No.183,
Abids, Hyderabad-500001. ….Proposed Respondents


This Petition coming on 02-04-2009 for final hearing before this Forum in the presence of Sri P.Nivedita Reddy, Counsel for Complainant and Sri N.Harinath Reddy, advocate for the opposite parties, and having stood over till this date for consideration, this Forum pronounced the following:-

O R D E R

(Per Hon’ble President, Sri M.Vijaya Bhaskar Reddy on behalf of the Bench)
1. This is a Petition filed by the Petitioners [Opposite parties No.1&2] under order I Rule No.10 CPC for impleading The New India Assurance Company Limited and the Sr. Divisional Manager of the same New India Insurance Company Limited as opposite parties No.4 & 5 in the main C.C.
2. The main contention of the petitioners as seen from the affidavit is that opposite party No.1 Hospital was insured with the New India Assurance Company Ltd., during the period from 01-04-07 to 31-03-2008, during which period, the complainant had under gone treatment in their Hospital. It is also the case of the petitioners that opposite party No.2 (Petitioner No.2 hearin) had also insured with the New India Insurance Company Limited during the period from 21-04-2007 to 20-04-2008. Finally, it is pleaded that as the complainants have not impleaded the two Insurance Companies who are necessary and proper parties, they have come up with this application.
3. The Complainants in the counter stated that the petitioners could not make out as to how the proposed parties are proper and necessary parties. It is further pleaded that the evidence has been already closed and that at this stage such a petition is not a maintainable. Further it is pleaded that if this case is decided in favour of the complainants and if compensation is awarded and paid by the opposite parties, they could proceed to claim the amount for recovery by filing a separate suit. The proposed parties are not at all proper and necessary parties tothis case.
4.The point for Consideration is:-
1.Whether this petition filed by the opposite parties to implead 3rd parties [Insurance companies] is maintainable?
5.Point:- The Learned Counsel for the petitioners raised only one contention namely that as the petitioners had insured themselves with the proposed parties, the said Insurance Companies would be liable to pay the compensation, if any, and as such the said Insurance Companies are necessary parties.
6. We cannot appreciate the above contention for the reason that this case has been filed under C.P. Act and not under the Motor Vehicle Act. The attribution of the complainants in the main complaint is that there was negligence on the part of the opposite parties [the Doctors] in treating their father. Raising such an allegation, they claimed compensation from the present petitioners (opposite parties). The complainants have no grouse or claim or cause of action or under any obligation to implead the proposed parties Insurance Companies, with whom, the present petitioners had taken a professional indemnity policy. There is no vicarious liability in a consumer dispute. There cannot be any joint and several liability on the part of the Doctors and hospital on one hand and the Insurance Companies on the other hand in a consumer dispute under C.P.Act. Further there is no allegation of negligence on the part of the proposed parties. So, we cannot appreciate the contention of the present petitioners that the insurance Companies, with whom they have taken a policy for indemnity, also should be impleaded. If there were to be any such policy and if we pass any award or decree against the present petitioners, they are at liberty to claim indemnity from the Insurance Company, if they are so advised. For a decision in a dispute of this nature, it is not necessary to implead the Insurance Company, which is said to cover the risk on behalf of the hospitals or the Doctors. There is absolutely no jural relation ship or privity of Contract between the complainant and the proposed party. As already noted, the complainant is not making any claim against the proposed party. Further, this forum cannot direct the proposed parties to pay the compensation to the complainants on behalf of the present petitioners [Opposite parties No.1 & 2]. It would be altogether a different cause of action and we cannot mix up different issues, and causes of action or adjudicate the issues which are extraneous. Vicarious liability may arise in accident cases under Motor vehicle Act, but not under C.P.Act. There is no such provision under C.P.Act to direct a 3rd party to pay compensation etc., to the complainant. Similarly, this Forum would have no power to direct one opposite party to pay compensation to another opposite party or to direct a 3rd party to indemnify the claim amount on behalf of opposite party. The scope under C.P. Act is limited. Liability of opposite parties cannot be substituted by the proposed party insurance company as there is no privity of contract between the complainant and the proposed party. The proposed party cannot be brought into the Picture. (referred 1(2006) CPJ 182 State Bank of India Vs. P.Andrews & others).
7. In the circumstances, we hold that this petition is not maintainable for impleading 3rd party Insurance Companies as they are neither necessary nor proper parties.