BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:

HYDERABAD.



F.A.No.951/2008 against C.C.No. 156/2005, Dist. Forum-II, East Godavari at Rajahmundry .



Between:

Dr. Prathipati Udayini Devi ,

W/o.late Venkata Rao, aged 57 years,

now medical practitioner, Navatha Nursing Home,

D.No.14-16, Gandhipuram 2,

Rajahmundry (PO) ,

E.G. Dt. 533 103. … Appellant/

Opp.party



And



Madiki Bala Mani, W/o.M.Veera Prasada Rao,

Aged 23 years, Hindu, House wife,

R/o.D.No.25-6-5/2, Jayakrishnapuram,

Rajahmundry (PO) E.G.Dt 533 105. … Respondent/

Complainant





Counsel for the appellant : M/s.P.Narasimha Rao



Counsel for the respondents : Party in person



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

AND

SMT.M.SHREESHA, HON’BLE MEMBER

WEDNESDAY, THE TWENTY FIFTH DAY OF MARCH,

TWO THOUSAND NINE.



Oral Order : (Per Smt. M.Shreesha , Hon’ble Member. )

***

Aggrieved by the order in C.C.No.156/05 on the file of Dist Forum, East Godavari Dist at Rajahmundry the opposite party preferred this appeal .

The brief facts as set out in the complaint are that the complainant after marriage on 24.10.2001 joined her husband and has been living as house wife at Rajahmundry and approached the opposite party doctor who has been running a nursing home for the treatment of antenatal care and after examining the complainant , the opposite party prescribed medicines and fixed expected delivery date as 5.1.2003 . The complainant took treatment from the opposite party right from on set of pregnancy and in the month of December 2002 when she suffered pain in abdomen she approached the opposite party who gave injections and informed that she must undergo caesarian operation. As per the doctor’s advice the complainant was admitted into opposite party hospital and underwent caesarian operation on 12.12.2002 and delivered a male child . An amount of Rs.15,000/- was collected towards the operation theatre charges , nursing home charges and the complainant also incurred an amount of Rs.5000/- towards medicines. The complainant submits that the opposite party did not give any written receipt for the bill charges collected from her . The complainant suffered unbearable pain during her stay in the hospital and when she reported this fact , the opposite party doctor prescribed some medicines and the complainant was in the hospital for 11 days from 12.12.2002 to 22.12.2002 and even after discharge she experienced acute abdominal pain and once again the complainant approached the opposite party with the same complaint of abdominal pain and opposite party prescribed medicines and pain killers. On 18.5.2003 the complainant once again constrained to approach the opposite party with unbearable abdominal pain and incurred expenditure of Rs.10,000/- for several medicines prescribed by the opposite party. Still there was no progress in her disease and she approached another Doctor Vishnu Murthy of Venkata Chalapathi Hospital of Kakinada and underwent one more surgery on 26.5.2003 and Dr.Vishnu Murthy conducted the surgery and removed the foreign body i.e. gauze cloth from the complainant’s abdomen which was left behind during the operation conducted by opposite party on 12.12.2002. The complainant submits that only due to the existence of the foreign body mop in the complainant’s abdomen for a period of 6 months she suffered pain and also developed tear of large intestine and intra abdominal sepsis together with psychological depression and loss of weight of 8 kgs. The complainant got issued a legal notice calling upon the opposite party to pay Rs.50,000/- towards medical expenditure , Rs.1,50,000/- towards damages and other costs for which the opposite party gave a vague reply denying all the allegations . Hence the complaint.

The opposite party filed counter stating that the complainant delivered a male child in the hospital and that the opposite party conducted surgery but denies an amount of Rs.15,000/- was collected towards operation theatre charges, nursing charges etc. The opposite party denies that there was any problem and if really the complainant reported any such problem she would have advised to be treated by super specialist surgeon . The opposite party submits that she also referred the complainant to Dr. T.Venkateswara Rao M.S.Chief Surgeon Superintendent of Govt. Hospital , Rajahmundry and Dr. A.Tulasi of Suresh Scanning Centre, Rajahmundry and both did not find any fault in the treatment rendered by them. The medical report does not disclose the existence of ‘Gauze Cloth’ and submits that there is no negligence on her part in treating the patient. The opposite party did not insist on full payment and whenever any payment is made, it is only under receipt and the complainant never came to the respondent from January to May with any complaint and therefore this opposite party cannot be made liable after 6 months after discharge of the patient. Hence the opposite party seeks dismissal of the complaint on the ground that there is no negligence on her behalf.

The District Forum based on the evidence adduced i.e. Exs.A1 toA11 filed on behalf of the complainant , allowed the complaint directing the opposite party to pay Rs.50,000/- towards medical expenditure and Rs.1 lakh towards damages together with costs to the complainant .

Aggrieved by the said order the opposite party preferred this appeal.

The learned counsel for the appellant also filed written arguments .

The facts not in dispute are that the complainant approached the opposite party for her delivery and was taking treatment under the opposite party right since onset of pregnancy.The complainant underwent caesarian operation on 12.12.2002 by the opposite party and gave birth to a male child. It is a case of the complainant that she suffered severe abdominal pain after surgery and brought this to the notice of the opposite party and the opposite party prescribed medicines and pain killers but pain did not subside and she was in the hospital for 11 days i.e. from 12.12.2002 to 22.12.2002. The learned counsel for the appellant/opposite party submitted that the opposite party filed a petition I.A.No. 149/07 to set aside the exparte order against her and the exparte order was set aside conditionally on 10.10.07 and costs of Rs.100/- were awarded. Thereafter these costs were not paid . Once again the District Forum gave an opportunity awarding costs of Rs.900/- to be paid on or before 23.10.2007 failing which the petition would stand dismissed. But this was not complied with and the petition was dismissed on 23.10.2007 . It is the case of the learned counsel for the appellant that the District Forum passed an order on 8.11.2007 without giving any opportunity to file his affidavit. We observe from the record that the order was passed on merits taking into consideration counter filed by the opposite party and we also heard the arguments of the appellant/opposite party herein at length and therefore we now address ourselves to the merits of the case.

It is the complainant’s case that an amount of Rs.15,000/- was paid towards operation charges and nursing charges but no receipt was passed to that effect by the opposite party . The learned counsel for the appellant/opposite party stated that no such amount was paid and that receipt is always passed by the hospital with respect of any sort of payments made by the patients. It is the case of the complainant that a foreign body i.e. gauze cloth was left behind in her abdomen during the caesarean operation conducted on 12.12.2002 and this was later removed by Dr.Vishnumurthy of Venkata Chalapathy Care hospital at Kakinada. The caesarian operation itself is not in dispute. Ex.A4 is a scanning report in which abdominal condition is endorsed as follows: There is a heterogenous mass, with central echogenicity and hypoechoic periphery (size 6.0 x 5.6 cms .) in the left lumbar region . Concentric rings appearance is also seen in the mass.”. The case sheet of Dr. Vishnu Murthy hospital is marked as Ex.A7 and this case sheet states that the complainant was admitted on 24.5.2003 with acute abdominal pain and his prescription dt. 10.6.2003 states that exploration and removal of F.B. & Peritonial orlet under G.A. Ex.facie the principles of res-ipsa-loquiter is to be applied to this case . The contention of the learned counsel that there is no expert opinion is unsustainable in the light of res-ipsa-loquiter.

We rely on the judgement Dr.Laxman Balkrishna Joshi v. Dr.Trimbak Bapu Godbole and Anr. reported in (1969) I SCR 2006 wherein the Apex Court discussed the “duty of care” a doctor should undertake

a) A duty of care in deciding whether to undertake the case

b) A duty of care in deciding what treatment to be given

c) A duty of care in the administration of that treatment



In the instant case we are of the considered opinion that the complainant has established that the opposite party doctor has not taken proper care in treating the patient and has not rendered proper medical treatment as per the standards of medical parlance . Keeping in view afore mentioned judgement and also material on record we are of the view that there is negligence on behalf of the appellant/opposite party.

There is clear negligence on behalf of the opposite party in leaving behind the foreign body i.e. ‘gauze cloth’ in the abdomen of the patient which was removed by another doctor. Merely because no receipt was passed for the payment made by the complainant, it cannot be assumed that a private doctor would conduct caesarian operation and keep the patient in her hospital for 11 days and also render treatment without charging any remuneration.

Even otherwise we rely on the judgement of the Apex Court in INDIAN MEDICAL ASSN. v. V.P.SHANTHA (1995) 6 SCC 651 that when medical services are rendered free of charge and the same hospital renders medical services on payment of consideration, the patient who receives medical consideration free of charge is also a ‘Consumer’.

The word ‘services’ is widely interpreted in V.P.Shantha’s case. The Court divided hospitals and nursing homes in three categories.

The Court held thus:

“All persons who avail of the services by doctors and hospitals in category (iii) are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail of the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income…….. We are, therefore, of the opinion that service rendered by the doctors and hospitals falling in the category (iii) irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act. We are further of the view that persons who are rendered free service are the ‘beneficiaries’ and as such come within the definition of ‘consumer’ under Section 2(1)(d) of the Act”

The relevant conclusion is as under:

“ (10) Service rendered at a government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression ‘ service’ as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be ‘service’ and the recipient a ‘consumer’ under the Act”.

Therefore, the above judgement clearly establishes that the complainant herein is a consumer and falls within the ambit of the Consumer Protection Act . For all the reasons afore mentioned, we see no reason to interfere with the well considered order of the District Forum .

In the result appeal fails and is accordingly dismissed . Time for compliance 4 weeks.



PRESIDENT LADY MEMBER

dt. 25.3.2009