Mr. P.Balasubramaniam

S/o. Late Palanisamy,

Vadakku Thottam,

Navakkarai, Coimbatore. --- Complainant

Vs.

1. M/s. Sree Abirami Hospitals (P) Ltd.,

2. Dr. P. Periyasamy

Managing Director,

33, Madukkarai Road,

Sundarapuram, Coimbatore – 641024. --- Opposite Parties.

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite parties to repay the sum of Rs.30,000/- amount collected from the complainant, and to pay Rs.1,30,000/- for the medical expenses incurred to the complainant, and to pay a sum of Rs.5,00,000/- towards for compensation for mental and physical agonies with interest to all the above stated amount from the date and towards cost of the proceedings .



The case of the complaint are as follows:

1. The Complainants mother late Thulasiammal, wife of late Palanisamy was admitted on 11.06.2006 with the 1st opposite party for the complaint of stomach pain. The 2nd opposite party had checked and admitted her in ICU for medical treatments at the 1st opposite party hospital. The 2nd opposite party informed that the medical treatments are undergoing as required and a surgery to be performed in the stomach immediately along with other medical treatments for curing her ailments.

The complainant had paid necessary amounts for the medicines and surgery as directed by the 2nd opposite party and an assurance was given for better treatment. Afterwards the 2nd opposite party had refused to give any details about his mother's health condition and the details of the medial treatments given to her and refused to allow anybody to see his mother in the ICU for knowing about her health condition. After much persuasion and repeated requests only the opposite parties allowed the complainant to see her, while she was admitted in their hospitals. The complainant came to know that his mother's health condition is not stable, because of the opposite parties negligence and not providing the correct and required treatments for her.

2. On 13.06.2006 he shifted his mother to KMCH hospitals, Coimbatore, after knowing that the condition of her is becoming bad and worst, due to wrong treatments and negligence of the opposite parties. Further it was very great shock and surprise that there was no surgery performed to his mother as assured by the opposite parties, while receiving the payments for to do the same. While shifting his mother the opposite parties compelled and threatened to settle some bills amounts by raising some bills for higher amount in order to extract money, even after the entire bills were settled already by the complainant.

The 2nd opposite party had chosen to collect the amount for surgery, medicines and other charges without doing anything as assured. The treatments and surgeries were provided to cure her health at KMCH hospitals, Coimbatore as inpatient from 13.06.2006 to 22.06.2006 he had spent a sum more than Rs.1,30,000/- even after the treatments and care his mother was died on 22.06.2006 at hospitals. She would have been saved if proper treatments were given by diagnosing problem at the initial stage, when she was admitted with 1st opposite party hospitals. She could not get the correct and required medical treatments at the point of needs, the 2nd opposite party have willfully failed to provide the same. Her health condition became more complicated because of the wrong diagnosis and treatments, willful negligence in service by both of the opposite parties.

3. Both the opposite parties are guilty of medical negligence in rendering service and will have to make good for the losses incurred to the complainant. Further the opposite parties are bounden duty to repay the amount collected from him without giving any proper treatments and care to his mother and the medical expenses incurred at KMCH Hospital for her treatments and other expenses incurred with interest from the date of incurred and liable to pay the compensation for the mental and physical agonies suffered by the complainant.



The Counter Statement filed by the 2nd Opposite party adopted by the 1st opposite party are as follows:



4. The above complaint is false, frivolous, vexatious and unsustainable both in law and on the facts of the above case. The complaint is totally speculative. Without any basis or material, the complainant has preferred the above complaint. This is nothing but abuse of the process of Court. The complainant has filed the above complaint merely one surmises and guess-work. The patient Mrs. Thulasimmal was in the 1st opposite party hospital only for two days i.e., between 11.06.2006 and 13.06.2006 after which she was shifted by the complainant to another hospital against medical advise. From the allegations made in the legal notice dated 12.4.08 and in the complaint, it is seen that the death of the patient occurred in Kovai Hospitals, 10 to 15 days after surgery. This opposite party has given the best possible treatment to the patient. It is therefore absolutely false to allege that the condition of the patient and risks involved were not explained to the relatives. These opposite parties did what was required on the patient clinically. Any other hospital or doctor would have adopted the same line of treatment.

5. These opposite parties have given the best possible treatment to the patient, fully aware of the consequences involved. The serious condition of the patient was also clearly highlighted time and again. The complainant has himself produced the Discharge Summary dated 13.06.2006 and other records which would go to show that these opposite parties had provided to the complainant all the records from time to time. While so, it is blatant falsehood to allege that no details were provided to the complainant. It is absolutely false to state that these opposite parties threatened the complainant to settle some bills for higher amount in order to extract money. The opposite party is not aware of the treatment given to the patient by KMCH Hospital. The death summary has not been produced. This opposite party is not concerned with the amounts spent by the complainant at KMCH Hospital. Further these opposite parties are not liable to pay the same under any circumstances. It is false to state that this opposite party was willfully negligent in providing the correct treatment to the patient.

6. The complainant and opposite parties have filed Proof Affidavit along with Ex.A1 to A17 was marked and Ex.B1 to B9 were marked on the side of the opposite parties.

The point for consideration is

Whether the opposite parties have committed deficiency in service? If so to what relief the complainant is entitled to?

ISSUE 1

7. The case of the complainant is that his mother Thulasiammal was admitted on 11.6.06 in the ICU ward of the 1st opposite party for stomach pain, the opposite parties informed the complainant’s family that she required surgery and on that ground amounts were paid by the complainant while receiving the payments the opposite parties assured that Thulasiammal will get soon after surgery, but no surgery was performed. The further case of the complainant is that no further details of the health condition was given by the opposite party and due to wrong treatment and negligence of the opposite parties the condition of Thulasiammal become bad and worst.

8. The case of the opposite parties is that the complaint is totally speculative, without any basis or materials the complainant has preferred the present complaint and there is nothing to show any nexus between the death of the patient and the treatment given to her by the opposite parties. The further case of the opposite parties is that best possible treatment was given to the patient and there is no negligence on their part.

9. The two main allegations are

a. the opposite party No.2 has assured that better treatment will be given and a surgery to be performed to his mother in the stomach, but actually no surgery was performed

b. due to wrong treatment and negligence of the opposite parties the condition of Thulasiammal become bad and worst



The further allegation in the written arguments is that the opposite parties have not issued any discharge summary while she was discharged from the hospital.

General:-

10. It is settled law that expert evidence is absolutely necessary to prove medical negligence.(2009 CTJ 352 (SC) (CP))Marrtin F.D’ souza Vs. Mohd.Ishfaq. But in the present case there is no expert evidence in support of the complainant’s contention. In order to level allegations against a doctor the complainant has to place concrete evidence that the doctor in question has been guilty of deficiency of service. But in the present case the complainant has not produced any oral or documentary evidence in support of his first allegation.

Regarding 1st allegation:-

11. The opposite party has clearly stated about the treatment given by him in counter para 5 and 6. As per the opposite party they have consulted Dr.Raja Surgeon and Dr.Palanivel Anaesthesist for surgery but the condition of the patient was such that she was not in a possession to be administered general anaesthesia. Therefore a different procedure was adopted and the surgery was performed on the patient by Dr.Raja M.S.Surgeon and it was known as ‘Abdominocentesis’ (ie. insertion of a plastic tube into the abdomen to remove the contaminated fluid that is present in the abdomen due to a hole in the intestine). But much against the medical advice the patient was discharged by the complainant on 13.6.06. From the above it is clear that the opposite parties have given the best possible treatment to the patient by following a different procedure known as ‘Abdominocentesis’ .

Regarding 2nd allegation:-

12. In the present case Thulasiammal was admitted in the 1st opposite party hospital on 11.6.06 and she was shifted to KMCH hospital on 13.6.06 against medical advice. The opposite party has clearly stated about the treatment given by him in counter para 5 and 6. In fact the opposite party has consulted Dr. Raja Surgeon and Dr.Palanivel Anesthetist, and surgery was performed on the patient by Dr.Raja M.S.(Surgeon). As per the opposite party the surgery that needed to be performed on her was with regard to bowel perforation which was not possible without general anesthesia. This is nothing but a plastic tube that is inserted into the abdomen to remove the contaminated fluid that is present in the abdomen due to a hole in the intestine. The treatment given by opposite parties was not commented by the doctors of the KMCH. Hence we are of the view that a proper treatment was given by the opposite parties to Thulasiammal.

Regarding 3rd allegation:-

13. The complainant himself produced the discharge summary dt.13.6.06 and other records which would go to show that the opposite parties have provided to the complainant all the records which are needed.

14. Hence without any basis or materials the complainant had preferred the present complaint, there is nothing to show any nexus between the death of the patient and the treatment given to her by the opposite parties, the complainant has not shown any independent expert opinion to prove that there is a prima facie proof of negligence or deficiency of service. Hence we are of the view that the opposite parties have not committed any negligence and also not liable to pay any amount to the complainant.

In the result, this complaint is dismissed. No costs.