| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER Wednesday the 15th day of November 2023 CC.100/2011 Complainant Sudheesh Kumar. P. K, Natyamangalath House, P. O Thikkuni, Vatakara Via, PIN – 673512 (By Adv. Sri.E. K. Narayanan, Sri. Sijith. M) Opposite Parties - Dr. A. Soopy , (Died)
Managing Director, Amana Hospital, Kuttiady, 2. Dr. Sachith, Pediatrician, Amana Hospital, Kuttiady. - Soumya,
D/o George, Puthuppally Thakadiyel (HO), Maruthonkara .P.O, Mullankunnu, Kuttiady, Kozhikode. Suppl 4. Dr. M. C. Ummer, Managing Director, Amana Hospital, Kuttiady, Kozhikode. (The first opposite party is reported dead. The present managing director was impleaded as the supplemental fourth opposite party as per dated 03/03/2015) (By Adv. Sri.Shyam Padman) ORDER By Sri. P.C. PAULACHEN – PRESIDENT. This is a complaint filed under Section 12 of the Consumer Protection Act, 1986. - The case of the complainant, in brief, is as follows:
The complainant is the father of a two year old child, Neha by name. As the child was suffering from fever and vomiting, on 02/08/2010 the child was taken to the first opposite party hospital. At that time, the child was one and half years old. The second opposite party doctor examined the child and prescribed some medicines and injection. The third opposite party, who is the nurse, administered the injection. After the injection, the child started crying continuously. Even after reaching home the child continued crying and hence she was taken back to the same hospital and as per the advice of the second opposite party was admitted there. - On 03-08-2010 she was discharged. Then it was found that the child could not stand and walk properly as she did before the injection. On 04-08-2010 the complainant consulted the same doctor. The doctor after examining the child stated that she would be alright very soon and further advised to consult Dr.Sashidharan in Baby Memorial Hospital, Kozhikode. Dr.Sashidharan advised the complainant to continue the treatment suggested by the second opposite party.
- But the child continued crying and showed irritation. The complainant again met the second opposite party who then expressed the view that the injection was not given in a proper manner and the indisposition of the child was due to improper administration of the injection by the third opposite party and advised the complainant to consult the doctor at the Govt. Medical College Hospital, Kozhikode for further treatment.
- Accordingly, the complainant took the child to the Medical College Hospital and consulted Dr. Vijayakumar, a Paediatrician. Dr. Vijayakumar stated that the injection was given in a wrong place in an improper manner and that prolonged treatment was required for improvement of the condition and as per his advice the child was taken to Dr. James Jose of the Neurology Department. The child was admitted in the Neurology Department on 06/08/2010 and was discharged on 10-08-2010. Dr. James Jose was of the opinion that the child developed neurological problems as the injection was done improperly on the wrong part of the body. Dr. James Jose said that normally such injection has to be given on the nerve. But it was done on the buttocks of the child where there is no nerve and is fleshy. The child has not regained her normal health. She is not able to stand and walk properly. She has become very gloomy and lost entire playful mood.
- On 30-09-2010 the complainant issued lawyer notice to the opposite parties calling upon them to compensate the complainant for the loss and mental agony suffered by him due to the improper service rendered by the opposite parties. The first and second opposite parties sent reply raising untenable contentions. The complainant has already spent Rs. 20,000/- for the treatment of the child and expecting continuous treatment for an indefinite period. Hence the complaint claiming compensation of Rs. 15,00,000/-.
- The first opposite party, who is the managing director of the hospital, is reported dead. The present managing director was impleaded as the supplemental fourth opposite party as per order dated 03/03/2015 in IA No. 7/2015.
- The opposite parties have resisted the complaint by filling written version. In the written version filed by the first and second opposite parties jointly, they have denied all the allegations and claims made against them in the complaint. According to them, the child was treated as per the universally accepted standard medical protocol and there was no negligence or deficiency in service on the part of the opposite parties. The second opposite party is a well-qualified and experienced Paediatrician. The third opposite party is a well experienced staff nurse. The first opposite party hospital is a Multi-Speciality Hospital.
- The complainant brought his child to the hospital on 02/08/2010 with complaints of fever, vomiting and loose stool. After examining the child, the second opposite party advised tablet Ziprax, Domostal and Paracetamol. As the child continued to have vomiting, she was advised injection Phenergan. The injection was administrated by the third opposite party at upper and outer quadrant of the right buttocks with all care, caution and attention. As the child was symptomatically relieved, she was taken home by the complainant. Later in the evening at about 7 pm the child was again brought to the hospital with high fever and severe dehydration. She was admitted and treated and was discharged on the next day. On 04/08/2010 the child was again brought to the hospital and on examination it was noticed that there was slight pain and tenderness at the injection site and was showing disinclination to carry weight on the said leg. Even though the said behaviour of the child could be attributed to pseudo paralysis, to get a second opinion, the child was referred to Dr. C.K. Sashidharan of Medical College Hospital, Kozhikode. On 05/08/2010 the complainant met the second opposite party and informed that Dr. C.K. Sashidharan advised to continue the same treatment. Even though the second opposite party had appraised the complainant that there was every possibility of the child becoming symptomatically better within a span of one week, but as the parents were highly apprehensive and paranoid, the second opposite party referred the child to the department of paediatrics, IMCH Kozhikode on 05/08/2010 and thereafter the complainant or the child had not come to the first opposite party hospital and they were lost for follow up.
- It is learnt that the child was taken to the Department of Paediatrics IMCH, Kozhikode wherein after cross reference with the Department of Neurology, the impression was either traumatic neuritis, post viral demyelination or pseudo paralysis. The condition of the child is known to have improved after a few days without any specific management, medication or treatment. Traumatic neuritis, post viral demyelination and pseudo paralysis are all known and accepted medical conditions which can occur inspite of best care, caution and attention on the part of the treating doctor, the hospital and paramedical stall.
- The allegation that the child started crying continuously after the injection, that even after the child was taken back home she continued crying, that the second opposite party expressed the view that the injection was not given in the proper manner and the indisposition of the child was due to the improper injection administered by the third opposite party and advised reference to Medical College Hospital for further treatment, that Dr. Vijayakumar said that injection was given in a wrong place and in an improper manner, that Dr. James Jose said that the child developed neurological problems since the injection was done improperly and on the wrong part of the body, that normally the said injection ought to have been done on a nerve, but in this case it was done on the buttocks of the child where there is no nerve and is fleshy etc. are not correct or sustainable, besides lacking in truth and bonafides. All such allegations are specifically denied by the first and second opposite parties.
- The allegation that it is on account of the negligence and dereliction of duties on the part of opposite parties that the child had to suffer pain and discomfort, that she is not able to walk and run properly, that right foot cannot be properly placed, that already Rs. 20,000/- has been spent for treatment of the child and that continuous treatment for an indefinite period is expected and the future condition of the child cannot be predicted now with certainty etc. are not correct or sustainable, lacking in truth and bonafides, besides being erroneous and malafide. The claim for Rs. 15,00,000/- as compensation is erroneous, baseless and unsustainable and disproportionate. The complaint is bereft of bonafides. The claim for compensation is not allowable. It is, therefore, prayed to dismiss the complaint with costs.
- The third opposite party has adopted the contentions in the written version filed by the first and second opposite parties and has added that she is a well-qualified and experienced staff nurse and has performed her duties as per the universally accepted standard medical protocol and there was no negligence, deficiency in service or short coming on her part.
- The supplemental fourth opposite party has also adopted the contentions raised in the written version of the first and second opposite parties and prays for dismissal of the complaint.
- The points that arise for determination in this complaint are;
1) Whether there was any negligence or deficiency of service on the part of the opposite parties, as alleged? 2) Reliefs and costs. - Evidence consists of the oral evidence of PWs 1 and 2 and Exts. A1 to A15 on the side of the complainant. The second opposite party has filed proof affidavit. The complainant did not cross examine the second opposite party.
- Both sides filed brief argument notes.
- Point No.1: The complainant has approached this Commission seeking compensation of Rs. 15,00,000/- alleging negligence and deficiency in the treatment of the complainant’s daughter Neha aged one hand half years old, who came to the hospital with fever and vomiting. The specific allegation is that such negligence and deficiency in service occurred when the third opposite party administered injection Phenergan improperly and in the wrong part of the body. According to the complainant, the said injection ought to have been done on the nerve, but it was done on the buttocks of the child where there is no nerve and is fleshy, which resulted in the child developing neurological problems.
- In order to substantiate his case, the complainant got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Exts. A1 and A2 are the bills dated 02/08/2010 issued from Amana Hospital, Kuttiyadi, Ext. A3 is the prescription dated 03/08/2010, Ext. A4 is the bill dated 03/08/2010, Ext. A5 is the bill dated 04/08/2010, Ext. A6 is the registration bill dated 04/08/2010 of Baby Memorial Hospital, Kozhikode, Ext. A7 is the reference letter dated 05/08/2010, Ext. A8 is the discharge summary of the Govt. Medical College, Kozhikode, Ext. A9 is the referral outpatient ticket, Ext. A10 is the O.P ticket of Govt. Medical College, Kozhikode, Ext. A11 is the prescription of Dr. James Jose, Ext. A12 is the bill dated 10/12/2010 for having purchased surgical shoes, Ext. A13 is the copy of the case record of the Govt. Medical College IMCH Kozhikode, Ext. A14 is the copy of the outpatient ticket dated 06/08/2010 and Ext A15 is the copy of the lawyer notice dated 30/09/2010.
- After tendering evidence as PW1, the complainant did not participate in the proceedings and remained absent throughout. At the fag end, pursuant to the intimation given from this Commission, the complainant appeared and filed argument note. The second opposite party filed proof affidavit for and on behalf of himself and third and fourth opposite party. The complainant did not avail the opportunity to cross examine the second opposite party and his testimony stands unchallenged and uncontroverted.
- In the argument note filed by the complainant it is stated that Exts. A1 to A4 documents would prove that the complainant’s daughter Neha was treated in the first opposite party hospital and that the injection Phenergan was administered by the third opposite party improperly. Further it is stated in the argument note that from Ext. A7 document it can be seen that the said injection could be given only to the thigh and not to the buttocks. It is also stated that in Ext. A8 document Dr.Vijayakumar has noted that the improper injection was the reason for the non-stability of the lower limb of Neha and Exts. A11 to A13 documents would prove that there was defect in the leg for which prolonged treatment was required.
- The argument of the opposite parties is that the treatment given to Neha was as per the universally accepted standard medical protocol and the present complaint has been filed by the complainant without understanding the proper treatment protocol warranted in cases like this. It was pointed out that no expert evidence was let in by the complainant to prove any deficiency in the treatment, but on the other hand, the evidence of PW2 would positively prove that there was no latches, negligence or deficiency on the part of the opposite parties in the management and treatment of Neha.
- It is well settled that the onus of proving the alleged negligence and deficiency in service in the treatment is on the person who alleges medical negligence. The above position is supported by the decisions reported in 2008 (4) CPR 493 (NC) (Ramesh Sharma Vs Tagore Art Care and Research Centre and Ors), IV (2015) CPJ 678 (NC) (Dharam Sigh Vs Chawla Hospital and Nursing Home and Anr), IV (2015) CPJ 619 (NC) (Rani Bala and Anr Vs Dr. Satya Prakash Bansal), IV (2016) CPJ 667 (NC) (Pallyu Sreekanth and Anr. Vs Krishna Institute of Medical Sciences Limited and Ors) and I (2017) CPJ 619 (NC) Miss. Herat Parmer Vs Venilal G Panchal and Ors.). So the complainant has to prove that there was negligence on the part of the opposite parties with positive proof by expert evidence and medical authorities.
- The grievance projected in the complaint is that negligence and deficiency in service occurred when the third opposite party administered injection Phenergan improperly and in the wrong part of the body. According to the complainant, the said injection ought to have been administered on a nerve, but in this case, it was done on the buttocks of the child where there is no nerve and is fleshy, which resulted in the child developing neurological problems. PW1 has admitted in the cross examination that he has no case that the second opposite party has prescribed any wrong medicine. In other words, the only grievance projected by PW1 is that injection Phenergan was administered by nurse on the wrong part of the body of his child ie on the buttocks whereas, it ought to have been done on a nerve. According to PW1, this was disclosed to him by Dr. Vijayakumar, a paediatrician of the Govt. Medical College Hospital, Kozhikode. The said doctor was examined as PW2 before this Commission. PW2 has categorically denied having stated so to PW1. PW2 has emphatically deposed before this Commission that Phenergan injection is administered intramuscular and never on a nerve. The definite case of the opposite parties is that the said injection was administered by the third opposite party at the upper and outer quadrant of the right buttock of the child with all care and caution. Due to the risk of intravenous injection, the preferred route of administration of Phenergan injection is deep intramuscular. So the case of the complainant that the said injection should have been made on a nerve cannot be accepted. The entire case of the complainant is belied and discredited by the testimony of PW2. There is absolutely no reason to disbelieved PW2.
- The decisions reported in II (2006) CPJ 348 (NC) (Saleemuddin and Others Vs Dr. Sunil Malhothra), III (1999) CPJ 9 (NC) (Kanahaiya Kumar Singh Vs. M/s. Park Medicare and Research centre, II (2002) CP J 131 (NC) (Kriran Bala Rout Vs Christian Medical College and Hospital and Ors), I (2003) CPJ 153 (NC) ( Dr. Harkanwaljith Singh Saini Vs Gurbax Singh and Anr), 2001 (3) CPR 433 (NC) (Rohini Devi Vs Dr. H S Chudavat and Anr), 2007 (1) CPR 433 (NC) (Rishi Pal Singh and Others Vs Aligarh Muslim University and Anr), 2006 (1) CPR 68 (NC) (K. Venkiteshwarlu Vs Managing Director Nagarhunu Hospital, Vijayawada), 2006(1) CPR 265 (NC) (Sikha Nayak Vs Dr. Manabesh Pramanick) and 2004 (2) CPR 45 (NC) (Indejeet Singh Vs Dr. Jagdeep Singh) were relied on by the opposite parties to emphasis the necessity of expert evidence in medical negligence cases. No expert evidence is let in by the complainant. In this context, again the evidence tendered by PW2 assumes importance. PW2 after perusing the treatment records of Neha has deposed that there is absolutely no indication or mention in Exts A8, A9, A10, A13 and A14 regarding any negligence, carelessness or deficiency in the earlier treatment or administration of the injection. PW2 has stated that when Neha was referred for second opinion and medical check up in the Govt. medical college, they could not find any complication or damage which should be attributed to any negligence, deficient or improper administration of injection. PW2 has stated that even though Neha was referred to a neurologist, no neurological complication or issues were found. It is deposed by PW2 that minors and children usually exhibit pseudo paralysis after administration of injection. After perusing Exts.A1 to A15, PW2 has opined that from the records and his recollections of the treatment, there is absolutely nothing even to remotely suggest or indicate that there was any negligence or deficiency or carelessness in the treatment given from the first opposite party hospital prior to the admission in the Medical College Hospital, Kozhikode. PW2 has asserted that the treatment given to Neha was as per the universally accepted standard medical protocol. Thus the evidence tendered by PW2 rules out any negligence or deficiency in the treatment and injection given in the first opposite party hospital. There is absolutely no reason to disbelieve or to discard the evidence of PW2, who is none other than the Professor and Head of Paediatrics Department of the Govt. Medical College, Manjeri.
- PW1 has deposed that it was PW2 who had opined that there was medical negligence on the part of the opposite parties in administering the injection Phenergan. But PW2 has not deposed against the treatment modality and the procedure adopted by the opposite parties. On the other hand, PW2 has opined that the treatment given and the procedure adopted by the opposite parties are as per the universally accepted standard medical protocol. Thus the evidence of PW2 would affirm the fact that the management of the child was as per the medical practice and there was no negligence from the part of the opposite parties.
- It is stated in the argument note of the complainant that from Ext. A7 document it can be seen that injection Phenergan can be taken only on the thigh. But Ext. A7 is only a prescription which says about pain and tenderness on the right leg after taking injection and the patient was referred to paediatrics department. Ext. A7 does not indicate that injection Phenergan can be administered only on the nerve or thigh. According to the complainant, in Ext. A8 it is stated that the problem to the leg was due to the improper administration of the injection. But there is no such diagnosis in Ext. A8.
- On a careful consideration and scrutiny of the evidence in hand, there is nothing to indicate that the second and third opposite parties have done anything which a reasonable and prudent doctor and nurse would not have done in the given circumstances or omitted to do anything that a reasonable and prudent doctor and nurse would have done in the given circumstances. The evidence of PW2, who is an expert in the field, shows that there was no negligence or latches on the part of the treating doctor and the nurse. It is well settled that medical science is not an exact science and inspite of all care, caution and attention on the part of the treating doctor or nurse, something may always go wrong. No latches, negligence or deficiency in service could be established or proved against the opposite parties. Consequently the opposite parties in this case cannot be held liable for medical negligence.
- Point No. 2: In view of the finding on the above point, the complainant is not eligible to claim and get any compensation from the opposite parties and the complaint is only to be dismissed.
In the result, the complaint is dismissed. However, no order as to costs. Pronounced in open Commission on this, the 15th day of November, 2023. Date of Filing: 04.10.2023 Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER APPENDIX Exhibits for the Complainant : Ext.A1 – Bill dated 02/08/2010 issued from Amana Hospital, Kuttiyadi. Ext.A2 – Bill dated 02/08/2010 issued from Amana Hospital, Kuttiyadi. Ext.A3 – Prescription dated 03/08/2010. Ext.A4 – Bill dated 03/08/2010. Ext.A5 – Bill dated 04/08/2010. Ext.A6 –Registration bill dated 04/08/2010 of Baby Memorial Hospital, Kozhikode. Ext.A7 – Reference letter dated 05/08/2010. Ext.A8 - Discharge summary of the Govt. Medical College, Kozhikode. Ext.A9 - Referral outpatient ticket. Ext.A10 - O.P ticket of Govt. Medical College, Kozhikode. Ext.A11 - Prescription of Dr. James Jose. Ext.A12 - Bill dated 10/12/2010 for having purchased surgical shoes. Ext.A13 - Copy of the case record of the Govt. Medical College IMCH Kozhikode. Ext.A14 - Copy of the outpatient ticket dated 06/08/2010. Ext.A15 - Copy of the lawyer notice dated 30/09/2010. Exhibits for the Opposite Party Nil. Witnesses for the Complainant PW1 – Sudheesh Kumar.P.K (Complainant) PW2 – Dr. Vijayakumar. Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER True Copy, Sd/- Assistant Registrar | |
