Date of filing: 4-3-2016 Date of Order :20-12-2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ::
KADAPA Y.S.R DISTRICT
PRESENT SRI V.C. GUNNAIAH, B.Com., M.L., PRESIDENT
SMT. K. SIREESHA, B.L., LADY MEMBER
WEDNESDAY THE 20th DAY OF DECEMBER, 2017
CONSUMER COMPLAINT No. 55 / 2016
Eedula Sulochana, W/o Jagan Mohan Reddy,
Aged about 30 years, Hindu, Dependent,
Residing at Kottala Village, Rajupalem Mandal,
Kadapa District. … Complainant.
Vs.
Dr. N. Kathya, M.B.B.S., M.S., O.B. Gy.
Gynecologist and Obstrician,
Laproscopy Surgeon and Infertility Specialist,
Kathya Nursing Home,
8/399, Swayam Sevak Road,
Proddatur-516 360, Kadapa District. ….. Opposite parties.
This complaint coming for final hearing on 14-12-2017 in the presence of Sri L. Rama Sanjeeva Reddy, Advocate for Complainant, Sri M. Sudhakar Naidu, Advocate, Kadapa for opposite party, and upon perusing the material papers on record, the Forum made the following:-
O R D E R
(Per Sri V.C. Gunnaiah, President),
[1. Complainant filed this complaint under section 12 (1) r/w 11(6) of Consumer Protection Act, 1986 to direct the opposite party to pay Rs.5,73,000/- as compensation for medical negligence and Rs.5,00,000/- towards causing mental agony and suffering of the complainant with interest at 12% p.a. from the date of complaint till the date of realization and such other reliefs.
2. The averments of the complaint in brevity are as follows:- The Complainant is an agriculturist and she approached the opposite party for treatment and after examination the opposite party advised the complainant to go for surgery and the complainant was admitted in the clinic of opposite party and laparoscopic assisted hysterectomy was conducted on 12-6-2015. The opposite party collected Rs.80,000/- from the complainant to the said operation and clinical charges and Rs.30,000/- was spent by complainant towards medicines.
3)The complainant find oozing of blood from her stomach at the operation point on 14-6-2015 and approached the opposite party and opposite party again conducted operation without consent of the complainant or her family members. Thereafter also the complainant suffered with oozing of blood from the surgery point. Hence the opposite party referred the complainant to the hospital of Dr. Sasikala, Hyderguda, Hyderabad and the complainant was admitted in that hospital on 17-6-2015. On the advise of Doctor Sasikala, the complainant took treatment for her stomach. Her stomach was swelling like a big storm. On account of treatment and surgery by the opposite party twice the complainant is suffering with unbearable pain, her family members also suffering with mental agony so they approached the opposite party and opposite party examined the complainant in her clinic and recommended the complainant to take treatment at Nizam’s Institute of Medical Sciences at Hyderabad. The complainant approached the Nims Hospital, Hyderabad and doctor advised her to take long treatment and advised medicines with monthly review. The complainant spent Rs.1,10,000/- in the hospital of opposite party for treatment, Rs.15,000/- towards transport expenses. The complainant also spent Rs.1,98,000/- in the hospital of Dr. Sasikala, Hyderabad towards her treatment and Rs.60,000/- towards transport and assistance expenses. The complainant spent Rs.45,000/- in Nims hospital, Hyderabad and Rs.35,000/- towards transport expenses. This is all on account of the negligent treatment and surgery of the opposite party to the complainant. Hence the complaint for the above reliefs.
4) The opposite party filed written version denying the allegations of the complainant regarding deficiency in service, negligent medical treatment causing mental agony and suffering to the complainant due to the treatment and surgery by the opposite party and called upon the complainant to prove all the facts and liable to pay compensation as claimed by the complainant.
5) It is further averred that the complainant approached the opposite party for admission and treatment on 11-6-2015 stating that she was suffering from abdominal pain since 4 months and was not able to do work normally and after thorough examination the patient was referred to Aneasthist and he advised fit for surgery of laproscopic assisted vaginal hysterectomy (LAVH) and posted for surgery on 12-6-2015 from 6-00a.m. onwards complaint was instructed to give her consent for surgery and informed about the complications after explaining every possibilities that may encountered during surgery and post operatively. For the benefit of the complainant only, the opposite party conducted second surgery after thorough investigations after advice from general surgeon with consent of complainant, her husband and her relatives on the emergency situations and in the presence of Anaeasthist by name Dr. Balakrishna Reddy. The second surgery is conducted for persistent fever immediate third post operative day. The opposite party had taken immediate decision as per standard text books prescribed during first surgery indication to conduct second surgery after post operative two days later, so there is no any mal intention for conducting second surgery and there is no deficiency on the part of opposite party beyond any doubt. The platelet count was 60,000/cumm on 16-6-2016 at 2-00 a.m. so referred the complainant without delay to higher hospital i.e., Dr. D. Sasikala, Hyderabad. Wherein availability of platelets blood bags for remedy of complainant’s disease at a glance. During discharge of complainant the opposite party had taken steps and very essential care. The opposite party had never committed any mistakes of any medical negligence and not given any scope for delay of rendering surgery, treatment, investigations, blood infusion and referred to higher centre in time beyond any misguiding. The complainant went to Hyderabad promptly and admitted in the Fernandez Hospital for treatment and reports from Fernandez Hospital shows the patient suffered with the dengue Igm positive due to dengue fever, so the complainant had suffered with dengue fever and the same was diagnosed by the Fernandez Hospital and given treatment.
6) The opposite party never advised to go to the Nims Hospital, Hyderabad and the complainant created false allegations.
7) The complainant never paid Rs.80,000/- towards operation and clinical charges, but paid only Rs.3,000/- to the Anaesthist doctor and Rs.2,000/- to the operation theatre staff. The opposite party never collected any amount towards room rent, surgeon fee, assistant charges and theatre charges Rs.42,200/- till today, as per the bill Dt. 16-6-2015 and the same is due. As per the request of Sri Linga Reddy Garu, Chairman, Civil Supplies on behalf of the complainant opposite party’s mother by name Dr. M. Nagalakshmi issued bill for Rs.80,000/-, Dt. 16-6-2015 and on 5-7-2015 towards room rent, surgeon fees, Anaesthist fees, Assistant charges and theatre charges. The complainant received money from the Chief Minister of A.P. fund of Rs.2,19,205/- against her claim Rs.2,74,007/- on the recommendation and help by Linga Reddy Garu. The other allegations mentioned in the complaint are all false. The expenditure of Rs.5,73,000/- as claimed by the complainant so also the mental agony claim of Rs.5,00,000/- are on false grounds. There is no Iota of negligence in conducting the surgery and treatment by the opposite party and also in referral of the complainant to higher centre in time and utmost care was taken and conducted surgery with more diligence and there is no fault on the part of opposite party. Hence the complaint is liable to be dismissed for filing vexatious complaint with exemplary costs.
8) On behalf of the complainant her affidavit is filed and got marked as Ex.A1 to Ex.A4. On behalf of the opposite party her affidavit is filed and got marked as Ex.B1 to Ex.B8 and closed their evidence. Written arguments were filed by complainant, as well as opposite party. Heard arguments on both sides perused material placed on record and considered the written arguments filed by the parties.
9) The points that arises for determination are ;
i) Whether is there any deficiency in service and medical negligence
on behalf of opposite party and the same is proved by
complainant as pleaded?
ii) Whether the complainant is entitled for the compensation
claimed?
iii) To what relief ?
10) Point No.1:- Learned counsel for complainant contended that the opposite party who is the doctor had not taken care while conducting surgery and the same amounts to negligence and deficiency of service and due to failure of the surgery, the complainant suffered a lot and spent huge money and the same has been proved by filing Exhibits A1 to A4. Therefore the complainant who proved the deficiency in service and negligence on the part of opposite party is entitled for compensations as claimed.
11) On the other hand learned counsel for opposite party vehemently contended that there is no Iota of evidence placed by complainant that the opposite party who is specialized doctor being MBBS., M.D., in OBG had failed to discharge her duty with care and caution before or after surgery to the complainant and the opposite party had taken every care and after following the due procedure of medical standards conducted surgery and referred her for higher medical hospital for treatment of dengue fever by timely reacting and there is no negligence and deficiency in service on the part of opposite party and this complaint is filed only to get wrongful gain and complainant failed to prove medical negligence on the part of opposite party. Therefore complainant is not entitled for any reliefs and complaint is liable to be dismissed with costs.
12) The complainant filed this complaint claiming total compensation of Rs.10,73,000/- on two counts viz., compensation of Rs.5,73,000/- for medical negligence and compensation of Rs.5,00,000/- towards suffering and mental agony.
13) The complainant filed her affidavit in lieu of evidence and reiterated the averments of complaint and filed Ex.A1 to A4 documents in support of her case. A thorough perusal of affidavit of complainant reveal that she approached the opposite party who is MBBS, M.S. in O.B.G. and laparoscopy surgeon as she was getting abdominal pain and after examination and investigations she was admitted in the hospital and on 12-6-2015 a laparoscopy assisted vaginel Hysterectomy operation was done and to the service of opposite party, the complainant paid in total of Rs.1,10,000/- but according to the complainant the operation was not successful, blood was oozing again a second surgery was conducted on 14-6-2015, still pain persisted and oozing blood so she was referred to hospital of Dr. Sasikala at Hyderabad, wherein she was admitted on 17-6-2015 and treated there and discharged on 25-6-2015 from the said hospital for that she spent nearly Rs.1,98,000/- apart from transport expenses of Rs.60,000/-. Again she approached the opposite party for pain and she was referred to Nims Hospital, Hyderabad, where in she was treated and again spent total Rs.80,000/- towards treatment and transport and expenses. According to complainant all these happened due to negligent treatment and deficiency of service by O.P. doctor. The complainant filed Ex.A1 to A4 as viz., discharge card issued by O.P. on 16-6-2015, discharge summary by Dr. Sasikala, Hyderabad dated 25-6-2015, examination report and treatment issued by Nims Hospital, Hyderabad dt. 21-11-2015 and 24-11-2015 and bunch of bills and reports from the hospitals.
14) As against this evidence the O.P. doctor filed her affidavit reitering the averments as mentioned in her affidavit and filed Ex. B1 to B8 to substantiate her case. According to O.P. she has taken every care for the treatment and surgery of O.P. both on 12-6-2015 and 14-6-2015 as per standard medical procedure considering the complainants case which is required for her treatment with her consent and when the complainant ordinarily getting fever which required investigations from higher hospital, she referred complainant to Dr. Sasikala, Hyderabad for better management, where platelets blood bags available and she was treated there and she was found with dengue fever and for that she was treated by Dr. Sasikala, and no complications due to the surgery conducted by her to the complainant. O.Ps affidavit further reveals that the complainant received Rs.2,19,205/- from A.P. Chief Minister Fund on the recommendation of chairman Civil Supplies by Sri M. Linga Reddy in sanction order no. 8193/CMRF/2015/ Dt.18-9-2015 and no amount was paid to her by the complainant for that operation and there was no oozing of blood occurred after on 14-6-2015. But complainant filed this complaint only to get wrongful gain and no negligence on her part and the documents filed by the opposite party proved the same and complainant failed to prove negligence much less medical negligence on the part of O.P.
15) The complainant alleged medical negligence on the part of O.P. in conducting surgery to her. The O.P. herein is specialized doctor being M.D., Gynecologist and laparoscopic surgeon. The O.P. doctor has well knowledge in that field being qualified to conduct surgeries including laparoscopic assisted vaginal hysterectomy operation conducted on complainant. Except mere allegation that the complainant was getting pain due to operation by O.P. no corresponding evidence has been placed by complainant to show due to negligence of doctor in conducting surgery, the complainant got pain and referred to Dr. Sasikala Hospital, Hyderabad. As seen from Ex.B3 and B4 the complainant was treated for dengue fever by Dr. Sasikala in her Hospital, Hyderabad. Attacking with dengue fever by complainant cannot be said due to failure of operation done by O.P. to the complainant.
16) The documentary evidence placed by complainant in Ex.A1 to A4 did not in any way disclosed that there is any Iota of negligence careless less much less medical negligence on the part of opposite party prior or post operation done to the complainant. Simply the complainant spent some amount in one or two hospitals, other than O.P. hospital does not amounts to deficiency in service to her by O.P. and negligence on her part in treating the complainant. In Mortin F D’Souza vs. Mohammed Ishfaq decided on 17-2-2009 in Civil appeal No.3541/2002 the Hon’ble apex court observed in Para no.115 as follows “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. In para-124 it is further observed, It must be remember 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. and we are of the opinion that the appellant was not guilty of medical negligence.
17) In this case, there is no sufficient evidence placed by complainant to prove that there is negligence on the part of O.P. much less medical negligence in conducting surgery on her and the O.P. caused mental agony physical strain to the complainant and caused much medical expenditure to her. In a recent case decided on 12-12-2017 by National Commission in the case of Doctor Kochar Vs. Ispithaseal held no cure/no success is not medical negligence.
18) A doctor can be held liable for negligence only if one can prove that he /she is guilty of a failure. But no doctor that ordinary skills would be guilty if acting with reasonable care. An error of judgment constitutes negligence only if a reasonably competent professional with the standard skills that the O.P. professes to have and acting with ordinary care would not have made the same error. Doctors must exercise an ordinary degree of skill. However they cannot give a warranty for perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment and is skilled and has worked with a method and manner best suited to the patient, he cannot be blamed for negligence if the patient is not totally cured.
19) In this case the opposite party has followed standard procedure and method for the treatment and surgery of complainant being a qualified doctor in obstetrics. Therefore we have no hesitation to hold, there is negligence on the part of O.P. and the complainant failed to prove the allegations as pleaded. Accordingly point is answered.
20) Point No.2 :- The complainant claimed Rs.5,73,000/- as compensation for medical negligence and Rs.5,00,000/- compensation for mental agony and suffering. But the complainant failed to prove both of them as discussed in point no.1 above. Therefore, we hold the complainant is not entitled for any reliefs and O.P. is not liable to pay any compensation to the complainant and complaint is liable to be dismissed. Accordingly this point is answered against complainant.
21) Point No.3:- In the result, the complaint is dismissed, but in the circumstances without costs.
Dictated to the Typist, transcribed by him, corrected and pronounced by us in the open forum, this the 20th day of December, 2017
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses examined
For complainant :
Affidavit filed by the complainant i.e., Eedula Sulochana on 21-12-2016.
For Respondent:-
Affidavit filed by the opposite party i.e., Dr. N. Kathya, on 31-3-2017.
Exhibits marked on behalf of the Complainant :-
Ex: A1:- P/c of Discharge card of the complainant issued by the opposite party dt.16-6-15.
Ex: A2:- P/c of Discharge summary of Fernandez Hospital, Dr. Sasikala, Hyderabad to the
complainant dated 25-6-2015.
Ex: A3:- P/c of Examination report and treatment of the complainant issued by the NIMS
hospital, Hyderabad, dt. 21-11-2015 and 24-11-2015.
Ex: A4:- P/c of Bunch of bills papers.
Exhibits marked on behalf of the Opposite party No.1: -
Ex:B1:- Original case sheet and Xerox of discharge summary towards the complainant.
Ex:B2:- Due bill to respondent by the complainant.
Ex:B3:- Guidelines for clinical management of dengue fever, dengue hemorrhagic fever, dengue shock syndrome 9 sheets.
Ex:B4:- Dengue fever in post operative period following hysteric to my 2 sheets.
Ex:B5:- Harrisons principles of internal medicine 7 sheets.
Ex:B6:- Severe dengue in the early post operative period after kidney transplantation two case reports from hospital Geral De Fortaleza 3 sheets.
Ex:B7:- Chapter-4 laboratory diagnosis diagnostic tests 5 sheets.
Ex:B8:- Severe non Febrile dengue infection in an adolescent after post-operative kidney transplantation a case report.
MEMBER PRESIDENT
Copy to
1) Sri L. Ramasanjeeva Reddy,Advocate, Kadapa.
- Sri M. Sudhakar Naidu, Advocate, Kadapa.
& & &
P. R.
