By Sri.Ananthakrishnan. P. S, President:

            This is a complaint filed under section 12 of the Consumer Protection Act 1986.

2.   The Complainant’s case in brief is as follows:-

The first complainant is the wife of late Prakasan.  Other Complainants  are their children. Prakasan was a toddy tapper. On 29.01.2016, he fell down from a coconut tree while tapping and on the same day he was brought to Vinayaka Hospital, sixth Opposite Party at 6 p.m with the help of neighbours and relatives.  At that time, Prakasan was not able to stand and walk. When he was on casualty, the fifth Opposite Party, doctor examined him as per the information gathered from patient Prakasan, Raju, Ravi and Vijayan who had brought him. Thereafter, the fifth Opposite Party sent him to first Opposite Party after taking X-ray of left elbow, left wrist and lower back of trunk. After examination of the X-ray, the first Opposite Party told that there is a fracture on his left elbow and informed about the urgent need of an operation to avoid death and obtained the consent of bystanders. After the operation, they were informed by first Opposite Party that K Wire was installed. Suddenly, Prakasan died at 8.30 pm. On request from the complainants and other relatives, police came and sent the body for post mortem on 30.1.2016.  It is revealed from the post mortem report that his death was due to internal bleeding consequential to the fracture on chest, lower abdomen and lower back of trunk.  Some of his ribs were broken and some of his ribs were misplaced. His lungs were got damaged. There was injury on his kidney and fracture on his lower back of trunk.  Thus, it is revealed that Prakasan died only due to the negligence of first to fifth Opposite Parties, doctors. They have not treated the deceased properly and their purpose was only to get money from them.  If, there was proper treatment, the life of Praksan could have been saved. Hence, this complaint against the Opposite Parties alleging medical negligence. The Complainants want to get 1 lakh towards treatment expenses, Rs.5 lakhs for physical and mental pain and Rs.13 lakhs as compensation for the death of Prakasan from the Opposite parties.

3. The first and third Opposite Parties filed version which in brief is as follows:-

             The complaint is not maintainable either in law or by facts. It is frivolous, vexatious and devoid of truth or bona fides.  There is no medical negligence or deficiency of service on their part. Hence, Complainants are not entitled to get any relief. They filed this complaint to get undue financial advantages. The patient Prakasan was brought to causality of sixth Opposite Party’s hospital on 29.01.2016 at 6.10 p.m with history of fall from coconut tree.  The patient was immediately attended in the causality and found that he had tenderness over left wrist and spine. There was no history of loss of consciousness, vomiting or ENT bleeding. The condition was initially stabilised with IV fluids and supportive medicine and vital signs checked and assessed. The patient had complaint of severe pain left wrist and spine. So, he was taken up for X-ray examination after initial stabilisation and referred to the first Opposite Party for orthopaedic consultation. X-ray revealed that there was fracture T12, fracture superior and inferior pubic ramis, bilateral and comminute fracture distal radius (left) with deformity of left wrist. The X-ray findings were well explained to the bystanders and since the patient had complaint of severe pain and deformity of left wrist, stabilisation of wrist was planned as anaesthetist was available and theatre was ready.  Fracture spine and pubic ramis was stabilised with pelvic binder and LS corset. The patient did not complain pain in chest region or chest discomfort. Pulse and BP maintained with good oxygen saturation. There was absolutely no evidence of internal bleeding on clinical side and there was no reason to suspect any injury/fracture on chest region.  Thereafter, they decided to take CT scan to rule out any other injuries as an abundant caution even though there was no apparent clinical indication to suspect internal bleeding. He was taken to operation theatre at 7.35 pm and the operation was completed at 7.50 pm. While the bystanders making preparations to take the patient for CT evaluation, the patient unexpectedly and spontaneously went into hypotension at 8.10 pm and became restless. The third and fourth Opposite Parties were in hospital at that time and so, they were called to attend the patient and immediate resuscitation along with supportive medicine started. But, in spite of timely management, BP was not picking up and patient was shifted to ICU and connected to ventilator at 8.30 pm. Cardio pulmonary resuscitative measures along with supportive medications continued to save the life of the patient with the help of other Opposite Parties.  But in spite of timely management, the patient developed convulsions and condition deteriorated further and resuscitation with cardiac massage as per acted protocol continued.  But in spite of all resuscitation measures patient succumbed to death at 9.15 pm.  The bystanders were also advised for the post mortem to know the real cause of death.  In the treatment of the patient, first and third Opposite Parties had shown reasonable degree of skill and care expected from qualified and experienced medical practitioners.  The third Opposite Party did not see the patient before 8.10 pm and he was called to assist the resuscitation of the patient and he only assisted the resuscitation.  As per Post mortem, death was happened due to internal haemorrhage following injuries sustained to chest, abdomen and pelvis which cannot be attributed to be due to any act or omission on the part of these Opposite Parties. There was absolutely no clinical evidence to suspect impending complications due to internal bleeding.  The patient succumbed to injuries and trauma caused by the high velocity fall from coconut tree and the Opposite parties cannot be held liable for it. They denied that the first Opposite Party told the bystanders that the patient would have died unless surgery was not done for his left wrist. Hence this complaint is to be dismissed.

4. The second Opposite Party filed version which is exactly more or less same of the version filed by the first and third Opposite Parties. In addition, he pleaded that he was informed by first Opposite Party for the sake of closed manipulation and reduction (CMR) with K Wire. After thorough preoperative evaluation at 7.00 pm in the preoperative room, decided to take up the patient for CMR with K Wire. It has been found that patient was conscious and oriented and history was given by the patient himself. Thus at 7.20 pm, brachial block by Axillary approach has been provided to the patient as this was the best and safe available technique of anaesthesia for the patient without altering or affecting body physiology of the patient. Patient was taken up for fracture fixation of left wrist with K Wire with continuous monitoring of vitals. The process was successful. In the treatment of the patient, this Opposite Party had shown reasonable and accurate degree of skill and care expected from qualified and experienced medical practitioners. Hence this complaint is to be dismissed.

5. The fourth Opposite Party filed version which in short is as follows:-

             This Opposite Party is only a Consultant Physician to attend the cases which are sent to him by the hospital and paid only for attending the patient sent to him.  On 29.01.2016, this Opposite Party engaged in the treatment of a patient named Saji for stricture posterior urethra. This Opposite Party happened to see Prakasan first time only after surgery by the first Opposite Party.  This Opposite Party had occasion to see the patient only because when first Opposite Party came out from operation theatre and told that the condition of the patient who had undergone orthopaedic surgery is in restless position. When this Opposite Party went inside, he saw the resuscitation measures by the third Opposite Party to revive the patient and patient was gasping for breath.  This Opposite Party is also helped for resuscitation. But, the patient started developing seizures and started convulsing vigorously.  Immediately he was shifted to ICU. So, there is no negligence from this Opposite Party. 

6. The fifth and sixth Opposite Parties filed version which is exactly more or less same to the version filed by the first and third Opposite Parties. In addition, these Opposite Parties contented that the sole reason for the death is the injuries sustained internally from the fall which was manifested only after surgery on the wrist and no contributory negligence can be attributed against these Opposite Parties.

7. Seventh Opposite Party filed version and additional version which in brief is as follows:-

  The Second Opposite Party took insurance policy from this Opposite Party with a limit of Rs.10 Lakhs to cover the risk by carrying profession being an anaesthetist. They contended that there is no negligence from the second Opposite Party. Only if there is evidence of negligence on his part, this Opposite Party is bound to indemnify it.  Therefore this Opposite Party is an unnecessary party in this case. Hence, this complaint is to be dismissed.

8.  On the above pleadings, the points to be considered here are.

1. Whether there is any negligence or deficiency of service on the part of opposite parties?
2. Reliefs and costs.

9.  The evidence in this case consists of oral testimonies of PW1, PW2, OPW1, OPW2, Ext.A1 to A4, Ext.B1 and Ext.X1 series. Heard, both sides.

10. Point No.1:- This is a complaint for getting compensation alleging medical negligence upon first to fifth Opposite Parties who are doctors attached to sixth Opposite Party, hospital. The Complainants are wife and children of late Prakasan who died in consequence of a fall from a coconut tree. He is a toddy tapper. He fell down from the coconut tree on 29.01.2016. He was brought to sixth Opposite Party hospital and he died on the same day while on the treatment of first to fifth Opposite Parties. No dispute that Prakasan had fell down from a coconut tree while tapping and he died during the treatment in sixth Opposite Part’s hospital. The Complainant’s specific case is that he died only due to the negligent treatment of first to fifth Opposite Parties and his life could have been saved if there was proper treatment.

11. Ext.A1 is the post-mortem report. It is revealed from the evidence that in ordinary cases there may not be any occasion for post mortem and in this case, the dead body of Prakasan was sent to Gov. Medical College Hospital, Kozhikode for post mortem to find out the real cause of death. As per Ext.A1 report, Prakasan died due to internal haemorrhage following injuries sustained to chest, abdomen and pelvis. So, there is also no dispute that Prakshan died due to internal bleeding following injuries sustained to chest, abdomen and pelvis.

12. The Opposite Parties denied that Prakasan died due to their negligent treatment. As already stated, first to fifth Opposite Parties are doctors working in sixth Opposite Party, Vinanyaka Hospital, SulthanBathery. First Opposite Party is the orthopaedic surgeon. Second Opposite Party is the Consultant Anaesthesiologist. The third Opposite Party is a medical officer. The fourth Opposite Party is the Consultant Physician. The fifth Opposite Party is the causality doctor. Sixth Opposite Party is the hospital. Seventh Opposite Party is the insurer of the second Opposite Party who took a professional insurance policy.

13.  It is an admitted fact that on the same day within a reasonable time, Prakasan was brought to the sixth Opposite Party, hospital on 29.01.2016 reporting that he fell down from a coconut tree while tapping.  He was brought to the hospital by neighbours and relatives. Evidently, he was firstly brought to causality and after examination, fifth Opposite Party sent the patient to the first Opposite Party. On verification of X-ray, first Opposite Party found fracture T12, fracture superior inferior pubic ramis, bilateral and comminute fracture distal radius (left) with deformity of left wrist. He stabilised fracture spine and pubic ramis with pelvic binder, a device used to compress the pelvis in people with a pelvic fracture in an effort to stop bleeding and LS corset which is a spinal support. Thereafter, first Opposite Party done fracture fixation of left wrist with K-wire. Admittedly, till this time, there was no problem to Prakasan and suddenly he went into hypotension and became restless and though doctors tried to save his life, he succumbed to his injuries. When Prakasan became restless, first Opposite Party sought the help of third and fourth Opposite Parties for resuscitation. To sum up, it is to be noted that fifth Opposite Party attended the patient in causality and the first Opposite Party stabilised fracture spine and pubic ramis with pelvic binder and LS corset and done fracture fixation of left wrist with K-wire with the help of second Opposite Party. The third and fourth Opposite parties had only done resuscitation process. Just after the fracture fixation, it is evident that the patient became restless and thereafter doctor’s attention was only to save the patient.

14. So, the deceased was attended by first to fifth Opposite Parties. So, we have to verify whether there is any negligence or not and if any negligence who is responsible for that. So we have to analyse the evidence available here to find out this fact.

15. As already stated, fifth Opposite Party doctor who is having only MBBS degree, attended the patient only in causality. The role of causality doctor is only to give a primary attention to the patient when they brought to the hospital in a serious condition. There is no dispute here that there was no evidence of internal bleeding on clinical side. So, the fifth Opposite Party gathered information from Prakasan and his bystanders, examined the patient and sent him to first Opposite Party doctor for detail observation and treatment. Therefore, it is evident that the deceased Prakasan was not treated by fifth Opposite Party. Therefore, it cannot be held that there is negligence on fifth Opposite Party for the death of Praksan.

16. The second Opposite Party is the Consultant Anaesthesiologist. He provided anaesthesia to the patient for fracture fixation of left wrist with K- wire which was done by first Opposite Party. The first Opposite Party done fracture fixation successfully. The condition of the patient became serious only after the fixation and it has evidently no connection with this process. So, second Opposite Party had not done anything which leads to the death of Prakasan and therefore, we cannot attribute any negligence upon second Opposite Party. So, since there is no negligence on second Opposite Party, his insurer, seventh Opposite Party need not indemnify anything for and on behalf of second Opposite Party.                                       

17. The third and fourth Opposite Parties never treated the patient at any point of time. They were called by first Opposite Party to give resuscitation when the patient became restless. So, evidently third and fourth Opposite Parties have no participation in the treatment of the patient. They had only tried to save the life of the patient by giving resuscitation. Therefore, we held that there is no negligence on the part of third and fourth Opposite Parties.

18. The remaining doctor is the first Opposite Party. He attended the deceased Prakasan from the admission up to his death.  He contended that he had exercised reasonable degree of skill and care as per accepted medical practice and protocol and there was no negligence from his part for the death of Prakasan.  Here, the available evidence is the oral testimony of PW1, PW2, OPW1 and OPW2. PW1 is the first Complainant who is wife of the deceased Prakasan. PW2 is the Asst. Professor/ Asst. Police Surgeon, Department of Forensic Medicine, Govt. Medical College, Kozhikode who conducted post-mortem of Prakasan. OPW1 is first Opposite Party and OPW2 is the Manager of the insurance company. 

19. PW1 sticks on her case by which she alleged medical negligence. The first Opposite Party who gave evidence as OPW1 disputed the alleged negligence on his part.  As already stated, according to him, he took maximum care in the treatment. His case is that when he saw the patient, he had complaint of severe pain on left wrist and spine and X-ray revealed fracture T12, fracture superior and inferior pubic ramis and bilateral and comminuted fracture distal radius (left) with deformity of left wrist. OPW1 deposed that the patient did not complain pain in chest region or chest discomfort and that there was no evidence of internal bleeding on clinical side and hence there was no reason to suspect any injury or fracture on chest region. Evidently, fracture spine and pubic ramis was stabilised with pelvic binder and LS corset by first Opposite Party. As stated earlier, the specific case of first Opposite Party is that since patient did not complain any pain on chest region and there was no evidence of internal bleeding on clinical side, he had no reason to suspect any injury or fracture on chest region and thus he brought the patient for fracture fixation of left wrist with K-wire. He completed this process successfully with the help of second Opposite Party.  So, till this process, no negligence can be attributed on the first Opposite Party. The patient became restless only after this process and it is not due to any fault occurred during this process. 

                  20. As already stated, just after the fixation of fracture, patient became restless and even though, first, third and fourth Opposite Parties tried to save his life, he died. OPW1 deposed that they sent the body for post mortem to know the actual cause of his death. Post mortem revealed that the death is due to internal bleeding following injuries sustained to chest, abdomen and pelvis. As per Ext.A1, post mortem report, the deceased Prakasan had fracture on ribs 2-6 on right side at mid clavicular line with surroundings blood infiltration and 1-12 ribs on left side over multiple aspects of which the fractured ends of 2-5 ribs seen displaced inwards, fracture on right pubic ramus and ilium with dense blood infiltration in the pelvic cavity and fracture on the body of first lumbar vertebra with surrounding blood infiltration. OPW1 deposed that he could not recognise the internal bleeding.

                  21. It can be seen that even if, there are fractures on ribs of Prakasan, the first Opposite Party failed to find out these fractures which is one of the reasons for internal bleeding. It is very interesting to note that even if, Prakasan got fractures on ribs, as a doctor, the first Opposite Party failed to find out these fractures on the body of Prakasan.  Fracture can be recognised easily by touching, with the help of X-rays, bone scan, CT scan and MRI scan. We do admit that though, first Opposite Party directed to take CT scan, it could not be taken, because the condition of the patient suddenly became worst. First Opposite Party failed to identify the fractures on ribs even if, according to him, he attempted to identify other injuries. It is to be noted that Patient was brought to the hospital due to a fall from a coconut tree, though, there is no material to show from which height Prakasan fell down. OPW1 deposed that

“Dbc¯n \n¶pw hoW Hcp Patient s\ sIm­ph¶m ]cntim[n¡m³ ]ämhp¶ `mK§Ä FÃmw Rm³ ]cntim[n¡pw. Patient sâ chest Dffn s]m«nbXmbn ]nSn¨v t\m¡nbt¸mÄ F\n¡v a\ÊnembnÔ.

22. One of the symptoms of fracture is severe pain. So, it can be easily identified by touching. Admittedly Prakasan was conscious. So, definitely, if anyone tried to touch on his chest, there should be some reactions from him due to pain. So, the oral version of OPW1 that he touched the body of Prakasan and could not identify the fracture on ribs cannot be believed. Definitely, if he really touched the body, there may be cry or sound or reaction or any expression or any movement from Prakasan.  As a doctor, first Opposite Party should have identify the actual injuries upon the patient by any mode. Admittedly, he is having an experience of 12 years as a Consultant Orthopaedic Surgeon. But though there are serious fractures on the ribs of Prakasan, the first Opposite Party only found fractures on pelvis and wrist. Only after the death, the first Opposite Party came to know that the death was due to internal bleeding following injuries sustained to chest, abdomen and pelvis. So, he failed to carry out mandatory check up.

23. The Counsels appearing for the Opposite Parties contended that a mere allegation of medical negligence is not sufficient to attribute negligence on a doctor and onus to prove medical negligence by leading cogent evidence lies on the Complainant. They have also taken a stand that there should be evidence of medical experts to prove medical negligence. According to them, simple lack of care or an error of judgement or an accident is not a proof of negligence. To substantiate these contentions, they placed decisions of our Honb’le National Commission and Honb’le Supreme Court. We are also supporting the views taken by the learned Counsels of Opposite Parties. So, all these citations are not reproducing here. 2021(4) CPR 419 (SC) and 2018(2) CPR 296 (NC) are two among them.

24. Negligence denotes failure to take proper care. It means a failure to act with care that someone of ordinary prudence would have exercised under the same circumstances. The behaviour usually consists of actions, but can also consist of omissions when there is some duty to act. A patient approaching a doctor expects medical treatment with all the knowledge and skill that the doctor possesses to bring relief to his medical problem. Therefore, it is expected that a doctor should carryout necessary investigation. A failure of a doctor to discharge this obligation is essentially a tortuous liability. Though a doctor may not be in a position to save his patient’s life at all times, he is expected to use his special knowledge and skill in the most appropriate manner keeping mind the interest of the patient who has entrusted his life to him. Here, it is evident that the first Opposite Party has not detected all the injuries of the patient to save his life, even if, this is a case of a fall from a coconut tree.

25. So, in these circumstances, the contentions of the Counsels appearing for the Opposite Parties that a mere allegation of medical negligence is not sufficient to attribute negligence on a doctor and that onus to prove medical negligence by leading cogent evidence lies on the Complainant and that there should be evidence of medical experts to prove medical negligence and that simple lack of care or an error of judgement or an accident is not a proof of negligence are not applicable here. The facts of this case itself show that without any medical evidence, we can come into a conclusion that the negligence of the first Opposite Party is not a simple lack of care or an error of judgement or an accident. So, we have no hesitation to hold that there is gross negligence on the part of first Opposite Party.  The sixth Opposite Party is the hospital. Though the first Opposite Party is the son-in-law of the owner of this hospital, admittedly he attended the patient as an employee of this hospital. So, sixth Opposite Party, hospital is vicariously liable for any wrong from the first Opposite Party as an employee. So, the point is answered in favour of Complainants.

26. Point No.2:- The Complainants want to get Rs.1,00,000/- towards medical expenses, Rs.5,00,000/- towards physical and mental pain, Rs.13,00,000/- towards the loss due to the death of Prakasan. No documents are produced to prove the medical expenses incurred. But we cannot hold that the Complainants have not incurred any expenses for the treatment of Prakasan even if, he died on the same day of the accident. So, considering the oral evidence of PW1, we have to hold that Rs. 10,000/- is to be given to them towards medical expenses. Next point is with regard to physical and mental pain and compensation for the death of Prakasan. No doubt Prakasan is the earning member of their family. The Complainants have lost their earning member. PW1 deposed that the income of Prakasan is Rs.1,000/ per day. There are no documents to support this version. So, let us assume that Prakasan had only a nominal income. His age was 45 years at the time of death. The Complainants have lost their source of income. First Complainant lost her consortium. The second and third Complaints have lost paternal care, love and affection. So, though there is no physical pain, their mental pain cannot be assessed. So, considering all these aspects, we are of view that the Complainants are entitle to get Rs.2,00,000/- towards mental pain and Rs.10,00,000/- as compensation for the death of Prakasan. The sixth Opposite Party is held liable to pay these amounts to the Complainants since they are vicariously liable as the death had occurred during the course of employment of first Opposite Party with them. So, this point is answered as discussed above.

In the result, the Complaint is allowed in part. The sixth Opposite Party is directed to pay Rs.10,000/- (Rupees Ten Thousand Only) towards medical expenses, Rs.2,00,000/- (Rupees Two Lakhs only) towards mental pain and Rs.10,00,000/-(Rupees Ten Lakhs Only) towards loss due to the death of Prakasan to the Complainants within one month of the receipt of this order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 6^th day of August 2022.

Date of Filing:-09.02.2017.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

MEMBER       : Sd/-

APPENDIX.

Witness for the complainants:-

PW1.              Yamuna.                                           Sales Girl.

PW2.              Dr. Ratheesh. P. T.                         Assistant Professor, Department of

                                                                               Forensic Medicine, Government 

Medical College, Kozhikode.

Witness for the Opposite Parties:-

OPW1.          Dr. Randheer Krishnan. K.           Doctor.

OPW2.          Jithun Vijay.                                     Branch Manager, United India

Insurance Company Limited.

Exhibits for the complainants:

A1.                  Post-Mortem Report.                                           Dt:30.01.2016.

A2.                  Passbook of Late Prakasan.                               

A3.                  Registration cum Identity Certificate of Late Prakasan.

A4.                  Membership Receipt of Late Prakasan.           Dt:30.11.2010.

X1(Series).    Medical Record of Late Prakasan from Vinayaka Hospital.

                        (25 Pages).

Exhibits for the Opposite Parties:-

B1.                  Professional Indemnity for Doctors (Special Drive) Policy for the    

                       period of 11.03.2015 to 10.03.2016 of Dr. Ravi Kumar.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                                     Sd/-

                                                                                              ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.