Date of filing: 11-5-2017 Date of order : 22-8-2017
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, LADY MEMBER
Tuesday, 22nd day of August 2017
CONSUMER COMPLAINT No. 28 / 2017
K. Vasudeva Rao, S/o Krishna Murthy,
aged about 81 years, Retired Lecturer,
D.No. 5/378, Bhujangarao Street, Kadapa. ….. Complainant.
Vs.
1. Dr. G. Shiva Bharath Reddy,
M.S. Orthopaedic Surgeon in Tirumal Hospital,
D.No. 21/16, C/o R.S. Road, Guntha Bazar,
Near 7 Roads, Kadapa.
2. The Proprietor, Tirumala Hospitals, D.No. 21/16,
C/o R.S. Road, Guntha Bazar,
Near 7 Roads, Kadapa. ………Opposite parties.
This complaint coming on this day for final hearing on 17-8-2017 in the presence of Smt. S. Lalitha, Advocate for Complainant and O.P.1 called absent and O.P.2 called absent and set exparte on 7-7-2017 and upon perusing the material papers on record, the Forum made the following:-
O R D E R
(Per Smt. K. Sireesha, Member),
1. Complaint filed under section 12 of C.P. Act 1986.
2. The brief facts of the complaint are as follows:- The Complainant is a retired lecturer eking out his livelihood depending upon his pension. He was suffering knee pain and approached O.P.2 hospital where O.P.1 is consultant orthopedic surgeon. O.P.1 advised the Complainant to go for total knee replacement surgery. The Complainant paid amount and Opposite party promised to conduct surgery. The Complainant joined O.P.2 hospital on 17-10-2014 and operation was conducted for total knee replacement and he stayed there inpatient in the hospital till 22-10-2014. The Complainant had paid a sum of Rs. 4,07,191/- to the hospital of O.P.2 towards accommodation charges, nursing charges and all surgery material. After one week when the bandage was opened on the left knee it was found that seven or eight sutures were missing and also found some infection over the same. The Complainant informed the same to Opposite parties then again they asked to pay the amount of Rs. 43,000/- and operated knee of the left leg by reopening the same. While doing so intravenous injections were administered and physiotherapy was also done for 30 days. But the Complainant found limp on the left knee which the O.P.1 calls it ‘FAT’ but it was not dissolved. The Complainant had approached another Ortho Surgeon where he took an X-ray calls it as ‘bone’. The said FACT or bone is causing severe pain and also caused swelling on the leg.
3. The Complainant informed the said fact of swelling and pain and also requested Opposite party to clarify whether the limp is FACT or BONE then they gave evasive replies. Prior to one week of admission in the hospital the Complainant has paid advance amount and paid total sum of Rs. 4,07,191/- to O.P.1 hospital for accommodation charges, nursing charges etc., for his stay and treatment. When the Complainant asked Opposite party for clarification of limp in his left leg whether it is FAT as suggested by him or BONE as suggested by another Ortho surgeon, they are not responding in a positive manner and failed to give any explanation, which caused much mental agony, monetary loss and physical pain as stated above. The acts of the Opposite parties are deficiency in service and that both are jointly and severally liable for compensation. It is therefore, prayed that the Hon’ble forum may be pleased to allow the complaint and pass such orders in favour of the Complainant directing the Opposite parties jointly and severally (a) to pay Rs. 5,00,000/- as compensation towards loss, (b) to pay Rs. 90,000/- towards compensation for physical pain and mental agony and (c) to pay Rs. 10,000/- towards expenses of the case of complaint.
4. O.P.1 called absent and set exparte on 7-7-2017 and O.P.2 absent.
5. On the basis of the above pleadings the following points are settled for determination.
- Whether the complainant is eligible for compensation as prayed by him or not?
- Whether there is negligence or deficiency of service on the part of the Opposite parties or not?
- To what relief?
6. On behalf of complainant Exs. A1 to A6 were marked.
7. Point Nos. I & II. As seen from Complaint, the Complainant is a senior citizen, aged 81 years, retired lecturer living depending on his pension. He approached O.P.1, who is working in the hospital of O.P.2 for knee pain, as seen the age of the Complainant is too advanced to bear any surgery. On 17-10-2014 the O.P.1 conducted surgery to the Complainant and charged Rs. 4,07,191/-. Ex. A1 discloses the same. O.P.1 is the consultant orthopedic surgeon of O.P.2 hospital. Ex. A1 clearly shows that the Complainant had joined in the hospital on 17-10-2014 and he stayed there as in- patient up to 22-10-2014 and he had paid total amount as per Ex. A1. Ex. A2 also shows the bills of the Orthopedic implants which used for Complainant. Exs. A2, to A5 clearly shows that the bills paid by the Complainant. So the exhibits clearly proves, he paid total bills amount of the hospital and the Complainant had undergone orthopedic surgery i.e. knee replacement by O.P.1, which is a failure case. O.P.1 refused to receive the notice and appear before this form. Opposite parties are set exparte on 7-7-2017. The attitude of O.P.1 clearly amounts to contempt of court. This attitude itself proves that there is deficiency in service and negligence in doing operation to the Complainant. The Complainant got infection after knee replacement operation. Again he had paid Rs. 43,000/- for reoperation. But the Complainant did not recover well. As there is negligence in doing the operation, due to that the Complainant is suffering or paining and mental agony in lot. Being senior citizen the Complainant expected relief after operation. But he had other complications after the operation by O.P.1. There is total negligence in doing knee replacement operation by the Opposite parties. Hon’ble Supreme Court in celebrated case of Bolam Vs. Friern Hospital Management Committee (1975) 2 AII ELR 118 observed that negligence in law means this; some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. Further it is observed that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. In yet another case of Laxman Balakrishna Joshi Vs. Trimbak Bapu Godbole and others. In Laxman Balakrishna Joshi Vs. Trimbak Bapu Godbole and others AIR 1969 SC 128. The Hon’ble Apex court held that a person who holds himself out ready to given medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. Admittedly, negligence is an essential ingredient of the offence. Medical practitioner would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field. So here there is gross negligence and deficiency of service on the part of the Opposite party No. 1 and at the same time the Complainant is eligible for compensation as prayed by him.
8. Point No. III. In the result, the Complaint is allowed, directing the Opposite parties 1 & 2 jointly and severally liable to pay Rs. 5,00,000/- (Rupees five lakhs only) towards compensation for failure of surgery or towards loss, to pay Rs. 90,000/- (Rupees ninety thousand only) towards physical strain and mental agony and to pay Rs. 10,000/- (Rupees ten thousand only) towards expenses of the Complaint to the Complainant, within 45 days from the date of receipt of the order.
Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, this the 22nd day of August 2017.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses examined.
For Complainant :
PW1 K. Vasudeva Rao, dt. 28-7-2017.
For Opposite parties : NIL
Exhibits marked for Complainant: -
Ex.A1 final bill paid by Complainant I.P. No. 3074/14, dt. 22-10-2017.
Ex. A2 Bill of J.P. Enterprises, dt. 22-10-2014.
Ex.A3 Bills of Vennela Pharma-7 in number dt. 1-12-2014, 17-10-2014,
21-10-2014, 18-11-2014 and 15-12-2014.
Ex.A4 Bill of physiotherapy clinic dt. 15-10-2014.
Ex. A5 P/c of discharge summary dt. 24-10-2014.
Ex. A6 Four photocopies of Complainant
Exhibits marked on behalf of the Opposite parties: -
MEMBER PRESIDENT
Copy to :-
- Smt. S. Lalitha, Advocate for Complainant.
- Dr. G. Shiva Bharath Reddy, M.S. Orthopaedic Surgeon in
Tirumal Hospital, D.No. 21/16, C/o R.S. Road, Guntha Bazar, Near 7 Roads, Kadapa.
- The Proprietor, Tirumala Hospitals, D.No. 21/16,
C/o R.S. Road, Guntha Bazar, Near 7 Roads, Kadapa.
B.V.P
