State Consumer Disputes Redressal Commission
Shaik Masthan Saheb, Rompicherla, ... vs The Svims Hospital, Tirupathi And One ... on 17 June, 2013
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD FA 282/2012 against CC 27/2011 on the file of the District Consumer Forum II, Chittoor District at Tirupati Between Shaik Masthan Saheb, S/o. Khadar Basha, Muslim, aged 40 years, R/o D.No.1-24, Palem Street, Rompicherla, Chittoor District. Appellant/Complainant. And 1. The SVIMS Hospital, Tirupati, Chittoor District. Represented by its Director 2. Dr. Vengamamba, Director The SVIM Hospital, Tirupati, Chittoor District. Respondents/Opposite parties. Counsel for the Appellant : M/s. N. Pramod Counsel for the Respondents : Mr. M. Subhasini for R1 to R2. Coram ; Smt. M. Shreesha Honble Incharge President And Sri T. Ashok Kumar .. Honble Member
Monday, the Seventeenth Day of June Two Thousand Thirteen Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
1. This is an appeal preferred by the unsuccessful complainant as against the orders dated 23.02.2012 in CC 27/2011 on the file of the District Consumer Forum II, Chittoor District at Tirupati. For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The brief facts of the complaint are that complainants daughter, by name, Ayesha, was admitted in Mothers Hospital on 01.01.2010 and she was treated there upto 04.01.2010 and on their advice for better treatment she was brought to the first opposite party hospital for better treatment, to which the second opposite party is the Director. Though she is entitled to free medical treatment as per Arogya sree scheme, the second opposite party did not admit the complainants daughter and demanded to pay Rs.5,000/- towards admission fee .Thereupon, the complainant approached the local minister and secured the letter recommending for the admission and to provide necessary treatment, free of cost. The second opposite party did not care to admit the complainants daughter and in the meanwhile the complainant could manage about Rs.3,000/- only and paid the same.
Thereafter, the daughter of the complainant was admitted but no prompt treatment was provided. As a consequence of the same the daughter of the complainant died on 13.01.2010 in the hospital of the first opposite party. For post mortem examination, the opposite party No.2 demanded a bribe of Rs.10,000/- and on account of failure to provide proper and timely treatment, the daughter of the complainant whose age is 20 years died which is nothing but pure medical negligence and he was subjected to great mental agony and pain. Hence he filed the complaint claiming compensation of Rs.10,00,000/- for the alleged medical negligence, another Rs.50,000/- towards mental agony, pain and suffering , Rs.15,000/- towards the expenses incurred by the complainant during the treatment and costs.
3. OPs 1 and 2 filed counter opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under :
It is true that the daughter of the complainant by name Ayesha was brought to the hospital on 04.01.2010 and was admitted and not aware of the previous treatment at Mothers Hospital and denied the rest of the allegations . At the time of admission, she was suffering from hemorrhagic stroke and was asked to deposit Rs.5,000/- for the admission but the allegation that the complainant showed the records like Arogyasree card and admission was refused, were all false/ Though the complainant deposited Rs.3,000/-, on the account of the critical condition of the patient, she was admitted and subsequently the complainant produced evidence to have benefit under Aragoyasree scheme. On 05.01.2010 the case record was shown to be converted under Aragoyasree scheme known as ASHISH and sent requisition to the said authorities for authorization for further treatment and the complainants daughter was suffering from Cerebral Venous Thromobosis and was in critical condition.
The complainant was informed about the poor chance of the recovery and inspite of providing treatment, the patient died and there is absolutely no medical negligence. The allegation that the second opposite party demanded Rs.10,000/- for post mortem are all false and in fact the hospital is not authorized to conduct post mortem and as the complainant was held to be entitled to Arogyasree, the amount of Rs.3,000/-, deposited by the complainant and Rs.3,478/- spent by the complainant was ordered to be released. In fact the total costs of the treatment came to Rs.39,211 but they were reimbursed only Rs.18,000/- under Arogyasree scheme and thus having incurred Rs.21,211/-
more than the amount received and the amount of Rs.6,478/- was also returned back by way of a cheque dated 23.07.2010 and that there is no medical negligence and thus prayed to dismiss the complaint.
4. Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A-1 to A 28 were marked on behalf of the complainant and Ex. B -1 to B 10 were marked for the OP.
5. Having heard both sides and considering the evidence on record, the District Forum dismissed the complaint. But , ordered the opposite party to issue fresh cheque for Rs. Rs.6,478/- in favour of the complainant.
6. Feeling aggrieved with the said order the unsuccessful complainant filed this appeal on several grounds and mainly contended that the District Forum failed to see the negligence and deficiency in service of delay in administering the treatment even after admission and adequate and timely necessary treatment resulting in causing irretrievable condition of the patient and that CT scan was ordered to be done on 5.1.2010 the same was not taken and collected by the concerned doctors till 8.1.2010 and also failed to take further investigation to administer adequate and proper line of treatment and caused to pass away a valuable period of time in rendering proper and necessary treatment and thus prayed to allow the appeal and set aside the impugned order.
7. Heard counsel for R1 and R2 with reference to their respective contentions in detail.
8. Now the point for consideration is whether the order of the District Forum is sustainable ?
There is no dispute that the one Ayesha, the daughter of the complainant was brought to the hospital of Ops on 4.1.2010 and was admitted for treatment. It is also not in dispute that prior to it, the said patient was treated in Mothers Hospital According to case sheet vide Ex B1 the complainants daughter was suffering from Cerebral Venous Thrombosis and was in critical condition and the said document also establishes that the said patient was on ventilator and unconscious. The complainant did not describe the mode of transport from Mothers hospital the hospital of Ops and no evidence is placed on record to the effect that the patient was on ventilator during shifting her from Mothers hospital to the hospital of the Ops and also she was on ventilator outside the hospital of the Ops. There is a delay of about 12 hours in admission in the hospital of Ops after discharge of the said patient from Mothers hospital. Possibility of the patient becoming more critical in the said circumstances cannot be ruled out for which Ops cannot be made liable. There is no medical experts opinion that on account of inaction or not treating the patient immediately it resulted in her death. The important contention of the complainant is that even though scanning was ordered on 5.1.2010 it was not taken till 8.1.2010 and in such circumstances it has to be seen that whether such negligence resulted in death of the patient so as to come to a conclusion that the said negligence on the part of Ops amount to deficiency in service. it is true that Ops did not offer any explanation for such plea. Ex. B1 reveals that discloses that scan report though taken belatedly was not collected and the same is sufficient to say that Ops were negligent but now it is to be seen that whether the delay in not taking the scan resulted in death of the deceased. The discharge summary of Mothers hospital pages 27 and 28 of Ex. B1 discloses that patient is Febrile and that various parameters like BP , pulse stated to be unconscious and on ventilator and that patients attendant wanted to continue in another centre and thus it can be understood that voluntarily or for the reasons best known to the complainant he wanted to shift his daughter from Mothers hospital to the hospital of Ops. At mothers hospital also CT scan was taken but still it was again ordered to be taken in the hospital of Ops probably to have such a report from their hospital itself. In the circumstances of the case, it is understood that since the complainant did not pay requisite amount and as he made an application to treat his daughter under Argosy Shree Scheme vide Ex. A6 dt. 5.1.2010 the said delay occurred. It appears that after Ex. A4 sanction order dt. 7.1.2010 to provide free treatment to the said patient subject to maximum extent of Rs.25,000/- the scan was taken on 8.1.2010 and thus there is no doubt there was some negligence on the part of Ops in not taking the scan. But in the absence of medical experts opinion or pleading that the said act has resulted in death of the deceased it is difficult to connect the opposite parties to the death of the deceased. It is much more so when she was on ventilator prior to her admission into the hospital of Ops and such ventilation was withdrawn for 12 hours. As seen from Ex. B1 on 12.01.2010, at 1.00 PM the patient was directed to be discharged as the amount exceeded the limit under Arogya shree scheme and such an order is inhumane but at 5.00 PM on the same date it was noted that patient was to be readmitted on agreeing to pay money and that treatment was continued upto 13.01.2010 till she died. There is no pleading or contention from the complainants side that suddenly the treatment was suspended on the said patient on 12.01.2010 therefore the said aspect hardly helpful for the complainant it is much more so as already described supra on the very same 12.01.2010 at 5.00 PM she was ordered to be readmitted. In the circumstances of the case, it appears that though no CT scan was taken the treatment was continued on the basis of the CT scan already made at Mothers hospital and therefore on the ground that delay occurred in taking CT Scan, Ops cannot be connected to the death of the deceased. Another allegation of the complainant is that Rs.10,000/- bribe was demanded for conducting post mortem examination but there is no convincing material in the said context on record and self serving statement of complainant is not sufficient. Even otherwise the said aspect will not come within the meaning of deficiency in service and the complainant was at liberty to complain in the said context to competent authority immediately after such an illegal demand and his subsequent conduct of silence till this complaint is filed improbablizes the said plea. Direct evidence is required to show medical negligence on the part of the Opposite parties and the principle of res ipso loquitor cannot be based to give a finding that Ops rendered deficient service.
9. In a decision reported in ( 2010) 3 SCC 480 between Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and others, it was held that the doctor would be liable only where his conduct falls below that of a reasonably competent medical practitioner and that divergence of opinion with other doctors not by itself sufficient to infer negligence. In a decision reported in (2009) 7 SCC 130 between CP Srikumar (DR. MS. Artho) Vs. S. Ramanujam it was held that onus of proving medical negligence lies on the complainant and that mere averment in the complaint is not evidence and that the complaint to be proved with by cogent evidence. The said aspects to be kept in mind in dealing with this case. Since there is no medical experts evidence on record to say that the delay in taking the CT scan by the Ops itself has direct bearing on the death of the deceased, it is not possible to hold that the complainant proved medical negligence against the opposite parties 1 and 2 to claim the compensation in connection with the death of his daughter. Discussing all the aspects with reference to case law, the District Forum rightly dismissed the complaint as far as claim of the complainant is concerned with regard to medical negligence but directed the complainant to received Rs.6,478/- sent under Ex. B3 by the Ops without prejudice to his case and the Ops were directed to take back the cheque and issue fresh cheque in the name of the complainant and sent the same by registered post. There are no reasons to interfere with the order and the appeal is liable to be dismissed.
10. In the result, the appeal is dismissed confirming the order of the District Forum. The parties shall bear their own costs.
I/c PRESIDENT MEMBER DATED : 17.06.2013.