State Consumer Disputes Redressal Commission
Consumer Assistance & Rural ... vs . The Director, Tata Memorial Hospital ... on 9 December, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK
CONSUMER
DISPUTE CASE NO.57 OF 2001
1. CONSUMER
ASSISTANCE &
RURAL EMPOWERMENT (CARE)
At : Plot No. N-4/40, IRC Village,
Nayapalli, Bhubaneswar (Orissa)
2.
Shyam Sundar Dash aged about
53 years, son of late Jadumani Dash,
presently working in IMFA, Thuribali,
Dist. Rayagada ... Complainants
-Versus-
1. The Director,
Tata Memorial
Hospital
(TATA Memorial
Centre),
Dr. E. Borges Marg,
Parel,
MUMBAI
2. The Medical Superintendent,
Tata Memorial
Hospital,
Dr. E. Borges
Marg, Parel,
MUMBAI
3. Dr. Rajesh Badhwar, Surgeon
Bone & Soft
Tissue Service,
C/O TATA Memorial
Hospital,
Dr. E. Borges
Marg, Parel,
MUMBAI
4. M/s HOWMEDICA,
Duchem
Laboratories Ltd.,
PFIZER Hospital
Products Group,
5, Patel Estate,
S.V. Road,
Jogeswari (W),
MUMBAI
5. M/s Christian Hospital,
At/P.O. Bissam Cuttack,
Dist. Rayagada,
Orissa
6. M/s IMFA Hospital,
At/P.O. Therubali,
Dist. Rayagada,
Orissa ... Opposite Parties
For Complainants
: Mr. N.K.Mishra
For Opp. Parties :
M/s D. Panda, S.K.Mishra,
U.S.
Tripathy and
P.C. Das
P
R E S E N T :
THE HONBLE SHRI JUSTICE
A.K. SAMANTARAY, PRESIDENT
SHRI SUBASH MAHTAB,
MEMBER
AND
SHRIMATI BASANTI DEVI,
MEMBER
O R D E R
DATE:- The 09th December, 2009.
Justice A.K. Samantaray, President.
The This consumer complaint was filed by a voluntary consumer organization registered under the Societies Registration Act espousing the cause of Shyam Sundar Dash, who has also been later on impleaded as complainant no.2 vide order dated 04.04.2002. The case of the complainants is that Complainant no.2 is an employee of IMFA Ltd. His daughter Srutilekha Dash complained of pain in her left leg around the knee joint and was initially treated in the IMFA Hospital at Therubali till June, 1999. Despite such treatment there, since her pain did not recede, she was advised to consult an Orthopedic Surgeon of Rayagada District Hospital by the treating physician at IMFA Hospital. Srutilekha was examined by Dr. M.V. Ramachandra Rao, Orthopedic Surgeon, who advised her for biopsy. Basing upon the biopsy report, it was diagnosed that she was suffering from Osteo Sarcoma and was advised by her treating doctor at IMFA Hospital for further treatment at Tata Memorial Hospital, Mumbai (for short TMH. Srutilekha was taken by her father and was admitted in the TMH on 26.02.1999 and was registered as Case No. BM 3568. After further investigation, the suspicion of Osteo Sarcoma was confirmed and the patient was advised to start Chemotherapy to be followed by knee replacement surgery, for which an estimated cost of around Rs.3 lakhs was given. It is further alleged that the patients father, i.e., complainant no.2, was required by the TMH to deposit money for meeting such treatment expenses. Accordingly, an account bearing number 3504 was opened. Complainant no.2 went on depositing different amounts from time to time from which the treatment expenses were being met. It has been further alleged that the authorities of the TMH, because of their faulty internal administration, delayed in making requisition of acquiring the foreign prosthesis from M/s Howmedica, opposite party no.4, for which the patient was to be administered with additional dosage of chemotherapy and ultimately acquired the same at a much higher cost. For such laches and delay on the part of TMH, complainant no.2 was compelled to pay higher amount. It has further been alleged that as against the advice of the treating physician, prosthesis of a different measurement was requisitioned and attached to the limb of the patient, which caused severe infection and ultimately became the cause of death of the hapless patient. The reasons for delay in starting the treatment at the earliest, as pointed out by the complainants, are as follows:-
(a) Delay in obtaining the foreign prosthesis as TMH refused to accept the prosthesis obtained by complainant no.2 with the help of Cancer Patients Aid Association, which was obtained at a discount price.
(b) Delay in dues being cleared by the TMH of the supplier, which resulted in refusal by the supplier to supply the required prosthesis direct to the TMH within the stipulated time.
It is further alleged that due to such issues of the TMH with the prosthesis supplier, unnecessary delay was caused in conducting the required surgery. Because of such delay, even though the patient was admitted in the month of February, 1999, the operation could only be conducted on 15.09.1999 and such delay necessitated additional dose of chemotherapy, for which complainant no.2 had to incur an additional expense of about Rs.25,000/-. It is also alleged that such additional dose of chemotherapy was not only unnecessary but also harmful to the patient.
2. The complainants have also brought about the issue of mismanagement during the surgery procedure itself and have pointed out that as required in any surgery of the nature that was to be undertaken on the patient, both teams of cancer surgeon and plastic surgeon should have been present in the operation theatre, as reconstructive surgery is a norm in such surgical process. The TMH administration did not care to inform such Plastic Surgeon, for which he was not present during the knee replacement surgery. Almost two hours after the surgical process was completed, the Plastic Surgeon came on getting an emergency call. He expressed his dissatisfaction in his note for such delay and also expressed that such delay may cause infection to the patient as the wound of the patient remained open. In his treatment note, he has also expressed displeasure regarding lack of water for scrubbing in the operation theatre and has pointed out that during surgery, lot of damages had been caused to some of the vessels and operated parts resulting in profuse bleeding. Even the implanting of the prosthesis had not been properly done. It is alleged by complainant no.2 that the delay in treatment through the Plastic Surgeon due to the fault of TMH in not calling him prior to the operation resulted in infection in the patient, which ultimately led o her death after continued painful suffering. It is alleged that the delay, negligence, carelessness and indifference of the Surgeon who conducted the implanting of prosthesis led to severe infection for which the patient was treated for a prolonged period of almost four months by staying at Mumbai, both as an in-patient and out-patient, which resulted in very high expenditure. Due to such infection, it is alleged, the TMH again advised that the prosthesis implanted was required to be removed and replaced by another prosthesis giving additional dose of chemotherapy. In the alternative, the treating doctor suggested that the patient may go for free fibula graft, which would result in complete lack of use of the leg by the patient for the rest of her life. The TMH again asked complainant no.2 to arrange a further sum of Rs.1.5 lakhs for surgical treatment and Rs.2 lakhs for chemotherapy, even though it was known to the Surgeon at TMH that such further suggested treatment would not yield any positive result. It is also alleged that complainant no.2 was advised to carry on further treatment at any hospital where arrangement for such surgery is available, if finance was the issue for him not to continue treatment at TMH.
3. Complainant no.2 returned with his daughter to Therubali and admitted her to Christian Hospital, Bissam Cuttack on 08.03.2000 for the unbearable pain suffered by the patient. The prosthesis implanted in the TMH was removed on 15.04.2000, but the wound did not heal because of severe infection inside caused during the implantation process due to the delay in reconstructive plastic surgery. The doctors at Bissam Cuttack advised a second amputation in order to save the life of the patient, which was carried out during her treatment at the said Hospital from 08.03.2000 to 20.06.2000. After her discharge from the said Hospital, she could not recover from the infection she carried from the TMH and her health began to deteriorate. Finally, she expired on 08.12.2000.
4. It is alleged that after removal of the prosthesis, it was found that the prosthesis used was of a different size than that prescribed. It was also found that because of use of the bigger size prosthesis, which did not fit in to the patient, damage was caused to the vessels, which resulted in severe suffering of the patient. After removal, it was also found that the prosthesis borne a different number than the item identified, and nowhere the name of the manufacturer or the place of its manufacture was found on the same, which gave rise to the suspicion that prosthesis of an inferior quality was used.
5. For the aforesaid laches and negligence, the complainants have filed the present complaint claiming Rs.19,90,400/- as against opposite parties 1 to 4 jointly and severally. They have also claimed cost of litigation and interest at the rate of 18% per annum till the date of payment. It would be relevant to note here that in the meantime, opposite party no.3, namely, Dr. Rajesh Badhwar, Surgeon, Bone & Soft Tissue Service, TMH, has expired and accordingly the claim as against him as abated.
6. In response to the allegations of the complainants, opposite parties 1 and 2 have filed their written version. Opposite party no.4 has filed a separate written version stating that the business of the company has already been transferred to Stryker India and accordingly they cannot be held liable for payment of any compensation. Be that as it may, since from the contents of the claim we do not find any allegation of deficiency in service as against opposite party no.4, the said issue need not be implored and the claim as against opposite party no.4 stands rejected.
7. Opposite parties 1 and 2 in their written version, apart from attacking the complaint on merit, have also denied the claim on the ground of lack of jurisdiction of this Commission. It is stated that the cause of action, as alleged against the said opposite parties, arose in Mumbai inasmuch as the alleged deficiency/negligence relates to the treatment of the daughter of complainant no.2 in their Hospital in Mumbai. Their place of business is also in Mumbai. Therefore, they are not amenable to the jurisdiction of this Commission. It has also been asserted that since the entire claim is based on the alleged negligence or otherwise on the part of these opposite parties during the period of treatment of the patient in Mumbai, mere post-operational treatment in Orissa cannot accrue jurisdiction in favour of this Commission since the treatment undertaken in Orissa was neither at the instance nor on the advice of TMH. It is further asserted that complainant no.2 has not made any payment from his own fund. Rather, the entire cost of treatment was arranged through donations from different sources and as such the complainants will not be covered under the definition of consumer. Accordingly, the complaint is not maintainable in law. Apart from the aforementioned defence, opposite parties 1 and 2 have also denied any negligence on the part of the Hospital, i.e., TMH, in treating the patient and giving any kind of wrong treatment or consultation to complainant no.2.
8. After going through the specific pleadings of the parties, the documents filed by the respective parties and the evidence led, the following questions arise before this Commission to be decided in the present dispute:-
1. Whether complainant no.2 is a consumer?
2. Whether this Commission has the territorial jurisdiction to decide the present dispute?
3. Whether there has been negligence on the part of any of the opposite parties, which would amount to deficiency in service?
4. Whether any loss has been sustained by the patient and/or complainant no.2 due to any deliberate negligence on the part of any of the opposite parties, more particularly, opposite parties 1 and 2, against whom allegations have been made and compensation claimed?
5. Whether the complainants are entitled to any compensation and/or any other relief?
9. Before taking up the issue regarding maintainability and jurisdiction, it would be appropriate to decide the issue of culpable negligence and/or deficiency in service on the part of the opposite parties in the treatment process of the deceased Srutilekha. In this regard, an expert view was obtained by this Commission from Dr. R.C. Mishra, Professor Surgery and HOD, Acharya Harihar Regional Cancer Centre, which was submitted vide his report dated 07.11.2007. In the said report, though certain options and conclusions have been drawn by the expert, he has not conclusively stated if there was any negligence on the part of the Hospital authorities in the treatment of Srutilekha and if the suggestions, which have been given by him are based upon the particular materials on record pertaining to the case of Srutilekha only. In the first part of his analysis, he has specifically mentioned that the disease suffered by Srutilekha is to be treated by giving six to nine cycles of chemotherapy and further that the infection alleged is a well documented complication in such mega prosthesis implant. The reasons for such infection can vary and are dependant upon several factors apart from the delay between the surgical operation and the plastic surgery. We are constrained to express our dissatisfaction over such a report, since reference was made to the expert for his view on the specific case of Srutilekha, but it appears that he has given a general analysis of such cases. Without pointing to the specific deficiencies except at point no.3 of his opinion, no other allegation seems to have been corroborated by him. However, during the course of hearing of the case, the opposite parties, to substantiate their defence, had produced the prosthesis which was used in case of Ritika, the other patient, and also another sample set of prosthesis which show identical numeric inscription that have been explained by the Asst. Professor and Surgeon Dr. Ajay Puri, M.S. (Ortho) that the numbers inscribed or batch numbers are supplied; by the supplier as a total package, which includes prosthesis of different configuration and size so that the operating surgeon can choose the exact size of prosthesis at the time of surgery depending on the specific requirement. It was also clarified by him that it is not necessary always for the patient to be examined by a Plastic Surgeon prior to surgery since the extent of reconstruction can only be known after the actual surgery is performed. It has been the specific assertion of Dr. Puri, which gets support from the report that the cause of death was possibly due to lungs metastasis, which is a common consequence of disease and that infection was already controlled, but still the patient unfortunately expired. Medical negligence is to be proved like a criminal charge since it involves culpability in the professional practice. Merely basing on presumptions without any specific reason to substantiate the allegation, such negligence cannot be attributed. Further, unless the Hospital administrations in such cases of medical negligence are shown conclusively to have deliberately committed such negligence, no liability can be fastened with them to compensate the complainants. From the evidence of the parties and the documents filed and keeping in view the specific statements made by the two experts, we are not fully convinced that a case of medical negligence is proved in the present case so as to penalize the opposite parties attributing the cause of death to the negligence on their part.
10. Coming to the issue of maintainability, we are of the confirmed view that irrespective of payments having been made personally by complainant no.2 or the same having been drawn through different separate sources, since the Hospital has received the consideration for the treatment process given it, the complainants are consumers. Further, in a death case, this Commission has to construe such question of territorial jurisdiction and otherwise the cause of action so as to include the fact of death as a cause of action if the same is in consequence of any negligent act on the part of any of the opposite parties. Accordingly, we hold that the complaint is maintainable in this Commission.
11. Coming to the question of compensation, in view of our finding as regards the issues attributing negligence to the opposite parties, we are not fully convinced that there was any culpable or deliberate negligence which would render the opposite parties liable to pay compensation as claimed by the complainants. But the fact remains that the premier cancer institute like opposite parties 1 and 2, on which the entire country reposes confidence and each and every patient longs for being treated there, is not free from free from irregularities, which are somewhat glaring in the instant case of the hapless girl, which led to her suffering and severe suffering causing her ultimate death. Considering all these, we feel it appropriate to direct opposite parties 1 and 2 to compensate complainant no.2 by making payment of an amount of Rs.1,00,000/- (one lakh). Besides, they should also pay an amount of Rs.10,000/- (ten thousand) to the said complainant as cost of litigation.
It was submitted before us that in the account that was opened with TMH by complainant no.2, there is some left over amount, which was received as donations from different sources. The said left over amount, if there is any, in the aforesaid account in the TMH, be paid back to complainant no.2.
All the amounts as aforesaid, i.e., amount of compensation, cost of litigation and left over amount in the account, be paid to complainant no.2 within a period of two months from the date of receipt of this order.
12. The consumer complaint is disposed of accordingly.
.......
(Justice A.K. Samantaray) President ..................
(Subash Mahtab) Member .....................................
(Basanti Devi) Member SCDRC, Orissa, Cuttack December 07, 2009/Nayak