State Consumer Disputes Redressal Commission
V. Jansi Rani vs Uma Nursing Home And Others on 30 October, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I O.P.NO.118/2006 DATED THIS THE 30th DAY OF OCTOBER 2009 1.
V. Jansi Rani W/o. R. Varadarajulu 84, West Mada Street Nungambakkam, Chennai 600 034
2. R. Varadarajuly 84, West Mada Street Nungambakkam, Chennai 600 034 .. Complainant Vs.
1. Uma Nursing Home Owned and solely run by 2nd Opposite party 229, Railway Station Road Pattukottai 614 601
2. Dr. Neelambal 229, Railway Station Road Pattukottai 614 601
3. Dr. Ravichandran, M.S., Arun Memorial Hospital 1846, West Main Street (Called absent) Tanjore 613 009 . Opposite parties This petition coming on before us for hearing finally on 13.10.2009, upon perusing the material documents, and upon hearing the counsels for both the parties, and having stood over till this day for consideration, this commission made the following order.
Counsel for the Complainants: Mr. S. Aravamudhan, Advocates Counsel for the 2nd Opposite party: M/s.S.Thiruvenkataswamy & S.R.Shanmuga Doss, Advocates Honble M. THANIKACHALAM J, PRESIDENT.
1. This complaint aims, for the recovery of a sum of Rs.6,50,000/- from the opposite parties, on the ground of medical inefficiency or medical negligence.
2. The brief facts leading to the case, as follows:
In the month of May 2001, when the 1st complainant, went to Pattukottai, she had severe abdominal pain, for which she consulted the 2nd opposite party, who is owning the 1st opposite partys nursing home. The 2nd opposite party diagnosed the suffering as Uretero Virginal Fistula and Dysfunctional Termine Bleeding; recommending immediate surgical operation known as LAPROSCOPI SURGERY that would be lesser expensive and easier.
3. On the advise of Dr. Neelambal, the 1st complainant, admitted in her nursing home, and she had taken care of her, inclusive of surgery also as suggested by her. Dr. Neelambal, had brought Dr.Ravindran, the 3rd opposite party and both did the surgery on 2.6.2001.
The Laproscopic Hysetomy done to the first complainant, for Dysfunctional and Uterine Bleeding the Uretero Virginal Fistula, it appears was not successful. After discharge on 7.6.2001 from the Nursing Home her abdominal pain was not stopped but it increased and in addition, urine started flowing without her control. The complainant would state, that due to some lapses during operation, resulting deficiency in service, the medical negligence on the part of the 2nd and 3rd opposite parties, the 1st complainant, suffered a lot, again suffering same pain, for which the opposite party should be held responsible, jointly and severally.
4. As per the advise of the 2nd opposite party, the 1st complainant went to Tanjore and met one Dr. S. Balasubramaniam, who treated the 1st complainant and advised to do another surgery, because the first operation was not done properly; saying that while performing laproscopic surgery for Uretero Varginal Fistula the DUCT connecting the kidney with Urine Bladder had been totally cut off, resulting abdominal pain increased and urine flowing without control due to the defect in earlier operation done by 2nd and 3rd opposite parties, the same was fully known to them. Dr. Balasubramaniam, demanded a huge money for even admitting in the hospital, which was arranged by the 2nd complainant, since no other alternative.
By way of surgery, a device called Stent was fixed by Dr. Balasubramaniam, to the patient, but there was no progress, necessitating another operation, for the removal of the stent already fixed.
The surgery done by Dr.Balasubramaniam, did not fulfill, or reduce the abdominal pain, and no stoppage of urine.
Thus, the doctor recommended and the directions of getting admitted had become futile, to which act, the opposite parties 2 and 3 are absolutely responsible.
5. After the surgery performed by Dr. Balasubramaniam twice, neither the pain stopped, nor the continuous flow of urine, thereby compelling the complainant to go to Madras, where they took treatment at Guru Raghavendra Hospital, where another surgery was done viz. Right Ureteral Reimplantation into BOARIS Flap with sub MUCOUSE Tunnel with double stent and the first complainant was free from suffering thereafter. Because of the fact that the opposite parties 2 and 3 have not properly and correctly diagnosed and skillfully not operated, the 1st complainant suffered a lot monetarily, mentally etc., for which opposite parties should be held responsible. Hence the complaint.
6. The brief case projected by the 2nd opposite party in her written version as follows:
The speculative claim of the complainants is not maintainable, and the same deserves to be dismissed in limine. The 2nd opposite party has nothing to do with the case, since the surgery was performed at the instance of the 1st complainant, by the 3rd opposite party. The 1st complainant was working in the nursing home, as an unskilled assistant on daily wages, and she is very much known to this opposite party, and the reputation of the nursing home also, since she is a leading Gynecologist, at Pattukottai for more than 25 years. Because of this reputation gained, the complainant came all the way from Madras, though they have settled at Chennai, for proper treatment.
7. Upon seeing the 1st complainant, she was briefed about her ailment and the surgery, action to be followed. In view of the fact that the 1st complainant is known to 3rd opposite party, who used to come to the 1st opposite party nursing home frequently for surgery, fixed him and decided to have the surgery done by the 3rd opposite party, in the 1st opposite party nursing home, in which, no role was played by the 2nd opposite party.
Neither this opposite party was present during the operation, nor thereafter treated her. There is no details of medical negligence. After five days, the 1st complainant made a complaint of dribbling urine without control and therefore she advised, fairly and genuinely, to consult an Urologist Dr.Balasubramaniam at Tanjore, who appeared to have given necessary treatment to the 1st complainant, subsequently, for which, medical negligence, if any occurred or done by Dr. Balasubramaniam, he should have been impleaded as a party , and without impleading him, the claim is devoid of merits. There was no medical negligence on the part of this opposite party, and the 1st complainant has exaggerated the events, to claim unimaginery compensation. Hence it is prayed the complaint may be dismissed with cost.
8. On the side of the complainant, fifteen documents have been filed, which are marked as Ex.A1 to A15. No document has been filed on the side of the 2nd opposite party.
9. Points for determination are:
1. Whether the complaint is bad for non-joinder of necessary party viz.
Dr. Balasubramanian?
2. Whether the opposite parties have committed any negligence in giving advice to consult Dr. Balasubramanian, Urologist?
3. Whether opposite parties 1 and 2 o in any case the 3rd opposite party are liable to pay compensation for the alleged medical negligence, if so to what amount?
10. POINT NOs.1 TO 3:
It is the settled position of law, that the complainants, who project a case, that too in respect of medical negligence, has to prove the same, at the first instance, atleast prima-facie to come to a conclusion, that the doctors might have committed negligence, warranting to proceed against them. Now it is further well settled by the Apex Court of this land, in its judgement reported in I (2009) CPJ 32 (SC) held in Martin F.DSouza Vs. Mohd. Ishfaq, that simply because patient not favourably responded to treatment given by the doctor, or surgery failed, doctor cannot be held straight away liable for medical negligence, by applying doctrine of res ipsa loquitur. It can be reasonably inferred and presumed even that no sensible doctor, having studied medical science, that having established nursing home also, with a intention to serve, as well as to earn profit, would intentionally commit an act of omission, which certainly would not only injuring the patient, but also injuring their reputation, thereby curtailing the flow of the patient, even resulting closure of the nursing home. Even a single failure, if committed negligently, causing harm to the patient, who came to the doctor with hope and trust, certainly will cause a scar undisputedly, making indelible mark, and this being the position, in our considered opinion, no one will fail, while giving advise or doing surgery and only shower the best care available at his or her command, as the case may be. A doctor, if commits negligence, by omitting to do an act, or doing an act, no gain would reach, whereas defame will shower, thereby eclipsing the future, leading to darkness. In this view, when we deal a case of medical negligence, we should exercise, more care and caution, and to see, whether the doctor who did the surgery or tendered advise, or prescribed medicine, had the skill, which he professes to possess, that skill shall be exercised with reasonable care and caution as ruled by Apex Court, in the above judgement. The doctor could be held liable for negligence, if he does not possess the requisite skill, which he professes to have, and not otherwise.
Nowadays, it is the tendency of the patients, who are unable to receive the required result from a nursing home or doctor, as the case may be, to blame the doctor for this, as if they did not exercise proper care or they have not done this and that forgetting the fact that competent person to say, what are the tests to be conducted is only the doctor, at whose hands the patient entrust himself, having faith, considering the qualification and the standard of nursing home etc. In the judgement of the patient, if the doctor had done this thing or that thing, the disease would have been cured, may not be ground to accuse him, whereas the case should be seen from the angle of the doctor, who possessed the requisite skill to assess or diagnose the disease, having the history of the disease and other attending circumstances, relating to the patient etc. Therefore, the non-satisfaction of the patient, about the performance of the doctor, itself will not amount to negligence, and the court cannot act or rely on the allegations of the complainant alone, where as it requires further strength, in the form of expert opinion.
11. In this case except the bare allegations in the complaint which remain as dead letters, we have no material evidence of any kind even to look with suspicion, about the performance of the opposite parties. Law mandates, the averments-allegations in the complaint, should be proved by filing affidavits, since summary proceedings is adopted, by the Consumer Forum, supported by unquestionable documents, in the case of medical negligence, aided by reputed or recognized literature.
These things are not at all available before us, to test the alleged negligence of the opposite party.
12. The 1st complainant has filed proof affidavit, which does not say anything about the alleged misconduct or negligence or defects, if any committed by the opposite parties. In the proof affidavit, it is said, that documents Ex.A1 to A15 may be treated, as part and parcel of this affidavit to prove the genuineness and bonafide of the case, including the sufferings of the 1st complainant as well as the 2nd complainant. Thus the proof affidavit also, failed in its standard an did not come to the aid of us to prove the alleged medical negligence. In this context, we have to see what are the accusation leveled by the complainants, against the opposite parties, as well as others, though they are not parties before us.
13. The 1st complainant is settled at Chennai, alongwith with her husband, who is the 2nd complainant. At Chennai, there are very good, reputed nursing homes for any kind of treatment, and one need not go generally outside the Madras city, for better treatment, unless they have faith in some doctors, who are residing elsewhere. In this way alone, it seems to us, the 1st complainant went to Pattukottai, for treatment under the 2nd opposite party, which she had wantonly or willfully suppressed in the complaint, which was brought to surface by the 2nd opposite party. It is the case of the 2nd opposite party, that the 1st complainant was working in the 1st opposite party nursing home, as unskilled labour for daily wages, and we find no reason to reject the same, since not denied by the complainant, even in the affidavit. The 2nd opposite party is a qualified Gynecologist, and it is not the case of the complainants also, that she is unqualified to treat the diseased, for which the 1st complainant had been there to take treatment. When she was working in the hospital, as averred in the written version of the 2nd opposite party, she should have known about the reputation of his nursing home, and the specialists coming to this hospital, for treating the patients. Thus having so much of faith alone, the 1st complainant should have gone to Pattukottai, for treatment, in which we cannot find fault, provided she had disclosed the same in the complaint.
14. As per the allegations in para 3 (1) of the complaint, the 2nd opposite party, diagnosed the disease of the 1st complainant, as URETEROVIRGINAL Fistula and Dysfunctional Termine Bleeding; for which recommending immediate surgical operation, known as LAPROSCOPI SURGERY. This surgery was done by a qualified doctor viz.
Dr.Ravichandran, M.S., As seen from the pleadings, no defect or lapses or negligence are attributed to the 3rd opposite party, except saying it is submitted herein that some lapses during the operation, resulting deficiency in service with medical negligence on the part of the opposite parties 2 and 3. Here also, we do not have materials, what kind of lapses they committed, what they ought to have done, omitted to do, or what they should not do, did so, etc., are not at all pleaded. Because of the absence of pleadings, as well as because of the absence of material evidence, it is purely impossible to fix medical negligence upon the opposite parties, including the 3rd opposite party, though he remained exparte. This being the position, the mental agony or untold sufferings said to have suffered after the operation, done by the 3rd opposite party, by the 1st complainant are all imaginary or emanated from the fertile imaginatory mind , for which there is no treatment, or there is no cure, or there is no redressal also.
15. Admittedly, Laproscopic Hysretomy was done by the 3rd opposite party on 1.6.2001, and there is no evidence, worth the name even by way of affidavit, that the 2nd opposite party also present during the surgical procedure. The 1st complainant, after the surgery, after five days or so, as submitted by the 2nd opposite party, made a complaint of dribbling of urine without control. No case pleaded and no case has been made out, that dribbling of urine without control caused due to defective Laproscopic Hysretomy surgery, or something like that. Therefore, for dribbling of urine, neither the 2nd opposite party, nor the 3rd opposite party could be blamed. When the 1st complainant approached the 2nd opposite party, who is not an expert in urology, as a prudent doctor, advised the complainant to consult an Urologist, who is familiar in Tanjore District, by name Dr.Balasubramanian. The complaint would read, as if the 2nd opposite party advised the 1st complainant to approach Dr. Balasubramanian, for further treatment or advise, itself is medical negligence, which cannot be accepted by any fora, and it should be held as baseless allegation, aimed to rope in the 2nd opposite party, for claiming certain amount.
16. On the advise given by the 2nd opposite party, admittedly the 2nd complainant approached Dr. Balasubramanian, who is having an hospital, by name S.B. Hospital and took treatment on 12.6.2001, as seen from Ex.A2. Here, before Dr. Balasubramanian, the 1st complainant should have described the previous history viz. the laproscopic surgery performed on her on 01.06.2001, which is also noted.
Nowhere it is said that the problem occurred to the 1st complainant was, the cause of defective surgery or due to any lapses committed by the opposite parties. The best person, who can speak about the deficiency in service, in the surgery done by the 3rd opposite party, to the complainant must be Dr. Balasubramanian, who attended on her immediately. It is also the case of the complainant that Dr. Balasubramanian, also has not treated her properly, and the surgery done by Dr. Balasubramanian also has obtained no positive result, and there was no reduction in abdominal pain and no stoppage of urine. Thus it is alleged that Doctor recommended, and their directions of getting admitted, had become futile, to which act, the opposite parties 2 and 3 are absolutely responsible. Dr. Balasubramanian, has done the best as seen from Ex.A2, and the discharge summary also would disclose nothing had gone wrong. Dr. Balasubramanian, as seen from Ex.A7, after diagnosing, appears to have fixed stent, to stop the continuous flow of urine, and advised for removal also, at a later stage which was removed. The 1st complainant, returned to Madras, and took treatment with one Dr.Raja Maheswari, as seen from Ex.A8 to A10. In Ex.A13, discharge summary, the doctor has stated that the 1st complainant was admitted for the complaint of dribbling of urine continuously, from 2nd Post Operative day. (Patient underwent Laparoscopic Hysterectomy on 1.6.2001 at Tanjore). Patient was seen by the Urologist at Tanjore, diagnosed as Right Ureterovaginal fistula for which double J had dribbling of Urine since the day after the removal of stent (16.10.01). In the discharge summary also, no defect or negligence said to have been committed by either by Dr. Balasubramanian, or the 2nd opposite party, was noted in Guru Raghavendra Hospital Ltd., If really in the previous operation or surgical procedure, the opposite parties have committed any lapses or medical negligence, atleast, while rectifying the same or curing the same, it should find place, in the later treatment, incorporating in the discharge summary and the proper person to speak the same also Dr. Seethalakshmi or Dr. Rajamaheswari, who were consulted by the 2nd complainant. But unfortunately, the doctors have not been examined and no medical opinion also obtained, to indicate how the 2nd opposite party or the Dr. Balasubramanian, committed any negligence. After taking treatment in Guru Raghavendra Hospital, the 1st complainant cured perfectly, and it seems, there is no continuous problem. Therefore, the alleged medical negligence, which is not proved, also has not left any scar of negligence, affecting the day to day life of the 1st complainant. Therefore, the claim of the complainant for compensation, as if she was unable to attend the day to day works or suffered mental agony etc., are all figment of imagination, for which we are unable to award any compensation.
17. Before filing the complaint, a notice has been issued, not only to the opposite parties, but also to SB Hospital and Dr. Balasubramanian, where it is alleged, as if Dr. Balasubramanian has scolded the doctor, who has performed surgery, stating that while performing laproscopic surgery for uretro virginal fistula the duct connecting the kidney with urine bladder has been cut off, and that is why he was advised to undergo urgent surgery. Atleast the complainant, should have obtained an affidavit form Dr. Balasubramanian, to prove the above allegations. On the contrary, the allegations so made in the notice, proved to be false, since controverted by Dr. Balasubramanian, under Ex.A14, which can be further inferred from the fact that wantonly, they have avoided Dr. Balasubramanian, in the complaint. If Dr. Balasubramanian had been arrayed as a party, the real sufferings if any by the 1st complainant should have brought to surface and in this view atleast, it should be held that the claim is bad for non-joinder of Dr. Balasubramanian. Dr. Balasubramanian, while issuing the reply notice, in paragraph 5, has specifically stated that I wish to object to your imaginary statements in your notice. At no point of time I have commented on the first surgery, which Mrs.Jansi Rani has undergone. As I was not a member in the team, which did surgery for Mrs. Jansi Rani, first I am not competent to comment or scold the first operating team, thereby exposing the vagueness of the complainants claim, Dr. Balasubramanian also has explained in the reply notice that explained to Jansi Rani and her husband about the treatment option, viz. to undergo a Cystourethrescopy, ureteroscopy do an endodilatation of the stricture and leave a double j stent for 8 to 12 weeks and then reassess the headling of fistula for further Management. Here also we are unable to find any connection between the treatment taken in the 1st opposite partys nursing home and at SB hospital, at Tanjore. If really, Dr. Balasubramanian, has committed any lapses, certainly the complainants would not have gone to him, for the removal of the stent on 16.10.01, whereas they had gone to him once again, because there was good recovery. Thus realizing, there was no negligence in the procedure adopted by Dr. Balasubramanian, they have not impleaded him as party. It is also not proved by the examination of any doctor or letting in evidence that the subsequent treatment taken at Madras was to correct the mistake if any, committed by the 2nd opposite party.
Therefore, for anyother cause, unrelated to the first surgery, the 2nd complainant had taken treatment at Madras, for which the opposite party cannot be held responsible. Thus analyzing the case from all possible and probable angles, the irresistible conclusion that could be drawn by us are, that the complaint is bad for non joinder of necessary party, that the complainants were miserably failed to prove the negligence alleged in the complaint, and that in view of the above findings, the complainants are not entitled to any compensation. Thus the above three points are answered accordingly.
18. In the result, the complaint is dismissed, with cost of Rs.2000/- to be paid by the complainant, to the opposite parties.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT EXHIBITS DATE DESCRIPTION A1 07.06.2001 Uma Nursing Home of cash Receipts A2 12.06.2001 S.B. Hospital of Case History A3. 13.06.2001 Lab Reports of S.B. Hospital A4. 13.06.2001 Lab Reports of S.B. Hospital A5. 14.06.2001 Lab report Senthil Clinical Laboratory A6. 18.06.2001 S.B.Hospital Discharge Certificate A7 16.10.2001 S.B.Hospital of Discharge Summary A8. 25.10.2001 Dr. N. Rajamaheswari of Case History A9. Scan Report A10 28.10.2001 Lab Report A11 18.11.2001 Discharge summary of Guru Raghavendra Hospital A12 26.01.2002 Report by Dr.N.Raja Maheswari A13 23.03.2002 Legal notice A14 17.04.2004 Reply to legal notice by Dr.Balasubramanian A15 08.04.2002 Reply notice by counsel for 2nd opposite party
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No documents have been filed on the side of the opposite parties PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Rsh/d/mtj/OP Orders