State Consumer Disputes Redressal Commission
S.Arunachalam & Another, ... vs Dr.H.Sivarama Krishnan,Sri Sudharsan ... on 26 October, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
C.C.No.15/2012
(C.O.P.No.40/2007 on the file of State Consumer Disputes Redressal Commission, Chennai)
WEDNESDAY, THE 26th DAY OF OCTOBER 2022.
Date of complaint filed : 13.11.2006
Date of order pronounced : 26.10.2022
1. S.Arunachalam,
Retired Assistant Head Master,
S/o A.Subbaiah Thevar,
Jamin Singampatti,
Ambasamudram Taluk,
Tirunelveli District. 1st Complainant
2. Dr.Vel Manickavalli,
W/o Vijaya Sankara Pandian,
No.13-H, 3rd Street,
Briant Nagar, Thoothukudi. 2nd Complainant
-Vs-
1. Dr.H.Sivarama Krishnan,
Sri Sudharsan Hospitals,
No.4 Salai Street,
Vannarpettai, Tirunelveli-3. 1st Opposite Party
2. S.Harishankar,
Sri Sudharsan Hospitals,
No.4 Salai Street,
Vannarpettai,
Tirunelveli-3. 2nd Opposite Party
3. Sri Sudharsan Hospitals
Represented by its Chief Medical Officer,
No.4 Salai Street, Vannarpettai,
Tirunelveli -3. 3rd Opposite Party
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Counsel for the Complainants : Mr.Palanivelayutham, Advocate.
Counsel for the Opposite Parties-1 & 3 : Mr.B.Cheran, Advocate.
Counsel for the Opposite Party-2 : Dismissed as Abates.
This case coming before me for final hearing on 26.07.2022 and on hearing
the arguments of both sides and upon perusing the material records, this Commission
made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This complaint has been filed by the complainant under section 17 (1) (a) (i) of the Consumer Protection Act, 1986 praying for directing the opposite parties to pay a sum of Rs.20,09,825/- as compensation for the loss of life, mental agony, sufferings and cost of medicines and also cost of the proceedings.
2. The case of the complainant is as follows:
The first complainant is the Retired Assistant Head-Master and the second complainant is the daughter of the first complainant. On 01.09.2005 the wife of the first complainant was admitted at the third opposite party hospital due some ailments. The third opposite party hospital is fully owned by the first and second opposite parties and the same is being run by them.
The wife of the first complainant had been as in-patient in the third opposite party hospital till 06.09.2005. The nature of treatments were not known to them. All of a sudden, on 06.09.2005 at about 5 o'clock, the opposite parties informed the complainants that the patient died. They had also not chosen to inform the cause of 3 death to the complainants. They also failed to furnish the Case Sheet of the deceased with particulars of clinical investigation and subsequent diagnosis and the nature of treatment with medicines having been administered to the deceased during her stay at the hospital. Though the same were pleaded to be furnished to them, the opposite parties did not adhere and handed over the body of the deceased after receiving the entire charges including professional charges. The complainants got strong suspicious on the conduct of the opposite parties in treating the patient, they requested by means of communication, dated 12.12.2005 to the opposite parties for furnishing the treatment particulars at an early date. As the complainant got no reply from them, a telegram was opted to be sent to the first opposite party on 24.01.2006 for fulfilling his demand of furnishing the Case Sheet of the deceased. Finally, the opposite parties sent a reply, dated 01.02.2006 not contain the nature of treatment which was administered to the patient during at her stay at the hospital. The opposite parties are expected to furnish the details of treatment having been given to the deceased. After the receipt of the same, the complainant sent a detailed rejoinder contraverting the allegations and averments leveled against them by the opposite parties in their alleged reply. The opposite parties had taken a categorical stand that they would not disclose the treatment to anybody else except to Court. A small scrap of paper which is claimed to be the Synopsis of the nature of treatment having been administered to the deceased during her stay at the hospital. But, the alleged Synopsis was not prepared to be given by the opposite parties at the time of handing over the body of the deceased. The act of the opposite parties are mutually inconsistent, incompatiable, incongruous and 4 repugnant to one another. The qualified Medical practitioners are being controlled under the provisions of the Medical Council Act 1956. As per the provisions of the said Act, the Medical Practitioner as well as the hospital should maintain the case history of the patient containing the particulars of diagnosis, investigation and subsequent treatment which was administered by the Practitioners to the patient. It must be transparent. When the patient is not satisfied at the treatment of the hospital, they are entitled to get discharged against medical advice and it is the duty of the hospital to furnish all relevant documents pertaining to the treatment to the patient at the time of discharge. The patients are also entitled to claim the diagnosis report from the practitioner under whom they got treated. The practitioners are bound to furnish the same without any hesitation to the patient. Giving consent for undergoing treatment is no way relevance to the mode of treatment. As consent is given by the patient or his relatives to the practitioner, it is not open to them to do as they want. There must be due care and caution in treating the patient. The deliberate suppression and refusal to give the Case Sheet containing the particulars of investigation, diagnosis and treatment given to Mrs.Mupidathi raises considerable doubts about the competency in treating the patient. The bald statement with record to various Specialists who treated the deceased is nothing but an act of attempt for escaping from the clutches of law. Their names were not specified in Synopsis and under what circumstances they were called and what type of treatment they had administered to the deceased were all missing. Unless the Case Sheet containing treatment supplied, it is not known rather it should be presumed that the Medicines purchased and handed over to the Doctor had not been 5 used. But they are re-cycled to their own Medical Stores. The first complainant reliably understands that the patient was stated to be suffering from T.B and it was struck off and the word "Meningitis" was substituted. When the first complainant approached the first opposite party to get money from LIC for necessary certificate, the Executive of the third opposite party hospital on the directions of the opposite parties, informed that Mrs.Mupidathi was suffering from T.B. Meningitis and communicating Hydrocyphalus. But the Synopsis does not make mention of these disease. However, the Synopsis sent along with the Reply Notice would read that she was suffering "Septic Shock with Multi- Organ failure and uncontrolled Diabetics Mellitus. When the first complainant consulted with other doctors in the field, they told the first complainant that the medicines directed to be purchased by the second opposite party had no relevance to the disease mentioned in the Synopsis. The first complainant paid Rs.5000/- at the time of admission all medicines were purchased at his cost as per chits of the second opposite party. The first complainant paid necessary monies to CT Scan and other scans, and the Blood Tests but no receipt was given to him. The second opposite party informed the first complainant that the Dead Body of his wife would be given only if Rs.15,000/- was made. Accordingly, the first complainant paid said sum for which no receipt was given. During the stay of Mrs.Mupidathi in the third opposite party hospital, a sum of Rs.30,000/- was demanded to the first complainant and the same was paid without any receipt. The opposite parties are guilty of medical negligence and there was deficiency in service on their part.6
The deliberate suppression of the Case Sheet containing details of investigation, diagnosis and treatment given and that the extreme contention the areas bound to tell, the court alone the particulars of treatment would lead to irresistible conclusion that the opposite parties are guilty of medical negligence and deficiency in service. The complainants are put to untold mental agony and the first complainant has lost his affectionate wife and the second complainant has lost her Mother. The mode of treatment given to the deceased Mrs.Mupidathi is entirely wrong. The first complainant has purchased medicines worth Rs.9,825/. Therefore, directing the opposite parties to pay a sum of Rs.20,09,825/- as compensation for the loss of life, mental agony, sufferings and cost of medicines and also cost of the proceedings.
3. Written Version filed by the first opposite party adopted by second and third opposite party are as follows:
The first opposite party is a well qualified physician. There is no breach of duty nor of any negligence on his part. He and his team have exercised good care and professional skill in diagnosing, and treating. While attending on the patient the first opposite party performed duty expected of a prudent doctor in similar circumstances. The patient Mrs.Muppidathi admitted High Grade Fever for one week on 01.09.2005 at 11.00 P.M. The patient was received on Unconscious, Had Respiratory distress, High Grade Fever, Tachypnoeic, Highly Irritable - not Responding to painful stimuli, Freshly detected to have Diabetes Mellitus, on investigation Blood Sugar was found to be high.
Renal parameters were elevated. Patient was started with Insulin, Antibiotics, Efcorlin, Eltroxin and Antituberculous treatment. The patient was placed under Dangerously ill 7 list on 01.09.2005 at 11.15 P.M. and signature was obtained from the complainant after clearly explaining the nature of disease. On 03.09.2005 the patient was not able to breathe, on her own and decided to start on artificial respiration. The patient was put under Ventilator control after obtaining the consent. In a patient was attended by Neurologist Dr.S.Ganesan, M.D.DM., who diagnosed her to have Meningo Encephalitis with communicating hydrocephalus with? TB? Sepsis with multi organ failure. So a diagnosis of Tuberculous Meningitis was considered and Anti Tuberculo Treatment was started along with antibiotics. The opinion of another Dr.Ramasubramanian, M.D.,DM.,(Nephrologist) was obtained Psychiatrist opinion Dr.Nallathambi opined that the patient is Known case of Schizophrenia on irregular treatment? advised to continue antibiotics and treat sepsis. The Gynecologist Opinion Dr.Savitha, M.S.,OG opinion obtained and diagnosed the patient is having Moniliasis with infection and advised to start Clotrimazole, and Physician opinion also obtained, and Diabetologist opinion obtained the patient was admitted with uncontrolled Diabetes Mellitus which was previously undetected. The patient had fever for two weeks duration which was also unattended. The patient was seen by Anaesthetist Dr.Lakshmanan,M.B.B.S.DA.
On 05.09.2005 the patient became very bad. The infection has almost spread to all parts of the body. The critical condition of the patient was well explained to the complainant and high risk consent was obtained. Inspite of excellent expert care and best of treatment and other supportive measures including mechanical ventilator, the condition of the patient did not improve and unfortunately she died. The following allegations raised against the opposite parties are barely, 8
1. The case sheet was not handed over to the complainant inspite of notices and reminders.
2. The nature of the disease and the nature of treatment were not known to the complainant.
3. All of a sudden, the death was informed.
4. The cause of death was not intimated.
The complainant received all the other reports on 01.12.2005. The patient was brought to the hospital in an unconscious state present for 24 hours. The patient had been having fever, cough with expectoration for one week, which was not treated patient on admission unconscious was brought very bad to the hospital. After admission the patient's condition was thoroughly explained to the complainant. When the patient developed respiratory failure, the complainant was again explained about the respiratory failure and the need to start her on artificial respiration and a mechanical ventilator was started. When the condition of the patient became total hopeless, it was again clearly explained to the complainant. The complainant signed again patient was a known psychiatric patient on irregular treatment. She was a known hypothyroidism.
The complainant had not made out any case. It is the duty of the complainant to show that "what should have been done had not been done or what should not have been had been done" The complainant had not paid any amount after death of the patient. The first opposite party has not committed any omission or commission. The alleged loss and damage is not due to any negligence deficiency or action of first opposite party. Therefore the complaint against the opposite parties may be dismissed. 9
4. The complaint against second opposite party was dismissed as abates.
5. In this complaint the first complainant examined himself as a witness on his side as PW1 and marked Ex.A1 to Ex.A4. The first opposite party examined himself as a witness on the side of the opposite party by filing proof affidavit as RW1 and marked as Ex.B1 series on the side of the opposite parties.
6. Points for consideration are:
1. Whether the opposite parties are guilty of medical negligence and deficiency in service on their part or not?
2. Whether the complainants are entitled to get any relief as prayed for in the complaint or not?
7. Point-1&2: As per the allegations set out in the complaint on 01.09.2005 the first complainant's wife was admitted at the third opposite party Hospital due to some ailments. But, the first complainant have not mentioned any of specific ailments suffered by the patient in their complaint even they have not mentioned actual ailments of the patient either in their proof affidavits or written arguments. But, they have raised very serious objections against the opposite parties in their complaint on the basis of no information was furnished to them. And the Case Sheet of the patient with particulars of clinical investigations and subsequent diagnosis nature of treatment with medicine were not supplied by the opposite party he suspect the opposite parties have given a wrong treatment to the patient due to the wrong treatment the patient was died in the hospital. But, they have not taken any steps to prove the facts that the treatment given at the hospital for the patient is not a normal practice.
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8. Originally, the complaint was filed before the Principal Bench at Chennai C.C.40/2007 and the same was transmitted at the time of Constitution of the Circuit Bench in the year 2012. During the time of pendency before the Principal Bench the complainant filed an application M.P.No.232/2011 for permitting them to cross-examine the Opposite parties - 1 & 3 and the same was allowed and the date fixed for cross-examined before Principal Bench on 23.02.2012. The witnesses were ready for cross-examination by interrogation filing questionnaire a docket order was passed by the Principal Bench as "The learned counsel for the complainant at different incidents the first opposite party ordered to be cross-examined present. But, the learned counsel for the complainant seeks adjournment which is opposed. Then, it was agreed interrogation may be served, for which the learned counsel for the opposite party is willing to give answers, thus avoiding the presence of the parties, savings his time. Hence, the complainant is directed to serve the questionnaire to the first opposite party, in that case he will answer the questions and the matter was adjourned to 19.03.2012, 23.04.2012, 20.06.2012, 13.07.2012, 08.08.2012, 13.08.2012". When the complainants not filed the questionnaire for cross-examination of the witness the Commission was proceed further and the same complaint was transmitted to this Circuit Bench. After receiving the records the documents were marked on both sides. The complainants have not taken any steps for filing questionnaire for cross-examination of the witness. So, they are unwilling to cross-examine the opposite parties to establish the liability and negligence on the part of the opposite parties. The complainant primarily has to prove the "normal practice of treatment and the opposite party has not 11 adopted it, and no professional man of ordinary skill would have taken had he been acting with ordinary care". Mere raising allegations in the complaint itself did not prove the allegations set out in the complaint. At the same time, the opposite parties informed in their reply notice dated 01.02.2006 to the complainant that, even at the time of admission her condition of the patient was critical. Unfortunately she did not respond to the medicine given by the opposite parties and she expired.
9. The counsel for the complainant would contend that, in the information sent by the opposite party to the Tirunelveli Corporation informed that, the patient was suffering from TB, and it got struck off and the word Meningitis was substituted. But, the information was not produced by the complainant for verification. And the complainant themselves came to understand that the death is due to Septic Shock with Multi Organ failure and uncontrolled diabetics mellitus.
10. Now, the counsel for the complainant raised another contention that the opposite party had not exhibited proper care and caution while treating the patient. Since, they have deliberately suppressed the case sheet contending the details of investigation diagnostic, and treatments given, and the case sheet itself manipulated documents which came into existence by medicines fraud and unbelievable material particulars. But the complainants have not taken any steps to prove those allegations. The opposite parties marked Ex.B1 series running to page no.1 to 58, the case sheet, consent letters signed by the first complainant and the proof of supply of medical records, charge maintained at hospital, and other records like C.T.Scan report, blood report. The patient was admitted in opposite parties' hospital in unconscious state with 12 Respiratory distress and also having the complaint of cough, fever, poor intake, sleeplessness, violent behavior, Disorientation.
11. At the time of admission itself on 01.09.2005 11.15 p.m. consent obtained from the first complainant. The opposite parties arranged for the consultation with Nephrologist Dr.Ramasubramanian and consulted Neurologist Dr.S.Ganesan, and Diabetologist Dr.S.Harishankar they are diagnosed the conditions of the patient and advised some medicines and classified as high risk patient and obtained high risk consent from the first complainant. The opposite parties medicines given to the patient in their case sheet. In the case sheet at the time of admission injection Adenor which was used to treat low Blood pressure, and injection Magnex 1 gram, injection Deriphylin, injection Efcorlin 200 mg which are used for treatment of bacterial infection and treatment of serious complicated infection the entire Ex.B1 series documents would go to show that the patient was a known psychiatric patient. On irregular treatment she was a known hydrocephalus patient she was also suffering from Tuberculose, she already old infarcts in her brain and also proved the opposite parties had rendered better treatment to the patient.
12. The counsel for the complainant raised another contention that the medicines purchased were not used in the treatment by producing the xerox copies of receipts. In both receipts the medicines (1) Aciloc injection used to treat and prevent stomach ulcer. (2) Sulbacee 1 gm injection is a Antibiotics used to treat the bacterial infections (meningitis). (3) Magnamycin 1 gm which are used to treat the bacterial infections. (4) Piptazone 4.5.gm is used for the treatment of serious and complicated infections. 13
13. The complainants have not mentioned the specific ailments of the patient in their complaint and they have not mentioned about the ailments in any of their documents. At the same time, the documents produced by the opposite parties Ex.B1 series clearly proves the critical conditions of the patient at the time of admission, and the nature of treatment given to her, and the medicines would all go to show that, proper treatment given by the opposite parties to the patient and also the medicines purchased by the complainant were used in the treatment.
14. When the opposite parties acted in a manner which is acceptable to the Medical Profession and the court finds that they have attended on the patient with due care skill and diligence and of the patient still does not survive it would be difficult to hold that the doctor to be guilty of negligence. In the recent Judgement in Jacob Mathew case. In reported recent Judgement of (2019) 2 SCC 282 - S.K.Jhunjhunwala -Vs-Dhanwanti Kaur and another at page 292 " The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may 14 have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex medicine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator that is the doctor, cannot be ruled out".
15. In the recent Judgement the Hon'ble Supreme Court had held that too prove the case of the negligence of a doctor the medical evidence experts in the field to prove is required. Whereas the complainant herein was not able to prove the specific ailments for which she was admitted in the opposite parties hospital, whether her condition was critical or not? And whether any treatment taken in any other hospital prior to the admission at the opposite parties hospital? And held that cannot concur with the conclusion arrived at by the National Consumer Disputes Redressal Commission were the complaint was allowed by directing the opposite party to pay a sum of Rs.2,00,000/- as compensation and the same was set aside and restore the order passed by the State Commission by allowing the appeal.
16. The another contention raised by the complainant the opposite parties have not furnished the case sheet to them and mentioned in their reply notice that they should not disclose the treatment given to the patient, to the complainant except court. As per Rule 1.3.1 and Rule 1.3.2 of Medical Council of India in Appendix-3 (Law relating to Medical Negligence by Y.V.RAO 2nd Edition page 212) - "Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of three years from the date of commencement of the treatment in a standard proforma laid down by 15 the Medical Council of India in Appendix-3". "If any request is made for Medical Records either by the patient/authorized attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours".
17. The opposite parties produced Ex.B1 series the entire medical records, the maintenance of medical records by the opposite parties for the treatment given to the patient but, they have not furnished the case sheet to the complainants. When the complainants administer there is some delay they have given an explanation they are duty bound to disclose the treatment only to the court. But, the Rule specifically mentioned the records are furnished within 72 hours. The failure to maintain the Medical Records only amounted to deficiency of service. The delay in supplying the Medical Records would not amount to deficiency in service. If the medical records are manipulated it is the duty of the complainant to prove that the Medical Records were prepared by the opposite parties only for the purpose of the complaint. But, the complainants have not taken any steps and also they are unwilling to use the opportunity given by the Commission to cross-examination of the opposite parties to testify the genuineity of the documents. When the documents are not challenged by the complainant those documents were proved that the opposite parties have given proper treatment to the patient there is no negligence on their part. Therefore, the opposite parties are not guilty of deficiency in service or negligence in treatment given to the patient. Therefore, the complainants are not entitled to get any relief as prayed in the complaint and answered accordingly for the point for consideration nos.1&2. 16
18. In the result, the complaint is dismissed. No cost.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 26th day of October 2022.
Sd/-xxxxxxxxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
List of documents marked on the side of the complainant Ex.A1 12.12.2005 Copy of the letter demanding case sheet by the complainants. Ex.A2 01.02.2006 Copy of the notice given by the opposite parties. Ex.A3 25.02.2006 Copy of the reply notice issued by the 1st complainant.
Ex.A4 --- Copy of Medical Bills.
List of documents marked on the side of opposite parties.
Ex.B1 Series -- Case Sheet of Mrs.Muppidathy.
Sd/-xxxxxxxxxxxxxxx
N. RAJASEKAR,
PRESIDING JUDICIAL MEMBER.
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