State Consumer Disputes Redressal Commission
Dr. Jayachandran, Managing Director & vs Bindu Kunjumon on 24 December, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/10/167 (Arisen out of Order Dated 18/01/2010 in Case No. OP 208/04 of District Pathanamthitta) 1. Dr.Jayachandran ...........Appellant(s) Versus 1. Bindu Kunjumon ...........Respondent(s) BEFORE: SRI.S.CHANDRAMOHAN NAIR PRESIDING MEMBER PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL 167/10
JUDGMENT DATED 24.12.2011
PRESENT:-
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI.S.CHANDRA MOHAN NAIR : MEMBER
APPELLANT Dr. Jayachandran, Managing Director & Gynecologist, Chitra Hospital Complex, Pandalam ( Rep. by Adv. Smt. Preetha John K) RESPONDENTS
1. Bindu Kunjumon, W/o Kunjumon, Mannoorputhen Veedu, Njakkunilam P.O., Vallicode, Kottayam.
2. Dr. T.G. Varghese, Medical Officer, Christian Mission Hospital, Pandalam
3. Christian Mission Hospital, Pandalam Rep. by Dr. Suma John, RMO & Managing Director Christian Mission Hospital, Pandalam.
(R1 Rep. by Adv. Rajeev S.S.) R2 & R3 rep. by Adv. Smt. R. Suja) JUDGMENT SHRI. S. CHANDRAMOHAN NAIR : MEMBER The order dated 18.1.2010 of CDRF, Pathanamthitta in O.P. 208/04 is being challenged by the first opposite party before this Commission. By the impugned order the appellant is under directions to pay to the complainant a sum of Rs. 25,000/- as compensation with 8% interest from the date of filing the complaint with cost of Rs. 5,000/- The Forum has also directed the appellant to pay the amount to the respondent/complainant within one month from the date of receipt of the order failing which the interest rate is enhanced to 9% per annum till the date of payment.
The complainant had approached the Forum stating that she was admitted in the first opposite party's hospital on 24.10.03 for delivery and that she had delivered a female baby and that on 26.10.03, she was discharged from the hospital. She had also submitted that injections and medicines were administered by the first opposite party as a Gynecologist and that on the date of discharge there was an abscess on the dorsal aspect of left elbow of the complainant and the first opposite party gave her an ointment for external application. It is her case that the abscess was seen more complicated and pain increased for which she approached the first opposite party on 28.10.2003 also, on which date she was asked to go to the 3rd opposite party hospital for better treatment. It is stated by the complainant that she was admitted in the 3rd opposite party hospital on 28.10.2003 itself where she received treatment from the second opposite party till 8.11.03. The complainant has alleged that even after the treatment of the second opposite party in the 3rd opposite party hospital the abscess was not cured and the pain continued and as such she went to the General Hospital, Pathanamthitta on 30.1.2004 where she was treated by Dr. Rajan, the Orthopediatric surgeon. It is her further case that the doctor diagnosed the complication as injection abscess and found that the affected area had developed with chronic ulcer and the radial nerve became pulsy and left elbow joint infected with avulsion. The complainant has further stated that she was referred to the Medical College Hospital, Kottayam and after treatment at the Medical College Hospital, Kottayam she was advised to continue the dressing and treatment of the infected area at the local hospital and she continued treatment at the General Hospital, Pathanamthitta. The very case of the complainant before the Forum was that she became permanently disabled and could not look after the new born baby due to the complications of the left elbow due to the injections and medicines given at the opposite party Hopitals. Alleging deficiency in service on the part of all the opposite parties, the complaint was filed praying for directions to pay an amount of Rs. 50,000/-for the treatment at various hospitals and transportations and another sum of Rs. 2 lakhs as compensation for the disability, pain, sufferings and mental agony endured by the complainant with costs.
The first opposite party filed version contending that there was no deficiency in service on the part of the first opposite party. It was submitted that on 26.10.03, the complainant was discharged after her child's birth and that the complainant and the baby were in perfect health at the time of discharge. However it was admitted that on 28.10.03 also, the complainant visited the hospital with pain in the left elbow and that as the complainant was having cellulites around the elbow extending to the left fore-arm she was in need of treatment of specialized surgeon and was referred to the second opposite party's hospital. It was further submitted that referring the patient to another hospital for better management would never be negligence or deficiency in service and that the second opposite party prayed for the dismissal of the complaint as against the first opposite party.
The second and 3rd opposite parties filed a common version contending that the complainant was given best treatment in their hospital. It was submitted that the complainant approached them with pain, feel swelling over the lower part of her left arm extending to the fore-arm and at the time of admission her temperature was 103 F and pulse rate was around 96/minute and had a toxic look. It was further submitted that the abscess was drained on the same day by a surgical procedure and E.C.G taken where no abnormality was found. However it is their case that on 8.11.03, the patient was discharged at her request as the condition was improved and at the time of discharge the complainant was advised to continue daily dressing and to come for follow-ups. They have also a case that the complainant never came to the hospital after the date of discharge. Pleading for the position that there was no deficiency in service or negligence on their part, the second and 3rd opposite parties prayed for the dismissal of the complaint as against them.
The evidence consisted of the oral testimony of Pw1 to Pw4 and Exts. A1 to A8 on the side of the complainant. On the side of the opposite parties, Dw1 to Dw3 were examined and Exts. B1 and B2 were marked. It was based on the said evidence that the Forum below passed the impugned order.
The learned counsel for the appellant/first opposite party vehemently argued before us that the order of the Forum below is without proper appreciation of the facts and circumstances of the case it is her very case that there is no convincing evidence to show that the difficulties of the complainant had occurred solely due to the deficiency or lapse on the part of the first opposite party in giving injection to the complainant. She has also advanced the contention that Pw4 who is a witness of the complainant has deposed that the abscess could be seen only on the injection site and in the instant case the abscess was seen not on the injection spot. She has also canvassed for the position that Dw1 has unequivocally stated that during delivery time the injections are administered at the buttocks and not on the elbow. She has also argued before us that no expert evidence is tendered by the complainant to show that the first opposite party was negligent or deficient in the discharge of his duties as a doctor. Thus the learned counsel submitted before us that the order is to be set aside and the appeal allowed with costs.
On the otherhand, the learned counsel for the first respondent/complainant opposed the contentions of the learned counsel for the appellant. It is his case that the complainant had the difficulties of abscess on the dorsal aspect of the left elbow even at the time of the discharge on 26.10.2003 and it was due to the increase in pain and complications even after applying the ointment given by the first opposite party, that she was as compelled to approach the first opposite party/appellant on 28.10.03 where from she was referred to the 3rd opposite party hospital and received treatment from the second opposite party/doctor. It is also argued that due to the improper administration of injection in the left arm the complainant was put to untold miseries and hardships and infact the Forum below ought to have allowed the complaint in toto. The learned counsel argued for the dismissal of the appeal with compensatory costs.
On hearing both sides and also on perusing the records, it is found that the complainant was admitted in the first opposite party/hospital for delivery and after delivery the complainant was discharged on 26.10.03. On a perusal of Ext. B1, the treatment record of the first opposite party/hospital it is found that the first opposite party had administered injections to the complainant. It is not disputed that no injections had been given to the complainant at the first opposite party/hospital. It is also seen that the complainant had visited the first opposite party hospital on 28.10.2003 also with the complaint of pain and swelling. The learned counsel for the appellant would argue that referring the patient to a better hospital can not be considered as negligence. But the said argument can not be appreciated since it is found that the complainant had a case that she had the problems due to the injections taken at the first opposite party/hospital. Pw3, a doctor, has also testified that injection abscess can occur if the needles used for injection are not properly sterilized. He has also stated that such abscess will not happen due to insect's bite. Moreover the appellant has no case that no injections were given on the left hand and the injections that were given were only on the buttocks. However we find that the Forum below has appreciated the entire facts and circumstances of the case in the proper perspective and has passed the order fastening liability on the first opposite party to pay a sum of Rs. 25,000/- with interest and costs. On an appreciation of the entire facts and circumstances, we did not find any material on record to interfere with the findings and conclusions of the Forum below.
In the result, the appeal is dismissed. The order dated 18.1.2010 of CDRF, Pathanamthitta in O.P. 208/09 is confirmed. In the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs.
The office is directed to send back the LCR along with the copy of this order to the Forum below urgently.
S. CHANDRA MOHAN NAIR : MEMBER
JUSTICE. K.R. UDAYABHANU : PRESIDENT
ST
[ SRI.S.CHANDRAMOHAN NAIR] PRESIDING MEMBER