State Consumer Disputes Redressal Commission
Janab Fazal, vs Dr.Hamza Thayyil, on 19 April, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram Complaint Case No. CC/02/54 1. Janab Fazal Poomangalath House,Omasseri,Koduvally,Kozhikode BEFORE: SRI.S.CHANDRAMOHAN NAIR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
OP.54/2002
JUDGMENT DATED: 19..4..2012
PRESENT
SRI.S.CHANDRAMOHAN NAIR : MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
Janab Fazal, : COMPLAINANT
Aged 47 years,
S/o Mamu Kutty,
Poomangalath House,
Omasseri, (via) Koduvally,
Kozhikode District.
(By Adv.Anil Sivaraman)
Vs.
Dr.Hamza Thayyil, : OPPOSITE PARTY
Shiba Surgery & Urology Centre,
Wayanad Road,
Calicut - 673 001.
(By Adv.Shyam Padman)
JUDGMENT
SRI.S.CHANDRAMOHAN NAIR : MEMBER This complaint is filed alleging deficiency in service on the part of the opposite party while imparting treatment to the complainant.
2. The complainant has approached this Commission stating that he was employed in Soudi Arabia and that he had severe pain on the left portion of his abdomen and he came down to his native place during the first week of July, 2001 and went to Nirmala Hospital, Kozhikode for a check up where from he was referred to the opposite party hospital as Nirmala Hospital did not have the necessary infrastructure for removing the stones in the urinary bladder of the complainant.
3. The complainant states that he went to the hospital of the opposite party and was admitted on 12.7.2001 and that the opposite party told him that everything would be over in three days and he could leave the hospital after completely curing his ailment. The opposite party had also told him that stones in the urethra could be dissolved and they would pass through the urine thereby the complainant would be all right. As per the advice of the opposite party a tube was inserted and the opposite party conducted some sort of experiment to dissolve the stones and was discharged from the hospital on 18.7.01 stating that the stones were dissolved.
4. The complainant has a case that after discharge from the hospital the complainant suffered severe pain and could not even pass urine and he was again admitted in the hospital on 26.7.01 and the opposite party advised him a key hole operation and the same was conducted on the right side of his abdomen. It is also stated by him that blood and puss began oozing from the hole and the key hole operation was not successful to remove the stones from the bladder. It is the further case of the complainant that because of this operation the complainant suffered severe pain and found it difficult even to pass urine. As advised by the opposite party the complainant underwent a scanning and X-ray was taken. A cleaning process was also done on the complainant by the opposite party. It is alleged by the complainant that the opposite party told the complainant that an operation was required for complete cure of the ailment and for the operation blood was also collected as directed by the opposite party. The complainant states that operation went on for about 7 ½ hours and after that he was removed to his room in the hospital and was in the hospital for some more days and was discharged with an advice to report again on 9.8.01. It is the very case of the complainant that it was at the time of discharge that the opposite party told him that one of his kidneys was removed and he would be all right after taking rest at home. The complainant has alleged that it was without his consent or knowledge that the kidney was removed by the opposite party and due to the removal of kidney his right hand and leg were completely paralysed and puss was oozing out from the hole of the right abdomen and that portion of the right abdomen was bulged and he had to go over to the Baby Memorial Hospital where he underwent a major operation for curing the ailments consequent to the operations by the opposite party. Alleging deficiency in service the complaint is filed praying for directions to the opposite party to pay a sum of Rs.20,00,000/- as compensation and costs of the proceedings before this Commission.
5. Resisting the averments in the complaint the opposite party filed version. However it is admitted that the complainant was admitted in his hospital on 12.7.01 for the treatment of his right ureteric stone. It is also submitted that the complainant had a history of uretero lithotomy seven years back and that aseptic precautions with utmost care and caution were taken to crush the stones and a double J stent was inserted and after taking repeat X-ray, the complainant was discharged on 18.7.01. The opposite party has further submitted that complainant was readmitted on 26.7.01 with the history of pain in the abdomen and was treated with appropriate medicines and discharged on 28.7.01. It is also admitted by the opposite party that the complainant came again on 31.7.2001 with the history of retention of urine and suprapubic pain consequent to which he was catheterized and treated with appropriate medicines. However it is the case of the opposite party that the complainant showed no improvement with the treatment and IVU was taken on 7.8.01 which showed ureteric obstructions and residual stone on right side . It is submitted by the opposite party that the disease process was discussed with the complainant and hisrelatives and decided for uretero lythotomy. It is the specific case that written informed consent was obtained and the uretero lythotomy surgery was done on 12. 8.01 and as copious foul smelling purulent material came out of the wound and also dense adhesions were present in the retroperitonium and finding that the kidney was pyonephrotic and was found unsalvageable, the complainant's relatives were informed about the condition and with the consent of the wife and other relatives subcapsular nephrectomy was done to save the condition of the complainant. It is also stated by him that after draining the puss, blood etc the complainant was discharged after 5 days and the complainant came for regular follow up for dressing and treatment. It is also submitted that for further dressing and treatment the complainant was referred to a local hospital and to the knowledge of the opposite party the complainant is doing well now. The opposite party has submitted that there was no deficiency in service or any lapse on the part of the opposite party in imparting treatment to the complainant. Submitting that complaint is ill motivated the opposite party prayed for the dismissal of the complaint with costs.
6. The points that arise for consideration are:-
1) whether the complaint is maintainable?
2) Whether there is deficiency in service on the part of the opposite party?
3) Reliefs and costs.
7. The evidence consists of the oral evidence of the complainant as PW1 and Exts.P1 to P8 on his side. The opposite party is examined as RW1 and 3 witness are examined as RW2, 3 and 4. The case sheet maintained by the opposite party in respect of the complainant is produced and marked as Ext. B1.
8. Point No.1: Though the opposite party has taken a contention that the complaint is not maintainable, frivolous, vexatious and devoid of truth or bonafides it is seen that no specific contention regarding the maintainability is raised by the opposite party. It is well settled that a complaint regarding the deficiency in service on the part of a doctor or the hospital is maintainable before the Consumer Fora/Commission constituted under the Consumer Protection Act. In this case it is seen that the complainant has availed the service of the opposite party by paying consideration and also that he has raised serious allegations regarding the carelessness and deficiency on the part of the opposite party. Hence it is our considered view that the complaint is perfectly maintainable before this Commission.
9. Point No.2: The main allegation raised by the complainant is regarding the careless and negligent treatment extended by the opposite party while treating the complainant. He has also a case that proper consent was not obtained from him before removing one of his kidneys. It seems that the complainant is more worried about the removal of one of his kidneys without his knowledge or informed consent and it is his case that the removal of the kidney is a reason for his subsequent difficulties. The learned counsel for the complainant has submitted before us that Ext.P1 discharge summary speaks about the injury that was caused at the time of Lithotrity. He has also argued that the doctor did not exercise proper care at the first instance and that the removal of the kidney at the 2nd instance was unwarranted in the facts and circumstances of the case of the complainant. The learned counsel has also advanced the contention that though on the side of the complainant no experts were examined, the deposition of RW2 and 3 who are experts would be enough to prove the case of the complainant. Relying on the deposition of RW3, it is argued by him that RW3 has clearly stated that it is possible for infection to develop from small injury to the ureter which has happened in the case of the complainant. It is further submitted that the injury to the ureter as is evident from Ext.P1 had happened due to the negligence and carelessness on the part of the opposite party doctor. Placing much reliance on the decision of the Hon'ble Supreme Court in "Post graduate Institute of Medical Education and Research, Chandigarh vs. Raspal Singh and others (2009 (7) SCC 330) the learned counsel has submitted that with regard to professional negligence, it is now well settled that a professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed or he did not execute with reasonable competence in the given case the skill which he did possess. The decision of the Hon'ble Supreme Court in "V.Kishan Rao vs Nikhil Super Speciality Hospital" (2010 (5) SCC 513) has also been brought to our attention to support the case of the complainant that the principle of 'res ipsa liquitor' can also be made applicable in the instant case since the complainant had gone to the operation theatre with two kidneys and came out with one kidney only. It is his very case that in the instant case the complainant need not prove his case and it is for the opposite party to prove that he has taken care and done his duty to repel the charge of negligence. Inviting our attention to Ext.B1 the learned counsel submitted that there was no informed consent obtained from the complainant or any of the relatives for removing the kidney of the complainant.
10. The complainant has got a case that all his sufferings were due to the careless and negligent treatment of the opposite party. It is also argued by the learned counsel that proper consent ought to have been obtained either from the complainant or from his relatives by the opposite party before removal of one of his kidneys which is a very vital organ and if the complainant was asked, he would not have ventured into risking one of his kidneys. He has a further case that due to the removal of the kidney, the complainant's right hand and leg were completely paralyzed and there was pain in the abdomen and puss was oosing out through the hole in the right abdomen.
11. The learned counsel for the opposite party has countered the above by arguing that the complainant has developed a new case regarding the consent and his original case was regarding the unnecessary removal of the kidney only. He has also submitted that the complainant has no difference of opinion about the qualification expertise or experience of the opposite party doctor and minor anomalies or irregularities in maintaining the case sheet cannot be treated as the reason for medical negligence. He has further argued that the accepted standard protocol was followed by the opposite party doctor and the complainant has not proved or established the alleged medical negligence by examining an expert on his side where as the opposite party has given evidence as RW1 and examined three other doctors who include experts also to convince that the opposite party had taken reasonable care, caution and expertise that a prudent doctor would have taken in the treatment of the complainant. Inviting our attention to the deposition of RW2, the learned counsel submitted that RW2 has emphatically stated that the treatment given by the opposite party doctor is correct and there is no negligence on it. It is also argued by the learned counsel that the kidney was removed as it was in an unsalvageable condition and it was in a life threatening condition and hence the lapse of obtaining the written informed consent from the complainant or his relatives would not diminish the glory of the action of the opposite party by removing the kidney which was in such a dangerous condition thereby saving the life of the complainant. He has also advanced the contention that the complainant is now leading a safe and comfortable life only because of the timely action of the opposite party . He has further submitted that oral informed consent of the wife was obtained before finally removing complainant's kidney and after giving oral informed consent, it is not fair on the part of the complainant to approach this Commission with unclean hands to extract money from the opposite party raising untenable and malafidie accusations against the opposite party. It is also his case that the complainant has not chosen to examine his wife to discredit the assertion of the opposite party that oral consent was obtained from the wife of the complainant before removal of the kidney. The learned counsel has invited out attention to the deposition of the complainant who has stated thus:
Relying on the decision of the Hon'ble National Commission in Dr.B.H.Parmar vs. Dhodiya Manharbhai (2011)IV CPR 117 NC) the learned counsel submitted that a doctor could take on spot decision in the best interest of the patient and in the instant case also the doctor has taken a wise decision in consultation with the other doctors who were present there at the time of operation and that too after obtaining the oral informed consent from the wife and other relatives of the complainant.
12. At the same time the learned counsel for the complainant has raised the contention that informed consent is the very important pre operative patient management as per the Campbell's Urology (VIth edition page 2225) and the case of obtaining oral consent is only a ruse to escape from the mandatory protocol to be followed by the treating doctor and if the complainant or his relatives were asked consent for removal of a vital organ like the kidney, they would not have allowed the same. The learned counsel has also argued that in Ext.A1 there is an entry regarding injury to the ureter and in Ext.A4 issued by the same party there is no mention about the injury to the ureter which is clear that the opposite party has manipulated Ext.B1 case sheet to suit the convenience of the opposite party . It is his very case that the injury caused to the ureter at the time of the ureterolithotrity has led to the complication of infection which led to the removal of the kidney finally.
13. On hearing the learned counsels and also on perusing the records we find that though the opposite party has argued that the case of 'no consent' is a new case raised by the complainant, we find that the complainant has specifically raised the said allegation in the complaint itself. In para 5 of the complaint it is stated thus:
"While discharging the opposite party told the complainant that one of his kidneys was removed and he will be all right after taking rest at home. The complainant was surprised and shocked to hear that a kidney of his was removed without his knowledge and consent. When the complainant asked his wife about this she said that she knows nothing about this and no consent was taken from her. The action of the opposite party in doing so without the consent of the complainant or his wife is highly illegal".
The fact being so, the contention of the learned counsel for the opposite party that no case regarding 'no consent' was pleaded cannot be accepted. However we find force in the arguments of the learned counsel that a doctor is justified in taking on spot a decision to save the life of the patient(Dr.B.H.Parmar vs. Dhodiya Manharbhai cited supra) and in the instant case it is also seen that the doctor has taken the decision in consultation with the other expert doctors who were present at the time of operation. It is further seen that the opposite party doctor has fairly admitted that no written informed consent was obtained before removal of the kidney though the general consent was obtained before taking the patient for operation. He has also deposed that oral informed consent was given by the wife of the complainant and the kidney was removed accordingly to save the complainant. We find no reasons to disbelieve the said statement of the doctor. Moreover though the complainant has a case that the removal of the kidney was unnecessary, no expert evidence is tendered by the complainant to substantiate the said case of the complainant. The Hon'ble Supreme Court in "Jacob Mathew vs. State of Punjab and another" (III, 2005 CPJ 9 (SC) = 2005 (6) SCC 1) have held that the negligence in the context of medical profession necessarily calls for a treatment with a difference. The complainant should clearly make out a case of negligence and the burden heavily lies on the complainant to prove the same. Though the counsel for the complainant has argued that the evidence of the witnesses of the opposite party is enough and more to prove the case of the complainant, we find that no witness has stated that the removal of the kidney was unnecessary and the kidney could have been saved otherwise. RW2 the expert in cross examination has stated thus:
"
It is also to be noted that even if the case of the complainant that there was an injury to the ureter as per Ext.A1, RW3 another witness has stated that injury to ureter while doing URS is an accepted surgical complication. With regard to the removal of the kidney, he has deposed thus "if we had postponed the procedure we would have lost the patient" RW4 who is an independent witness who is none other than a Professor of Urology has also stated thus "The best method of managing established pyronefrosis is removal of kidney, otherwise it will lead to septicemia. It will affect all other organs and it may lead to multy organ failure. To save the life and prevent the catastrophy, nephrectomy (removal of kidney) has to be done".
There is nothing on record to show that the complainant was not in such a critical condition as deposed by the witnesses. It is also to be found that RW3 was also present for the operation along with RW1 the opposite party doctor. The doctors being the guardian angels of the patients, cannot simply be saddled and harassed on mere allegations of medical negligence. It is the settled position that professional negligence demands much more proof than in the case of ordinary negligence. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution (Kusum Sharma vs Batra hospital and others- 2010 (1) CPR 167 SC). The fact that the opposite party doctor mounted the box and was also ready for cross examination has to be viewed in favour of the opposite party. It is also found that nothing is brought out to discredit his contention that he had adopted the standard procedure with due care and caution and the same is supported by the evidence of RW2, 3 and 4. In the backdrop of the above facts and circumstances, we are of the opinion that medical negligence or carelessness cannot be attributed against the opposite party in the instant case.
14. Point No.3: As we find that complainant is not successful in establishing his case of medical negligence against opposite party, the questions of relief and costs do not require any consideration.
In the result the complaint fails and is dismissed accordingly. There is no order as to costs.
SRI.S.CHANDRAMOHAN NAIR : MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
APPENDIX
Witness for the Compalinant
PW1 : Janab Fazal
Witness for the Opposite parties
RW1 : Dr.Hamza Thayyil
RW2 : Dr.H.Krishnamoorthy
RW3 : Dr.Felix Cardoza
RW4 : Dr.Appu Thomas, Professor of Urology
Exts. for Complainant
Ext. P1 : Discharge card from Shiba Surgery and Urology Centre
Ext. P 2 :Transfusion Reaction from Fathima Hospital dated 12..8..01
Ext. P 3 : Haemogram report from Shiba Surgery and Urology Centre
Ext. P 4 : Discharge card from Shiba Surgery and Urology Centre
Ext. P 5 : Reference card from Medical College Hospital, Kozhikode.
Ext. P 6 : Medical Certificated dtd.4.2.02 from Dr.Hamza Thayyil
Ext. P 7 : Lawyer Notice to Dr. Hamza Thayyil
Ext. P 8 : Reply of Lawyer Notice dtd. 2.8.02
Exts. for Opposite Party
Ext.B1 : Case sheet from Shiba Surgery and Urology Centre
SRI.S.CHANDRAMOHAN NAIR : MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
ps
[ SRI.S.CHANDRAMOHAN NAIR] PRESIDING MEMBER