State Consumer Disputes Redressal Commission
V.Vidhya,Tirupur.& 2 Others vs Gurumithrren Hospital,Madurai. 2 ... on 12 September, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU. S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
C.C.No.33/2014
Date of complaint filed : 09.10.2014
Date of orders pronounced : 12.09.2023
1. M.Vidhya,
W/o Late Velarasu.
2. Minor V.Rakesh,
S/o Late Velarasu.
Represented by her Mother and
only Natural Guardian Mrs.Vidhya.
3. Mrs.S.Radha,
M/o Late Velarasu.
All are residing at
No.12/8, Kumarandapuram Nehru Veethi,
Tirupur - 641 602. Complainants
-Vs-
1. M/s Gurumithrren Hospital,
No.46, Chandrakanthi Nagar,
By-Pass Road, Ponmeni,
Madurai - 625 010.
2. Dr.S.Karthick, M.D.(Physician), Mrcs.,
No.46, Chandrakanthi Nagar,
By-Pass Road, Ponmeni,
Madurai - 625 010.
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3. Dr.S.Sivasubramaniyan, M.S.Fics.
No.46, Chandrakanthi Nagar,
By-Pass Road, Ponmeni,
Madurai - 625 010. Opposite Parties
Counsel for Complainants : Mr.Paulselvam, Advocate.
Counsel for Opposite Parties-1 to 3 : Ex-Parte.
This complaint came before me for final hearing on 17.08.2023 and upon
perusing the material records this Commission made the following:-
ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. The complainants' case :
The first complainant is the wife of one Velarasu and second complainant is the son of Velarasu and third complainant is the mother of Velarasu. The above said Velarasu suffered from extensive fibrosis at the right leg on account of filarasis. Though he suffered with the above disease he was a successful entrepreneur on 12.03.2012 the first opposite party made an advertisement in the 'Kunkkumum' Magazine in which the opposite party proclaimed that they found a new way of surgery to cure such filarasis. Further in the advertisement it has been stated that they have cured morethan 325 patients. Allured and influenced by the above advertisement the first complainant's husband approached the hospital and a surgery was performed on 30.07.2012. However the above said Velarasu on the 60 th Post Operative day showed intermittent fever and severe vomiting. Then the said Velarasu referred by the opposite party and shifted to Aristo hospital. And in the Aristo hospital he was put into ventilation for two days and again he referred to 3 Meenakshi Mission Hospital for higher medical care. On 13.10.2012 the above said Velarasu died of sepsis due to the result of surgery. The complainant submitted that the death was attributed to the cross medical negligence of the opposite parties hospital and the opposite parties/doctors, firstly having advised the surgery to the deceased, Secondly, having performed the operation in their hospital without sufficient Post Operative care and thirdly in permitting sepsis/infection to affect, after the operation. Further the opposite parties referred only to Aristo hospital which did not have sufficient higher medical care. Hence she filed a consumer complaint claiming Rs.95,00,000/- towards compensation for mental agony and loss of companionship and also cost of the proceedings.
2. The opposite parties did not appear before this Commission and did not file written version.
3. In this complaint, the complainant alone was examined as PW1 by filing proof affidavit on their side and Ex.A1 to Ex.A13 were marked.
4. Now the point for consideration is:
Whether the opposite parties committed any medical negligence ?
5. Discussion on Point: It is the case of the first complainant that the deceased Velarasu is the husband of first complainant and father of second complainant and mother of third complainant. The said Velarsu suffered from fibrosis at the right leg on account of filarasis. He impressed by the advertisement made by the opposite parties and approached the opposite parties. To prove this, the advertisement is marked as Ex.A1 dated 12.03.2012. In the advertisement the opposite parties hospital clearly mentioned that they found a novel surgery to treat fibrosis and also they boosted themselves they nearly cured 325 poor patients and 4 the above patients were benefited by the surgery. On seeing the advertisement the name of second opposite party has been mentioned as he is the founder such innovative treatment and he can be called with a title as a leg surgeon.
6. The receipts produced as Ex.A3 related to the period from 17.06.2012 to 10.10.2012. For nearly four months he was treated for fibrosis in the hospital. As per the Discharge Summary Ex.A4 it seems the date of admission as 09.07.2012. On the other hand he was admitted in the hospital on 17.06.2012 itself as per the receipts. After the surgery he was under care of the hospital and opposite parties, for his Post Operative care. Inspite of that sepsis were formed and it was not properly treated and he was referred to Artisto Hospital for further higher management. As per Ex.A5 Aristo hospital also treated only for two days and by Ex.A6 they referred the patient to Meenakshi Mission Hospital for further medical care where he died. The Death Summary of Meenakshi Mission Hospital is marked as Ex.A10. So from all those records the following factors are clearly proved
(a) That the opposite parties/doctors performed a new technique or an innovative surgery upon the deceased Velarasu which is also evidenced from Ex.A1 advertisement.
(b) On the 60th Post Operative day the Velarasu suffered complication due to sepsis. There is no adequate documents produced to show that proper care and preventive antibiotics were given to cure the expected complications.
(c) Since in the opposite parties hospitals proper facilities were not available to handle a patient who suffered septicemia they referred another hospital 5 by name Aristo hospital. The Aristo hospital was also unable to treat the patient and referred him to Meenakshi Misssion Hospital.
7. So, the opposite parties did not refer the patient for proper further management for his sufferings. All the above factors clearly established that in an unconventional way, the opposite parties performed the surgery upon the complainant. So, they are guilty of treating a patient as 'an experimental rat for their innovative experimental surgery. The said Dr.Mr.Karthick is an M.D. and he has performed the surgery and he boosted that he may be called as leg doctor as per the advertisement. So, accepting the deceased Velarasu for treatment itself is a cross negligence on the part of the opposite parties. When the sepsis were formed during the post operative care, as per the principles of 'Res Ipsa Loquitur' only the opposite parties are to be blamed for their negligence.
8. The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. But, in this case admittedly the opposite parties did not follow the standard treatment but a new novel experimental treatment. 6
9. The National Consumer Disputes Redressal Commission in TARUN THAKORE .Vs. Dr.NOSHIR M.SHROFF in O.P.No.215/2000 dated 24-9-2002 held as follows:
"The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advise and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. But in this case nothing proved on behalf of the doctors that they treated the patient with due care and as per the approved medical procedure.
10. Further the opposite parties referral to another hospital for higher treatment clearly established that the opposite parties are without adequate infrastructure medical facilities to undertook such kind of emergency and serious surgery, and in spite of that performed them. Even the opposite parties failed to refer to a right and correct hospital for further treatment in time. Hence, the death is conclusively due to medical negligence committed by the opposite parties and they alone responsible for the premature death of one Velarasu who is said to be an entrepreneur. The Ex.A3 shows more than Rs.10,00,000/- were paid as medical expenses to the opposite parties.
11. Considering the expenditure and premature loss of the complainants' family head, bread winner and guardian, the opposite parties- 1to 3 are jointly and severally liable to pay a suitable compensation atleast to minimize their grievances. At this juncture, this Commission considering the age of the deceased and suffering of the complainants ,expenses made by the family and absence of opposite parties in 7 contesting and submitting their defense, this Commission fixed Rs.50,00,000/- towards compensation for medical negligence and mental agony suffered by the complainants. The complaint is pending for more than 10 years as such the opposite parties 1 to 3 are directed to pay the above amount within a month. Hence, the complaint is partly allowed with cost of Rs.5000/- to the complainants and answered the point accordingly.
12. In the result,
1. The complaint is allowed in-part.
2. The opposite parties 1 to 3 are jointly and severally to pay Rs.50,00,000/- towards compensation for medical negligence mental agony suffered by the complainants.
3. The opposite parties are directed to pay Rs.5000/- towards cost to the complainants.
4. Time for compliance: One month from the date of receipt of copy of this order. Failing which the award amount shall carries interest at the rate of 9% per annum from the date of this order till its realization.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 12th day of September 2023.
Sd/-xxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
List of documents marked on the side of the complainant Ex.A1 12.03.2012 Copy of 'Kunkkumum' Magazine Advertised by first opposite party Ex.A2 --- Family Photograph of complainant 8 Ex.A3 17.06.2012 Receipt of Gurumithran Hospital to 10.10.2012 Ex.A4 10.10.2012 Discharge Summary of Gurumithran Hospital Ex.A5 10.10.2012 Prescription and cash receipts of Aristo Speciality Hospital to 11.10.2012 Ex.A6 11.10.2012 Clinical Summary of Aristo Speciality Hospital Ex.A7 10.10.2012 CT Report of Indian MRI Diagnostic and Research Limited Ex.A8 12.10.2012 Cash receipt issued by Meenakhi Mission Hospital and to Research Centre 13.10.2012 Ex.A9 12.10.2012 Scan and ECG Report Ex.A10 13.10.2012 Death Summary issued by Meenakshi Mission Hospital and Research Centre, Madurai.
Ex.A11 13.10.2012 Death report issued by Meenakshi Mission Hospital and Research Centre, Madurai.
Ex.A12 14.04.2012 Copy of Legal notice issue by complainants' counsel along with postal receipts.
Ex.A13 ---- Returned covers from opposite parties with endorsement as 'left' List of documents marked on the side of opposite parties.
-Nil-
Sd/-xxxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
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