State Consumer Disputes Redressal Commission
State Of Kerala, Rep. By The Chief ... vs 1. P.K. Girishchandra Babu on 24 April, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/190 (Arisen out of Order Dated 15/07/2010 in Case No. CC/04/246 of District Thiruvananthapuram) 1. CHIEF SECRETARY,GOVT OF KERALA GOVT SECRETERIAT TRIVANDRUM KERALA ...........Appellant(s) Versus 1. P.K.GIRISHCHANDRA BABU THURUTY.P.O,CHANGANACHERRY TALUK KOTTAYAM KERALA ...........Respondent(s) BEFORE: HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL 190/2011
DATED. 24.4.2012
PRESENT:-
JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT
APPELLANTS
1. State of Kerala
Rep. by The Chief Secretary, Govt. of Kerala,
Govt. secretariat, Thiruvananthapuram.
2. The Superintendent, Medical College Hospital,
Thiruvananthapuram.
(Rep. by Adv. Sri. S. Vijayakumaran Nair)
Vs
RESPONDENTS
1. P.K. Girishchandra Babu @ Girish (died)
S/o Kunjan Panicker, residing at Puthuparambil,
Thuruty P.O., Chenganachery Taluk, Chenganachery, Kottayam Dist.
2. Dr. N. Viswanathan, Chief of Unit ENT -11,
ENT Department, Medical College Hospital,
Thiruvananthapuram.
3. Dr. Bipin, ENT Department,
Medical College Hospital, Thiruvananthapuram.
(R2 Rep. by Adv. Sri. K. Muraleedharan Nair)
ADDISIONAL RESPONDENTS
4. Lalitha Babu, W/o Late P.K. Girishchandra Babu
S/o Kunjan Panicker, residing at Puthuparambil,
Thuruty P.O., Chenganachery Taluk, Chenganachery, Kottayam Dist.
5. Greeshma P.G., D/o Late P.K. Girishchandra Babu
S/o Kunjan Panicker, residing at Puthuparambil,
Thuruty P.O., Chenganachery Taluk, Chenganachery, Kottayam Dist.
6. Gibin P.G., S/o Late P.K. Girishchandra Babu
S/o Kunjan Panicker, residing at Puthuparambil,
Thuruty P.O., Chenganachery Taluk, Chenganachery, Kottayam Dist.
7. Gowri, C/o Haridas,
Thuruthi Veedu, Kidangoor, Kottayam -72
( R4 Rep. by Adv. Sri. J.R. Rajeev)
(R5 to R7 Rep. by Adv. Sri. R.S. Kalkura & G.S. Kalkura)
JUDGMENT
JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT The appellants are the opposite parties 1 and 2 in O.P. 246/04 in the file of CDRF, Thiruvananthapuram. The first opposite party is under orders to pay a sum of Rs. 1lakh towards compensation along with cost of Rs. 2,000/- The appellants 1 to 4 were ex-party before the Forum.
2. The complaint was filed against the opposite parties 1 to 5 who are the State of Kerala the superiors of Medical College Hospital, Thiruvananthapuram and the doctors including the chief of the Unit of the E.N.T and another doctor of the E.N.T. Department and the 5th opposite party is a relative of the complainant. Subsequent to the disposal of the complaint, and during the pendency of the appeal, the complainant died and his L.Rs were impleaded.
3. It is the case of the complainant that on 20.4.2003 he felt uneasiness and on the next day morning he went to Medical College Hospital, Kottayam, wherein he was admitted. The 5th opposite party who is the relative of the complainant volunteered to take up the responsibilities connected with the treatment. The doctors at the Medical College Hospital, Kottayam directed the complainant to undergo biopsy test and after the result of the test was obtained and on 28.4.03 he was discharged and referred to the Regional Cancer Centre for expert treatment as biopsy had revealed that the complainant was having cancer of Larynges-T-3 Nomo stage. The entire treatment records etc were in the custody of the 5th opposite party who allegedly concealed the fact that the complainant was suffering from cancer. The complainant and his wife were made to believe that he was referred to the Medical College Hospital, Thiruvananthapuram. He was taken to the E.N.T. Department of Medical College Hospital. He was examined by the 3rd opposite party who suggested emergency tracheotomy. He was also examined by the 4th opposite party. As advised by the 5th opposite party, the complainant and his wife signed the consent letter for undergoing endoscopy on 30.4.2003. On that day he was subjected to total laryngoctomy without his knowledge and consent. He was discharged on 17.5.2003 and then referred to the R.C.C. by the 3rd opposite party doctor. He underwent radiation etc. at R.C.C. As a result of the laryngoctomy done which was not required, the complainant lost the power of speech and voice. Opposite parties 3 and 4/doctors acted contrary to the standard protocol. The first line of treatment should have been a combination chemotherapy and radiation. There was a great chance of success. Surgery was the last choice in treatment of cancer to larynges. It is alleged that the opposite parties 3 and 4 are guilty of negligence and acted against the approved practice in the matter. He has sought for a sum of Rs. 10, lakhs as compensation from the opposite parties.
4. Only the 5th opposite party has filed version contending that the complainant is bad for misjoinder. He has denied that he volunteered to take the responsibility connected with the treatment of the complainant but only helped the complainant to take him to the hospital. He has denied the entire allegations against him.
5. The evidence adduced consisted of the testimony of Pws 1 and 2, Dw1, the 5th opposite party and Exts. P1 to P13.
6. The appellants have sought for remitting the matter to the Forum for providing them an opportunity to contest the matter as the matter has been adjudicated in the absence of appellants. We find that the O.P. is of the year 2004 filed on 11.06.04. It is above 8 years since then and the complainant is also no more. Hence the above submission cannot be accepted as such unless the order of the Forum below contained manifest illegalities.
7. The crux of the case is that the complainant was having cancer to the Larynx and he was referred to R.C.C, Thiruvananthapuram for further management. But he was taken to the Medical College Hospital, Thiruvananthapuram wherein the opposite parties 3 and 4 treated him despite diagnosing malignancy of Larynx. A total Laryngoctomy under general anesthesia was done and subsequently referred to R.C.C. The case of the complainant is that the opposite parties ought not have conducted total laryngectomy and that had he subjected to chemotherapy and radiation treatment as the first line of treatment, he would have recovered. The complainant lost the faculty of speech and voice as a result of the laryngoctomy conducted.
8. Pw2 , Retired Professor of Radiotherapy from the Medical College has submitted Exbt. P11 opinion and substantiated the same by his evidence. He has opined after examining the treatment records that he is of the opinion that in view of the nature of the growth and comparatively low age of the patient (aged 41) the ideal first line of treatment was a combination of chemotherapy and radiation treatment. Surgery (total laryngoctomy) was indicated only in case of failure of the first line of treatment. There was a good chance of success. If the first line of treatment in the case was administered the patient would have retained his voice. Pw2 in his deposition has stated that almost 90% the illness could have cured and the voice retained in case the first line of treatment was done.
We find that Ext. P1 is the Discharge Card from the Medical College Hospital, Kottayam. It is specifically mentioned therein that the complainant was having carcinoma of the larynx and that there was proliferative growth involving the entire left vocal cord extending to interior part of right vocal cord. The biopsy report showed Sq. cell carcinoma. He was referred to R.C.C. for further management. Despite realizing the above reference the opposite parties 3 and 4 ventured to conduct total laryngoctomy. The patient was admitted as in patient on 18.4.2003. The surgery was done on 30.4.2003. He was discharged on 17.5.2003 and referred to R.C.C. for further management.
The lower Forum has considered the evidence in the matter for detail and has rightly held that the opposite parties 3 and 4 were negligent in admitting to treat the patient having cancer in the larynx without advising to approach the R.C.C wherein expert treatment was available. We find that there is no illegality in the order of the Forum that. It was the belated reference to the R.C.C and the total laryngoctomy done that resulted in the loss of voice and power of speech of the complainant. The order is a well considered one although not contested by opposite parties 1 to 4. Absolving the 5th opposite party also is well founded. We find that no interference in the order of the Forum is called for.
9. All the same, the amount of compensation awarded ie. Rs. 1lakh appears grossly inadequate. How the compensation is computed is also not specified. There is no reason as to why joint and several liability was not placed on opposite parties 3 and 4 as it stands established the 3rd opposite party who headed the E.N.T. unit and apparently experimented on the complainant. In the absence of appeal filed on the part of the complainant or his LRs after the death of the complainant we are not inclined to interfere on this aspect as such.
10. The office is directed to forward a copy of this order in name cover to the President, CDRF, Thiruvananthapuram to take note of the above observation.
11. The opposite parties/appellants are directed to make the payment. The complainant/LRs will be entitled for interest at 12% from the date of the order of the Forum ie. 15.7.2010.
In the result, the appeal is dismissed as above.
The office will forward the L.C.R. to the Forum along with a copy of this order.
JUSTICE K.R. UDAYABHANU : PRESIDENT ST [HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT