National Consumer Disputes Redressal
Dr. Sulekha vs S. Jayan & Ors on 24 August, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI APPEAL NO. 26 OF 2008 (Against the Order dated 03/08/2007 in Complaint No. 64/2001 of the State Commission Kerala) 1. DR. SULEKHA P3, UNIT CHIEF, SAT HOSPITAL, THIRUVANANTHAPURAM, KERALA STATE ...........Appellant(s) Versus 1. S. JAYAN & ORS KINATTINKARA VEEDU, CHENNILODE COLONY, ANAMUGHAM, KUMARAPURAM P. O., THIRUVANANTHAPURAM, KERALA STATE 2. AMBADI KINATTINKARA VEEDU, CHENNILODE COLONY, ANAMUGHAM, THIRUVANANTHAPURAM, KERALA STATE 3. SUNITHA KINATTINKARA VEEDU, CHENNILODE COLONY, ANAMUGHAM, THIRUVANANTHAPURAM, KERALA STATE 4. THE STATE OF KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA STATE 5. THE DIRECTOR OF MEDICAL EDUCATION OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION, ULLOOR, THIRUVANANTHAPURAM, KERALA STATE 6. THE SUPERINTENDENT SAT HOSPITAL, THIRUVANANTHAPURAM, KERALA STATE - 7. DR. HEMA PS - 3, CHIEF SAT HOSPITAL, THIRUVANANTHAPURAM, KERALA STATE 8. DR. SANTHOSH DEPARTMENT OF RADIO DIAGNOSIS, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM, KERALA STATE 9. DR. SETHUNATH PAEDIATRIC SURGEON, SAT HOSPITAL, THIRUVANANTHAPURAM, KERALA STATE ...........Respondent(s) FIRST APPEAL NO. 10 OF 2008 (Against the Order dated 13/04/2006 in Complaint No. 1354/2006 of the State Commission Tripura) 1. DR. HEMA - ...........Appellant(s) Versus 1. S. JAYAN & ORS. - ...........Respondent(s) APPEAL NO. 62 OF 2008 (Against the Order dated 03/08/2007 in Complaint No. 64/2001 of the State Commission Karnataka) 1. DR. SETHUNATH MEDICAL COLLAGE HOSPITAL, ALAPPUZHA, KERALA STATE ...........Appellant(s) Versus 1. S. JAYAN & ORS. KINATTINKARAVEEDU, CHENNILODE COLONY, ANAMUGHAM, KUMARAPURAM. P. O., THIRUVANANTHAPURAM 2. AMBADI KINATTINKARAVEEDU, CHENNILODE COLONY, ANAMUGHAM, KUMARAPURAM. P. O., THIRUVANANTHAPURAM 3. SUNITHA KINATTINKARAVEEDU, CHENNILODE COLONY, ANAMUGHAM, KUMARAPURAM. P. O., THIRUVANANTHAPURAM 4. THE STATE OF KERALA REPRESENTED BY TH ECHIEF SECRETARY, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM - 5. THE DIRECTOR OF MEDICAL EDUCATION OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION, ULLOOR, THIRUVANANTHAPURAM 6. THE SUPERINTENDENT S. A. T. HOSPITAL, THIRUVANANTHAPURAM - 7. DR. HEMA PS - 3 UNIT, CHIEF, S. A. T. HOSPITAL, THIRUVANANTHAPURAM - 8. DR. SULEKHA PS3 UNIT, CHIEF, S. A. T. HOSPITAL, THIRUVANANTHAPURAM - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : NEMO For the Respondent : For the OPs. 1,2,3&6/Appellants : Ex-parte
For the OPs. 4/Appellant : Ms. Praseena Elizabeth Joseph,
Advocate
For the OPs. 5/Appellant : Mr. M.T. George, Advocate &
Ms. N.G. Yogmanya, Advocate
For the OPs. 7/Appellant : Mohd. Wasay Khan, Advocate
Dated : 24 Aug 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
These appeals arise out of single order of Learned State Commission; hence, decided by common order.
2. These appeals have been filed by the appellants against the order dated 3.8.2007 passed by the learned Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, 'the State Commission') in OP No. 62/2001 - S. Jayan & Ors. Vs. State of Kerala & ors. by which, while allowing complaint, OP No. 1,4,5& 7 were directed to pay jointly and severally Rs.5,32,000/- as compensation to Complainant No. 2 and further directed to pay Rs.2000/- as cost of the proceedings against which, these appeals have been filed.
3. Brief facts of the case are that complainant No. 2/respondent No. 2 was brought to the causality of SAT Hospital on 11.10.2000 by their parents Complainant No. 1 & 3/Respondent No. 1 & 3 and complainant No. 2 was admitted in ICU by doctors OP No. 4,5 & 7/Appellants. The 5th opposite party attended the child in the Intensive Care unit (ICU). After one week of the said admission the 4th to 7th opposite parties conducted surgery at the left hand of the 2nd complainant and ultimately resulted in the amputation of a portion of the left forearm. The opposite parties 4 to 7 were grossly negligent and the left forearm of the 2nd complainant was amputated. The opposite parties 4 to 7 doctors failed to exercise reasonable degree of skill and care in treating the 2nd complainant. Opposite parties 4 to 7 failed to take necessary precaution and reasonable care in the treatment at the preliminary stage and post-operative stage and that the same resulted in the impairment of the functions of left hand of the 2nd complainant and also in causing great sufferings and injuries to the complainants. The opposite parties 4 to 7 are attached to SAT hospital and are working under opposite parties 2 and 3. Opposite parties 2 to 7 are the employees of the Ist opposite party, the State of Kerala. Alleging deficiency on the part of OPs, complainant filed complaint before State Commission.
4. OP No. 1 to 3 resisted complaint and submitted that the complaint was not maintainable in law or on facts. 2nd complainant was admitted in SAT hospital casualty on 11.10.2000 at 1PM with history of high fever and convulsions for which he was getting treatment from outside. His condition was grave. He was febrile and had central cyanosis. He was comatosed and not responding to painful stimuli. He was given resuscitation, Diazepam and phonation even to control the fits. He was admitted in Intensive Care Unit at 2.50 pm after resuscitation on 11.10.2000 as Impatient No. 37877. He was seen by duty medical officer and continued further resuscitation method to save his life. Dr. Sulekha (Opposite party No. 5) was attending the patient (2nd complainant) as the baby was under her care. The averments in para 2 and 4 to 12 are false. There was an arterial insufficiency of the limb and it was due to an abnormally of palmer arch and it was established by deplore study. Immediate efforts to re-establish the circulation were instituted and all procedures, tests and application of heat to other limbs etc. were done to save the eschaemic hand. Inspite of all treatment the child developed gangre of 3 fingers as well as palm. It was a dry gangrene and so nothing much could be done at that stage. It was further submitted that there was no deficiency on their part and prayed for dismissal of complaint.
5. OP No. 4, 5 & 6 resisted Complaint and submitted that the 3rd complainant aged 11 months was brought to the hospital at about 2.30 pm on 11.10.2000, with complaint of fever with cough, one week duration. He was on Paracetamol and Roscillin. The patient (2nd complainant) developed high grade fever in the morning with 2 episodes of generalized tonic-clonic seizures lasting for two minutes each. And the same repeated at 1 PM and continuously since then. The patient was febrile, central cyanosis was convulsing and comatose. The extremists were cold and not responding to painful stimulai. His pupils pin-point, shallow respiration with periods of apnoea (absence of breathing). His pulse was feeble with 130/mt. He developed respiratory arrest in the casualty. He was dangerously ill (DIL). His condition and prognosis was explained to the Ist complainant. He was given oropharyangal and nasal suction, oxygen inhalation, rectal Diazepam. Since the convulsions could not be controlled injunction phenytoin was given. At 3.15 PM seizures were controlled and the patient was then shifted to the Intensive Care Unit/PIIII (I.C.U.). It was further submitted that there was no consultation among OP No. 4, 5 & 7 to admit patient in the ICU and aforesaid decision was taken by Duty Medical Officer, Dr. Bindu and Dr. Gopinathan. OP No. 5 was Unit Chief of P-3 Unit. It was further submitted that on 16.10.2000, when the 4th opposite party examined the patient, there was dry gangrene involving most of the thumb, index and middle fingers and about half of ring and middle fingers. After clinical examination, 4th opposite party, advised conservative management of the problem with drugs. The conservative management with drugs was successful in preventive spread of gangrene. Since the swelling in the hand had increased, with oedema of left forearm and dorsum of left hand, a decision was taken on 18.10.2000 to do Fascieotomy. The patient was sent for pre-anesthetic checkup. On 19.10.2000, detailed informed consent was obtained from the parents of the patient. They were informed in detail about the procedures proposed, the consequences, the dangers etc. The Ist and 3rd complainants had given their consent for surgery and for anaesthesia, after understanding investigation fully and completely on 9.11.2000, the operation Skin grafting was done to save the forehand. They have not charged any fees. Denying any deficiency on their part prayed for dismissal of complaint.
6. OP No. 7 resisted complaint and submitted that he was a Government doctor and he has not rendered ay service to the complainant on acceptance of any consideration in order to attract the provisions of consumer Protection Act, 1986. The complaint is bad for misjoinder and non-joinder. The 7th opposite party never admitted the 2nd complainant in the hospital. 7th Opposite party was working as Assistant Professor in Paediatric Surgery at Medical College Hospital, Thiruvananthapuram and attached to PS II Unit. The medical officers take pool duties and take the duties of other units also. At the end of the duty the cases are handed over to the corresponding unit for further management. On 11.10.2000 the casualty was of PS 3 unit and the 7th opposite party was on duty at paediatric surgery ward (Ward 2 SAT Hospital). Around 3 PM the paediatric duty medical officer came to the 7th opposite party and discussed about the patient (2nd complainant) and told that the patient developed bluish discolouration following injunction phenytoin, given for status epilepticus in the causality and asked for the opinion of the 7th opposite party. It was reported that the patient was in a highly critical stage when he was brought to the causality. Since initial resuscitation measures have already been done, the 7th opposite party gave the opinion to have consultation with duty cardio thoracic surgeon who deals with vascular problems. Around 4.30 PM formal consultation was sent to 7th opposite party and thereby he examined the patient in the Intensive care unit and noted the following findings given" left forearm and hand cold, radial pulse not palpable, ulna and bronchial, palpable, bluish patches present left forearm, nail beds and finger tips cyanosed" A diagnosis of vasospasm was made and advised to get opinion from the duty cardio thoracic surgeon. 7th opposite party never gave any further advise or treatment in relation to the 2nd complainant and prayed for dismissal of complaint. Learned State Commission after hearing both the parties allowed complaint as referred above against which, these appeals have been filed along with application for condonation of delay in Appeal No. 26/2008 and in Appeal No. 62/2008.
7. None appeared for Respondent No. 1, 2, 3 & 6 and they were proceeded ex-parte.
8. Heard learned Counsel for the appellants and perused record.
9. As there is delay of only 13 days in filing F.A. No. 26/2008, delay stands condoned for the reasons mentioned in application. As far delay in filing Appeal No. 62 of 2008 is concerned, this Commission vide order dated 22.5.2008 observed that in view of certificates issued by the State Commissioner, Kerala there seems to be no delay in filing the appeal. In such circumstances, delay, if any, stands condoned.
10. Learned Counsel for the appellant Dr. Hema submitted that before examining patient, patient had developed gangrene and there was no negligence on her part. Learned Counsel for Dr. Sulekha submitted that she was only Incharge of Unit and injection was administered by Dr. Bindu before bringing the patient to ICU. Learned Counsel for Dr. Sethunath submitted that he was consulted by only colleague doctors and he has not rendered any service. Learned Counsel for the appellants further submitted that appellants being doctors in the Government hospital where no fees is charged and no fees charged by them, complainant does not fall within purview of consumer; even then, learned State Commission has committed error in allowing complaint against them; hence, appeals be allowed and impugned orders be set aside.
11. Complainants have nowhere pleaded in the complaint that any consideration was paid by them for obtaining services of OPs. OP No. 4, 5, 6 & 7 denied receipt of any consideration from complainant. Learned State Commission in the light of judgment of Hon'ble Apex Court in (1995) 6 SCC 651 - Indian Medical Association Vs. V.P. Shantha & Ors. observed that where services are rendered on payment or charges and also rendered free of charge the other persons availing of such services free, would fall within ambit of expression 'service' is defined in Section 2 (1) (o) of the Act. There is no iota of evidence on record to prove that services are rendered by OP/Hospital on payment of charges to some persons and in such circumstances, it cannot be inferred that OP/Hospital rendered service on payment of charges to any person. In the aforesaid judgment in paragraph 55 (9) it was observed as under:
55 (9): Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
In the light of aforesaid observation it becomes clear that when OP/hospital does not charge anything from any person availing services and all patients are given free service hospital is outside the purview of expression 'service' as defined in Section 2 (1) (o) of the Act. When complainants failed to prove that services are rendered by OP/Hospital to some persons on payment of any consideration and there is specific pleading by OP 4 to 7 that no consideration has been received by them, complainants does not fall within purview of consumer under the Consumer Protection Act and complaint was not maintainable and learned State Commission has committed error in allowing complaint whereas complaint should have been dismissed.
12. Now, I shall discuss regarding deficiency of service on the part of appellants.
Appeal No. 10 of 2008:
As far appellant Dr. Hema is concerned, Dr. Hema has seen Complainant No. 2 first time on 16.10.2000 whereas Complainant No. 2 was admitted in the hospital on 11.10.2000. Learned State Commission in Paragraph 17 of the impugned order rightly observed as under:
"There is also no doubt that the injection phenytoin was given to the 2nd complainant for controlling the seizures, as the Diazepam given to the patient was not sufficient to control seizures. There is also no doubt that phenytoin injection is a best suited medicine for controlling seizures."
This injection Phenytoin was administered by Dr. Bindu before patient was seen by Dr. Hema and all problems arose on account of improper administration of injection which was given by Dr. Bindu for which no negligence can be imputed on the part of Dr. Hema; even then, learned State Commission committed error in fastening liability on the part of Dr. Hema and impugned order is liable to set aside qua Dr. Hema.
Appeal No. 26/2008:
Dr. Sulekha in a written statement categorically stated that injection was administered by Dr. Bindu before bringing the patient to ICU and Dr. Sulekha was only Unit Chief of P-3 Unit. She further pleaded that decision to admit patient in ICU was taken by Duty Medical Officer Dr. Bindu and Dr. Gopinathan of P-3 Unit. Merely because Dr. Sulekha was Unit Chief of P-3 Unit, no liability could have been fastened on her for improper administration of injection by Dr. Bindu and for admitting patient in the ICU unit and learned State Commission committed error in allowing complaint against Dr. Sulekha.
Appeal No. 62/2008:
Dr. Sethunath has pleaded in his written statement that he was on duty at Paediatric surgery ward and Duty Medical Officer of Paediatric ward discussed with him about Complainant no. 2 and he gave opinion to consult duty cardio thoracic surgeon who deals with vascular problems. It was further pleaded that he never gave any further advice nor any treatment to Complainant No.2. There is no evidence on record to prove that Dr. Sethunath gave any treatment to Complainant No. 2; even then, learned State Commission has committed error in allowing complaint against him.
13. Learned State Commission has allowed complaint mainly on the basis of improper administration of injection phenytoin and delay in administering medicine. As I observed above, injection was administered by Dr. Bindu, no liability can be fastened on appellants for improper administration of injection. Perusal of record does not reveal that any delay was caused by appellants in giving their opinion or taking care of the patient. Learned Counsel for the appellant has placed reliance on judgment of Hon'be Apex Court in - [(2005) 6 SCC 1] - Jacob Mathew Versus State of Punjab and another in which it was observed as under:
A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
In the light of aforesaid discussion, I do not find any evidence on record to prove that appellants were not possessing requisite skill which they professed to have possessed or they did not exercise their skill with reasonable competence.
14. In the light of aforesaid discussion, complaint is liable to be dismissed qua appellants as complainants did not fall within purview of consumer as well no negligence on their part could be proved.
15. Consequently, appeals filed by the appellants are allowed and impugned order dated 3.8.2007 passed in OP No. 62/2001 - S. Jayan & Ors. Vs. State of Kerala & ors. is set aside qua appellants. There shall be no order as to costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER