State Consumer Disputes Redressal Commission
The Manager/Director, vs Vasantha Samkutty, on 12 November, 2010
Daily Order
First Appeal No. 1038/2004 (Arisen out of Order Dated 11/08/2004 in Case No. 243/2000 of District Pathanamthitta) The Manager/Director Vs. Vasantha Samkutty and Others BEFORE: Sri.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: Dated : 12 Nov 2010 ORDER Disposed as Allowed
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 1038/2004
JUDGMENT DATED: 12-11-2010
PRESENT:
SMT. VALSALA SARANGADHARAN : MEMBER
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
APPELLANT
The Manager/Director,
Marthoma Medical Mission Centre,
Angadi P.O., Ranni.
(Rep. by Adv. Sri. K. Murlidharan Nair & others.)
Vs
RESPONDENTS
1. Vasantha Samkutty,
Kattuvarliyil Veedu, Thottamon,
Ranni Village, Ranni Taluk.
2. Dr. P.V. George, M.S,
Surgeon, Ranni Medical Mission Centre,
Angadi P.O., Ranni.
(R1 rep. by Adv. Sri. Vakkom P. Balakrishnan)
Addl. Respondent
Mrs. Baby George,
Parapattu House, Opposite Metro Company, Kollam.
(Rep. by Adv. Sri. G.S. Kalkura & Sri. G. Haridas)
JUDGMENT
SHRI . M.V. VISWANATHAN : JUDICIAL MEMBER The appellant was the first opposite party and respondents 1 and 2 were the complainant and the second opposite party respectively in OP No. 243/2000 on the file of CDRF, Pathanamthitta. The complaint therein was filed by the complainant (first respondent) alleging deficiency of service on the part of the opposite parties 1 and 2 (appellant and second respondent) in conducting the surgery on the complainant for appendicitis on 08-01-2000 and also in doing further treatment at the first opposite party hospital by the second opposite party Dr. P.V. George. The complainant also alleged medical negligence on the part of the opposite parties in doing the surgery and subsequent treatment.
2. The first opposite party entered appearance and filed written version denying the alleged deficiency of service and medical negligence in doing the surgery and further treatment for the complainant at the first opposite party hospital. The first opposite party had also denied the alleged medical negligence on the part of the second opposite party Dr. P.V. George in doing the surgery on the complainant on 08-01-2000 and further treatment. The first opposite party further contended that the surgery and further treatment were done with utmost care and caution and there was no negligence on the part of the opposite party. Thus, the first opposite party prayed for dismissal of the complaint.
3. The second opposite party could not be served with notice. It was reported by the postal authority that intimation was given to the second opposite party regarding the postal articles addressed to the second opposite party from the CDRF, Pathanamthitta. Thus, the second opposite party remained absent. The Forum below proceeded with the complaint in OP No. 243/2000 without the junction of the second opposite party Dr. P.V. George.
4. Before the Forum below, the complainant was examined as PW1 and a witness on the side of the complainant was examined as PW2 (Dr. K.T Sebastian) who subsequently treated the complainant at General Hospital Pathanamthitta. Exts. P1 to P7 documents were also produced and marked on the side of the complainant. From the side of the first opposite party, Dr. Thomas Philip was examined as DW1. Ext.R1 medical records produced from the side of the first opposite party was also marked. The relevant entries in R1 medical records were marked as Exts. R1(a), R1(b) and R1(c). On an appreciation of the evidence on record, the Forum below passed the impugned order dated 11th August 2004 allowing the complaint and directing the opposite parties 1 and 2 to pay a compensation of Rs. 75,000/- with treatment expenses of Rs. 12,000/- and other expenses of Rs. 5,000/- with cost of Rs. 3,000/-. The complainant was also awarded interest from the date of complaint. The opposite parties 1 and 2 were made jointly and severally liable to pay the decreed amounts to the complainant. Aggrieved by the said order, the present appeal is filed by the first opposite party Manager/Director Marthoma Medical Mission Centre, Ranni.
5. During the pendency of the present appeal, the second respondent (second opposite party in OP No. 243/2000) died and his legal representative has been impleaded as additional 3rd respondent by virtue of the order dated 25-11-2009 passed in IA 412/2009. Notice was served on the additional 3rd respondent; but she remained absent.
6. We heard the learned Counsel for the appellant/first opposite party and the first respondent/complainant. The Counsel for the appellant/first opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on the testimony of PW2 and argued for the position that there was no negligence or deficiency of service on the part of the second opposite party Dr. P.V. George MS, who conducted surgery on the first respondent/complainant on 08-01-2000 at the first opposite party hospital. He also relied on R1 medical records produced from the side of the first opposite party hospital and submitted that there is no evidence available on record to prove the alleged medical negligence and deficiency of service on the part of the opposite parties. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below and to dismiss the complaint in OP No. 243/2000. On the other hand, the learned Counsel for the first respondent/complainant supported the impugned order dated 11-08-2004 passed by CDRF, Pathanamthitta in OP No. 243/2000. He also relied on the testimony of PW2, the doctor who conducted the second surgery on the first respondent/complainant at General Hospital, Pathanamthitta and argued for the position that the first surgery conducted by the second opposite party at the first opposite party hospital was a failure and that the second surgery was done only because of the medical negligence on the part of the second opposite party doctor in doing the first surgery at the first opposite party hospital. He also submitted argument note in support of his oral submissions. Thus, the first respondent prayed for dismissal of the present appeal.
7. The points that arise for consideration are:
1. Whether the materials available on record would establish the alleged medical negligence and deficiency of service on the part of the opposite parties in doing the surgery and treatment on the complainant in OP No. 243/2000 on the file of CDRF, Pathanamthitta?
2. Whether the Forum below can be justified in finding medical negligence and deficiency of service on the part of opposite parties 1 and 2?
3. Is there any legally sustainable ground to interfere with the impugned order dated 11th August 2004 passed by CDRF, Pathanamthitta in OP No. 243/2000?
8. Point Nos. 1 to 3: For the sake of convenience, the parties to this appeal can be referred to according to their rank and status before the Forum below in OP No. 243/2000 except additional 3rd respondent, the legal heir of deceased, second respondent/second opposite party.
9. There is no dispute that the complainant Vasantha Samkutty was admitted at the first opposite party Marthoma Medical Mission Centre, Ranni on 08-01-2000 with severe abdominal pain. The second opposite party Dr. P.V. George; MS was attached to the first opposite party hospital as surgeon. The complainant was examined by the second opposite party Dr. P.V. George and he diagnosed the illness of the complainant as appendicitis. The second opposite party was of the opinion that the complainant is having ruptured appendix and so the second opposite party decided to conduct an emergency surgery on 08-01-2000 itself. There can be no doubt about the fact that for ruptured appendix immediate surgery is required, otherwise the life of the patient will be in danger. Thus, the second opposite party surgeon conducted surgery on the complainant on 08-01-2000 for ruptured appendicitis.
10. Ext.R1 is the medical records produced from the first opposite party hospital with respect to the treatment of the complainant at first opposite party hospital from 08-01-2000 till her discharge from the first opposite party hospital on 14-01-2000. Ext.R1 medical records would show that the complainant was admitted in the first opposite party hospital on 08-01-2000 and she was discharged on 14-01-2000. It would also show that the complainant was discharged for further treatment at the Govt. Hospital, Pathanamthitta. The entries in R1 medical records would also show that the patient (complainant) was discharged at request at 12 noon on 14-01-2000 and referred to Pathanamthitta General Hospital. At the time of discharge, it is also recorded, the patient has acute gastritis. It is also recorded that the patient refused rhylestube and aspiration. The entries in R1 medical records would further show that on surgery it was found that peritoneum full of pus; intestine near ileocaecal junction ruptured; appendix not seen - intestine repaired - drain + ....................
11. It is the definite case of the first opposite party that immediate surgery was done to save the life of the complainant as patient and on surgery it was found that the abdominal cavity is full of pus and there was perforation of the intestine at ileocaecal junction and on exploration appendix could not be seen. It is also the case of the first opposite party that pus was removed manually and the ruptured intestine was repaired and to control the infection 3 antibiotics were administered. It is the definite case of the first opposite party that further exploration for appendix was not done at that time as it was not advisable to do further exploration for appendix. The case of the first opposite party that 3 antibiotics were administered can be seen from R1 medical records. It can be seen that cifran, gentamicine, metrogel were administered to control the infection. The other treatment and investigations were also done. R1 medical records would also show that perinon was administered to control vomiting and the patient was tranquilized by giving campose. The patient was also given glycerin enema. It is admitted by the first opposite party that appendix could not be removed because of the fact that the abdominal cavity was filled with pus and there was rupture of intestine at ileocaecal junction. Thus, according to the first opposite party there was no sort of medical negligence or deficiency of service on the part of the second opposite party Dr. P.V. George who conducted the surgery as the surgeon attached to first opposite party hospital.
12. The complainant as PW1 has admitted the fact that she got discharge from the first opposite party hospital because she was not satisfied with the treatment at the first opposite party hospital. It is also the case of PW1 that she was having pain and abdominal discomforts even after the surgery done at the instance of the second opposite party doctor attached to the first opposite party hospital. It is deposed by PW1 to the question "8UM*RU #FW=`8UBU[D /U*U8aHBUO !8Y=a8U %tTB8U<TDT\7T # #FW=`8UBUO<UkW^ \=TB8a? Ans: !HW+^ *WLBTf8U<TDT7a \=TB8a& The aforesaid question and answer would make it clear that the complainant was discharged from the first opposite party hospital at the request of the complainant. The entry in R1 medical records to that effect is to be believed and accepted. The finding of the Forum below that there was deficiency of service on the part of the opposite parties in discharging the complainant from the first opposite party hospital cannot be upheld. The Forum below failed to appreciate the evidence available on record in its correct perspective. It can very safely be held that the complainant was discharged from the first opposite party hospital at the request of the complainant. It would also show that the complainant was referred to the General Hospital, Pathanamthitta as requested by the complainant/patient.
13. There is no case for the complainant that the entries in R1 medical records are not correct. The genuineness and correctness of R1 medical records is not disputed by the complainant. The entries in R1 medical records have been made by the second opposite party Dr. P.V. George who was the then surgeon attached to the first opposite party hospital. The entries in R1 medical records by the second opposite party have been provided through DW1 Dr. Thomas Philip. DW1 has categorically deposed that he is having the acquaintance with the handwriting of the second opposite party Dr. P.V. George. Thus, R1 medical records was proved through DW1. It is to be noted that DW1 was working as the Medical Superintendent at the first opposite party hospital since 1996. DW1 was working in the first opposite party hospital while the second opposite party was working as Surgeon of the first opposite party hospital. DW1 categorically deposed about his acquaintance with the handwriting of Dr. P.V. George. He also identified the handwriting of P.V. George as entered in R1 medical records. It is true that DW1 had no occasion to treat the complainant as a patient. But, he only deposed that the entries in R1 medical records are in the handwriting of Dr. P.V. George. It is to be noted that the entries in R1 medical records are not disputed by the complainant. It is deposed by DW1 that the second opposite party Dr. P.V. George had left the first opposite party hospital. DW1 has also deposed about the surgery and further treatment done at the first opposite party hospital. His evidence is based on the entries in R1 medical records. Based on the said entries, DW1 has also deposed that the complainant as patient was given the best possible treatment at the first opposite party hospital and that there was no deficiency of service in treating the complainant by the second opposite party doctor at the first opposite party hospital. Thus, R1 medical records can be relied on, for the purpose of ascertaining the fact as to whether there was any medical negligence or deficiency of service on the part of the opposite parties 1 and 2 in treating the complainant at the first opposite party hospital.
14. The complainant as PW1 has admitted that she was having diabetes and hypertension and she was obese at the relevant time. The complainant as PW1 or PW2, the expert doctor examined on the side of the complainant have not disputed the correctness of the entries in R1 medical records. The facts that the complainant was having ruptured intestine at ileocaecal junction and the peritoneum (abdominal cavity) was filled with pus and by doing the surgery the entire pus was removed from the peritoneum and the ruptured intestine was repaired and the complainant was treated by administering antibiotics to control the infection are not disputed. The aforesaid facts would make it clear that the second opposite party adopted proper procedure by doing an emergency surgery on 08-01-2000. Thus, the materials available on record would show that there was no sort of medical negligence or deficiency of service on the part of second opposite party Dr. P.V. George (Surgeon) and the first opposite party hospital.
15. A close study of the testimony of PW2 Dr. Sebastian would make it clear that there was no negligence or deficiency of service on the part of second opposite party Dr. P.V. Gorge, Surgeon who conducted the first surgery on the complainant. It is to be noted that PW2 Dr. K.T. Sebastian had the opportunity to conduct a second surgery on the complainant at General Hospital, Pathanamthitta. It is further to be noted that the complainant was referred from the first opposite party hospital for further treatment at General Hospital, Pathanamthitta. The complainant was referred to General Hospital, Pathanamthitta at the request of the complainant. The complainant was operated by PW2 on 30-10-2000. Ext.P7 is the discharge card issued from General Hospital, Pathanamthitta with respect to the treatment of the complainant at that hospital. It would show that the complainant was admitted in General Hospital, Pathanamthitta on 28-09-2000 and discharged on 30-10-2000. It would further show that she was treated at that hospital for incisional hernia on right side and ovarian cyst left side. It would also show that during the said surgery PW2 had also removed appendix as the patient had appendicitis on an earlier occasion. It is also recorded in P7 discharge card that the patient (complainant) was opened up on earlier occasion for appendicectomy, locating appendix failed. P7 discharge card would also show that PW2 Dr. Sebastian had done appendicectomy, ovarian cyst was removed and incisional hernia was repaired. There is nothing indicative of medical negligence or deficiency of service on the part of the second opposite party doctor in doing the first surgery.
16. PW2 Dr. Sebastian in his examination in chief itself deposed about P5 medical certificate issued by him. It is deposed that by the statement in P5 certificate that during the previous surgery of appendicectomy the doctor failed to locate the appendix cannot be treated as failure of surgery. He clarified that the doctor only failed in locating the appendix during the previous surgery. In cross examination PW2 admitted the fact that there may arise occasion of failure to locate the appendix due to infection and adhesions. It is also admitted by PW2 that in such a situation it is better to avoid further exploration for appendix as further attempt to locate appendix may lead to complication. PW2 during his cross examination deposed in categorical terms that there was no negligence on the part of the doctor who conducted the previous surgery on the complainant. Nowhere PW2 has deposed about any negligence on the part of the second opposite party Dr. P.V. George in doing the first surgery. According to PW2, the procedure adopted by the second opposite party Dr. P.V. George can be considered as proper procedure and there was no negligence in adopting such a procedure or method by the second opposite party. Thus, the expert witness examined on the side of the complainant has only supported the case of the opposite parties that the second opposite party doctor had done all the best possible treatment and procedure and there was no negligence or deficiency of service on the part of the opposite parties.
17. The Forum below unfortunately failed to appreciate the oral testimony of PW2 and the P5 medical certificate and P7 discharge card issued by him in their correct perspective. In effect, the complainant failed to prove the alleged medical negligence or deficiency of service on the part of the opposite parties. The Forum below cannot be justified in finding negligence or deficiency of service on the part of the opposite parties. The materials on record would only show that proper procedure was adopted by the second opposite party in doing the surgery on the complainant on 08-01-2000 and in administering further treatment for the complainant at the first opposite party hospital. So, the impugned order passed by the Forum below awarding compensation and cost to the complainant is liable to be quashed. These points are answered accordingly.
In the result, the appeal is allowed. The impugned order dated 11th August 2004 passed by CDRF, Pathanamthitta in OP No. 243/2000 is set aside and thereby the complaint therein is dismissed. The parties are directed to suffer their respective costs.
M.V. VISWANATHAN :JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER Sr. [ Sri.M.V.VISWANATHAN] PRESIDING MEMBER