State Consumer Disputes Redressal Commission
Christu Jayanthi Hospital, vs Vincent Abraham, on 23 June, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/665 (Arisen out of Order Dated 31/01/2011 in Case No. CC/06/515 of District Ernakulam) 1. CHRISTU JAYANTHI HOSPITAL PERUMPILLY,NJARARKKAL ERNAKULAM KERALA ...........Appellant(s) Versus 1. VINCENT ABRAHAM PARACKAL HOUSE,NJARACKAL ERNAKULAM KERALA ...........Respondent(s) BEFORE: SRI.S.CHANDRAMOHAN NAIR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 665/11
JUDGMENT DATED: 23.06.2012
PRESENT:
SHRI.S.CHANDRAMOHAN NAIR : MEMBER
SMT.A. RADHA : MEMBER
1. Christu Jayanthi Hospital,
Perumpilly, Njarakkal,
Rep. by the Administrator.
: APPELLANTS
2. Dr.Joseph Philip, Christu Jayanthi Hospital,
Perumpilly, Njarakkal.
(By Adv:Sri.P.Sanjay)
Vs.
Vincent Abraham,
Parackal House, Njarakkal, : RESPONDENT
Ernakulam.
(By Adv: Sri. Sivasankar)
JUDGMENT
SHRI. S. CHANDRAMOHAN NAIR : MEMBER The order dated 31.01.2011 of CDRF, Ernakulam in CC.515/06 is being assailed by the 1st and 2nd opposite parties who are under directions to pay to the complainant a sum of Rs.1,50,000/- as compensation within one month from the date of receipt of the order failing which the opposite parties are liable to pay interest also at 12% per annum from the date of default till payment.
2. The complainant's case is that he was admitted in the 1st opposite party hospital from 8.8.2006 for treatment of viral fever and that the 2nd opposite party had administered 4 bottles of intravenous drips besides other medicines and that he had to approach the 2nd opposite party on 11.8.06 also with the complaint of severe pain on which date medicines were administered and on 14.8.06 the 2nd opposite party referred him to Lourde's Hospital for expert management. The complainant had submitted that he was admitted at Lourde's Hospital, Ernakulam on 14.8.06 and the 3rd opposite party diagnosed his disease as gangrene. The complainant's case is that due to the defect in treatment by the 2nd opposite party at the 1st opposite party hospital, the complainant had suffered hardships and he had to undergo even plastic surgery whereby he had to incur a sum of Rs.44,388/- apart from other expenses. It is his further case that inspite of the lawyer notice the opposite parties did not settle his case amicably and so the complainant prayed for directions to the 1st and 2nd opposite parties to pay an amount of Rs.2,50,000/- as compensation with interest and costs.
3. In the common version filed by the 1st and 2nd opposite parties it was submitted that the complainant was admitted in the 1st opposite party hospital on 8.8.06 with the complaint of fever, severe weakness, stomach upset, poor food intake, vomiting tendency, stomach distention etc. It was further submitted that the complainant was administered 4 units of intravenous fluids besides other medicines and blood and urine investigations were also done and adequate medicines were given and on 10.8.06 the complainant was discharged. However it was admitted that the complainant came to their hospital on 11.8.06 also with the complaint of severe swelling of right upper limb with throbbing pain, reddening of skin extending from finger tip to mid arm and it was found that the complainant had cellulites. The opposite parties further submitted that instructions were given as per the standard practice and medicines were also given to the complainant and when it was found that the cellulites had worsened and when impending compartment syndrome was observed, the patient was advised urgent surgical consultation and was referred to Lourde's Hospital on 14.8.06 and that there was no deficiency in service on their part in taking timely action by sending the patient to a better hospital where surgical intervention might have been done to the complainant. Submitting that the complaint was ill motivated, the opposite parties prayed for the dismissal of the complaint with costs.
4. Third opposite party was deleted from the party array as per the orders in I.A.26/07. The complainant and his witness were examined as PWs 1 and 2 and the 2nd opposite party was examined as DW1. On the side of the complainant Exts.A1 to A8 and Ext.X1 case sheet were marked. Ext.B1 was marked on the side of the opposite parties.
5. Heard both sides.
6. Learned counsel for the appellants/1st and 2nd opposite parties submitted before us that the Forum below had gone wrong in directing the opposite parties to pay Rs.1,50,000/- to the complainant for no fault of the appellants. It is his very case that the standard protocol in treatment was followed by the 2nd opposite party and he had given evidence to that effect. Relying on the A.D.A.M. Medical Encyclopedia, the learned counsel submitted that for cellulites the standard treatment is raising the infected area higher than the heart position to reduce swelling which was promptly done by the 2nd opposite party. It is also his case that the Hon'ble Supreme Court in 'Smt. Vinitha Ashok Vs. Lakshmi Hospital & Others' (2001)8 SCC 731 have held that a doctor will not be guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical men skilled in that particular art. He has also submitted that the same position is shown in the land mark judgment in 'Bolam Vs. Friern Hospital Management Committee' (All ER p.122B-C) and it is his very case that in medical negligence cases the burden of proof is very much on the complainant to prove that there was deficiency in service or a wrong treatment was extended by the doctor to the complainant. In short it is his very case that the complaint is ill motivated and the Forum below ought to have dismissed the same in-limine.
7. On the other hand the learned counsel for the respondent/complainant supported the findings and conclusions of the Forum below. It is submitted by him that this is a fit case where the doctrine res-ipsa-loquitor can be applied. The learned counsel submitted that the complainant has come to the hospital with the case of viral fever and the opposite parties cannot be allowed to argue that since 4 bottles of intravenous drips were given, the question of thrombobhlebitis could not have been there in the case of the complainant. It is argued by him that the opposite parties/appellants had no case that there was no cellulites which lead to thrombobhlebitis for the complainant. It is submitted by the counsel that in Mosby's Medical dictionary, 'thrombobhlebitis' is described as inflammation of a vein even accompanied by formation of clot and that it can be caused due to long period of intravenous catheterization and in the instant case the complainant was put to 4 bottles of drips continuously and the same might have been a reason for difficulties suffered by the complainant. The learned counsel has further submitted that in Medical Encyclopedia it is stated that the causes for thrombobhlebitis are injuries to the vein or the recent use of an intravenous line. It is his further case that the complainant had to undergo even plastic surgery for which he had to incur huge expenses and considering the above aspects the order directing the opposite parties to pay Rs.1,50,000/- is only just and reasonable and hence the same is to be upheld.
8. On hearing both sides and also on going through the records we find that it is the admitted fact that the complainant was admitted in the opposite parties hospital on 8.8.06 and on discharge after giving 4 bottles of intravenous drips besides other medicines, the complainant had to approach the 2nd opposite party on 11.8.06 also with the complaint of severe pain and further that on 14.8.06 the complainant came to the 2nd opposite party with the complaint of worsened cellulites and the complainant was referred to another hospital for better treatment. The opposite parties had taken a specious ground that the complainant was referred to another hospital and they had no knowledge about the surgical intervention carried out in that hospital. However PW2 has stated that the complainant came to the hospital with the case of thrombobhlebitis and ascending cellulites with compartmental syndrome. The opposite parties have no case that they had referred the patient without any symptoms of cellulites or the possibilities of compartmental syndrome. As found by the Forum below, the opposite party has also no case that the complainant was treated elsewhere before 14.8.2006. PW2 has stated that long term intravenous placement of canula may lead to thrombobhlebitis. The opposite parties had banked upon the deposition of PW2 that entire 4 bottles of intravenous drips were given to the complainant and if there was swelling it would be almost to the size of more than a football and also that any injury or entry of any foreign body can cause infection and inflammation in the nature of what is happened to the complainant. We find that even if it is admitted so the complainant was under the supervision and treatment of the 2nd opposite party and if any infection had happened to the complainant it could be only at the 1st opposite party hospital. In the backdrop of the above facts and circumstances we find that the Forum below has rightly concluded that there was deficiency in service on the part of the 1st and 2nd opposite parties.
9. The Forum below has directed the opposite parties to pay Rs.1,50,000/- as compensation. It is found that even in Ext.A2 notice the complainant had demanded only Rs.66,988/- though it did not include expenses for future treatment. We find that an amount of Rs.1.lakh will be just and proper to meet the ends of justice in the facts and circumstances of the present case.
In the result the appeal is allowed in part with the modification indicated above thereby the 1st and 2nd opposite parties are jointly and severally liable to pay a sum of Rs.1.lakh to the complainant with interest at 12% per annum from the date of default as contained in the direction of the Forum below till the date of payment. In the facts and circumstances of the present appeal parties are directed to suffer their respective costs.
Office is directed to send back the LCR along with a copy of this order to the Forum urgently.
S.CHANDRAMOHAN NAIR: MEMBER A. RADHA : MEMBER VL.
[ SRI.S.CHANDRAMOHAN NAIR] PRESIDING MEMBER