State Consumer Disputes Redressal Commission
P. Lalithamma, W/O P. Raja Reddy, vs Dr. B. Ramachandraiah on 2 August, 2011
BEFORE A BEFORE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD. F.A.No.789 OF 2008 AGAINST C.C.NO.83 OF 2007 DISTRICT CONSUMER FORUM KADAPA Between P. Lalithamma, W/o P. Raja Reddy, aged 70 years, R/at Chennur Mandal, Kadapa Dist. Appellant/complainant A N D Dr. B. Ramachandraiah, Pragathi Orthopedic & General Hospital, Near APSRTC Bus stand, D.No.1/334 (3)(4), Maruthi Nagar, Kadapa. Respondent/opposite party Counsel for the Appellant Sri M.Hari Babu Counsel for the Respondent Sri MM Narasimha Reddy F.A.No.792 OF 2008 AGAINST C.C.NO.83 OF 2007 Between Dr. B. Ramachandraiah S/o late Subba Reddy Aged about 51 years, R/o Maruthi Nagar, Kadapa. Appellant/opposite party A N D P. Lalithamma, W/o P. Raja Reddy, aged 70 years, R/at Chennur Mandal, Kadapa Dist. . Respondent/complainant Counsel for the Appellant Sri MM Narasimha Reddy Counsel for the Respondent Sri M.Hari Babu QUORUM: HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT SMT M.SHREESHA, HONBLE MEMBER
& SRI R.LAKSHMINARSIMHA RAO, HONBLE MEMBER TUESDAY THE SECOND DAY OF AUGUST TWO THOUSAND ELEVAN Oral Order ( As per R.Lakshminarsimha Rao, Member) ***
1. Both the appeals arise from the same order of the District Forum.
The complainant has filed F.A.789 of 2008 while the opposite party has filed F.A.No.792 of 2008. As such both the appeals are proposed to be disposed of by a common order. For the sake of convenience the parties are referred to, as they have been arrayed in the complaint.
2. The complainant fell down in her house during the intervening night of 29/30th August 2006 and she was taken to the nursing home of the opposite party on 30.8.2006 with the complaint of pain in her right leg.
After preliminary investigations, the complainant was advised to undergo surgery and accordingly on 31.8.2006 surgery was performed near thigh portion of her right leg. The opposite party had discharged the complainant on 14.9.2006 with an advice to go to higher institution. The complainant was taken to BIRRD at Tirupati and later to Kamineni Wokhardt Hospital, Hyderabad and thereafter to KIMS, Secunderabad. The complainant was treated in KIMS from 17.12.2006 for hemiarthoplasty right hip till 22.12.2006. The complainant got issued notice through her advocate on 11.4.2007 stating that he had negligently administered treatment and demanded for the amount of `2 lakh stated to have been incurred for the treatment at other hospitals besides a sum of `3 lakh towards compensation for pain and suffering.
3. It is contended on behalf of the complainant that the opposite party had misrepresented to her the proposed surgery was a minor surgery and soon after the surgery she can walk and attend to her normal duties as also he had informed her after the surgery that the surgery was successful and she can walk within four or five days. She suffered from pain and despite the pain relief medicine administered by the opposite party, it had not subsided even after a week and she experienced sleeplessness due to pain and that the opposite party collected a sum of `30,000/- from her, discharged her with an advice to go to higher center. In the appeal, it is contended that the complainant had to visit Hyderabad for treatment on several occasions and she had stayed as inpatient at KIMS for about five days spending huge amounts for transportation and her stay in Hyderabad. It is further contended that the complainant had to take assistance of another person for more than six months and she had to pay for physiotherapy for about two months.
4. It is contended on behalf of the opposite party that the complainant was admitted in Pragathi Orthopedic and General Hospital on 30.8.2006 with a complaint of pain to her right leg thigh portion. The respondent is a consultant to the hospital and after examination of the complainant, he advised her to undergo surgery. The surgery was performed with the assistance of Dr.Anil Kumar, Dr.T.Ayyavaru Reddy and Dr.M.V.Narayana Reddy on 31.8.2006 after obtaining consent of the complainant and her husband and after surgery she was shifted to special room. The complainant was not cooperative and she did not bother to take medicines as advised.
An X-ray taken on 4.9.2006 had shown everything normal and progressive and on 14.9.2006 the complainant was discharged from the hospital with an advice to continue prescribed medicines for three months and advised for review after one month for which he did not turn up.
5. It is contended that the opposite party performed an elbow surgery to the complainants husband seven years prior to the complainants admission to Pragathi Hospital and due to acquaintance the opposite party had taken on his account all the medicines for which the complainant had not cleared the bills on the day of her discharge from the hospital. On 16.9.2006 the complainants daughter promised the opposite party that she would clear the bills and obtained a letter from him about the treatment administered to the complainant on the premise of requirement to show it to their family doctor. The opposite party had issued reply to the notice dated 11.4.2007 of the complainant.
After she was discharged from Pragathi hospital, the complainant did not approach the opposite party at any time.
The Medical Record of the KIMS Hospital would not show any negligence in treatment administered by the opposite party.
By way of filing appeal it is contended that the complainant had not examined any doctor who had subsequently administered treatment to her to show that the opposite party had not exercised minimum care in performing surgery as also that the hospital bill Ex.B6 has not been disputed.
9. The complainant was examined herself as PW1 and got marked Exs.A1 to A15. On the side of the opposite party, RWs1 to 5 had been examined and the documents were marked, Exs.B1 to B7.
10. The District Forum has allowed the complaint awarding `one lakh towards medical expenses, `30,000/- towards compensation for mental agony, on the premise of preparation of case sheet to cover up the gaps as also fabrication of laboratory report dated 13.9.2006.
11. The point for consideration is whether there had been medical negligence in the treatment to the complainant, administered by the opposite party?
12. The facts not in dispute are that the complainant had been to Pragathi Orthopedic and General Hospital in the morning hours of 30.8.2006, with the complaint of pain at thigh region of her right leg. It is not disputed that the required investigations had been carried out at the hospital. The complainant states that she was misguided by the opposite party that she had to undergo a minor surgery and she would be able to walk and attend to her work within four to five days after the surgery. The opposite party has refuted the charge. Admittedly, the opposite party has performed the surgery upon the complainant. It is incumbent upon the opposite party to inform the complainant and her attendant about the type of surgery and likely complications thereof as also the risk involved in the surgery. The opposite party has not filed the consent form. He had referred to the case sheet which is much in dispute since the complainant had been consistently stating that the case sheet is prepared much time later she was discharged from the hospital.
13. The opposite party has attempted to make an impression that he has no concern with Pragathi Orthopedic and General Hospital and stated that he is a consultant to the hospital. When the complainant was taken to the hospital in the morning hours of 30.8.2006, the opposite party has issued prescription advising for admission of the complainant and allotted her Room No.11 in the hospital. The prescription containing the advice of the opposite party coupled with the case sheet would amply establish that the opposite party has made a false statement. It is pertinent to note the statement of the opposite party that he had given the letter to the complainants daughter despite pending medical bills and hospital charges of `58,079/-. Had the opposite party no concern with the hospital he would not advise for discharge of the patient in case the bills are pending. Issuing the prescription containing his name as the doctor running hospital and allotting Room No.11 to the complainant for the purpose of her stay as inpatient in the hospital would throw any amount of light on the incorrect statement of the opposite party that he was not running the hospital and only a consultant thereto.
14. The opposite party had performed surgery at the thigh region of the right leg of the complainant on 31.8.2008. The case sheet dated 14.9.2006 issued by the Praghati orthopedic and General Hospital would show that the case was referred to the opposite party who advised for surgery
1) girdle stone, 2) Hemi hip orthoplasty (AN), 3) Bipolar prosthesis, 4) Total hip Uncentral-Central of which the complainants husband stated to have opted for AN Prosthesis. The complainants consistent version is that the opposite party has misguided her by stating that the surgery is a minor operation and she would recover within five days after she undergoes surgery. The opposite party has not denied the complainants claim about his informing her and her husband about the nature of the surgery and period of recovery. Apart from the non-denial of the complainants statement, the prescription issued by the opposite party on 30.8.2006 would lend support to the complainants version. The case sheet which is much in dispute indicates that the opposite party had informed the complainants husband about four types of surgeries of which the complainants husband opted for A.N. Prosthesis and as rightly contended by the learned counsel for the complainant this fact does not find place in counter or evidence of the opposite party. In any view of the matter, it can be said that the opposite party has not obtained informed consent from the complainant who admittedly was conscious and was able to walk as came to the hospital on her own without being assisted to walk.
15. The importance of consent of a patient for the treatment that he/she undergoes and the risk factor associated with the treatment had been extensively dealt with, in Samira Kohli Vs Dr.Prabhamand and another reported in (2008) 2 SCC 1, the Supreme Court summarized the principles relating to consent as follows :
(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent;
his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.
"13.
Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of a minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed."
16. In the present case, the opposite party has not produced the consent form nor denied the statement of the complainant that she or her husband was not informed of her general condition and the proposed course of treatment as also the hazards and risks involved therein. The opposite party had neglected to inform the complainant of likely complications of surgery and the hazardous element associated with the surgery.
17. The complainant has stated that the opposite party is incompetent to perform the surgery. The opposite party has contended that he was assisted by Dr.Anil Kumar Reddy, Dr.Narayana Reddy, Anesthetist. In his evidence the opposite party has admitted that he had not mentioned the name of Dr.Anil Kumar Reddy as also the name of other doctors in his reply notice and that the case sheet does not contain any notes or writing of Dr.Anil Kumar Reddy or other doctors. The opposite party has deposed that his wife Dr.Uma Devi is running Pragathi orthopedic and General Hospital and he is only a consultant doctor to the hospital. The opposite party has constantly changed his version as to the nature of his relationship to the hospital and the number of doctors who participated in the surgery performed upon the complainant.
He has admitted that he had not mentioned about the case sheet in his reply marked Ex.A7. All these facts would cast a shadow of doubt on the genuineness of the case sheet.
18. The duties of the doctor to the patient and negligence of the doctor in administering treatment to the patient has been described in Halsburys Laws of England. According to Halsburys Laws of England Ed.4 Vol.26 pages 17-18, the definition of Negligence is as under:-
22. Negligence : Duties owed to patient. A person who holds himself out as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case: a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment (b) A breach of any of these duties will support an action for negligence by the patient (c).
49. In a celebrated and oftenly cited judgment in Bolam v. Friern Hospital Management Committee (1957) I WLR 582 : (1957) 2 All ER 118 (Queens Bench Division Lord Justice McNair observed.
(i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the other accords also with American law; See 70 Corpus Juris Secundum (1951) 952, 953, para 44.
Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence ibid. 971, para 48). Lord Justice McNair also observed : Before I turn that, I must explain what in law we mean by negligence. In the ordinary case which does not involve any special skill, negligence in law means this : some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case, it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Claphm omnibus, because he has not got this man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if her exercises the ordinary skill of an ordinary competent man exercising that particular art.
19. In Whitehouse v.
Jordon & Another (1981) 1 All ER 267 House of Lords per Lord Edmund-Davies, Lord Fraser and Lord Russell:
The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon (dictum of McNair Jo. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 at 121).
20. The Supreme Court in the case of State of Haryana v. Smt.Santra (2000) 5 SCC 182 in the matter of negligence relied upon the case of Bolam v. Friern Hospital Management Committee (supra) and on Whitehouse v. Jordan & Another
21. The complainant ever since she had undergone the surgery had complained of pain at the operation site and the opposite party had continued to administer the same medicine. The opposite party has not taken advice of Dr.Anil Kumar Reddy or any other experienced professional who according to Dr.Anil Kumar Reddy are about 10 in number practicing medicine at Kurnool. The opposite party ignored the pain that the complainant had reported at her right hip region which is reflected in the discharge summary of KIMS. At the first page of the discharge summary the chief complaints are noted as pain & numbness of right leg since 3 months. H/o AMP ( Hemi hip arthoplasty) since 3 months back for fracture NVF. Patient walking with pain since then. When the opposite party could not control the pain or relieved the complainant from the pain by diagnosing the source of pain and prescribing appropriate medicine, he ought to have advised her to go to a higher center. Instead, the opposite party had continued the same treatment without there being any result in the form of relief to the complainant till she approached the KIMS Hyderabad. Though the complainant has stated that she had approached BIRRD, Tirupathi and Kamineni Wokhardt Hyderabad, she had not filed any medical record of those hospitals. She has deposed that he did not possess the records of those hospitals.
22. During pendency of the complaint, the opposite party has addressed a letter to Dr.A.V.Gurava Reddy of KIMS, Hyderabad complaining that Dr.Gurava Reddy had commented of the opposite partys negligence in treating the complainant for which the opposite party relies upon the reply of Dr.Gurava Reddy.
The complainant has questioned the propriety of writing to Dr. Gurava Reddy when the complaint is pending before the District Forum. The contents of the reply that the surgery the complainant performed on the complainant by the opposite party was appropriate and optimum for the given fracture and the loosing of AMP in a 70 year old female is very common because of osteoporosis. These findings do not find any support from the discharge summary issued by KIMS.
23. The opposite party has stated that the complainant had not turned up for review. The complainant not consulting the opposite party after she was discharged from the hospital is not the cause for her experiencing pain at the operation site.
Even otherwise, the evidence of Dr.Anil Kumar Reddy would go to show that she consulted the opposite party hospital where he enquired her about the progress. He has deposed after the surgery, I enquired about the progress of patient regularly, which was satisfactory. Thus, the contention of the opposite party that the complainant has not attended for review is not tenable and appears to have been made to fill up the lacunae in his case. In any view of the matter, the negligence is manifest on the records and from the circumstances prevailing from the time the complainant was admitted to the hospital of the opposite party till she was discharged therefrom. We do not find any infirmity in the findings recorded by the District Forum. The complainant has not shown any reason for enhancement of the amount awarded by the District Forum. The amount awarded by the District Forum would meet the requirement of the relief for the attendants expenses as also the amount stated to have been incurred by the complainant towards transportation charges in Hyderabad. As such both the appeals are liable to be dismissed.
In the result, both the appeals, F.A.No.789 of 2008 and F.A.No.792 of 2008 are dismissed. There shall be no order as to costs. Time for compliance four weeks.
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MEMBER Dt.02.08.2011 KMK*