State Consumer Disputes Redressal Commission
Dr. V. Suganthi, M.B.B.S.,Madurai -9 vs 1. L.M. Mangaleswari, Anuppanady, ... on 22 July, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan, M.A.,B.L., MEMBER I Thiru S. Sambandam MEMBER II FA.471/2006 & F.A.NO.733/2008 (Against order in C.C.NO.134/2003 on the file of the DCDRF, Madurai) DATED THIS THE 22nd DAY OF JULY 2010 FA.NO.471/2006 Dr. V. Suganthi, M.B.B.S., Siva Kumar Clinic M/s. A.Saravanan 186, Kamarajar Salai Counsel for Madurai -9 Appellants / 1st Opposite party Vs. 1.
L.M. Mangaleswari W/o. Prakash 4/779, A Ganesh Nagar Mrs. S. Tamilarasi Sourashtra Teachers Colony Counsel for Anuppanady, Madurai-9 Respondent/ Complainant
2. M/s. National Insurance Company Ltd., Rep. by its Branch Manager Mr.K.S. Narasimhan No.6, West Masi Street Counsel for (First floor) Madurai - 4 Respondent/ 2nd opposite party FA.NO.733/2006 L.M. Mangaleswari W/o.
Prakash 4/779, A Ganesh Nagar Mrs. S. Tamilarasi Sourashtra Teachers Colony Counsel for Anuppanady, Madurai-9 Appellants / Complainant Vs.
1. Dr. V. Suganthi, M.B.B.S., Siva Kumar Clinic M/s. A.Saravanan 186, Kamarajar Salai Counsel for 1st Respondent Madurai -9
2. M/s. National Insurance Company Ltd., Rep. by its Branch Manager Mr.K.S. Narasimhan No.6, West Masi Street Counsel for (First floor) Madurai - 4 Respondent / Opposite parties The complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.3,00,000/- as compensation with cost of Rs.5000/-. The District Forum alowed the complaint against 1st opposite party. Against the said impugned order, the appeal in 471/2006 by the 1st opposite party to set aside the order, and FA.733/2006 is preferred by the complainant for enhanced compensation ordered by the District Forum dt.3.4.2006 in CC No.134/2002.
This appeal coming before us for hearing finally on 6.7.2010. Upon hearing the arguments of the counsels on either side, this commission made the following order:
M. THANIKACHALAM J, PRESIDENT
1. 1st opposite party, and the complainants, are the appellants in FA.No.471/2006 and 733/2008 respectively.
2. The complainant/ appellant in 733/2008/1st respondent in FA.No.471/2006, has filed a case against the opposite parties, claiming a total sum of Rs.3 lakhs, alleging that on 9.12.2002, being a pregnant lady, she approached the 1st opposite party, for treatment, who injected an injection, on the side of hip, causing pain and sufferings, subsequently. Because of the negligence and carelessness of the 1st opposite party, prescribing wrong medicine, not injecting properly, the complainant suffered gluteal abcess, sepsis in hypotensive, in the place of injection, for which she was compelled to take treatment, from different doctors, spending huge amount. The treatment taken by the complainant, discharge summary given for the treatment of the complainant, by the doctor, who treated, would reveal that only because of the improper method of injection and wrong prescription of medicine, the complainant was put to sufferings, leading to mental agony, and monetary loss, which should be construed as deficiency in service, on the part of the 1st opposite party. Complaining deficiency, notice has been issued to the 1st opposite party, claiming compensation, for which there was no proper response, whereas she reported, that she had taken Professional Indemnity Insurance, with the 2nd respondent. Hence both the opposite parties are liable to pay, not only the expenses incurred by the petitioner, but also compensation and cost. Hence the complaint.
3. The 1st opposite party in her written version, pleaded briefly as follows:
True, the complainant approached this opposite party, for checkup, and treatment during her pregnancy. This opposite party, applied injection, in a due and diligent manner, but gluteal abcess, suffered by the complainant, was only due to external infection, and not due to application of injection. This opposite party is not aware of the treatment taken by the complainant.
Since, there was no deficiency or negligence on the part of this opposite party, she is not liable to answer the claim, and if any, the 2nd opposite party alone is liable, because of the Professional Indemnity Insurance Policy, taken by her. Hence it is prayed, the petition may be dismissed with cost.
4. The 2nd opposite party, opposed the case as follows:
This opposite party was not informed about the grievance of the complainant immediately, from the date of occurrence. There was no negligence or deficiency in service, on the part of the 1st opposite party, and as such the complainant is not entitled to any relief, since no deficiency has been alleged acceptably. Other averments are denied, praying for the dismissal of the complaint.
5. The District Forum, based upon the pleadings, supported by documents, while assessing and analyzing the case, came to the conclusion, that there was negligence on the part of the 1st opposite party, since she injected medicine, not properly, thereby committed deficiency of service. It has also further came to the conclusion, that the 1st opposite party, though had taken professional indemnity insurance, has not brought it to the notice of the 2nd opposite party immediately, and as such, they are not bound to compensate the complainant. Thus concluding, a direction came to be issued, against the 1st opposite party, alone, to pay a sum of Rs.25,405/-, towards medical expenses, and Rs.25000/- as compensation, dismissing the complaint against the 2nd opposite party, thereby causing grievance not only to the complainant, but also to the 1st opposite party.
6. The 1st opposite party, questioning the finding of the District Forum on various grounds, filed FA.No.471/2006, to set aside the order, wherein it is also stated, that the District Forum failed to take into account, the appellant had taken professional indemnity doctors policy, with the 2nd opposite party, but nowhere it is said, in case she is liable to answer the claim, that should be indemnified by the insurance company alone.
7. The complainant, though claimed a sum of Rs.3 lakhs, not accepted by the District Forum as such, and praying enhancement of compensation of Rs.150000/-, an appeal has been filed, wherein also no prayer is sought for, against the 2nd opposite party, based upon professional indemnity insurance policy.
8. Heard, the learned counsel for appellant as well as the respondent, perused the written submissions, lower court records and also the order passed by the District Forum.
9. The learned counsel for 1st opposite party/ appellant, in FA No.471/2006, would contend that there is no iota of evidence, to prove the alleged medical negligence, and in the absence of proof, directing the 1st opposite party to pay the sum awarded, is erroneous, liable to be set aside, which is opposed.
10. It is the submission of the learned counsel for complainant/appellant in FA.733/2008, that the quantum awarded by the District Forum is very meager, that too considering the sufferings of a pregnant lady, for which there are sufficient materials, which is also opposed.
11. The learned counsel for 2nd opposite party/ insurance company, would submit that as per the conditions of the policy, immediately within the reasonable time, when the claim was made by the patient, doctor has not reported the same, whereas she had informed, the claim only after the case has been filed, thereby the doctor has not satisfied the conditions, and on this ground, insurance company is not liable to pay any amount, which was rightly decided by the District Forum, which requires confirmation.
12. Against this submission, neither the complainant nor the 1st opposite party has advanced any argument, as if the 1st opposite party being the policy holder, complied the conditions, and if at all any amount is liable to be paid by the 1st opposite party, that should be reimbursed only by the insurance company, on the basis of the professional indemnity insurance policy. Therefore, the finding recorded by the District Forum, should be confirmed, as if it is not challenged. As indicated above, though there is some reference about the insurance taken by the 1st opposite party, in the grounds appeal, no alternative case has been projected, by the doctor, such as saying, in case she is liable to pay any compensation, on the ground of medical negligence, that should be indemnified by the insurance company, on the basis of professional indemnity insurance policy. Therefore, in this case, we feel, we need not strain ourselves, whether the 2nd opposite party has to answer the claim of the complainant, or not, and the finding of the District Forum, as far as the 2nd opposite party is concerned, is to be confirmed.
13. Admittedly on9.12.2002, the complainant being a pregnant lady, had been to the 1st opposite party, for treatment. The 1st opposite party, also while treating the complainant, appears to have given an injection, on the right side of the hip. In the written version itself, it is admitted by the 1st opposite party, that she applied injection, in a due and diligent manner, after checking. Unfortunately, the complainant developed pain over the area, were medicine was injected, and the said problem was diagnosed as gluteal abcess, sepsis in hypotensive.
When the complainant approached the 1st opposite party, once again for treatment, she has advised the complaint to take treatment elsewhere, as seen from Ex.A1, wherein alone we find, that the medicine given was TT. In this letter itself, the doctor has stated injection abscess had taken place, following injection TT. Therefore, no further proof is necessary, to prove the basic cause for the problem. Based upon this letter, or otherwise, the complainant approached one Gokulnath Premchand, Madurai, for treatment, who referred the patient to Dr. Gunasundari Bose Hospital, as evidenced by Ex.A3 and A4 respectively. Ex.A3, would indicate, that the complainant had the problem of pregnancy with gluteal abcess, sepsis in hypotensive, that means occurring as a complication of intravenous catheterization. The method of treatment given for the complainant is also given in detail in the discharge summary, thereby making it absolutely clear, that because of the negligence act, adopted by the 1st opposite party, while giving TT injection, this complication would have occurred. In this context, we have to see how this kind of injection should be given, how the 1st opposite party had given injection, to the complainant.
14. The complainant, at the first instance, had no knowledge about the kind of injection, given to her, and it was within the exclusive knowledge of the 1st opposite party. Therefore, she ought to have disclosed in the written version, what was the medicine given by her, how it was injected etc., which are all absent. Only in the letter, as said above, the injection given is mentioned as TT. This kind of injection used to be administered, in order to protect against tetanus, and unfortunately, this had created problem. This medicine should be administered, as well known, intramuscular route. If that procedure was adopted, probably, the complainant would not have suffered the abscess over the area. It is not the case of the 1st opposite party, either in the affidavit or in the written version, that she applied injection, intra muscular route, but despite, if infection had caused, that might have occurred due to external infection. In the absence of any such plea, considering the nature of diagnosis, viz sepsis in hypotensive, it should be construed, as correctly did by the District Forum, that injection was not given properly, i.e., not intramuscularly, whereas it was injected over the surface, causing problems, leading to infection, for that the 1st opposite party should be held responsible, as she had acted negligently, which could be seen, by the conduct itself, applying the principle of res ipsa loquitor . If surface application was not adopted, as did by the 1st opposite party, the complication might not have occurred, leading to unnecessary mental torture, and expenses to a pregnant lady. Therefore, accepting the case of the complainant, it should be held, that the complainant was given, medicine, on local surface, leading to complications. Since the complainant has proved at the first instance, prima-facie, about the medical negligence committed by the 1st opposite party, then the burden has been shifted to her, to prove that the infection must have been due to someother cause viz. external or otherwise, for which she has not, let in any evidence, or she has not brought to the notice, of this commission or for a any medical literature, to take different view. Even after injecting improperly, when the complainant approached her, for curing the defect, the 1st opposite party has not acted diligently, as a prudent doctor, caring the patient, whereas casually, not even referring the patient to a particular specialist, wrote a letter, and handed over the same to the complainant, to go elsewhere, which also would go to show that she has not cared about the welfare of the patient, when a complaint was lodged to her, by her previous act. The District Forum, considering all these facts, has reached a just conclusion, in fixing the negligence, leading to deficiency of service, in which finding we have to concur.
15. As far the quantum of award is concerned, the District Forum has granted, the medical expenses, which is justifiable. Towards compensation, whether it is for deficiency or otherwise, a sum of Rs.25000/- has been granted, which was not upto the satisfaction of the complainant, resulting appeal, after the 1st opposite party has preferred the appeal, that too after two years or so. In this appeal, a sum of Rs.150000/- is claimed. True, a pregnant woman was put to sufferings, compelling her to be hospitalized, as inpatient for some days, and taking surgery also.
Considering these facts, entire cost was ordered to be reimbursed, in addition to a sum of Rs.25000/- as compensation. To award more, as claimed, we find no materials, how the complainant is entitled to another sum of Rs.150000/-, for the sufferings sustained by her, due to improper injection. Except this problem, it had not let to anyother complication, though it is said, plastic surgery was to be conducted etc. The place of injection was not in the open area, i.e., in the exposed surface of the body, whereas it is in the covered portion, in the sense no disfiguration also could be complained visibly. For all these reasons, in the absence of materials, for granting more amount, than Rs.25000/- as compensation, is not possible, since Consumer Fora is not intended to penalize the doctor, who had committed negligence, whereas to compensate the patient, because of the deficiency of service, which was done properly in this case. For the above said reasons, we find no merit in both the appeals, and both deserves to be dismissed.
16. In the result, both the appeals are dismissed, confirming the order of the District Forum in CC.No.134/2003, dt.3.4.2006. Considering the facts and circumstances of the case, there will be no order as to cost, in both the appeals.
S. SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/Insurance