State Consumer Disputes Redressal Commission
The Secretary,Government Of Tamil ... vs Kothandaraman,No.135, South Mada ... on 14 August, 2013
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Hon'ble Justice Thiru R. Regupathi PRESIDENT Thiru J. Jayaram, M.A., M.L. JUDICIAL MEMBER
F.A. No. 510 / 2010 (Against Order in C.C.302/2002 on the file of the DCDRF, Chennai [North]) Dated this the 14th day of AUGUST, 2013
1. The Secretary, ] Government of Tamil Nadu, ] Department of Health & ] Family Planning, ] Fort St. George, ] Chennai 600 009 ] ] Appellants / Opposite
2. The Government General Hospital, ] Parties 1 to 3 Chennai, ] E.N.T. Surgeon: Dr. Jacinth Chelliah ] ]
3. The Dean, ] Government General Hospital, ] Chennai 600 003 ] Vs. Kothandaraman, ] No.135, South Mada Street, ] Villivakkam, ] Respondent / Complainant Chennai 600 049 ] This appeal coming before us for final hearing on 22.07.2013 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following Order:
Counsel for Appellants / Opposite Parties: Mr. K. Senthil Kumar Counsel for Respondent / Complainant: Mr. T. Natarajan J. JAYARAM, JUDICIAL MEMBER This appeal is filed by the opposite parties against the order of the District Consumer Disputes Redressal Forum, Chennai [North] in C.C.302/2002, dated 25-11-2008, allowing the complaint.
2. The case of the complainant is that his son Loganathan was studying in a Higher Secondary School at Villivakkam, Chennai. On 8-12-2000 and 9-12-2000 the students were medically examined by doctors under the VARUMUN KAAPPOM scheme of the Government. On examination of his son, the doctors advised him surgery for Tonsillitis and accordingly he was admitted in the 2nd opposite partys hospital i.e. the Government General Hospital, Chennai and the operation was performed between 11.30 am and 3.30 pm on 29-1-2001 and his son was normal till 6.30 pm. At about 7.30 pm, an injection was administered and at the time of injecting, his son was shouting that it was painful and ignoring his cries, injection was fully administered and instantaneously his sons body turned blue and he swooned and he was shifted to another room and the doctors informed the complainant that he was kept under ventilation and at about 9.30 pm he was declared dead.
3. He requested the 2nd opposite party to furnish the postmortem report, case history and other medical records pertaining to his sons treatment, but the opposite party did not furnish the records.
Therefore, he was constrained to issue a legal notice on 20-2-2001 to the opposite parties, but even then the opposite parties did not issue the medical records and so he filed a writ petition before the Honble High Court of Madras (W.P. No. 5750 / 2001) and the Honble High Court passed an order dated 24-4-2001 directing the 3rd opposite party (The Dean) to furnish the medical records to the complainant within 2 weeks from the date of receipt of the order. But, even after a lapse of 8 months, the records were not furnished to the complainant and so he sent another legal notice on 10-12-2001 to the 3rd opposite party stating that contempt proceedings would be initiated against him for willful disobedience of the High Court order dated 24-4-2001 in WP No.5750 / 2001. At last, the 3rd opposite party furnished the medical records to the complainant; some of the medical records were not complete and so he issued another legal notice dated 30-12-2001 stating that complete records were not furnished to him and subsequently, he filed Contempt Application No. 76 / 2002 in WP No.5750/2001 and only at the 2nd hearing before the Honble High Court, the opposite parties furnished the relevant medical records and the contempt application was closed. In the postmortem report, the cause of death is stated as The deceased would appear to have died due to the effects of Laryngeal Oedma. His sons death occurred only due to the negligence and deficiency in service on the part of the opposite parties, and hence the complaint praying for direction to the opposite parties to pay a sum of Rs.5 Lac towards compensation for the loss of his sons life, mental agony, stress and strain suffered by the complainant.
4. According to the opposite parties, as stated in the version filed by the 1st and 2nd opposite party, the Ampicillin injection was administered to the boy after giving test dose and there was no adverse reaction and only when the 5th Ampicillin dose was administered, the boy developed sudden allergic reactions and in spite of their best efforts they could not save the boy, and there is no negligence or deficiency in service either in diagnosis or treatment / post-operative management and so they not liable to pay any compensation
5. The District Forum considered the rival contentions and allowed the complaint holding that there is negligence and deficiency in service on the part of the opposite parties and passed an order directing the opposite parties to pay a sum of Rs.5 Lac towards compensation for the loss of his son, mental agony and stress and strain suffered by the complainant. Aggrieved by this impugned order, the opposite parties have preferred this appeal.
6. The appellants / opposite parties would first contend that the complaint is not maintainable and the Consumer Forum cannot entertain any complaint alleging medical negligence; and that the Consumer Forum has no jurisdiction. The Honble Supreme Court has settled the issue and has laid down that, complaints alleging medical negligence can be entertained by the Consumer Forum and that the Consumer Forum has jurisdiction to entertain such complaints.
7. The Honble Supreme Court has ruled that doctors serving in Government Hospitals are liable for negligence and deficiency in service and has held as follows:
(i) Indian Medical Association vs. V.P. Shantha (1995)-6-Supreme Court cases-651
(ii) Smt. Savita Garg vs. The Director, National Heart Institute Judgment, dated 12-10-2004 in Appeal (Civil) 4024 of 2003 In this connection, a reference may be made to a decision of this Court in the case of Indian Medical Association v. V.P. Shantha & ors. reported in AIR 1996 SC
550. There the question had come up before this Court with regard to the provisions of the Consumer Protection Act, 1986 vis--vis the medical profession. The Court has dealt with all aspects of medical profession from every angle and has come to the conclusion that the doctors or the institutes owe a duty to the patients and they cannot get away in case of lack of care to the patients. Their Lordships have gone to the extent that even if the doctors are rendering services free of charge to the patients in the Government hospitals, the provisions of the Consumer Protection Act will apply since the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the taxes paid by the tax payers. Their Lordships have dealt with regard to the definition of service given in Section 2(1)(o) of the Consumer Protection Act, 1986, and have observed as follows:
The service rendered free of charge to patients by doctors / hospitals whether non-Government or Government who render free service to poor patients but charge fee for services rendered to other patients would, even though it is free, not be excluded from definition of service in S.2(1)(o). The Act seeks to protect the interests of consumer as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford.
Therefore, we hold that the contention of the appellants in this regard is untenable.
8. It is pertinent to note that the medical records relating to the treatment of the complainants sons death were not furnished to the complainant for about 8 months in spite of the complainants best efforts and even after issuing legal notice to the appellants / opposite parties and after 8 months, only when the respondent / complainant filed a writ petition before the Honble High Court of Madras (WP No.5750 / 2001), the opposite parties came forward to furnish the copies to the complainant and only after another legal notice warning the opposite parties that contempt proceedings would be initiated, the opposite parties furnished the medical records in an incomplete form and only after filing contempt application, the required medical records were furnished to the complainant. The refusal to furnish the medical records to the complainant amounts to gross deficiency in service on the part of the opposite parties.
9. The appellants / opposite parties would further contend that Ampicillin injection was administered to the boy after test dose and there was no reaction and there was no problem till the 4th dose and during the 5th dose, all on a sudden he developed severe allergic reaction, resulting in death and they had taken all the care and caution as warranted under the situation.
10. It is further contended that allergic reactions can be observed after administration of drugs, and some people who did not respond overt signs of allergic symptoms to drug previously may at the subsequent occasion show an allergic reaction and all forms of natural and semi synthetic penicillin can cause allergy more so to parenteral administrations, the course of hyper sensitivity is unpredictable may raise allergy in subsequent administrations and a less sudden manifestation of hyper sensitivity occurs after 7 to 12 days exposure and drug hyper sensitivity should be in suspected when findings are compatible with an immune drug and the patient had received the drug on one or more occasions and reactions include Urticaria Laryngeal Edema, hyper tension and even acute cardiac arrest. Medical literatures and text books of eminent doctors were submitted before the Forum to substantiate the contention.
11. Therefore it is clear that when there would be no allergic reaction during the administration of Ampicillin, there might be severe allergic reaction during the next administration of Ampicillin dose. So we come to know that allergic reaction can take place even between the interval of two doses.
12. The contention of the appellants is that there was no problem till the administration of 4th dose and only during the 5th dose there was sudden fatal allergic reaction. Therefore, the doctors ought to have given the test dose before the administration of the drug and had they given the test dose before the 5th dose was administered, death would not have occurred and so the failure to do the test before every administration of the drug amounts to negligence and deficiency in service on the part of the opposite parties. The failure to apply test does has proved fatal and had they done it, and acted with abundant caution, the severe allergic reaction could have been averted. Further, the doctors could not manage the post-allergic situation and the boy could not survive.
13. Therefore, considering all these, we hold that there is negligence and deficiency in service on the part of the opposite parties in the medical management of the patient, as a result of which, a precious life is lost.
14. The District Forum has come to the right conclusion that there is negligence and deficiency in service on the part of the opposite parties and has allowed the complaint and has awarded compensation of Rs.5 Lac towards loss of life, mental agony, physical stress-strain, etc. The deceased was studying in school and was aged 14 at the time of his death. Having regard to the facts and circumstances of the case, we feel that the amount of compensation awarded by the District Forum is reasonable and the award is not excessive. Therefore, there is no infirmity in the order of the District Forum and the order does not warrant our interference. There is no merit in the appeal and accordingly the appeal is liable to be dismissed.
15. In the result, the appeal is dismissed confirming the order of the District Forum. No order as to costs in the appeal.
J. JAYARAM (R. REGUPATHI) JUDICIAL MEMBER PRESIDENT