State Consumer Disputes Redressal Commission
Mrs.Sumathi,U6-Hc New ... vs Dr.S. Kasthuri, M.D., D.G.O.,15, Ben ... on 8 April, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER II F.A.313/2008 [Against order in OP.No.166/2003 on the file of the DCDRF, Trichy] DATED THIS THE 8th DAY OF APRIL 2011 Mrs.Sumathi, | W/o. Subramanian, | Appellant / Complainant U6-HC New Quarters, | TSP-1st Battalion Campus, Trichy 12. | Vs. Dr.S. Kasthuri, M.D., D.G.O., | Respondent / OP Shyamala Nursing Home, | 15, Ben Well Road, Cantonment, HoH | Trichy 1. | The appellant as complainant filed a complaint before the District Forum against the respondent/opposite party to pay Rs.5 lakhs as compensation for medical treatment and extra nourishment, transport, to pay Rs.5 lakhs for continuing disability, pain and suffering, rendering deficient service, professional negligence, damages, mental torture, nervous shock and hardship and to pay the cost. The District Forum dismissed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.25.09.2006 in C.C.166/2003.
This appeal coming before us for hearing finally on 22.03.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellant /Complainant : Mr.S.Shivshankar, Advocate.
Counsel for the Respondent/OP : Mr.Paul & Paul, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful complainant before the District Forum in O.P.166/2003 on the file of the District Consumer Disputes Redressal Forum, Trichy, is the appellant.
2. The complainant/appellant claiming the following reliefs namely;
(a) a sum of Rs.5 lakhs as compensation for medical treatment and extra nourishment, Transport;
(b) another sum of Rs.5 lakhs for continuing disability, pain and suffering, rendering deficiency service, professional negligence, damages, mental torture, nervous shock and hardship;
has filed a consumer complaint on the following grounds.
3. The complainant/appellant, after conceivement for the first time, approached the opposite party-doctor, for consultation and treatment since she was a leading Gynecologist, with vast experience. She informed that the expected date of delivery was 7.4.2002. When the complainant had consulted the opposite party on 24.12.2001, the complainants weight was 43 kgs., and even after several months, there was no increase in the weight.
4. In the 5th month, after conception, the complainant met with an accident, which had not caused any problem, as reported by the opposite party, when consulted. Despite the complainant had not put on weight, she was never referred to any specialist, for opinion except giving pain killer.
5. On 6.3.2002, unexpectedly the complainant gave birth to a child weighing only 1.05 kgs, very low birth weigh baby, which was shifted to Sea-Horse Hospital, for treatment. Due to breathlessness, weakness in the health of the complainant, she developed incoherent speech and other complications, including cardiac problem, for which, she had taken treatment at Apollo Hospital spending considerable amount. If the complainant had been treated properly by opposite party, the health condition of the complainant would not have been deteriorated, including the delivery of very low birth weight baby, for which, the opposite party should be held responsible, since committed negligence in not advising for expert opinion, and has not given proper treatment, properly diagnosing, thereby committing malfeasance and misfeasance as well as professional negligence, resulting pre-matured delivery, causing mental agony, for which, the complainant is entitled to the sum as stated above.
6. The opposite party, admitting that the complainant had taken treatment in her hospital, resisted the complaint contending, that after confirmation of the pregnancy, preceded by blood test investigation, the complainant was advised with regard to her diet, that the complainant was referred to Dr.Ramakrishna Eswaran, to rule out head injury and other complication after her fall, that the complainant alone ignored her advice and did not bring back any reference though she was advised, to take blood test for further investigation, that on the date of delivery, she came with the childs head on the perenium and delivered a child weighing 1.05 kgs, which was taken to Sea Horse Hospital, for proper treatment, where also the opposite party visited and since the complainant was not keeping good health, she took care of the child, which cannot be described otherwise, that having so much of experience in the Gynecology, she had not committed any negligence or deficiency in service, the further fact being, the complainant did not heed the request of the doctor, praying for the dismissal of the complaint, since for the alleged medical expenses, the opposite party cannot be held responsible.
7. Before the District Forum, as seen from the records mostly medical bills were filed, in addition to, some documents, relating to the treatment taken by the complainant in the Apollo Hospital. Three witnesses have been examined, one being the complainant, and another being the opposite party, in addition to, one Dr.Meenakshi, who had spoken about the treatment and expenses involved in the Apollo Hospital, not connecting the treatment given in the opposite partys hospital. The District Forum, by going through the materials including the Proof Affidavit, in the absence of expert opinion, felt that the complainant has failed to prove, either medical negligence or deficiency in service by examining any expert witness, connecting the treatment given by the opposite party, with the deterioration of the health of the complainant. In this view, recording a finding, no deficiency could be affixed upon the opposite party, the complaint was dismissed on 25.09.2006, which is challenged in this appeal.
8. The learned counsel for the appellant, inviting our attention to certain observations, in the Computer print out which deals How much weight should I gain during my pregnancy urged before us that the opposite party despite the complainant had reported about her breathlessness and other connected problems, including the failure in increase of the weight, ignored all, and even she has not referred the complainant, to any expert opinion that should be construed as negligent act as well as deficiency in service, which resulted premature baby and heart problem also, for which, the complainant had taken treatment at Apollo Hospital and for these expenses, the opposite party should be held responsible, which is seriously opposed.
9. The complainant was the patient of the opposite party, during the period of pregnancy is not in dispute. Even as admitted by the opposite party, the complainant was examined by the opposite party on 29.9.2001, and it seems, in the month of December 2001, she was only 43 kgs, for which, no accusation could be leveled against the opposite party. It is also an admitted fact, that in the 5th month, the complainant fell down from a two wheeler, and when the matter was reported, Scan was taken on 28.11.2001, as seen from Ex.A174, which disclosed, there was no problem in the foetus, which was having normal growth, for the period of 18 weeks. Therefore, the contention of the complainant that no proper care was taken, is belied by Ex.A174 as we there was proper growth of the baby also.
10. Though the normal date of delivery should have been 7.4.2002 as expected, she gave birth of a female child, pre-maturely on 6.3.2002, which weighed only 1.05 kgs, admittedly. Because of the pre-matured low weight baby, it was taken to Sea Horse Hospital, where treated, discharged, not in dispute.
After the delivery, some complications in the health condition of the complainant, including incoherent speech, cardiac problem etc., arose for which, the complainant had taken treatment, admittedly as proved by the documents also, at Apollo Hospital between 2.4.2002 and 15.5.2002. After discharge from the Apollo Hospital, the complainant felt, as if, the opposite party had committed professional negligence act, and slack treatment that alone let to the complication, leading to treatment and expenses. In this view, doubting the treatment given by the opposite party, accusing, as if, the problems of the complainant was not properly diagnosed, treatment given, a consumer complaint came to be filed as said above, ending failure, resulting this appeal.
11. It is the settled proposition of law, that at the first instance, the initial burden is upon the complainant, to prove that the doctor had violated the method of treatment, while treating her, resulting subsequent complications, or any complication, during the period of treatment, then shifting the burden upon the doctor to explain or to establish, that the treatment given by her was in accordance of the protocol. In this case, as rightly recorded by the District Forum, practically there is not only absence of pleadings, but also absence of evidence also. No doctor has been examined to say that the opposite party failed to do certain things, which was expected from her, as a prudent doctor, or to prove that the way of treatment given by her was, not in accordance with the established procedure/protocol/as per the literature.
In the absence of any such plea, by producing materials, it is highly impossible to fix deficiency on the part of the opposite party, that too, when there is no possibility of applying the dictum, Res Ipsa Loquitor.
12. The main grievance appears to be, that the doctor has not referred the complainant for expert opinion. It would arise, when the complainant had reported certain kind of problem, which was unable to be cured by the doctor, then arising, referring the matter to the expert. Neither in the complaint nor while giving evidence, the complainant has stated, what kind of problem she has reported, ignored, acceptably.
13. True, a pregnant woman expected to put on weight during pregnancy.
In general, as seen from the literature, a pregnant lady should gain weight about 2 to 4 pounds, during the first three months and should gain further one pound, for the remainder of the pregnancy.
Gaining weight will depend upon the nutritious food, and growth of baby and if the mother/pregnant lady failed to follow the instructions given by the doctor or failed to take nutritious food, which alone enhance the weight, the doctor cannot be blamed, since in this case the doctor ascerted that the patient has failed to follow the instructions.
It is the specific case of the opposite party, that though she had advised the complainant, to take blood test for further treatment, it was not followed, which appears to be correct, since the complainant has not produced any result, regarding the blood test though taken initially for some other purpose, as advised by the doctor. Therefore, there is no gain saying, that the doctor failed to note the increase in weight or she was the cause for heart problem etc., The literature relied on by the learned counsel for the appellant also says, what should be the weight, what is the pre-matured birth, low birth weight baby etc., that will not prove, that the opposite party had committed negligence. Assuming, that the complainant had breathlessness, reported, not attended [for which there is no record] it is for the complainant to take appropriate treatment, approaching the specialist concerned, if the opposite party failed to attend the patient properly, for which also, the opposite party cannot be accused. As seen from Ex.A175, nothing unusual is noticed, and recorded and for the deficiency probably anemic, proper tablets were prescribed as seen from the prescription given by the opposite party also. Therefore, either for not increasing the weight or for pre-matured delivery, the opposite party cannot be faulted.
14. As indicated above, a sum of Rs.5 lakhs is claimed, as compensation for medical treatment and another sum of Rs.5 lakhs is claimed for continuing disability, pain and sufferings etc., If the opposite party should be held responsible for this, it should be shown that because of the negligent act committed by the opposite party, the complainant was compelled to incur medical expenses or she was compelled to continue to take the medical treatment, preceded by pain and suffering. Even the Certificate issued by Apollo Hospital would reveal, that 5 months after conception, the complainant developed generalized swelling of the body with high grade fever and breathlessness and was on treatment for the same elsewhere, as a case of infective endocarditis, thereby showing after the accident, the complainant had taken treatment, for the problems, for which, she had subsequently, taken treatment at Apollo Hospital. The course of treatment given in Apollo Hospital and history, there also failed to disclose anything, unusual against previous treatment, with opposite party. Therefore, it is futile on the part of the complainant, to contend that she was not advised to take treatment elsewhere, or even she has not taken treatment elsewhere and for that, the opposite party should be held responsible. The low birth weight baby was due to malnutrition, for which, we feel, the complainant alone should held responsible. The complainant appears to have been suffering from anemic, for which also, proper medicines were given, as seen from the prescription. Therefore, it is not made clear at what point of time, on what ground, the opposite party failed to give proper treatment, resulting deterioration of health of the complainant.
15. Apollo Hospitals record would reveal, following the delivery, the complainant had developed incoherent speech, weakness of left side of the body and having taken treatment elsewhere, she came to Apollo Hospital for further management. Therefore, for the treatment taken at Apollo Hospital, we feel, undoubtedly, the opposite party cannot be held responsible, since neither the records nor any other materials, fixes the culpability upon the opposite party. The District Forum, considering all these facts, had rightly dismissed the case, as deficiency or negligent act on the part of the opposite party are not proved, in which finding, we are unable to differ. Hence, the appeal is devoid of merits, liable to be dismissed.
16. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Trichy, in O.P.166/2003, dated 25.09.2006. No order as to cost in this appeal.
S. SAMBANDAM J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Ns/mtj/Bank