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Amar Singh v.Frances Newton Hospital and Others
2001 (1) CPR 379
Consumer Protection Act. 1986- Section 15 – Medical negligence – Father of complainant admitted in hospital of opposite party – Death alleged to have been caused due to carelessness of opposite party – FIR registered - Investigating officer approached Civil surgeon for obtaining report of Board of Doctors – Death of father of complainant as per report was due to Cardio Respiratory arrest which caused to coronary Artery disease and cerbrovarcular accident – Drugs given for treatment justified – death of complainant’s father natural death being old man of eighty years - District Forum held there was not any negligence or recklessnessor departure from treatment – Dismissed complaint - Appeal – No legal infirmity in detailed and well reason order passed by District Forum.
IMPORTANT POINT :-
The doctor when consulted by patient owes him certain duties
(a) a duty of care in deciding whether to undertake the case
(b) a duty of care in deciding what treatment to give
(c) a duty of care in administration of that treatment .
ORDER :-
Davinder Kaur Bhamrah, Member – This is an appeal under Section 15 of the Consumer Protection Act, 1986, against the order dated 20-11-1998 passed by the District Consumer Disputes Redressal Forum , Ferozepur, for damages was dismissed. Aggrieved by allowing the calim of the appellant to the extent of full amount as mentioned in the complaint with costs throughout.
Brief facts of cases are :-
Shanker Singh aged 80 years, father of the complainant Amar Singh , was admitted in the Frances Newton Hospital on 19-7-1996. As per allegations of the complainant , the death ofhis father carelessness of the Opposite Party No. w, against the O.P. No. 2 with the ordes of the Hon’ble Punjab and Haryana High court. It is stated that the investigation officer of police approached the Civil Surgeon , Ferozepur Ex. R-3 for obtaining the opinion of the Board of Doctors . The Civil Surgeon , Ferozepur vide Ex. r-2, the death of the father of the complainant was due to “Cardio-respiratory arrest” which caused to the “Coronary Artery disease and cerebrovarcular accident” and the drugs which were given for treatment were justified. After obtaining the said report of the Board of Doctors. The investigating Officer of police sought opinion of the D.A (Legal) Ferozepur vide Ex R-4. The Deputy D.A. (Legal) Ferozepur made his report Ex. R-5 dated 27-11-1997 vide which he opined that the treatment and medicines given to Shanker Singh, father of complainant were justified and death of Shanker Singh was natural death being an old man of 80 years and he recommended the case for cancellation.
After perusing the record, the District Forum reached the conclusion recklessness or departure from accepted and establlished rules of treatment, on the complainant has badly failed to prove his case by leading any cogent and convincing evidence and dismissed the complaint .
In the appeal before us , it has been stated that the death of the father of the complainant after two days of admission in the hospital with no serious allment itself goes to show that the patient died due to the utter rashness and negligence on the part of O.P. No. 2 and hence it is deficiency in rendering service and the prayer is to compensate the appelant for the amount claimed by him.
The question which arises for consideration in this appeal is whether O.P. No. 2 can be held liable for any negligence in discharge of his duty as a physician ?
The patient Shanker Singh was brought to the hospital on 19-7-1996 at 5:00 p.m. with complaint of weakness of left side of body two hours prior to admission . On admission his pulse was 80/min. regular, B.P. 160./86 mm. Hg. Respiration rate 20/min. A diagnosis of cerebrovascular accident with left-side hemiparesis was made. The appropriate treatment was given and investigation were carried out. Chest X-rayshowed the consistent with age. arctic calcification was seen. ECG old anterior wall myocardial infarction with the lateral wall and apicil Ischemic changes were seen. On follow up on 20th July, 1996 , his condition was stable, he had slight fever. On 21st morning rounds general condition was stable ,he had slight fever. On 21st morning rounds genreal condition was better but there were ‘ronchi’ in chest. So injection Lasic and injection Derephyllin were ordered and given at 10:20 a.m. , the patient suffered respiratory arrest followed bu cardiac arrest. Resuscitation methods were tried but proved unsuccessful and the patient was declared dead at 10:40 a.m. The cause of death being Cardio Respiratory Arrest’ and precipitating causes mentioned as ‘ Ischaemic Heart Disease’ Cerebrovascular.
The diagnosis and treatment given by the O.P. No. 2 has been challenged buy the complainant levelling allegations against him but at the same time he has not produced any evidence to prove these allegations levelled in the complainant against the O.P. No.2. No expert opinion has been produced by the complainant to contradict the report of the Board of Doctors . All medical negligence cases concern various questions of fact , when we say burden of proving negligence lies on the complainant, it means he has the task of convincing the Court that his version of
The Supreme Court of India , in Dr. Laxman Bala Krishna Joshi v. Dr. Trimbak Bapu Godbole & another , has laid down that doctor when consulted by a patient owes him certain duties, namely,
(a) a duty of care in deciding whether to undertake the case
(b) a duty of care in deciding what treatment to give
(c) a duty of care in administration of that treatment.
A breach of any of these duties gives a cause of action for negligence to the patient. It is in the light of the above principles that it is to be seen now whether there was a breach of duty of care on the part of O.P. 2 in the process of treatment of Shri Shanker Singh. the facts is the correct one.
In the case in hand, there is nothing on record to prove the negligence doctor gets more strengthened by the report of the Board of the doctors and cancellation of the F.I.R lodged by the complainant.
For the reasons recorded above, we do not find any legal infirmity in the detailed and well reasoned order passed by the District Forum . We can not be oblivious of the misery and mental agony caused by the frivolous and vexatious complaint to a doctor. Inexpensive remedy provided under the Consumer Protection Act to provide relief to the exploited has been exploited and the cheap remedy has been really made “cheap” by the complainant . Hence we dismiss the appeal with costs of Rs. 5000/- and the opposite parties are entitled to recover the same from the complainant in accordance with law.
Appeal dismissed.
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RADHAKRISHNAN v. MANIKANDANUNNI
II (2001) CPJ 167
Consumer Protection Act, 1986 - Section 15 – Appeal – Negligence / Deficiency in Service – Inferior Quality of Medicine – Compensation - Opposite party sold the medicine to complainant – Complications developed on consuming the medicine - Complainant got himself admitted in Medical College – Compensation claimed – No expert evidence tendered - Complainant underwent treatment due to consuming of medicine not proved - Negligence / deficiency in service on part of opposite party not proved - Complaint rightly dismissed by Forum.
Held – In the impugned order it is pointed out by the District Forum that there is no material to connect the opposite party that he caused to issue any advertisement. As regards the qualities of medicine in the question, no advertisement was produced. It is also pointed out that the notice Exbt. A13 contains nothing to connect the opposite party with the same. OPW1 denied to his having sold the said medicine. The Commission who filed Exbt. C1 report at his visit did not see the opposite party in the concern, he says two colleagues of his were in the shop. As to how he infered them as the colleagues of the opposite party are not stated. A3, A5 A8, A9 and A10 the prescriptions and bills for purchase of medicine, and Exbt. A1 series the treatment record of the Medical College Hospital though could show that the complainant was an in-patient in the Medical College Hospital and he underwent treatment, there is no acceptable material to show that the ailment of the complainant for which he underwent treatment in the Medical College Hospital was caused due to consuming the aforesaid medicines. In a matter like this expert evidence as to the said aspect was necessary without which it would be hazardous to find that the ailment of the complainant was due to his taking the aforesaid medicines. No expert evidence was tendered. When no expert evidence on this aspect is tendered to connect the ailment of the complainant with the defects or deficiency of the medicine that he consumed, one cannot find that there was deficiency of service on the part of the opposite party, even assuming that he supplied aforesaid medicine. Opposite party is a `Kazhakakaran’ attached to the temple, he is not a physician. Having regard to the fact that there is no expert evidence to demonstrate that on analysis of the aforesaid medicine it was found to have defect and the said defect caused ailment to the complainant , even if it is assumed that the opposite party sold or caused to be sold the aforesaid medicine and that the complainant consumed the same as claimed by him, unless the aforesaid expert evidence is forthcoming negligence or deficiency alleged by the complainant cannot be taken to have been established or proved. There is no evidence on that aspect. Having regard to the same the aforesaid finding of the District Forum cannot be successfully assailed. (Para 6)
(ii) Ex-parte Order – Setting Aside - Jurisdiction of Forum – Suppression of opposite party`s description – Ex-parte order secured by fraud – Abuse of process of Court – Fora has jurisdiction to recall an order obtained by fraud – Ex-parte order set aside.
Held : It will be noted that in para 4 of the said petition the opposite party alleges that by giving wrong description of the opposite party the ex-parte order was secured by fraud. Therefore, the petition cannot be treated as one for review though it purportedly is styled as a review petition. The argument of the learned Counsel is, assuming that the District Forum has no jurisdiction to set aside the ex-parte order or review its order, since the Forum has the jurisdiction to recall an order obtained by fraud or forgery; or by abuse of process of Court the Forum can recall the order.
(Para 8 )
Result : Appeal dismissed.
ORDER
Mr. Justice L. Manoharan, President – The complainant in O.P.No.186/96 on the file of the Consumer Disputes Redressal Forum, Malappuram is the hospital.
2. The complainant alleged before the District Forum; he was employed as Tutor in Paramount Academy of Computer Education and since he suffered from dust allergy due in which he developed cough and obstruction in breathing. Then attracted by the notice issued by the opposite party claiming the qualities of a medicine “Swasasudarana”, he approached the opposite party who assured him that on taking the aforesaid medicine for one year his ailment would be got redressed upon which he took 20 bottles of the said medicine and on coming to know that the said medicine was banned, he again approached the opposite party who claimed, same medicine is available as `Vasakasamrutham’, believing the said representation on consuming two bottles of the said medicine he developed swelling on the tongue and feet, it became difficult for him to talk and walk, growth from the side of the eyes were also noticed. Thereupon he approached Dr.P.P. Joy and Dr.Krishnakumar who treated him at Medical College Hospital, Calicut. He was hospitalized for 12 days in the Medical College Hospital, Calicut and had to spend an amount of Rs.12000/- for treatment. Apart from financial loss he had to undergo anxiety and agony due to the said conduct and act of the opposite party. He wanted redressal.
3. In the version filed by the opposite party he denied to his having supplied such medicine or advised him to take the said medicines. He is not the owner of “J.R.Consultants” mentioned in the complaint, the proprietor of which is one Rajan. He has not published any notice as is alleged. If at all the complainant sustained any injury, the opposite party is not responsible for the same and the complication for which he allegedly underwent treatment in the Medical College Hospital also was not due to his consuming any medicine supplied by the opposite party. He is not trained for treating patients. He is only a “Kazahakakaran” in a temple. He wanted dismissal of the complaint.
4. The complainant got himself examined as P.W.2 and produced Exbts.A1 to A13, MO1 and M02, Commissioner filed Exbts.C1 and C2 reports. The opposite party was examined as OPW1. On a consideration of the said material the District Forum dismissed the complaint. The said dismissal is under challenge in this appeal.
5. Learned Counsel for the appellant assailed the order of the District Forum maintaining that the District Forum did not correctly appreciate the evidence produced on behalf of the complainant and had it was approached the same in the correct perspective the Forum would have seen that actually the opposite party sold the medicine to the complainant and on consuming the same he developed complications which required him to get himself admitted in the Medical College Hospital, Calicut and undergo treatment. Yet another argument was also advanced by the learned Counsel maintaining that the setting aside of the ex-parte order dated 27th September, 1996 by the order dated 21st April, 1997 on I.A.18/96 by the District Forum was erroneous and without jurisdiction and, therefore the order on I.A.18/96 has to be ignored. Consequently the order dated 27th September, 1996 even now govern on that ground also the impugned order by the District Forum cannot be sustained. On the other hand the learned Counsel for the respondent supported the order of the District Forum pointing out that there was no material before the District Forum to show, either, the opposite party sold the medicines in question to the complainant or on consuming the same he sustained injury. In other words, according to him on both aspects, viz., the opposite party sold he medicine, and on consuming the same the complainant developed complications which required him to be hospitalized and undergo treatment there is no acceptable evidence. Apart from the same, here being no expert evidence to show that the aforesaid medicines caused the complication the complainant is not eligible for direction in his favour. As regards the order of the District Forum on I.A.18/96 it is maintained by the learned Counsel, since the said order has not been challenged, the complainant cannot questioned the same. Alternatively, it was maintained that the ex-parte order since was secured by practising fraud and abuse of process of Court, the District Forum was within its jurisdiction to re-call the said order. It is also contended that since the said order was rendered not by a Court, the infirmity, it at all any, cannot make the same absolutely void so as to be ignored.
6. In the impugned order it is pointed out by the District Forum that there is no material to connect the opposite party that he caused to issue any advertisement. As regards the qualities of medicine in the question, no advertisement was produced. It is also pointed out that the notice Exbt.A13 contains nothing to connect the opposite party with the same. OPWI denied to his having sold the said medicine. The Commission who filed Exbt.C1 reports at his visit did not see the opposite party in the concern, he says two colleagues of his were in the shop. As to how he inferred them as the colleagues of the opposite party are not stated. The District Forum also points out that Exbts. A3, A5, A8 A9 and A10 the prescriptions and bills for purchase of medicine, and Exbt. A1 series the treatment record of the Medical College Hospital though could show that the complainant was in in-patient in the Medical College Hospital and he underwent treatment, there is no acceptable material to show that the ailment of the complainant for which he underwent treatment in the Medical College Hospital was caused due to consuming the aforesaid medicines. In a matter like this expert evidence as to the said aspect was necessary without which it would be hazardous to find the ailment of the complainant was due to his taking the aforesaid medicines. No expert evidence was tendered. When no expert evidence on this aspect is tendered to connect the ailment of the complainant with the defects or deficiency of the medicine that he consumed, one cannot find that there was deficiency of service on the part of the opposite party, even assuming that he supplied aforesaid medicine. Opposite party is a `Kazhakakaran’ attached to the temple, he is not a physician. Having regard to the fact that there is expert evidence to demonstrate that on analysis of the aforesaid medicine it was found to have defect and the said defect caused ailment to the complainant, even if it is assumed that the opposite party sold or caused to be sold the aforesaid medicine and that the complainant consumed the same as claimed by him, unless the aforesaid expert evidence is forthcoming negligence or deficiency alleged by the complainant cannot be taken to have been established or proved. There is no evidence on that aspect. Having regard to the same the aforesaid finding of the District Forum cannot be successfully assailed.
7. Now, as noticed that there is another argument by the Learned Counsel for the appellant that this complaint was once allowed ex-parte by the order dated 27th September, 1996, the same came to be set aside by the order on I.A.18/96. The said order according to the Learned Counsel for the appellant being void as without jurisdiction the ex-parte order which allowed compensation must be deemed to be in force. Therefore, irrespective of the aforesaid finding on the basis of the evidence, on the strength of the said ex-parte order the second order passed by the District Forum cannot have any effect. Reliance was made by the Learned Counsel on the decision of the Supreme Court in Jyotsana Arvind Kumar Shah & Ors. V. Bombay Hospital Trust, 1999 (1) SCC 402=III (1999) CPJ 1 (SC)=VII (1999) SLT 146. In the said decision the Supreme Court holds, “State Commission, however, fell into an error in not bearing in mind that the Act under which it is functioning has not provided with any jurisdiction to set aside the ex-parte reasoned order.” It is urged by the Learned Counsel a reading of the order dated 27th September, 1996 since would show that the same is a reasoned order, the District Forum did not have the jurisdiction to set it aside. It is also urged by the Learned Counsel that I.A.18/96 was a petition seeking review of the order dated 27th September, 1996 since the Forum has no jurisdiction to review its earlier order, on that ground also the order of the District Forum is without jurisdiction. On the other hand Learned Counsel for the respondent maintained since the same is not a reasoned order the decision in Jyotsana`s case (supra) cannot have application. One cannot confuse an order on `merit’ with a “ reasoned order.” Here the reading of the order would show that though the complainant has filed an affidavit to the amount mentioned in the complaint, and directs to pay the said amount. This would show that the Forum applied its mind, appreciated the ex-parte evidence tendered and then passed the order. Therefore, it cannot be said that the same is not a reasoned order though it is an ex-parte order.
8. It is true, though the petition is styled as a review petition, the contents of the petition would show that the same is simply to set aside the order passed on 27.9.1996. The petition was treated as such by the District Forum. It will be noted that in para 4 of the said petition the opposite party alleges that by giving wrong description of the opposite party the ex-parte order was secured by fraud. Therefore, the petition cannot be treated as one for review though it purportedly is styled as a review petition. The argument of the Learned Counsel is, assuming that the District Forum has no jurisdiction to set aside the ex-parte order or review its order, since the Forum has the jurisdiction to recall the order obtained by fraud or forgery; or by abuse of process of Court the Forum can recall the order. Reliance was made by the District Forum on the decision of the Supreme court in Indian Bank v. Satyam Fibers (India) Pvt.Ltd. 1996 (5) SCC 550. The Learned Counsel has another alternate argument that the order since was rendered by a `Forum’ not a effective inter-parties till the same is set aside by higher Forum. Reliance was made by the Learned Counsel on the decision of the Supreme Court in State of Kerala v. M. K. Kunhikannan Naimbiar Manjeri Manikoth, Naduvil (dead) & Ors., AIR 1996 Supreme Court 906. Still another argument advance by the Learned Council is, in view of the decision of the Supreme Court in New India Assurance Co.Ltd. v. R. Srinivasan, (2000) 3 SCC 242-1 (2000) CPJ 19 (SC)=II (2000) SLT 520, the order on I.A.18/96 cannot be held to be without jurisdiciton.
9. We may first take up the last point urged by the Learned Counsel for the opposite party as to the applicability of the decision in Sreenivasan`s case (supra). The said decision considers the jurisdiction of the Forum on the matter of restoration of a complaint dismissed for default; what is urged it, since the Supreme Court held that the Consumer Disputes Redressal Forum has inherent power and jurisdiction to restore a complaint dismissed for default provided the complainant shows good reason for non-appearance, the same principle should apply for setting aside ex-parte order also which also is rendered due to the default of the opposite party rendered due to the default of the opposite party to appear on the date to which the matter stood posted. We cannot go into the worthness of this argument, “the reasoning maintained by the Learned Counsel though may seem attractive,, as has already been noted, the Supreme Court since was held in Jyotsana`s case (supra), the Act has not provided jurisdiction to set aside ex-parte reasoned order, the Forum cannot set aside an ex-parte reasoned order. We cannot hold, since the later decision held in a matter for restoration of a complaint dismissed for default the FOR A has inherent jurisdiction to set aside ex-parte order also when there is the specific decision of the Supreme Court in Jyotsana`s case to the contrary.
10. Now as to the question whether the order can be treated to have been recalled as has already been noted, in para 4 of the petition he alleges by giving the wrong description the opposite party the complainant got the ex-parte order by practising fraud. If there is suppression of the description of the opposite party and on account of the same the complainant secured an ex-parte order, having regard to the attending circumstances in a given case, the same could amount to abuse of process of Court which would enable the FORA to recall the ex-parte order. The order on I.A.18/96 is self-explanatory. It states, the notice to the opposite party initially was issued to “Mr. Unni, J.R.Consultants, Fathima Nagar, Mandoor.” The said notice was returned stating that there is no such establishment in Fathima Nagar, Mandoor and the name of the establishment is J.R. & Co. Tax Practitioners and Job Typing. The name of the owner was reported to be Manikandan Unni. Therefore, the name of the opposite party was wrong, and the name and details of the establishment also was wrong. The whole description of the opposite party thus was far from correct. Another notice sent with the particular furnished too was with incorrect description, his name was not shown in full. The service of the same notice was as “unclaimed” and it was on the strength of the said service, the opposite party was set ex-parte and the ex-parte order came to be passed. Now the name of the complainant is stated to be `Manikantanunni’. Even after getting the correct name and address of the opposite party in the complainant did not take steps to amend cause title of the complaint. The District Forum notes all these and says that the order came to-be passed with the wrong description of the opposite party; it finds therefore, the order cannot be said to be against the petitioner / opposite party. The District Forum also stated that it is doubtful whether the said order could be binding on the opposite party, observing so the District Forum sets aside the order. From the materials thus revealed it could be seen that not only the name of the opposite party / respondent was wrongly mentioned; the address of the establishment also was wrong and to crown that the service was as `unclaimed’. When such is the situation pronouncement of the ex-parte order with the wrong person in the party array stating that himself is the opposite party, in the facts and circumstances would amount to abuse of process of Court. Then the order on I.A.18/96 has to be upheld as one which recalled the ex-parte order. Now having regard to the aforesaid view taken by us it will not be necessary to go into the other question whether the said order was liable to be set aside by a higher Forum. When such is the situation the setting aside of the ex-parte.
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V. Chandrasekar v. Malar Hospitals Ltd.
2001 (1) CPR 628
Consumer Protection Act, 1986 - Sections 12 and 17 – Medical negligence – Complainant underwent Coronary Angioplastry plus Stenting to LAD at opp. Party hospital but was not relieved of pain – He underwent then by-pass surgery in other hospital - Deficiency in service alleged in diagnosis and refusal on part of opp. Party to deliver the cassettes and photographs of Angiogram and Angioplastry alongwith report despite demand – Diagnosis made at opp. Party hospital was that complainant had a “Single Vessel Disease” whereas diagnosis made at other hospital was “Severe Triple Vessel Coronary Disease” – Wrong diagnosis and consequent treatment itself could not amount to negligence or deficiency in service – Complainant had been provided discharge summary providing all details – Non return of cassettes, photographs did not amount to deficiency in service.
(Paras 11 to 14)
Result : Complaint dismissed
Case referred:
1. Poona Medical Foundation Ruby Hall Clinic v. Marutirao L. Tikare and Anr, National Commission and Supreme Court on
Consumer Cases 1986-96 page 2656 (NS). (Para 13)
Counsel for the parties:
For the Complainant : Mr. C. R.Sathindran, Advocate.
For the Opp. Party : None
IMPORTANT POINT
Wrong diagnosis and consequent treatment given by doctor itself cannot amount to negligence or deficiency in service.
ORDER
M. S. Janarthanam, President - This action has come before us for admission today.
2. We heard arguments of learned Counsel Mr.C. R. Sathindran.
3. We perused the avernments in the complaint and also the documents filed alongwith it.
4. Such perusal reveals the following factors:
The complainant is one V. Chandrasekar. On 2-8-1999 he was stated to have developed sever chest pain. He got admitted in Malar Hospital Ltd. (opposite party). He was admitted as an inpatient in the said hospital for a period of five days.
As per the diagnosis, he underwent Coronary Angiogram on 3-8-1999. On 5-8-1999, he underwent Coronary Angioplastry plus Stenting to LAD at the opposite party`s hospital. He was then discharged on 9-8-1999.
He was not relieved of the pain and suffering even after such treatment. Again, he was re-admitted in the opposite party`s hospital on 8-9-1999. He was put in the ICU for a day and then shifted to the ward. He was stated to have been releived of the pain. Later, it was found out that the relief was only temporary.
He had paid a sum of Rs.88,250/- for Angiogram and Angioplastry at the opposite party`s hospital. This apart, he also paid a sum of Rs.41,400/- as hospital charges for hospitalisation for a period between 2-8-1999 and 9-8-1999. This apart, he had to pay a sum of Rs.4,096/- when he was re-admitted in the opposite party`s hospital on 8-9-1999.
Despite the treatment taken at the opposite party`s hospital at exorbitant expenses, he was not relieved of the pain and sufferings. Consequently, he was not satisfied with the treatment given in the said hospital He got admitted in Apollo Hospital on 3-3-2000 as he again had severe chest pain. There, he was advised to undergo by-pass surgery. As per the advice, he had undergone the by-pass surgery on 11-3-2000.
5. The opposite party hospital refused to give the cassettes and photographs of the Angiogram and Angioplastry alongwith the report despite demand emerging therefore from him. He would say, a duty is cast upon the opposite party hospital to furnish such details. The non-functioning of such details, he would say, would tantamount to negligence or deficiency in service on their part.
6. The diagnosis made at the opposite party`s hospital, he would say, was wrong. The diagnosis, according to them, was that the complainant had a “Single Vessel Disease” whereas the diagnosis of the Apollo Hospital was the he had “Severe Triple Vessel Coronary Disease.” The complainant, therefore, would say that the diagnosis and treatment given at the opposite party`s hospital were wrong and consequently he had to suffer and get treatment again at a different hospital namely, Apollo Hospital.
7. Because of the opposite party`s hospital refusal to furnish the cassettes, photographs of Angiogram, he had to suffer irreparable injury, mental agony and damages in that he had to not only incur expenses for the Angiogram again but also because of the wrong treatment / wrong diagnosis given by the opposite party he has to suffer injury and damages.
8. He would claim the amounts as below from the opposite party:
1. To pay the total medical expenses at
opposite party`s hospital Rs.1,33,746.00
2. Medical expenses at Apollo Hospital Rs.2,90,061.00
3. Damage for mental agony and hardship Rs.2,25,000.00
Total Rs.6,48,807.00
He would also claim interest @ 25% on the said amount till payment.
9. The opposite party hospital, of course, furnished a discharge summary containing the details of investigation, diagnosis, treatment given besides the advice on discharge.
10. From the perusal of the factors as above, it is thus abundantly crystal clear that according to the complainant that wrong diagnosis and consequent treatment and refusal to give cassettes and photographs of the Angiogram and Angioplastry alongwith the report amounts to deficiency in service on the part of the opposite party`s hospital.
11. No doubt true it is as getting revealed from the records filed that the opposite party hospital, on diagnosis, found out that the complainant had Single Vessel Disease but on the contrary, it was diagnosed by the different hospital namely, Apollo Hospital that he had severe Triple Vessel Coronary Disease. Diagnosis is nothing but forming an opinion on examination of the patients suffering from a disease. Diagnosis may consist of physical as well as mechanical examination. Only on such examination, the opinion is formed as to the disease from which the patient is suffering. The opinion formed or diagnosed may vary from one medical expert to another medical expert just like the difference of opinion as expressed by the Lawyer regarding the factual matrix in the light of legal provisions. Only on the diagnosis, treatment is given. As respects wrong diagnosis and consequent treatment given, on occasions more than one, superior Forums had expressed, cannot at all amount to negligence or deficiency in service on the part of such professional
12. The other negligence or deficiency in service attributed on the part of the opposite party hospital is relatable to its refusal to hand over the cassettes and photos of the Angiogram. Such refusal, we rather feel, would not also amount to deficiency in service on their part when especially the complainant had been furnished with a discharge summary containing the relevant details such as investigation, diagnosis, treatment given and advice on discharge.
13. In Poona Medical Foundation Ruby Hall Clinic v. Marutirao L. Titkare & Anr. It was laid down by the National Commission that the non-supply to the complainant of the copies of the hospital records relatable to or pertaining to the surgical operation, can by no stretch of imagination to be construed as negligence unless there was a legal duty cast upon the hospital to furnish such documents to the complainant, patient. In the instant case, no material had been placed on record to point out that the complainant was legally entitled to have the copies of the document to be furnished to him.
14. For the reasons as above, we are of the view that the factors getting revealed by way of averments incorporated in the complaint as well as the documents filed alongwith it do not at all prima facie point out any negligence of deficiency in service on the part of the opposite party hospital requiring further enquiry into the matter by taking the complaint on file.
The complaint, as such deserves rejected I limine. We accordingly do so.
Complaint dismissed.
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Gare Devamma & Ors. v. Superintendent, Area Hospital & Anr.
1997(3) CPJ 613 (AP SCDRC)
The husband of 1st complainant suffered heart attack and was admitted in the I.C.U. of 1st opposite party on 25.4.1993. It was alleged that due to negligence in treatment he died on 4.5.1993. The State Commission held that from the case sheet and the progress note and nurses notes it was clear that proper care and treatment was provided. But, unfortunately due to second attack the patient died. In the absence of any other evidence the complaint was dismissed. The State Commission also held that the question whether the 1st opposite party should provide employment to the 1st complainant or otherwise is beyond the purview of the C.P. Act.
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Sir Gangaram Hospital v D.P Bhandari & Ors.
1992 (2) CPJ 397 (NCDRC).
It was held by the national commission that there was no deficiency on the part of the hospital in not transferring the patient to the ICU on account of non availability of vacant bed in the ICU and it was not negligence or deficiency on the part of the hospital merely on account of their omission to inform the relative of the patient to shift the patient to some other hospital if they so chose in view of non availability of vacant bed in the I.C.U.
