Oral Order: (T. Ashok Kumar, Member)
1. This is a complaint filed by the complainant originally against the opposite parties 1 and 2 only seeking compensation of Rs.25 lakhs with interest @ 12% PA and costs alleging medical negligence and deficiency in service and during pendency of complainant OP 3 insurance Company has been brought on record. For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The brief facts of the complaint are that the complainant who is an Agriculturist suffering from heaviness in chest consulted Dr. B.L. Agarwal, a Cardiologist, Usha Mullapudi Hospital, Gajula Ramaram, Hyderabad on 21.05.2003, who, diagnosed him as âSevere Mitral Regurgitation (M.R). When the complainant consulted Dr. G. Ravi kanth of OP No.1 hospital on 29.10.2004, he estimated expenditure at Rs.1,50,000/- for MVR ( Mitral Valve Replacement) operation and that the operation was performed on 19.01.2005 by the surgeons, i.e. opposite party no. 2 , Dr. D. Vijaya Kumar and Dr. Baradwaj and that Mitral valve was replaced with no. 23 TTK Chitra Prosthetic valve. There after also, he is not relieved from the problems of chest heaviness and breathing. Therefore, he consulted Dr. G. Ravi kanth on 02.02.2005, who, gave treatment from 02.022005 to 05.02.2005 and he has been visiting the hospital for ever six months and the last visit was on 13.2.2008. For the first time, on 13.02.2008 Dr. Ravi kanth told him that there was again some leaking and valve has to be again repaired or replaced. While asleep,the complainant suddenly wakes up he feels he is in utter confusion and death is looming large and would die within minutes, he gaps severelt and he is unable to walk at least one Kilometer at a stretch. On 23.10.2008, he consulted Dr. A. V. Anjaneyulu of Care Hospital, Hyderabad who told him that as Valve replacement was not correctly done all these problems arose. Till 13.02.2008 the doctors of the OP concealed that fact that the valve was not correctly replaced. The quality of life of the complainant became worse as his life expectancy has come down and thus he filed the complaint alleging deficiency in service and negligence on the part of the opposite parties.
3. OP filed counter opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under :
The complainant got operated for Sever Mitral Regurgitation on 19.012005 and was discharged on 27.01.2005.Again , he was readmitted on 02.02.2005 with a complaint of chest heaviness and breathlessness and after giving treatment he was discharged on 05.02.2005. His post operative Echo Cardiogram conducted on 24.01.2005 and 26.01.005 revealed moderate para valvular leak. On 05.02.2005 when he was discharged he was advised and asked to follow up every 2 to 3 months, but he did not do so. After lapse of three years, the complainant visited the hospital only on 13.2.2008. After MVR operation, the para vulvular leak is a known compilation it may be miled, moderate or severe and it occurs between 5 to 15% of the cases. The miled and moderate leaks can be treated medically and some times the leaks may not progress to severe. Therefore the patient was asked to follow up treatment every two to three months to know the progression so that appropriate measures can be taken. The case of the complainant is a leak moderate but he did not care to visit the hospital for about three years and as such the hospital could not follow lup his progress. In the meanwhile, he developed symptoms because of progression of leak. Had the complainant visited the hospital regularly as was advised the physician/surgeon could have treated him suitably by conducting surgery or catheter intervention to improve his symptoms. The OP hospital neither concealed nor delayed the treatment. There is no deficiency in service on the part of Ops so also evidence that OP hospital was negligent in conducting operation and on the other hand the complainant himself was negligent in following the advice of the hospital to consult periodically. The complaint is vexatious one and only to extract money from Ops after a period of five years after undergoing surgery and thus the complaint is barred by limitation. Non attending the hospitals clearly proves that the patient was not suffering from any defect and thus no mental agony was caused by the Ops 1 and 2 and thus prayed to dismiss the complaint.
4. As per orders in IA No. 801/2011 dated 02.03.2012 OP.3 Oriental Insurance Company has been ordered to be impleaded and in spite of service of notice OP. 3 neither appeared nor filed any counter and thus did not choose to contest the matter .
5. Â Both sides filed their evidence affidavit reiterating their respective contentions aforesaid, DW.1 was cross examined by the complaint by getting appointed a Commissioner and Ex. A1 to A16 and Ex. C1 were marked on his behalf and no documents were marked on behalf of the Opposite parties.
6. Heard both side counsel in detail and they also submitted written arguments.
7. Now the points or consideration are
(i) whether the complainant has locus standi to file complaint ?
(ii) Whether the complaint is within limitation
(iii) Â Whether there is any medical negligence and deficiency in service on the part of opposite parties as alleged?
(iv) Â Whether the complainant is entitled for compensation, if so, to what amount and from whom?
8. Point No.1 :
The case of the complainant is that he had undergone surgery in the hospital Ops. The Ops pleaded that the person who had undergone surgery in the hospital is K. Sanjeev Kumar but not Kamma Sanjeeva Rao and therefore the complainant has no locus standi to file the complaint. In view of the said defence, it appears that the complainant filed IA 800/2011 seeking amendment of cause title and it was allowed vide orders dated 02.03.2012 and accordingly the cause title was amended showing the complainant as K. Sanjeeva kumar alias Kamma Sanjeeva rao and in view of the said developments the objection of the Ops in the said context is of no use any more. Thus, it is held that the complainant has locus standi to file the complaint against the opposite parties.
9. Point No. 2 :
There is no dispute that the complainant consulted Dr. G. Ravikanth of OP.1 hospital on 29.10.2004 and that for the operation of Mitral Valve Replacement an estimation for Rs.1,50,000/- was given by the said hospital. It is also not in dispute that OP. 2 and Dr. D. Vijayakumar and Dr Bharadwaj attended on the complainant and the surgery was done on 09.01.2005 and the Mitral Valve was replaced with number 23 TTK chitra Prosthetic valve. According to the complainant he was not relieved of his suffering and on the other hand the chest heaviness and breathing problem increased and therefore he consulted Dr. G. Ravikanth on second February, 2005 and then he gave some treatment in the said context from the said date to 05.02.2005. According to the complainant he has been visiting the hospital in every six months and the last visit was on 13.2.2008 and that for the first time on 13.2.2008 Dr. Ravikanth disclosed to the complainant that operation was not successful and that was the reasons for the suffering and that the said doctor also informed him that there was again some leakage and valve has to be repaired or replaced. The complainant pleads that he feels that death is looming large and would die within minutes and he gasps severely and unable to walk , work and earn before and hence it so happened on account of gross negligence of the doctors of OP which resulted in failure of the operation. It is also the case of the complainant on 23.10.2008 he consulted Dr. A. V. Anjaneyulu of Care Hospital, Hyderabad, who informed him that since valve replacement was not correctly done such problem arose to him and that till 13.2.2008 doctors of the OP hospital concealed the fact that the valve was not correctly replaced and that only on 13.2.2008 the negligence of the doctors of OP hospital came to light which was confirmed by Dr. A. V. Anjaneyulu on 23.10.2008 and thus the complaint is within limitation and that gross professional negligence on the part of the opposite parties. There is no dispute that the complainant was admitted in the hospital of OP. on 17.01.2005 and that on 19.01.2005 surgery was conducted for replacement of Mitral Valve and that on 27.01.2005, he was discharged advising to come for review after one month with PT and INR reports. Thereafter, the complainant was admitted into the hospital; on 02.02.2005 with complaint of vomitings and Dyspnea and that after treatment he was discharged on 5.2.2005 advising him to come again for review after five days PT and INR after 15 days. It appears that the complainant went to the hospital on 17.02.2005 and again he was advised PT after 15 days by Dr. Ravikanth and thus there was no delay in review. Again on 02.03.2005 the complainant approached Dr. Ravikanth and then he was advised to consult Dr. M.B.V. Prasad for Cholelithiasis. Then after 8 months ie on 09.11.2005, he went to the hospital for review and then Dr. TNC Padmanabhan and Dr. Bhaskara Rao, treated him and advised for review after three months. But the complainant did not go to the hospital of OP till 13.2.2008 which is beyond two years three months. The complainant did not explain as to why he did not go to the hospital of Ops for a considerable period of more than two years. All the said material is available in Ex. A8 at pages 6,7, and 8. According to the complainant, on 23.10.2008, he approached Dr. A. V. Anjaneyulu in Care Hospital, Hyderabad, and that he informed that the operation was not successful. As already described supra, even though, he was advised on 13.02.2008, to review after one month did not go to the said hospital or any other hospital till .23.10.2008 on which date he said to have consulted Dr. Anjaneyulu, Care Hospital. There is no evidence from the complainants side that after consulting Dr. Anjaneyulu he has undergone any treatment. He did not approach this Commission for a considerable period of more than eighteen months from the said date and it also shows laches on his part. There is no dependable evidence from the side of the complainant that he took medicines as advised during the said long period and in the circumstances of the case it is considered that since he was not feeling any inconvenience or discomfit he did not approach the Ops hospital. The said aspects clearly go to show that the complainant was irregular in getting treatment and also reviewed his case. The complainant did not file any application to condone the delay U/s. 24-A of Consumer Protection Act. In such circumstances, the contention of the complainant that from the date of disclosure by Dr. Ravi kanth ie from 13.2.2008 the complaint is within limitation could not be appreciated in his favour so also his further contention that from 23.10.2008 which is according to him is date of confirmation of failure of surgery. In a decision reported 2010 AIR (SCW) 6630 between Dr. V. N. Shrikhande Vs. Mrs. Anita Sena Fernandez, it was held by Honble Apex Court as under :
âIt was the respondent's case before the State Commission and the National Commission that after the surgery in November, 1993, she was having pain in the abdomen off and on and, on that account, she was restless at home and also at work place and had to take leave including sick leave on various occasions. Therefore, it was reasonably expected of her to have contacted the appellant and apprised him about her pain and agony and sought his advice. That would have been the natural conduct of any other patient. If the respondent had got in touch with the appellant, he would have definitely suggested measures for relieving her from pain and restlessness. If the respondent was not to get relief by medication, the appellant may have suggested her to go for an X-ray or C.T. scan. In the event of discovery of gauze in the respondent's abdomen, the appellant would have taken appropriate action for extracting the same without requiring the respondent to pay for it. If the measures suggested by the appellant were not to the satisfaction of the respondent and the pain in her abdomen persisted then she could have consulted any other doctor for relief. However, the fact of the matter is that after the surgery, the respondent never informed the appellant that she was having pain in the abdomen, was restless and having sleepless nights. At no point of time she contacted the appellant and sought his advice in the matter. Not only this, she did not consult any other doctor including those who were working in the Government Hospital where she was employed. Any person of ordinary prudence, who may have suffered pain and discomfort after surgery would have consulted the concerned surgeon or any other competent doctor and sought his advice but the respondent did nothing except taking some pain killers. If the respondent had been little diligent, she would have contacted the appellant and informed him about her sufferings. In that event, the appellant may have suggested appropriate medicines or advised her to go for X-ray or C.T. scan. If piece of gauze was found in the abdomen of the respondent, the appellant would have certainly taken remedial measures. The respondent has not explained as to why she kept quite for about 9 years despite pain and agony. The long silence on her part militates against the bonafides of the respondent's claim for compensation and the Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November, 2002. The National Commission, in our considered view, was clearly wrong when it held that cause of action lastly arose to the respondent on 25.10.2002 when the second surgery was performed at Lilavati Hospital and the complaint filed by her on 19.10.2004 was within limitationâ.
The said decision and the points discussed supra support the contentions of the opposite parties to hold that the complaint is not within limitation. Hence point no. 2 is decided against the complainant and in favour of the opposite parties.
10. Point Nos. 3 and 4 :
When complaint is barred by limitation, we feel that there is no necessity to go into the merits of the case with regard to deficiency in service on the part of the ops and also the quantum of compensation etc. and therefore they are not answered.
11. In the result, the complaint is dismissed but without costs.