(The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the first opposite party to pay a sum of Rs.4,75,000/- as compensation for mental agony and hardship due to deficiency in service and to pay Rs.2,000/- towards costs. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.18.01.2010 in C.C.192/2000.
This appeal coming before us for hearing finally on 18.10.2011, 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:)
M. THANIKACHALAM J, PRESIDENT
1. The first opposite party in C.C.192/2000 on the file of the District Consumer Disputes Redressal Forum, Chennai [North], having suffered an adverse order dated 18.01.2010, challenges the same in this appeal on various grounds.
2. Factual matrix:
The complainants/first respondents wife by name Smt.Parameshvari herein after called âPatientâ, who was pregnant for the second time, approached the first opposite party, for treatment and after conducting several tests, diagnosing the problem as Malaria, she was admitted in the hospital for further treatment on 22.09.99 at 11 a.m. In spite of treatment given, fever could not be brought under control and therefore, for further treatment, the patient was referred to the second opposite party, along with the case summary.
3. On 24.09.99, she was admitted in the second opposite partys hospital, but died on 25.9.99 itself, due to severe jaundice, which was not at all diagnosed by the first opposite party. If the first opposite party had detected the jaundice, the mischief could not have happened. Even within 24 hours of the discharge from the first opposite partys hospital, since died due to severe jaundice, that would disclose the jaundice was not at all detected much less treated by the first opposite party, which should be construed as negligence and deficiency in service. Because of the improper diagnosis and half hearted treatment given to the complainants wife, she died, leaving the complainant and a child without proper care and protection, thereby causing mental agony. The complainant also paid a sum of Rs.5,000/- towards hospital charges, including for tests, Ambulance charges. For the negligence and deficiency committed, which had taken away the life of the patient, causing mental agony, a consumer complaint is filed, claiming a sum of Rs.4,75,000/-.
4. The first opposite party/appellant resisted the case as follows:-
The first opposite party is a charitable hospital and they have not charged any fees for treatment, whereas they have collected only a sum of Rs.170/- nominal charge for Ambulance, Lab charges, otherwise giving complete free treatment, therefore, there was no consideration for service and the complaint is not maintainable on this ground.
5. The patient was taking treatment at Kilpauk Medical College Hospital, who came to the first opposite partys hospital on 22.09.1999. After blood and urine tests, which revealed Malarial Parasites, she was treated for Malaria, considering the fact, she was in the advanced stage of pregnancy. There was absolutely no trace of jaundice and therefore, it is incorrect to state that the patient died of jaundice. If really, she was in the advanced stage of jaundice that would have been detected, even by naked eye, for that, there was no chance and therefore, there is no question of negligence or deficiency of service on the part of the first opposite party. When the patient required better treatment, this opposite party took her in the Ambulance accompanied with one senior nurse, thereby showing efficiency and caring for the patient and this being the position, the first opposite party is not entitled to answer the claim of the complainant, the further fact being, there is no deficiency in giving treatment.
6. The second opposite party would contend that they are neither necessary parties nor proper parties, in view of the fact, no negligence or deficiency is alleged against them, thereby praying for the dismissal of the complaint.
7. The parties have filed Proof Affidavits in support of their respective pleadings and Ex.A1 to Ex.A8 and Ex.B1 to Ex.B10 were marked, in addition to, examination of one witness also.
8. The District Forum while evaluating the above materials, came to the conclusion, with certainty that because of the wrong diagnosis by the first opposite partys hospital doctors, they have given wrong treatment, that should be construed as gross negligence and deficiency. The District Forum has further come to the conclusion, that the second opposite party has not committed any negligence or deficiency. Thus concluding, taking into considering the status of the parties and mental agony sustained by the complainant and his child, the District Forum directed the first opposite party, alone to pay a sum of Rs.1 lakh as compensation, towards mental agony and a sum of Rs.2,000/- towards costs, with default interest of 9%, after the payment schedule namely six weeks, as per the order dated 18.01.2010.
9. The first opposite party aggrieved by the said order, as said above impugned the same on various grounds.
10. Smt.Parameshvari [Patient] had high fever, when she conceived second time, that too, in the advanced stage of pregnancy. It seems, she was taking treatment at Kilpauk Medical College Hospital, for which, we do not have any detail record. Thereafter on 21.09.99, the complainant took the patient to the first opposite party, who had advised the patient, to undergo blood test, urine test, which were performed in the hospital. Tests reports and clinical report probably suggested or revealed that the patient was suffering from Malaria, thereby diagnosing that the patient was suffering from Malaria, treatment was given in the first opposite partys hospital, from 22.09.99 to 24.09.99 upto 12 p.m. or so. There was no improvement in the health condition of the patient and therefore, the first opposite party arranged Ambulance accompanied by a senior nurse, taking the case records of the patient also, admitted her in the second opposite partys hospital at 12.05 p.m. for further and better treatment in the Government well equipped hospital. In the Government Hospital, they have diagnosed the problem as jaundice. Despite treatment given for jaundice from 12 p.m., the condition went beyond the control of the second opposite party, resulting multi-organ failure, causing death of the patient with child in the womb, at about 3 a.m. probably that is on 25.09.99. As per the report given by the second opposite party, the cause of death was severe jaundice, followed by multi-organ failure.11. The complainant/husband felt that the first opposite party has not properly diagnosed the problem of his wife, resulting improper treatment for Malaria, followed by multi-organ failure. Therefore, alleging medical negligence, improper treatment, deficiency in service as said above, a consumer complaint was filed, ended in partial success, impugned in this appeal.
12. The learned counsel for the appellant urged before us, that the first opposite party is a charitable institution, they have given free treatment to the patient, not collecting any consideration for service and therefore, they will not come within the ambit of service provider for consideration and in this view, the complainant cannot be a consumer, which should further follow, the complaint itself is not maintainable.
13. The complainant though would contend in the complaint, that he had paid a sum of Rs.5,000/- towards medical expenses, tests report etc., we do not have any materials to testify the same. Admittedly, even as pleaded in the Written Version, the first opposite party had collected a total sum of Rs.170/-, not only for Ambulance charge, but also for Lab charges, blood test etc., that should be taken as consideration, for rendering service to the patient though they have not charged heavily, as practiced by some other hospitals. From Ex.B2, it is seen that the first opposite partys hospital used to collect donation from the patient or the parties as the case may be. It appears, though the receipts are given, as donation receipts, they used to collect the medical charges by way of donation that can be seen from the evidence given by Mr.Ramasamy, who has filed Proof Affidavit on behalf of the first opposite party. He admits, even without receiving the full charges, from the patient, for the amount collected, they used to give the donation receipt to the parties, further admitting, hospital collects only donation. He has also conceded that from the complainant for conducting blood test, urine test, they have collected the amount. Therefore, it cannot be said, they have rendered service, out and out freely, not collecting any paise from any patient. The evidence of RW1 coupled with Ex.B2 make it abundantly clear, that the first opposite party used to collect money from the person capable of paying and giving treatment to the poor also as charitable institution, thereby coming within the meaning ârendering service for consideration as well as rendering service free of charges also. If the hospital comes under this category as ruled by Apex Court in âIndian Medical Association Vs. V.P.Shantha and Ors., reported in III (1995) CPJ 1 (SC)â, it should be construed as the Institution serving for consideration, and not free of charge. Therefore, if any person availed the service of this kind of Institution namely, the first opposite party even for small consideration, they will come within the meaning of consumer and the Institution will come within the meaning of service provider. Therefore as rightly held by the District Forum, the complainant is a consumer, since paid charges and the first opposite party is the service provider/hospital coming within the jurisdiction of the Consumer Forum, and in this view, the case is maintainable.
14. The learned counsel for the appellant also would contend before us, that in the absence of the treating doctor impleaded as a party to the proceedings, the complaint is not maintainable. This principle may be applicable where the patient approached the doctor, and the doctor availed the service of the hospital for treating the patient. Admittedly as pleaded not disputed, the complainant admitted his wife in the first opposite partys hospital and the doctors working in the first opposite partys hospital alone had attended the patient. Therefore, the doctor, who treated the patient is not known to the complainant and therefore, the question of not impleading that doctor, may not arise for consideration. The first opposite party having engaged a doctor, to treat the patient admitted in their hospital and if the doctor had committed any negligence, they should be held vicariously responsible, is our considered opinion. The hospital is accused in this case and the hospital alone had tested the blood, which had not revealed true status of the patient, regarding the existence of jaundice, which we will discuss infra. The hospital alone had collected fees for testing, therefore, the non-impleading of the treating doctor will not loom large and if it is made out, that the first opposite party had committed negligence and deficiency in service, giving treatment by engaging any doctor that is sufficient to hold they are responsible for medical negligence. Hence, this point is also unsustainable, rejected.
15. The learned counsel for the appellant would contend that the cause of death in this case must be incorrect. The second opposite party/Government Hospital certified the cause of death as âsevere jaundice, multi-organ failureâ diagnosing the problem of the patient based upon blood tests. At the time of diagnosis, recording the cause of death, there would have been any motive for anybody, therefore, we find no reason to doubt about the cause of death, though, an attempt was made to say abruptly, cause of death must be incorrect. Further, the first opposite party also has not demonstrated the cause of death must be incorrect. Dr.M.Kuppulakshmi, M.D., D.G.O., working as Director and Superintendent in the second opposite party, who is acquainted with the facts and figurer of the case, has stated that the patient was diagnosed as Hepatitis due to viral cause Lystrosprosis and died due to severe jaundice. This affidavit is not challenged and the person, who has filed an affidavit on behalf of the complainant also has not been challenged. No Proof Affidavit of any doctor working in the first opposite partys hospital also filed, except the affidavit of Manager working in the first opposite partys hospital, who has testified the charity nature of the hospital, which we are not very much concerned. Under the above facts and circumstances of the case, we do not find any reason, to discard Ex.B1-Case Sheet, which reveals, the patient was suffering with severe jaundice, leading to multi-organ failure, causing death. Thus, fixing the cause of death as severe jaundice and multi-organ failure, now it is to be seen, who is the cause, who failed to give treatment for that disease, irrespective of the result. We are not going to say, mere death or non-curing of the disease ipso facto will come within the meaning of negligence. As a prudent hospital, if the first opposite party had treated the patient with qualified doctors, adopting standard protocol, then we may not find fault with the first opposite party. But here the record reveals, the first opposite party has not bestowed their best attention, expected from a hospital, while treating the pregnant woman, that too, in the advanced stage of pregnancy.
16. It is the common case of the parties that the complainant took his wife to the first opposite party on 21.09.99 since she was having fever. After examination, she was advised to undergo blood test and urine test. The blood report does not disclose any abnormality for the tests conducted except Pus cells, few Epithelial cells, No â RBC. Urine test has also not revealed anything abnormality. Bio-chemistry test has also not revealed any positive test. The blood report revealed Malarial Parasite positive. Based upon this alone, not performing any other tests, including liver functioning test, as seen from Ex.A1 Case Record, the patient was treated for malaria alone. Despite the patient was in the hospital for two or three days, when there was no improvement, in the health condition, as a prudent hospital and a doctor, they should have gone for further testing, suspecting jaundice also, which was detected by the second opposite party, on seeking the patient on 24.09.99 at the first instance. This being the position, the same should have been detected or identified by the first opposite partys hospital also atleast on the second day. The failure to do so and the failure to give treatment for jaundice, should be construed as negligence, followed by deficiency in service. Though an attempt was made, the medicines administered for malaria should have led to the condition of jaundice, we do not have any material for that, and no literature also produced on behalf of the complainant. Therefore, under presumption or assumption, we cannot justify the inaction on the part of the first opposite party, in detecting the jaundice, which must have been patent in the patient, that could be seen from the case history of the patient maintained by the second opposite party.
17. Ex.B1 is the Case Record maintained for the patient by the second opposite party. When the patient was taken to the second opposite party hospital, she was in a critical condition, that is why, the second opposite party also obtained the signature of the complainant, informing that the condition of the patient is very serious and if anything goes wrong, they should not be held responsible. After admission at about 12.05 p.m. that is noon, on 24.09.1999, when the patient was clinically examined, the doctors have made a note âInvestigation for jaundiceâ, though the patient had no previous history. They have also referred the patient to Gastroenterologist opinion and the blood test conducted, revealed bilirubin 9.6. grams the maximum level. The patient was discharged, from the first opposite party on 24.09.99 by midday, within few hours, there is no chance, to develop jaundice to the above said extent high level. The contents of bilirubin would made it clear, that there should have been external symptoms to the patient, not only in the eye, but also in the body having yellow colour. If the first opposite party or the doctors treated had bestowed some care, which is expected and required from any prudent doctor, they should have identified the jaundice atleast on 24.09.99, which they failed and that should be construed as negligence and deficiency in service. Instead of properly diagnosing the patient, taking malaria parasite available to some extent alone, not thinking alternatively, they were giving treatment for Malaria and even when they referred to the second opposite party, they have not doubted about the jaundice, which was detected by the second opposite party at the first instance itself, which shows the efficiency of the second opposite party and deficiency of the first opposite party. Before treating for jaundice, the patient expired at 3 a.m. on 25.09.1999 and for this deterioration and ill-heath, as well as cause for death, the improper diagnosis and improper treatment given by the first opposite party alone must be the cause, which had occasioned due to medical negligence and deficiency in service, for which, no expert opinion evidence is necessary and things speaks itself on the doctrine of Res Ipsa Loquitor. Therefore, the contention of the learned counsel for the appellant, that there was no expert evidence or medical evidence produced is unsustainable, when the records itself reveals the deficiency. The District Forum properly analyzing and weighing the evidence, has come to the correct conclusion, regarding the wrong diagnosis and wrong treatment, leading to other complications, for which, they have to be held responsible. The complainant though claimed a sum of Rs.4,75,000/-, considering the charitable nature of the hospital, as well as other attending circumstances, the District Forum has awarded a nominal compensation of Rs.1 lakh, which we are not willing to disturb. Hence, the appeal is devoid of merits, liable to be dismissed.
18. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Chennai [North], in C.C.192/2000, dated 18.01.2010. No order as to cost in this appeal.