Oral Order ( As per R.Lakshminarsimha Rao, Member)
1. The Singareni Collieries Company Ltd is the appellant. The first respondent while proceeding on a scoter met with an accident at about 8 A.M. on 22-04-1995 when a lorry hit the scooter and he was admitted to the hospital being maintained by the appellant company. The first respondent has requested the hospital authorities through application to extend the treatment to her husband. The doctors diagnosed the first respondent with polytrauma with multiple injuries and rupture of bladder. On 24-04-1995 the general surgeon, Dr.Somiah repaired the patients bladder and passed Foleys catheter. On the operation table one unit of blood was transfused to the patient and it was found that the acetabular fracture fragments were projecting on the bladder. Under general anesthesia the orthopedic surgeon, Dr.P.Sridhar applied right upper tibia pin traction. On 6-05-1995, the patient was discharged on 10.5.1995 from the hospital. Thereafter, the first respondent was treated in Nizams Institute of Medical Sciences, Hyderabad where total replacement with bone graft was recommended which was performed by Dr.Dolakia of Bombay.
2. It is contended on behalf of the first respondent that the doctors of the appellant hospital and Dr.vijender Rao of Amrutha Deepa hospital failed to inform him about the seriousness and depth of the multiple injuries and the doctors at both the hospitals neglected to exercise due care in regard to his diet as also of the constipation he suffered from, and the injuries to the middle finger of his left hand and right ear. It is contended that the appellant hospital had not handed over him the diagnostic reports and x-ray reports and bandaged the fractured humerus with a cloth without any plaster on it and he had to undergo three operations having incurred `4,000/- per month for a period of 20 months eventually leaving him inactive, disabled and crippled for the rest of his life,
3. It is contended by the doctors of the appellant hospital that the treatment in its hospital is limited to its employees and it is extended to the patients other than employees in case of emergency condition and on humanitarian grounds. It is contended that he was examined by the duty doctor, Dr.K.Ravindra Babu and thereafter the orthopaedic surgeon Doctor Prasanna Simha, general surgeon Dr. K.Somiah diagnosed the first respondent with ruptured bladder,; blood test and urine test was conducted; life threatening problem as rupture of bladder and not the fracture humerus or fracture clavicle. Dr.Somiah performed surgery by repairing the bladder, passing the folelys catheter; One unit of blood was transfused to the patient; it was found that the acetabular fracture fragments were projecting on to the bladder. On 27-01-2005 the general surgeon found the catheter blocked and after extending treatment, he referred the patient to physician for treatment of asthmatic problem. The patient was discharged on 6-05-1995 after the orthopedic surgeon opined him to be fit to be discharged from orthopedic point of view on 29-04-1995 with advice for further treatment of the fracture humerus, fracture acetabulum right hip. It is contended that the treatment of bladder was given priority over the treatment of fracture of humerus, fracture of acetabulum, repair of ear lobule etc.,
4. It is contended that giving medication and providing diet etc, were taken care of by the nursing staff and the patient had not brought complaint of constipation to the notice of the doctors. The injury to the left middle finger of the first respondent was minor and it would not lead to the death of the patient. Fracature left humer was bandaged with plaster of paris cast. The initial application of plaster slab and bandage is neither due to ignorance nor any negligence of the doctor.
5. The respondent no.2 contended that the first respondent was admitted to his hospital on 13-05-1995 with the history of earlier treatment for multiple fractures at the appellant hospital. It is contended that he had trated the patient conservatively, strapping with Brace for fracture right clavicle, with open reduction with plating screw fixation done on 24-05-1995 for left humeus fracture and the surgery was uneventful. The patient was kept on heavy skeletal traction for the central dislocation of hip. The patient was informed of the likely requirement of total hip joint replacement. He left the hospital against the medical advice. The first respondent has filed the complaint to extract money from the second respondent.
6. The first respondent and two other witnesses were examined as PW1 to P.W.3 and the documents, had been marked as Ex.A1 to A3. On the side of the appellant hospital and the respondent no.2 R.W1 to R.W.5 had been examined and the documents Ex.B1 to B7 are marked.
7. The District Forum allowed the complaint against the appellant on the premise of negligently omitting to treat some of the injuries sustained by the first respondent?
8. Feeling aggrieved by the order of the District Forum, the appellant company has filed appeal reiterating the contents of its counter filed in the complaint.
9. The point for consideration is whether there was any negligence in administering treatment to the first respondent at the hospital of appellant company?
10. The first respondent while proceeding as pillion rider on scooter on 22.4.1995 met with an accident and he was taken to the hospital of the appellant company. He was examined by the Duty Doctor at causality department and diagnosed with the following problems:
- Fracture humerus left
- Lacarated wound left ear lobule
- Fracture Clavicle right
- Fracture Acalabulum right with central subluxation of head of femour
- Pain lower abdomen
12. The first respondent developed vomiting at 11.30 a.m. on 23.4.1995 and the doctor had postponed the surgery on the advice of the anesthetist. At 2 p.m. on 24.4.1995 surgery was performed under general anesthesia by Dr.Somaiah to repair the bladder and at that time the doctors stated to have found that acclabular fracture fragment was projecting on to the bladder for which the orthopedic surgeon Dr.Sreedhar applied right upper tibial pin traction. According to the appellant the traction treatment is a temporary solution and the respondent no.1 was required to go through in Higher Medical Center for final and complete treatment after he is discharged from the hospital of the appellant company.
13. Before dealing with the aspect of the treatment in regard to multi fracture problems, it is essential to refer to the circumstances under which the first respondent was discharged from the hospital of the appellant company. The first respondent has stated that the doctors of the appellant company had compelled him to leave the hospital for further treatment in a private hospital. The appellant company has contended that the first respondent has left the hospital against the medical advice. A perusal of prescription issued by the second respondent would lend support to the plea of the first respondent. RW3, the Civil Assistant Surgeon working with the appellant company hospital has deposed that after the rupture of bladder was healed, the first respondent was discharged from the appellant company. RW5 has deposed that the first respondent was admitted to the hospital on 13.5.1995 and at that time he was informed by the first respondent that he cannot procure the prescriptions and case sheet from the appellant hospital and he had treated the patient by personal examination and not based on the earlier treatment administered to him at the appellant hospital. The evidence of RW5 shows that proper care was not exercised by the doctors at appellant hospital at the time of discharge of the patient.
14. The first respondents condition in the case sheet at the time of discharge in regard to the orthopedic problems is mentioned as âpatient can be discharge on Ortho point of viewâ. As noted down by RW5 at the time of his discharge from the appellant hospital the first respondent was suffering from fracture right clavical (Ununited), fracture shaft of humerus left, type 3 central dislocation of right hip with fracture acetabulum with tibialpin, healed right ear injury and mal united fracture left middle finger. This endorsement on the prescription by the second respondent would show that the doctors at appellant Hospital neglected to issue the history of treatment sheet to the first respondent. The second respondent had to examine the first respondent and assess the gravity of injuries by his personal examination and not based on the previous history of the patient.
15. The first respondent was admitted for treatment of injuries that he sustained in the accident. The appellant states that it runs the hospital for the purpose of treating to its employees only and not for those who are not its employees as also the treatment administered to the first respondent was on humanitarian grounds. We do not agree with the submission as the doctors at the hospital of the appellant company had charged the first respondent for the treatment he had undergone at the hospital. The request for extension of the treatment by the first respondents wife in the hospital would not in any manner alter the status of the first respondent and the appellant as the patient in hospital. The hospital having collected the amount of `6057/- from the first respondent cannot contend that it had extended the statement on charity and humanitarian grounds.
16. A patient would not be discharged until his general condition improves and he is fit to be discharged. The first respondent complains that the doctors at hospital of the respondent no.1 as also the respondent no.2 had not informed him about the seriousness of injury and the course of treatment adopted by the doctors at the appellant hospital as also the respondent no.2. It is true the patient has right to be informed of the illness he is suffering from, the gravity of the illness and the course of treatment adopted by the doctors as also the likely side affect or adverse effect of the medicine to be used etc. The appellant and the respondent no.2 had not substantiated their contention except stating that they have explained the first respondent of all the possibilities and consequences of the treatment. The case sheet does not contain any record in support of the contention of the appellant hospital.
17. The respondent no.1 contends that the chances of success and failure of the surgery and the risk involved has not been explained to him by the doctors at hospital of the appellant hospital. it is true the doctors have the obligation to inform him about the hazards and complications of the surgery that Dr.Somaiah planned to perform upon the first respondent and all that as far as possible has to be recorded in the case history as far as possible. Therefore, the lack of consent of the respondent no.1 as also the doctors attending the fracture of thigh of respondent no.1 manifest the negligence on the part of the doctors of the appellant hospital. The respondent no.1 has specifically mentioned and the doctors of the appellant hospital had admitted that the injury to his finger was left unattended. The doctors faintly attempted to support their action on the premise of its less seriousness compared to the rupture of the bladder. At every stage of the treatment, the negligence on the part of the doctors of the appellant hospital is established. It is not the case of the appellant hospital that out of X-ray reports they could not diagnose the projection of right acetabulum on to the bladder till the bladder was repaired.
18. In Samira Kohli Vs Dr.Prabhamand and another reported in (2008) 2 SCC 1, the Supreme Court summarized the principles relating to âconsent as follows :
(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.
"13. Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of a minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed."
19. In the case on hand the doctors of the appellant hospital had not taken the consent of the first respondent who was very much conscious of the injuries that he sustained in the accident. The first respondent ought to have been informed of the seriousness of his general condition and the proposed course of treatment as also the hazards and risks involved therein.
20. In the discharge sheet the doctors at appellant hospital had not advised for any further treatment and it was mentioned that the general condition in regard to the orthopedic problems was fit enough for him to be discharged. At the cost of repetition, we may say that the doctors attempted to support the lacunae in their treatment of the first respondent on the premise of less seriousness of the injury to the finger. It is not a matter of seriousness or less seriousness of an injury to be ignored and not being treated. If the injury is not so serious, it does not mean that it should be left ignored. As such the doctors at appellant hospital have not exercised due diligence and skill in administering the treatment to the respondent no.1.
21. The first respondent has not filed appeal against the findings of the District Forum that the second respondent was not negligent in administering the treatment to him. By refraining himself from filing the appeal, the respondent no.1 has allowed the order passed by the District Forum dismissing the complaint against the respondents no.2 and 3, to become final. In the circumstances, we do not intend to interfere with the findings recorded in regard to the treatment administered by the respondents no.2 and 3 to the respondent no.1.
22. The first respondent has claimed an amount of `4,03,900/- on the premise of his incurring the expenditure and attributing it to the negligent treatment by appellant hospital and respondents no.2 and 3 stating that the doctors are directly or indirectly are responsible for payment of the amount. The first respondent is not specific of the amount stated to have been incurred for the treatment. He has not been able to establish the subsequent surgeries as the result of failure of doctors of the appellant hospital in administering the treatment to him. The doctors at the appellant hospital had been negligent and the negligence on their part by itself would not entitle the first respondent to claim the damages for the treatment and surgery he had been subjected to, in view of the injuries that he sustained in the accident. Two aspects have to be noted, one the inevitable nature of the treatment for the injuries the first respondent sustained in the accident and secondly the negligence of the doctors of the appellant hospital as also the effect of their negligence in administering the treatment to the first respondent in contract to the subsequent treatment that the first respondent had undergone at the hospital of the respondent no.2 and the NIMS.
23. The learned counsel for the appellant hospital has contended that the first respondent has filed O.P. No.151 of 1996 before the MACT Khammam claiming the amount of `5 lakh towards compensation on the same counts which has been pressed into service before the District Forum. MACT has allowed the petition and awarded an amount of `2,25,000/- towards compensation. Against the order of the Tribunal the respondent no.1 has preferred appeal before the High Court in CMA No.3404 of 2000 which was disposed of by the High Court by enhancing the compensation from `2,25,000/- to `2,91,000/- with interest @ 9% per annum thereon. Towards medical and extra nourishment an amount of `1,50,000/- was awarded and for physical pain and mental agony a sum of `35,000/- was awarded in favour of the respondent no.1. The first respondent as such cannot claim the same relief before the Consumer Forum. The principle of unjust enrichment comes into play insofar as the medical expenditure and expenses for extra nourishment are concerned. Therefore, taking into consideration of the amount awarded by the Tribunal which was enhanced by the High Court to the extent of `2,91,000/-, we are inclined to set aside the interest component and reduce the amount awarded by the District Forum from `3 lakh to `30,000/- as the first respondent had suffered pain and mental tension on account of the negligence of the doctors at the appellant hospital.
24. In the result the appeal is allowed. The order of the District Forum is modified. The appellant hospital is directed to pay `30,000/- to the first respondent. There shall be no order as to costs. Time for compliance four weeks.