The complaint filed under Sec.17 (2) read with Sections 12 to 14 of the Consumer Protection Act, 1986 claiming compensation of Rs.75,00,000/- on the ground of medical negligence and deficiency in service on the part of the opposite parties 1 and 2 in treating the complainant at the 1st opposite party hospital under the 2nd opposite party Dr.K.R.Vikraman.
2. The case of the complainant is as follows:
The complainant is aged 35 years engaged in film industry and doing the business of advertisements. The 1st opposite party is a limited company running a hospital by name Kerala Insitute of Medical Sciences, a super speciality hospital and that the 2nd opposite party a super specialist in Urology attached to the 1st opposite party hospital. The complainant approached the 1st opposite party on 2/3/02 with abdominal pain and the ailment of the complainant was diagonised as Renal Stone and advised treatment and medication and to approach the 2nd opposite party for the treatment. The complainant approached the 1st opposite party again on 24/3/2002 with abdominal pain and he was referred to the 2nd opposite party. The 2nd opposite party after conducting investigation stated the complainant to have the renal stone removed by doing Scopy X URS method. The said operation was done upon the complainant without giving proper anaesthesia and so the complainant suffered great pain during and after the said operation. The complainant was not given proper nursing care and so he had to suffer a lot. He was admitted in an air-conditioned room. But the air conditioner was not working properly and so he developed temperature and cough. The complainant was told that the pain is due to the operation and the same will subside after a few days and medicines are given to subside the pain. On 29/3/02 he was discharged. Even after reaching home the complainant was having severe pain and due to unbearable pain on 8/4/02 the complainant again went to the opposite parties. He was admitted in 1st opposite party hospital and CT scan was taken. It revealed that the operation done earlier to burst the stone is not perfectly done and stone splinters remained and pierced in the body portion. The 2nd opposite party informed the complainant that the splinters are to be removed by operation and the 1st opposite party will meet all the expenses for the said operation. The complainant underwent a major operation which was conducted by the 2nd opposite party and after the surgery he was put in the post operative ward. The complainant was having great pain and on examination it was found that the surgical wound was not healed and so again surgical wound was stitched and the complainant was discharged on 22/4/02. He was advised to take rest for 2 months. But even thereafter the pain developed. The complainant consulted the 2nd opposite party again and he was told that the pain is due to stent put up to connect the right kidney with the urinary bladder. On 18/6/02 the 2nd opposite party removed the stent but the torrent pain continued. The complainant was suffering pain and inconvenience only because of the negligent act of the opposite parties. The complainant took a scan of the affected portion of the body from Ittyavira Scan and Genetic Research and that the report revealed that the right kidney swelled and oedematous. The complainant again met the 2nd opposite party and detailed the matter. But he was told by the 2nd opposite party that there is nothing to worry. Thereafter the complainant met other Urologists and all of them after examination suggested to go to the 1st opposite party for correcting things. On 14/3/03 the complainant went to the 1st opposite party hospital and he was admitted there. On X-ray examination the 2nd opposite party found that there is obstruction in the flow from the right kidney to the urinary bladder. The complainant was discharged on 15/3/03. On 18/6/03 one Video Endoscopy Surgery was done upon the complainant by the opposite parties, but the torrent pain continued. The complainant felt great pain in the urinary bladder after urinating. X-ray of the urinary bladder was taken and it was found that the stent put up in the earlier operation, through it was said that the stent was removed by the subsequent operation, is lying inside the urinary bladder. But the 2nd opposite party kept mum in that respect and that the complainant was told that there is no problem. The complainant had to carry that stent and suffered the torrent pain. On 18/8/03 the complainant again approached the opposite parties. Ultra sound scan of the right kidney and right ureter was done and it was found that the ureter is also swelled. The stent was still remaining in the bladder. The opposite parties suggested the complainant to have renogram which was not available with the 1st opposite party. He was referred to Regional Cancer Centre, Thiruvananthapuram. But the equipment in RCC was out of order and so the complainant went to Amrutha Institute of Medical Sciences, Kochi and done the renogram. The result was shown to the opposite party. After seeing the result of renogram, the opposite parties decided to conduct a major operation upon the complainant. The complainant in consultation with his father left the premises of the 1st opposite party. Thereafter the complainant was taken to KasthurbaMedical College Hospital, Manipal on 10/10/2003 and after examination by a team of doctors headed by Dr.Sasidharan, they found that the right kidney is completely damaged beyond any repair. They advised removal of right kidney. The complainant underwent surgery for removal of his right kidney on 16/10/03. The opposite parties after seeing the renogram told the complaint that the ureter can be repaired by a surgery by taking portion of the intestine and attaching it to the ureter. If the said advice of the 1st opposite party was taken, the complainant could have become a living dead man. On 2/3/02 it was detected that the ailment of the complainant is renal stone and stone at PUJ on the right side. It is not a major ailment as stone can be removed by various methods. The complainant underwent so many surgeries for the said ailment. The said surgeries were done due to lack of skill and negligence of the opposite parties. The negligence and deficiency in service on the part of the opposite parties resulted in removal of right kidney of the complainant. The complainant has suffered mental agony, discomfort, inconvenience and pain on account of the negligence on the part of the opposite parties. The life expectancy of the complainant is reduced and that the complainant is not in a position to earn his livelihood. He was getting monthly income of Rs.35,000/- from his profession as a film director and a businessman engaged in advertising and marketing. The complainant claimed a compensation of Rs.75,00,000/- under various heads.
3. The 1st opposite party entered appearance and filed written version contending as follows:
The compliant is not maintainable either in law or on facts. The complainant is not a consumer and there is no consumer dispute as contemplated. The complainant is not having any specific allegation against the 1st opposite party. The complaint is bad for non joinder /mis joinder of necessary parties. It is stated that the complainant had undergone treatment from other hospitals and under other doctors. So, they are necessary parties to this complaint. The 2nd opposite party is a Senior Urologist retired from the Medical College Service and who is not a subordinate or an agent of the 1st opposite party. The 2nd opposite party is consultant, admitting patients of his own and making use of the facilities and infrastructure of the 1st opposite party hospital. The 1st opposite party is not vicariously liable for the negligence if any on the part of the 2nd opposite party. There was no negligence or deficiency in service on the part of the opposite parties 1 and 2. The 1st opposite party is having all ultra modern facilities in the hospital. But the 1st opposite party never made the complainant to believe that special skills and knowledge is possessed. The 2nd opposite party is a renowned Urologist capable to handle any urology problems. He has the skill and competency to decide the medical administration of his patients. On 2/3/02 the complainant came to the hospital with abdominal pain and distension of abdomen. He is known asthmatic on medication. He had right renal stone 10 mm with dilatation of right kidney and ureter. He was treated with antispasmodics and the pain subsided. He was discharged on 3/3/02 with medical treatment for stone disease. He was not referred, but directed to the concerned department on request. On 24/3/02 he was readmitted with abdominal pain and vomiting. On evaluation in detail with blood, urine examination, renal function tests, ultrasound of urinary tract including X-ray of abdomen, it was found that there is ureteric calculus 9 mm x 9 mm size with dilated kidney and ureter. The treatment options were discussed in detail to the patient. Thereafter Ureteroscopic fragmentation of stone was done under anaesthesia on 25/3/02. Ureteroscopy showed oedematous lower ureteric segment and the stone was fragmented with lithoclast to less than 3 mm for easy passage through urine. He was discharged on 29/3/02 with advice to review after one week. The other allegations regarding the lack of attention and the alleged inconvenience caused to the complainant are false and imaginary. The complainant was examined on 8/4/02 with abdominal pain. CT scan was taken and it revealed dilated kidney and ureter with stone gravels in the lower end of right ureter. The 2nd opposite party discussed with the patient and his father. Thereafter open removal of stone fragments were done on 10/4/02. The lower ureter oedematous and blood supply was inadequate. Hence a ureteric re-implantation was done with stent in situ. The complainant had a smooth post operative period and was discharged on 22/4/02. There was no negligence, omission or carelessness on the part of the opposite parties. Ureteric stent was removed in two months. On 23/10/02 dilatation of the collecting system of the right kidney and also dilatation of ureter were found. The complainant was advised admission by the 2nd opposite party. But the patient was not willing. The details of entire treatment were handed over to the patient then and there and some of them are produced by the complainant along with the complaint. After seeing the scan report the complainant was told to continue treatment on admission. But he was taking advises from many other doctors. The stents part were removed duly. The averment in the compliant are false and are denied. Complainant is telling lies one after another. The 2nd opposite party using the modern facilities has conducted the medical administration with due diligence, care, skill and prudence. Complainant is simply making baseless allegations about the 2nd opposite party. The complainant was indifferent from the beginning and defaulted in follow up. The complainant took up his disease lightly against the advice. He failed in timely follow up and in adopting timely surgery for decompression of the kidney dilatation. The 2nd opposite party has applied all his skill appropriately. The 1st opposite party had no role at all, in the entire episode. The claims made in the complaint are highly exaggerated and fanciful and it has no nexus to reality. The loss of one kidney is of no consequence to a healthy person like complainant. The principle of vicarious liability is not applicable in the present case. The complainant is not eligible for any of the claim for compensation. The complaint is frivolous and vexations and liable to be dismissed with compensation.
4. The 2nd opposite party filed written version contending mainly as follows: The complaint is not maintainable either in law or on facts. It is filed without bonafides or truth and there is no negligence or deficiency in service as alleged by the complainant. The complainant suppressed true facts and made false averments with malafide intention for undue financial gains. The 2nd opposite party is a paid employee of the 1st opposite party. On 2/3/02 the complainant came to the 1st opposite party hospital with severe abdominal pain and distention of abdomen. After examination and necessary investigations and it was diagnosed that he is having stone in the right ureter with dilatation of right kidney and ureter. He was treated with antispasmodics and the pain subsided and he was discharged on 3/3/02. He was readmitted with abdominal pain and vomiting on 24/3/02 in the emergency room. On the same morning the 2nd opposite party saw the patient. Necessary investigations were done and it revealed ureteric calculus 9 mm x 9 mm size with dilated kidney and ureter. He was told about the advantages and disadvantages of the treatment options and opted ureteroscopic fragmentation of the stone. Thereafter ureteroscopic fragmentation was done. It was the most suited procedure for the lower ureteric stone. The same was done after obtaining informed written consent. It was done under general anaesthesia. The stone was fragmented with lithoclast, to less than 3 mm for easy passage through urine. Patient was discharged on 29/3/02 with advice to review after one weak.
5. He was readmitted on 8/4/02 with abdominal pain. CT scan of abdomen revealed dilated kidney and ureter with a stone seen in the lower end of right ureter. After detailed discussion with the patient and his father open removal of stone fragments was done with written informed consent on 10/4/02. The lower ureter oedematous and blood supply was inadequate. Hence ureteric re-implantation was done with a stent in situ. The post operative period was smooth and discharged on 22/4/02. As a follow up ultra sound examination was done on 20/5/02 which showed mild dilatation of the collecting system. After 2 months ureteric stent was removed. Ultra sound on 23/10/02 showed dilatation of the collecting system of the right kidney and dilatation of the ureter. The patient was advised admission and detailed evaluation but he was not willing. The patient reviewed with the 2nd opposite party on 10/3/03, with ultra sonogram done on 8/3/03. It showed hydronephrosis of right kidney with dilatation of the collecting system. He was admitted on 14/3/2003 and IVP was done on 17/3/03. It showed right hydroureteronephrosis. The renal function as assessed. Blood urea and creatinine levels were normal. The patient was advised surgery but was not willing. Hence the patient was discharged with advice to report after one week for admission and necessary surgical management to salvage the kidney. The patient further reported only on 18/6/03 and was admitted in the 1st opposite party hospital. The serious condition of the patient was explained to him. He was not willing for an open surgical procedure and was only willing for endoscopic procedure. Hence he was subjected to cystoscopy and ureterotomy under general anaesthesia with all necessary precautions and with utmost care and attention with informed consent. 6 F size stent was passed into the right lower ureter and the rest of the stent left coiled inside the bladder. The said procedures were done in an effort to decompress the right kidney. The patient was advised to report after 6 weeks for stent removal or earlier if he experienced any problem. The patient further reviewed on 18/8/03 and stent was removed. An ultrasonogram was done on 18/8/03 which showed right sided hydroureteronephrosis. The patient was again advised immediate open surgery for which he was not willing. He was advised to do a renal scan. He reported back with a renal scan and was again advised surgery. Thereafter the patient was lost for follow up. All the allegations and averments in the complainants are false and denied. There was no negligence or deficiency in service on the part of the opposite parties. The alleged loss of function of the right kidney had occurred after the complainant defaulted in treatment and follow up with the 2nd opposite party. The complainant was disinclined to follow to advice of the 2nd opposite party, for necessary surgery, to decompress the kidney dilatation. The 2nd opposite party had given the standard, appropriate and indicated treatments to the complainant. The alleged difficulties the complainant faced, are due to the progression of the inflammatory pathology in the lower part of the right ureter secondary to the presence of stones and consequent hydroureteronephrosis and eventual loss of kidney function. The complainant was not fully co-operative with the 2nd opposite party in the treatment and had defaulted on follow up and had failed in adopting timely surgery for decompression of the kidney dilatation. The amount of Rs.75 lakhs claimed is a fanciful amount without legally or factual basis. Thus, the 2nd opposite party prayed for the dismissal of the complaint with compensatory cost of Rs.10,000/-.
6. The points that arise for consideration are:-
(1) Whether the complainant is a consumer coming under purview of the Consumer Protection Act, 1986?
(2) Whether the complaint is bad for non-joinder/ mis-joinder of necessary parties?
(3) Whether the 1st opposite party can be held vicariously liable for the alleged negligence of the 2nd opposite party?
(4) The case of the complainant that there was negligence and deficiency in service on the part of the opposite parties 1 and 2 can be upheld?
(5) Whether there was any sort of negligence on the part of the 2nd opposite party in the medical treatment including surgical procedures conducted on the complainant at the 1st opposite party hospital?
(6) What is the order as to compensation and cost, if any?
7. The evidence in this case consists of the oral testimony of the complainant as PW1 and the evidence of the doctors as PW 2 and 3. Exts.A1 to A20 series were also marked on the side of the complainant. The 2nd opposite party was examined as RW1 and Ext.B1 medical record (file) was marked on the side of the opposite parties. The complainant and the opposite parties 1 and 2 have also filed proof affidavit. The learned counsel for the parties to this complaint submitted argument notes. They were also heard in detail.
8. Points 1 to 3: There is no dispute that the complainant had undergone treatment at the 1st opposite party hospital on various dates and he was undergoing treatment under the 2nd opposite party Dr.K.R.Vikraman, MS, MCH. Exts.A1, A5, A7, A16 and A19 discharge summaries issued from the 1st opposite party hospital in the name of the complainant as patient would make the position more clear and certain. The definite case of the complainant is that he availed the services of the opposite parties 1 and 2 on consideration. But the same has not been disputed by the opposite parties. It is a well settled position that the patient availing the services of a hospital and the doctors attached to the hospital and the said services are availed on consideration can be considered as a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986. There can be no doubt about the fact that the complainant is a consumer availed the services of the opposite parties 1 and 2 on consideration. We have no hesitation to hold that the complainant is a consumer coming under the purview of the Consumer Protection Act, 1986.
9. The 1st opposite party has got a case that the complaint as framed and filed is not maintainable as the same is bad for non-joinder/mis joinder of necessary parties. It is the case of the 1st opposite party that the complainant as a patient had undergone treatment under various other doctors and hospitals and so those doctors and hospitals are also necessary parties to the complaint. It is to be noted that the allegations and averments in the complaint would make it clear that the complainant has only alleged medical negligence and deficiency in service on the part of the opposite parties 1 and 2. He has no complaint against the so called other doctors or other hospitals. It is true that in paragraph 8 of the complaint it is stated that the complainant met other Urologists and all of them after examination suggested to go to the 1st opposite party for correcting things. But it is not stated that he had undergone treatment of the other Urologists. The mere fact that he had consultation with other Urologists attached to some other hospitals cannot be taken as a ground to hold that he was under the treatment of other Urologists attached to any other hospitals. Moreover, in the present complaint we are concerned with the alleged negligence and deficiency in service on the part of the opposite parties 1 and 2. If that be the position, the other Urologist referred to in Paragraph 8 of the complaint cannot be treated or considered as necessary parties to this complaint.
10. The complainant as also got a case that he had undergone treatment at Kasthurba Medical College Hospital, Manipal from 10/10/03 and his right damaged kidney was removed by the operation which was conducted by the doctors of Kasthurba Medical College Hospital, Manipal. But the complainant has no grievance or allegation against the KasthurbaMedicalCollege and Hospital, Manipal or the doctors who treated him at that institution. The definite case of the complainant is that there was negligence on the part of the 2nd opposite party in medically treating the complainant and that there was deficiency in services on the part of the opposite parties 1 and 2. If that be the case, the present complaint cannot be treated as one bad for non-jonder of necessary parties or misjoinder of parties. Hence, we hold that the complaint in OP 4/05 as framed and filed is maintainable in law.
11. The 1st opposite party would contend that the 2nd opposite party is only a consultant and that the 2nd opposite party is admitting his own patients and availing the facilities in the 1st opposite party/hospital. On the other hand, the 2nd opposite party would contend that he is getting his salary from the 1st opposite party and he is working under the 1st opposite party. The 1st opposite party in the proof affidavit filed by his Company Secretary has categorically admitted that the complainant as patient was treated in the urology department of the 1st opposite party and he was admitted with abdominal pain and vomiting and he was treated by the 2nd opposite party doctor attached to the 1st opposite party hospital. Moreover, the 1st opposite party has not produced any documentary evidence with respect to the consultancy arrangement said to have been entered into between the opposite parties 1 and 2. There is also nothing on record to show that the 2nd opposite party is not getting his salary from the 1st opposite party. There is also nothing on record to disbelieve the version of the 2nd opposite party that he is attached to the 1st opposite party hospital and getting his salary from the 1st opposite party. It is to be noted that the complainant approached the 1st opposite party for medical treatment and he was treated by the 2nd opposite party who was working in the 1st opposite party hospital. As far as the complainant is concerned, the 2nd opposite party doctor is attached to the 1st opposite party hospital and he availed the services on the opposite parties 1 and 2. The 1st opposite party being the hospital and the 2nd opposite party being the doctor working in that hospital it can be concluded that the 2nd opposite party is a Doctor working in the 1st opposite party/hospital. If that be so, the 1st opposite party is vicariously liable for the negligence of the doctor who was employed by the 1st opposite party. Hence, the 1st opposite party can be held vicariously liable for the negligence, if any of the 2nd opposite party doctor. These points are answered in favour of the complainant.
12. Points 4 and 5:- The complainant first approached the 1st opposite party with abdominal pain on 2//3/02. He was admitted in the 1st opposite party hospital on 2/3/02 and discharged on 3/3/02. Ext.A1 is the discharge summery issued from the 1st opposite party hospital. He was discharged with an advise to review in Urology OP department. The diagnosis was right renal calculus. It means the complainant was having kidney stone in his right kidney. The complainant has no case that on 2/3/02 or on 3/3/02 he was treated by the 2nd opposite party. Thereafter, on 24/3/02 the complainant was admitted in 1st opposite party hospital with colic pain . On 25/3/02 scopy X URS done for the stone in the right kidney. Thereby stone fragmentation was done by the 2nd opposite party for removing renal stone in the right kidney. The 2nd opposite party has also admitted the fact that renal stone in the right kidney was attempted to be removed by the scopy X URS method and that the complainant as patient was discharged from the hospital on 29/3/02. Ext.A5 is the discharge summery issued from the 1st opposite party hospital for the admission and treatment of the complainant at the 1st opposite party hospital. This would show that the complainant was admitted in the 1st opposite party hospital on 24/3/02 and discharged on 29/3/02; that he came to the 1st opposite party hospital with colic pain. The Ultra Sound Scan showed stone right upper ureter and stone in the right kidney. It would further show that the scopy X URS done for the right kidney stone and the stone was fragmented into small pieces and left for spontaneous passage. He was discharged with the advice for review after one week in the OP department.
13. The opposite parties 1 and 2 in their written versions have admitted the fact that the complainant was treated in the urology department of the 1st opposite party hospital and the complainant as patient was evaluated in detail with suitable investigations and it was found that there was Uriteric Calculus 9 mm x 9 mm size with dialated kidney and ureter and that ureteroscopic fragmentation of stone was done under anaesthesia on 25/3/02. It is also admitted that the kidney stone was fragmented on litho clast to less that 3 mm for easy passage through urine. The 2nd opposite party in his version and in the affidavit filed in lieu of chief commission has contented / pleaded that the ureteroscopic fragmentation of the stone was done under general anaesthesia on 5th March 2002. But the discharge summery would show that the stone fragmentation was done on 25/3/02. It is true that when the 2nd opposite party was examined as RW1, he deposed that the date shown as 5th March 2002 is an error . Ext.A3 is the Ultra Sound Scan report of abdomen and it is dated 2/3/02. In Ext.A3 report it is reported under the heading impression â renal stone and stone at PUJ on the right side . This report would also make it clear that a stone of 12 mm size is seen in the pelvy ureteric junction (PUJ) of the right kidney . It would also show that a small stone of 6 mm size is also seen in the middle calyx of the right kidney. It is because of the presence of a stone of 12 mm size in the PUJ and a small stone of 6 mm size in the middle calyx of the right kidney and mentioned under the heading impression ârenal stone and stone at PUJ on the right side.â
14. The stone found in the right kidney as per Ext.A3 Ultra Sound Scan report made the 2nd opposite party to adopt the method of ureteroscopic fragmentation of the stone for getting the stone in the right kidney removed. It is to be noted that the ureteroscopic fragmentation of the stone was done on 25/3/02. But, thereafter-ultra sound scan of the urinary track was taken on 26/3/02. Ext.A4 is the ultra sound scan report of the urinary track dated 26/3/02. Ext.A4 report would show small stones seen in the calyces of right kidney and the right kidney slightly bulky and pelvicalyceal system of right side shows mild dilatation and right ureter shows mild dilatation with a small stone 6 mm in the middle 3rd of right ureter. In Ext.A4 report under the heading impression it is stated â Renal stone and ureteroscopic stone right side.â It is the definite case of the 2nd opposite party that the kidney stone found in the right kidney was attempted to be removed by X URS scopy fragmentation with lithoclast and that the stone fragmented to less that 3 mm size for easy passage though urine. Ext.A3 scan report dated 2/3/02 would make it clear that there was no stone in the ureter but there were two stones one of 12 mm size in the PUJ of the right kidney and another stone of 6 mm in the middle calyx of right kidney. According to the opposite parties those stones were fragmented under X URS by lithoclast and the said procedure was done on 25/3/02. Ext.A4 Ultra Sound Scan report of the ureter track would show a small stone of 6 mm is seen in the middle 3rd of right ureter. This would give a clear indication that after stone fragmentation small fragmented stone with 6 mm size gone into the right ureter. This would give a further indication that the stone fragmentation was not done perfectly or properly by fragmenting the same to less that 3 mm size for easy passage through urine. It would inturn give an inference that after fragmentation there was a stone of the size of 6 mm and the same gone into the right ureter up to the middle 3rd of the right ureter. According to the opposite parties the fragmentation was done by using lithoclast and the stone was fragmented to less that 3 mm in size. The presence of a small stone of 6 mm in the middle 3rd of right ureter would make it clear that the 2nd opposite party could not fragment the stone to less than 3 mm. On the very next day of the fragmentation procedure the 2nd opposite party was fully aware by Ext.A4 scan report that he failed to fragment the stone to the desired size of less than 3 mm. Ext.A4 report would also show mild dilatation of the right ureter because of the passage of a small stone of 6 mm in size from the right kidney. It is pertinent to note at this juncture that in Ext.A3 report there was no dilatation for the right ureter. So it can very safely be concluded that the mild dilatation of the right ureter occurred due to the entry of a small stone of 6 mm size from the right kidney to the right ureter. It was incumbent upon the 2nd opposite party to take necessary steps or adopt necessary procedure for removal of the said small stone of 6 mm size from the right ureter inroder to avoid further damage to the right ureter. Thus, the material on record would show that there was some sort of negligence on the part of 2nd opposite party in conducting fragmentation of the kidney stone in the right kidney at the PUJ and in the calyx of the right kidney. He failed to fragment the kidney stone to less than 3 mm in size so as to pass through the ureter by the passage urine from kidney to the urinary bladder and from the bladder to outside.
15. The complainant was discharged on 29/3/02 with advice for review after one week at the OP department. The complainant reported at the 1st opposite party hospital on 8/4/02 with severe and unbearable pain. He was admitted at the 1st opposite party hospital on 8/4/02 and continued treatment as in-patient. He was discharged from the hospital on 22/4/02. Ext.A7 is the discharge summery issued from the 1st opposite party hospital for the admission of the complainant on 8/4/02. This would show that he was discharged only on 22/4/02. Ext.A7 discharge summery would make it clear that on examination it was found that right lower ureter was having a stone of 1.5 cm x 1.5 cm impacted in the lower ureter with hydroureteronephrosis. It would also show that CT scan of abdomen and pelvis were taken and it showed 1.5 cm x 1.5 cm stone impacted in the right lower ureter with ureteric obstruction and oedema. The discharge summery would also show that right ureteric lithotomy done under general anaesthesia with ureteric reimplantation. It is also noted that ureter dilated into the lower end where stone was impacted. It is also reported that stones removed and ureteric reimplantation done with a double J stent. It is also reported that there was wound infection also. The complainant was discharged with advice to take medicines prescribed and on 24/4/02 dressing was done and wound was found OK. It is admitted fact that the open removal of stone by surgery was done on 10/4/02. Ext.A7 discharge summery would show that the complainant as patient was having hydroureteronephrosis of right kidney and right ureter was dilated. Double J stent was inserted because of the obstruction caused at the lower end of the ureter.
16. Ext.A6 is plain and contrast Enhanced CT scan of Abdomen and it is dated 9/4/02. This CT scan would also make it clear that the right kidney is Pelvicalyceal enlarged; pelvicalayceal system is dilated; upper 2/3rd of ureter also dilated. A stone is seen in the lower 3rd; A hypodense lobulated mass suggesting fluid collection noted in the RIF surrounding the ureter where stone is impacted under the impression it is noted âMass RIF suggesting retroperitoneal fluid collection. Ureteric stone right side with hydronephrosis. It is based on A6 CT scan report dated 9/4/02 surgery for removal of the stone was done on 10/4/02.
17. It is to be noted that the stone in the right ureter was seen impacted. It was revealed in the ultra sound scan dated 26/3/02. It was also noticed in A4 Ultra Sound Scan report dated d26/3/02 that the right ureter is having mild dilatation because of the stone of 6 mm size in the middle 3rd of right ureter and the right kidney seen slightly bulky. This would suggest that the 2nd opposite party, the expert Urologist could have taken necessary steps for removal of the stone impacted in the right ureter by seeing the ultra sound scan report dated 26/3/02. There was no necessity for the 2nd opposite party to delay the matter up to 10/4/02. The surgery could have been done immediately on getting A4 scan report dated 26/3/02. If that proceedulre was adopted without any delay, there would not have occurred the complication of hydroureteronephrosis right side and there would not have any fluid collection in the collecting system of the right kidney and ureter. It is evidenced by A6 C.T.of Abdomen dated 9/4/02. There was obstruction of the free flow of urine from the right kidney to urinary bladder because of the damage caused to right ureter due to the stone impacted in the right ureter. The Double J stent was also implanted to have free flow of urine from right kidney to urinary bladder. Thus, a close scrutiny of the medical reports available on record would suggest that there was some delay on the part of the 2nd opposite party in taking necessary precautionary steps and procedure in treating the complainant for the renal stone. This would suggest that the 2nd opposite party was negligent to some extent. It is pertinent to not at this juncture that there was no direction in A7 discharge summery for further review. Ext.A7 is silent about any further review in the matter. In other words, the complainant was not advised to come for review on his discharge from the 1st opposite party hospital on 22/4/02. On the other hand, in A1 discharge summery there was direction for review. In A1 discharge summery it is advised for review in Urology outpatient department. In A5 discharge summery it is advised for review after one week in the OP department. But in Ext.A7 no such advice for review. This circumstance would negative the case of the opposite parties that the complainant failed in following directions of the 2nd opposite party regarding his further treatment. If that be so, the case of the opposite parties 1 and 2 that further complications resulted in only because of the negligence on the part of the complainant in continuing his treatment as directed by the 2nd opposite party cannot be believed or accepted as such.
18. The definite case of the complainant is that a stent was implanted while conducting surgery on 10/4/02. It is also the case of the complainant that he was told by the 2nd opposite party that the stent was subsequently removed within two months of the surgery. The further case of the complainant is that the stent was not removed as stated by the 2nd opposite party but the stent was lying in the urinary bladder in a coiled position. The complainant has also relied on Ext.A20 (e) X-ray film to substantiate his case that the stent was lying in the urinary bladder in a coiled position. Ext.A20 (e) is the X-ray film which was taken on 21/6/03. A mere look of A20 (e) X-ray film would show that the stent was lying in urinary bladder in a coiled position, even on 21/6/02. This circumstance would strengthen the case of the complainant that the presence of the stent in the urinary bladder caused much irritation and sever pain to the complainant and he was forced to carry the stent in his urinary bladder with much difficulties and discomforts.
19. The 2nd opposite party was examined before this Commission as RW1. It is deposed by RW1 in his re-examination that stent put for drainage on two times. The 2nd opposite party in his written version at para (d) it is stated that âthe patient was readmitted on 8/4/02 with abdominal pain. CT scan of abdomen revealed dilated kidney and ureter with a stone seen in the lower end of right ureter. Condition of the patient was discussed with him and his father and open removal of stone fragments was done with written informed consent on 10/4/02. The lower ureter was oedematous and blood supply was inadequate. Hence ureteric re-implantation was done with a stent in situ as the appropriate procedureâ. Thus, the 2nd opposite party categorically admitted that the stent was put on 10/4/02. It is stated that the kidney and ureter were found dilated, on seeing CT scan of abdomen. It is to be noted that the CT scan of abdomen was taken only on 9/4/02 but even prior to that as early as on 26/3/02 by Ext.A4 US report it was found that the right ureter is having mild dilatation and the right kidney slightly bulky.
20. In para 2 (e) of the written version of the 2nd opposite party it is stated that ureteric stent was removed after two months. Follow up ultra sound on 23/10/02 showed dilatation of the collecting system of the right kidney and also dilatation of the ureter. The patient was advised admission and detailed evaluation, but the patient was not willingâ. The statement that the dilatation of the ureter and collecting system of the right kidney were found by taking ultra sound scan on 23/10/02 cannot be perfectly correct. It is to be noted that A9 ultra sound scan of abdomen taken on 20/5/02 showed mild dilatation of the collecting system of the right side and also right ureter. But seeing A9 ultra sound scan report nothing was done to prevent dilatation of the collecting system of the right side and also the dilatation of the right ureter and kidney. There was no necessity for the 2nd opposite party to wait up to October 2002. He could have done necessary and appropriate procedure as early as in May 2002 itself. There is nothing on record to show that the complainant was advised on 20/5/02 or on the next day about the direction or procedure to be followed in the matter. It is also to be noted that even according to the 2nd opposite party, the complainant was admitted in the 1st opposite party hospital in April 2002 and the stent was removed in June 2002. But nothing is seen done to prevent the dilatation of the right kidney and right ureter or to cure the defective collecting system of the right side.
21. In Para 2 (g) of the written version filed by the 2nd opposite party it is stated that âthe patient further reported only on 18/6/03 and was admitted in the 1st opposite party hospital. The seriousness of the condition of the patient with hydroureteronephrosis was explained to him. The patient was not willing for an open surgical procedure and was only willing for endoscopic procedures. Hence the patient was subjected to cystoscopy and ureterotomy under General Anaesthesia with all necessary precautions and with utmost care and attention with iinformed consent. 6 F size stent was passed into the right lower ureter and the rest of the stent left coiled inside the bladder. The said procedures were done in an effort to decompress the right kidney. The patient was clearly told about the procedure adopted. The patient was advised to repot after 6 weeks for stent removal or earlier if he experienced any problem.â In Para 2 (h) of the version it is further stated that âthe patient further reviewed on 18/8//03 and stent was removed. An ultrasonagram was done on 18/8/03 which showed right sided hydroureteronephrosis â. In Para 2 (g) of the written version it is stated by the 2nd opposite party that another stent was inserted on 18/6/03 and the same was removed on 18/8/03. But there is nothing on record to show that stent was inserted to the right ureter on 18/6/03 and the same was removed on 18/8/03. Ext.B1 is the medical record produced from the side of the 1st opposite party with respect to the treatment of the complainant at the 1st opposite party hospital on various occasions. But B1 medical record is silent about the aforesaid procedures said to have been adopted by the 2nd opposite party on 18/6/03 and on 18/8/03. It is to be noted that B1 medical record is produced from the side of the 1st opposite party. It cannot be treated as the complete medical report pertaining to the treatment of the complainant at the 1st opposite party hospital. The 2nd opposite party as RW1 has admitted the fact that B1 cannot be treated as the complete medical record pertaining to the treatment of the complainant. The testimony of RW1 that treatment records were given to the complainant for further treatment and management cannot be believed or accepted. It may be correct to say that the complainant was given the investigation reports such as ultra sound scan reports, CT scan reports, X-ray films etc.. But the details regarding the treatment and procedures done pertaining to the treatment of the complainant at the 1st opposite party hospital will be with the 1st opposite party. The case sheet can only be with the 1st opposite party hospital. The testimony of RW1 that the entire medical records were given to the complainant cannot be believed or accepted. In the ordinary course the hospitals will maintain case sheets pertaining the treatment of the patients especially that of in-patients. It is to be noted that in B1 case file copies of two discharge summaries namely the discharge summery for the admission on 24/3/02 and 2/3/02 are available in B1 file. But copies of the other discharge summaries are not available in B1 file. A close study of B1 file would make it abundantly clear that the treatment details are missing in B1 file. No reasonable explanation is forthcoming for the missing of the treatment details especially case sheets. It can very safely be inferred that the opposite parties purposely removed the relevant case sheets from B1 medical report. If that be so, the case of the 2nd opposite party that another stent was inserted on 18/6/03 and same was removed on 18/8/03 cannot be accepted.
22. The 1st opposite party in its written version has no case that stentwas inserted to the right ureter on 18/6/03. But it is stated in Para 15of the written version of the 1st opposite party that âthe stents part were removed dulyâ. But no such case for the 2nd opposite party that the stents part were removed at any point of time. Thus, there are inconsistent versions among the opposite parties 1 and 2 regarding the stent inserted to the right ureter of the complainant that there was proper management of the stent implanted for free flow of urine from right kidney to the urinary bladder. The available documents would show that there was negligence on the part of the 2nd opposite party in implanting the stent and also in its removal. No reasonable explanation is forthcoming as to how the stent remained coiled in the urinary bladder as noticed in Ext.A20(e) X-ray film. It may be correct to say that the lying of the stent in the urinary bladder in a coiled position should not have caused damage to the right kidney or right ureter. But the lying of a foreign body like a stent in the urinary bladder for a long period would definitely cause irritation, discomfort and pain to the complainant. So, the case of the complainant that he suffered severe pain due to the stent lying in a coiled position in his urinary bladder is to be accepted to a great extent.
23. The opposite parties have got a case that the complainants right kidney was damaged and became not functional only because of the negligence on the part of complainant in continuing treatment as advised and directed by the 2nd opposite party doctor. Ext.A14 discharge summery would support the aforesaid contentions taken by the opposite parties. Ext.A14 is the discharge summery issued from the 1st opposite party hospital for the treatment of the complainant as inpatient on 14/3/03 and 15/3/03. As per Ext.A14 the complainant was admitted in the 1st opposite party hospital on 14/3/03 and discharged on 15/3/03. He was admitted with right sided abdominal pain. The diagnosis is noted in Ext.A14 as âright renal colicâ. During the said admission IVU done and it showed right hydroureteronephrosis with delayed function. It is also observed ureteric obstruction right hydroureteronephrosis. The complainant as patient was advised admission and management at the earliest. He was advised to review after one week. Ext.A14 discharge summery would make it abundantly clear that the complainant was advised immediate admission and management at the 1st opposite party hospital. Admittedly the complainant did not follow the aforesaid advise given by the 2nd opposite party Dr.Vikraman K.R. Ext.A15 is the excretory urographyc report. This report was also issued from the 1st opposite party hospital at the instance of the 2nd opposite party Dr.Vikraman. This report would also show that there was right hydroureteronephrosis with features of obstruction. This repot is dated 17/3/03. It would show that on the discharge of the complainant on 15/3//03 he reported at the 1st opposite party hospital on 17/3/03 and the excretory urography done as advised by the 2nd opposite party. But there is nothing on record to show that the complainant was prepared for admission and management. It is the case of the opposite parties that thereafter the complainant approached the 1st opposite party for admission only in June 2003 and even on that occasion he was not prepared for an open surgery as advised by of the 2nd opposite party. But he was only willing for endoscopic procedure. Thereafter, the patient came for review on 18/8/03 and he was again advised immediate open surgery for which he was not willing. The surgery contemplated and advised was for a tubular flap raised from the bladder to substitute the diseased lower ureter and to ensure proper drainage of urine and thereby decompression of the dilated kidney of the complainant. But thereafter the patient was lost for follow up with the 2nd opposite party. There is nothing on record to show that the complainant was ready and willing for an open surgery as suggested by the 2nd opposite party. The complainant has stated in the written complaint in Para 12 that if the aforesaid advise of the 2nd opposite party was followed the complainant could have become a living dead man. According to the complainant he could save his life by going to Kasthurba Medical College Hospital and to have the treatment there. So, this admission made by the complainant would give an indication that the complainant was not prepared for an open surgery as suggested by the 2nd opposite party.
24. The next aspect for consideration is as to whether the complainant is justified in not following the advise for open surgery suggested by the 2nd opposite party. PW3 is the expert Urologist attached to Kasthurba Medical College Hospital, Manipal. He issued A19 discharge summery for the treatment of the complainant at Kasthurba Medical College Hospital, Manipal. PW3 conducted the right nephrotomy of the complainant at Kasturba Medical College Hospital Manipal, in October 2003. Thereby the damaged right kidney was removed. PW3 has also deposed that there was only 20% relative function for the right kidney and the renogram showed poor function of the right kidney and the same was hydro nephrotic and so, the right neprotamy was done scarred and adherent right kidney was removed. PW3 was cross-examined by the learned counsel for the 2nd opposite party. He was cross examined with respect to A14 discharge summery. The attention of PW3 was drawn to the IVU done on the complainant and that it revealed hydroureteronephrosis with delayed function. The opinion of PW3 was obtained by suggesting that in such a situation with hydroureteronephrosis of right kidney and right ureter an open surgery for re-construction of the lower ureter with bladder flap can be treated as the suitable procedure. To that question PW3 answered in the affirmatives provided all endoscopic attempts of reconstruction have failed. The aforesaid question and the answer given by PW3 would suggest that such open surgery for reconstruction of the lower ureter can be advisable only in case of all the endoscopic attempts for reconstruction have ended in failure. But in this case there is nothing on record to show that the 2nd opposite party had adopted all endoscopic attempts for reconstruction of the diseased right ureter. The available medical records on record would only suggest that the 2nd opposite party was not prompt in taking all the necessary steps to prevent the dilatation of the ureter. The earlier scan reports revealed the damage caused to the right ureter due to the impacted stone in the right ureter. But no immediate step was taken to remove the stone which was impacted in the right ureter. Even after removal of the stone by open surgery the 2ne opposite party neglected to have a proper management for the damaged right ureter. It is to be noted that from 2/3/02 till June 02 the complainant was strictly following the advise of the 2nd opposite party. But the 2nd opposite party could not succeed in giving a proper remedy to the complainant who was having kidney stone. The 2nd opposite party failed to have the URS fragmentation of the stone done in a perfect manner. The 2nd opposite party failed in giving proper management to the DJ stent which was implanted from right kidney to the urinary bladder for facilitating free flow of urine. It is to be noted that the stenting was done to overcome the obstruction in the ureter and to ensure the drainage of urine from the kidney. PW3 has also deposed about the purpose for which stenting was done. But the 2nd opposite party failed in getting free flow of urine from right kidney to urinary bladder by providing DJ stent. PW3, the expert doctor has also deposed categorically that fragmentation of the stone or removal through ureteroscopy is universally accepted procedure of choice. When the stone are fragmented, some of the fragments in case they are very small, may be spontaneously passed through urine; some fragments can be removed under vision. However some fragments can migrate into the kidney. One could have a re-look ureteroscopy and the fragments extracted or by fragmenting again. The aforesaid opinion of PW3 would make it crystal clear that by a re-look ureteroscopy the fragments can be extracted or by fragmenting again. In the present case the complainants stone was attempted to be removed by fragmentation by ureteroscopic method on 25/3/02. On 26/3/02 it was found that the fragmentation could not be done perfectly because of the fact that there were fragments of stone having the size of more than 3 mm. It is admitted by the opposite parties that the fragments are to be less than 3 mm in size and then only those fragments of stone can easily pass through urine. Then it was incumbent upon the 2nd opposite party to have the fragmentation again so as to reduce the size of the larger fragments to the size of less than 3 mm. But unfortunately the 2nd opposite party totally failed in doing or adopting such a procedure. It was his duty to see that the fragments are extracted by suitable method or procedure. But the 2nd opposite party expert Urologist totally failed in extracting the fragments. On the other hand, fragments remained in the kidney and one gone into the ureter and damaged the right kidney and right ureter. The 2nd opposite party was not in a position to visualize the complications. He was not in a position to correct the same then and there. But the 2nd opposite party neglected to follow the procedures in its correct way. He adopted a delaying tactics. He waited for the passing of the larger fragments through ureter and thereby permitted the larger fragments to cause injury to the ureter resulting in damage to the right kidney. So the complainant cannot be found fault with in not following the advise of the 2nd opposite party at a later stage.
25. The complaint in Para 8 of the complaint it is categorically stated that he consulted other Urologists and took scan from Ittyavira and Genetic Research revealed that his right kidney is swelled and edematous. It is the case of the complainant that he got opinion from other expert Urologists and they advised to go to the 1st opposite party for correcting things. But the complainant has not examined any one of those Urologists whom he had met for getting expert opinion. It is clear that the complainant was aware of the failure on the part of the 2nd opposite party in curing the complainants disease of kidney stone. The complainant himself admitted that he was not willing to follow the advise given by the 2nd opposite party at the later stage of his treatment for kidney stone. We have already discussed about the failure on the part of the complainant to follow the advise and directions given by the 2nd opposite party. In A14 discharge summery the complainant was advised âadmission and management at the earliestâ. It is further to be noted that the complainant was advised by the 2nd opposite party to have open surgery for reconstruction of the right ureter and that advise was given in August 2003. But the complainant took another 2 months time to go to Kasthrba Medical College Hospital, Manipal for his treatment. PW3, the expert Urologist attached to Kasthurba Medical College Hospital, Manipal has categorically deposed that the delay of 2 months is sufficient to cause damage to diseased kidney. The question put toPW3 on this aspect is as follows: âIf a person does not receive surgical attention for decompression of a dilated kidney for a period of above 2 months what are the possible complications An obstructive system can result in infection, decline of function or the combination of both. In this case the complainant caused delay of 2 months in getting further treatment and proper management. So the possibility of getting the damage more complicated cannot ruled out. Thus, in all respects the complainant was also instrumental for aggravating his disease or for making his disease of kidney stone more complicated. Therefore we are of the view that there was contributory negligence on the part of the complainant in getting his right kidney damaged and it resulted in removal of his right kidney at Kasthurba Medical College Hospital, Manipal. These points are answered accordingly.
26. Point No.6 : - The complainant has claimed a total of Rs. 75,00,000/- under the following heads:-
a) Medical expenses (i) At KIMS 2,500,000
(ii) At Manipal 1,00,000
b) Transportation 50,000
c) Lost hours of work and earnings 15.00.000
d) Liability incurred 15,00,000
e) Bystander expenses 1,00,000
f) Loss of amenities 10,00,000
g) Pain and sufferings 10,00,000
h) Future of loss of amenities and pain and
sufferings due to the loss right kidney 20,00,000
27. According to the complainant he was getting a monthly salary of Rs.35,000 as a film director and as a person engaged in the field of marketing and advertising. But no evidence has been adduced in support the case regarding his monthly income. The complainant as PW1 has deposed that he is an income tax assessed. Income tax return or any other document is forthcoming to establish his case regarding income. The lost evidence available with the complainant to support his case regarding income has not been produced. So, the case of the complainant that he was getting monthly income of Rs.35,000/- cannot accepted.
28. According to the complainant he spent a sum of Rs.2,50,000/- at the 1st opposite party hospital towards medical expenses and a further sum of Rs.1,00,000/-at Kasthurba Medical College Hospital, Manipal. But the complainant has not produced any medical bills or receipts to substantiate his case regarding expenses of Rs.3,50,000/- towards medical expenses. It is to be noted that the 1st opposite party has also not produced any document to show what infact the complainant paid to the 1st opposite party by way of medical bills or medical expenses. The 1st opposite party has not given the details of the amount received by the 1st opposite party from the complainant towards medical expenses. Considering the various treatments and procedures adopted by the doctors attached the 1st opposite party hospital would show that the complainant had met huge amount for his treatment at the 1st opposite party hospital. So for the purpose of assessing compensation it can be concluded that a sum of Rs.2,50,000/-has been incurred by the complainant for his treatment at the 1st opposite party and the sum of Rs.50,000/- for his treatment at Kasthurba medical College Hospital. Thus, the total amount spent by the complainant under the head of medical expenses would come to Rs.3,00,000/
29. There can be no doubt that the complainant had to spend amounts towards transportation in connection with his treatment at the 1st opposite party hospital and at the Kasthurba Medical College Hospital, Manipal. A sum of Rs.40,000/- can be treated as the expenses met for transportation in connection with the complainants treatment.
30. The claim under the heads lost hours of work and earnings and liability incurred are not proved. Nothing is forth coming from the side of the complainant to substantiate the aforesaid claims. So those claims are disallowed.
31. The complainant has claimed a sum of Rs.1,00,000/- under the head Bystander expenses. There is no acceptable evidence to substantiate the said claim for Rs.1,00,000/-. The fact that the complainant had treatment at the 1st opposite party hospital from 2.3.02 to August 2003 and that he was treated as inpatient at the 1st opposite party hospital on various occasions and he was also treated as inpatient in Kasthurba Medical College Hospital, Manipal would make it clear that he was in need of a bystander, while undergoing treatment on various occasions at the aforesaid two hospitals. A sum of Rs.30,000/- can be allowed under the head bystander expenses.
32. The complainant has claimed loss of amenities and loss of future amenities. A total of Rs.30,00,000/- is claimed under the heads loss of amenities. There can be no doubt that by the removal his right kidney the complainant suffered loss of amenities. It may be correct to say that the complainant can very well lead a comfortable life with his left kidney. The fact that the complainant lost his right kidney is a reality. There are every so many uncertainties in life. In the event of loss of the other kidney, there can be no doubt that the complainant will be in great trouble. It is also to be noted that the complainant has to continue his life with one kidney and he will be having the feeling and fear that he is not having is right kidney. It is to be noted that the complainant is not in a position to donate kidney. Had there not be any damage to the right kidney and he was having his both kidneys he would be in a comfortable position. By the loss of his right kidney he also lost the privilege and opportunity to become donor of a kidney. Thus, the complainant has suffered loss of amenities because of the loss of his right kidney. So, he is to be compensated for the loss of amenities including loss of future amenities in life. We are of the view that a sum of Rs.2,00,000/- will be sufficient to compensate loss of amenities suffered by the complainant.
33. The complainant has claimed a sum of Rs.10,00,000/- under the head pain and sufferings. There can be no doubt about the fact that the complainant suffered a lot of pain and sufferings during his treatment at the 1st opposite party hospital and subsequently at Kasthurba Medical College Hospital, Manipal. The pain and sufferings cannot be compensated by money. Any how, for the purpose of compensation under the head âpain and sufferingsâ a sum of Rs.50,000/- is awarded. Thus, the total compensation due to the complainant under various heads is assessed at Rs.6,20,000/-. It is to be noted that the complainant has also contributed negligence for the loss of his right kidney. Considering that aspect, the complainant is only entitled to get 50% of the aforesaid amount by way of actual compensation due to him from the opposite parties 1 and 2. The 1st opposite party being in the employed of the 2nd opposite party is vicariously liable to compensate the complainant. Thus, the opposite parties 1 and 2 are jointly and severally liable to pay compensation of Rs.3,10,000/- to the complainant with cost of Rs.5,000/-. These point is answered accordingly.
In the result the complaint is allowed to the extent that the opposite parties 1 and 2 are jointly and severally liable to pay compensation of Rs.3,10,000/- to the complainant under various heads as indicated above. The complainant is also entitled to get Rs.5,000/- by way of cost in the proceedings. The aforesaid compensation is to be paid within one month from the date of receipt of copy of this judgment, failing which the said amount will carry interest at the rate of 9% per annum from the date of this judgment till payment.