Judgment:
The complainant filed a complaint before the District Forum against the opposite parties praying for certain direction. The District Forum allowed the complaint. Hence appellants / opposite parties prefer an appeal in F.A.No.184/2007, F.A.No.541/2007 and F.A.No.544/2007 praying to setaside the order of the District Forum in CC.No.191/2003, dated 12.01.2007.
These appeals coming before us for hearing finally on 05.02.2014, upon hearing the arguments on either side , perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order.
A.K. Annamalai, Judicial Member
The complainant S.Abdul Khadeer has come forward with the complaint against the opposite parties 1 to 3 namely Dr.A.Ahmed Ali, Dr.S.Rajanikanth, and Mehtas Nursing Home respectively alleging negligence and deficiency in service.
2. At the outset, it should be pointed out here that initially this complaint was filed by the complainant before the Honble State Consumer disputes Redressal Commission, Chennai and that was numbered as OP.139/2002. When the matter was taken up by the Honble State Commission, Chennai for admission on 19.3.2003, the State Commission, Chennai observed that after the amendment to the Consumer Protection Act, 1986 in the year 2002 (Amendment Act 62 of 2002) which has come into force on 15th day of March 2003, the Commission has no jurisdiction to entertain the complaint since the Commission is empowered to entertain complaints above Rs.20 lakhs and upto Rs.1 Crore from the said date. By incorporating this observation and also the excerpts of the said notification the Honble State Commission, Chennai directed the Registry to return the said complaint in order to file before the competent District Forum on or before 2.5.2003 and under that circumstances, the complainant has filed the complaint before the District Forum as directed which was numbered as OP.191/2003 on the file of the District Forum.
3. The complainant claims that he is a victim of medical negligence and deficient service at the hands of the opposite parties 1 to 3. The complainant was suffering from abdominal pain whenever food is taken for which he had consultation with his family doctor J.Azeezur Rahman at Chennai who in turn advised the complainant to approach the 1st opposite party who is a Gastro Enterologist. Accordingly, the complainant contacted the 1st opposite party and after conducting necessary examination, the 1st opposite party suggested a surgery called Laproscopic Cholecystectomy in order to remove the stone from Gall Bladder. The complainant was informed about the cost for the said treatment stating it would cost him Rs.24,000/-. It was also informed that hospitalization and surgery would be done on admission in the nursing home of the 3rd opposite party. The complainant was admitted in the 3rd opposite party Nursing home on 2.11.2001 at 4 p.m. On 3.11.2001, the surgery was performed by the 1st opposite party with an assistance of other doctors. The grievance against the 1st opposite party is that even after the said surgery, the complainant did not recover to normal stage, but he developed fever, jaundice with incoherent speeches. Immediately the symptoms and development were informed to the 1st opposite party by the relatives of the complainant and after hearing the same, certain tests by way of taking Scan and X-rays were conducted and from that it was confirmed that a stone was still retained in the œCommon Bile Duct? (In short CBD) and the 1st opposite party advised the complainant to undergo another surgery in order to remove the stone found in the CBD. Accordingly to the complainant, the treatment is termed as œEndoscopy? and the test medically is called as ERCP (Endoscopic Retrograde Cholangio Pancreotiography) and that was advised to be performed by the 2nd opposite party who is a Gastro Enterologist at Chennai. The complainant was informed that the cost of the test would be around Rs.7500/-. As per the advise of the 1st opposite party, he was taken to Rigid Hospital were the said surgery was conducted by the 2nd opposite party along with Dr.Mansoor who is the son of the 1st opposite party on 7.11.2001 at 4 p.m. The allegation of the complainant is that even after the completion of the second surgery as aforesaid, the complainant was having unbearable abdominal pain and restlessness. After the said surgery under the direction of the 2nd opposite party once again the complainant was taken back to the 3rd opposite party nursing home for further treatment by the 1st opposite party. On the said date namely on 7.11.2001, the complainant developed not only restlessness with unbearable pain in his abdominal, but also he has swelling of his face, neck and legs and that complication were immediately conveyed to the 1st opposite party on the same day at 7 p.m. and thereafter the complainant was shifted to the Intensive Care Unit (ICU) in the 3rd opposite party nursing home for further investigation and test. The allegation against the 2nd opposite party is that in spite of the surgery called ERCP, the report showed that there was a small injury and open in found in the Common Bile Duct at the time of performing Endoscopy surgery by the 2nd opposite party and further stone found in the CBD could not removed. The further case of the complainant is that in the ICU the complainant was monitored by all important monitors and Oxygen facility for 48 hours and he was attended by the 1st and 2nd opposite parties along with other specialist and duty doctors. According to the complainant, even after taking the aforesaid treatment including the one in ICU he was not recovered, but he had complications and therefore on 9.11.2001 at about 4.30 p.m. the complainant was taken for a 3rd surgery due to the complications developed. According to him the said complications were due to improper analysis, investigation and treatment given by the said opposite parties. The 3rd surgery medically called œLapratomy? was performed by the 1st opposite party in the 3rd opposite party nursing home and thereafter he was sent to the ICU and he was there for a weeks time taking treatment. The complainant adds that all life savings monitors were fixed to him in order to recover from the improper investigation and negligence on the part of the opposite parties. The further allegation is that despite undergoing the 3rd surgery in the hands of the 1st opposite party in the Nursing Home of the 3rd opposite party, the wound was left open without covering and on enquiry the complainant was informed by the 1st opposite party that the wound would be healed by itself and he was shifted to the ordinary ward from the ICU. The complainant was taking further treatment for about 10 days in the ward for dressing the wound twice a day. According to the complainant, he was discharged from the 3rd opposite party Nursing Home under the advice of the 1st opposite party on 19.11.2001 with direction to attend for review and dressing on alternative day for a period of 2 months by staying in Chennai. After 2 months, the operated area did not heal completely, but yet the 1st opposite party adviced the complainant to go to his native place at Vaniyambadi for restoration of his health. The complainant on reaching his native place, within few days, he developed restlessness with pain in the abdomen and the stomach was seen bulging and immediately he contacted Dr.Syed Farooque at Vaniyambadi, who after examination advised the complainant to go to Chennai for further treatment in order to avoid further complication. Again the complainant was taken to the Nursing Home of 3rd opposite party on 23.2.2002 at 12.30 p.m. and the 1st opposite party attended on him. After examination, the 1st opposite party advised the complainant that further treatment was not required and he would be alright shortly and advised him to return to his native place. According to the complainant, the plight of his sufferings was not over since after 2 days, again he developed unbearable pain in his stomach, the 1st opposite party was contacted over phone in the late night and on the advise of the latter once again the complainant got admitted in the 3rd opposite party Nursing Home on 25.2.2002 for further treatment. The complainant adds that at that point of time his stomach got burst and bleeding was started with faecal matters. On the next day, on 26.2.2002, the 1st opposite party found that the said discharge was due to Colonic Fistula and gave treatment in the Nursing Home for a week time and discharged him only on 4.3.2002. He was also advised to come for dressing of the wound through which there was discharge of faecal matters from the operated area. The complainant further reads that due to prolong treatment, many surgeries, liquid diet, the complainant became very weak and professionally he also incurred a loss since he could not carry out his Engineering work. The complaint shows that after conducting several reviews, the 1st opposite party once again advised the complainant to undergo for the fourth surgery in order to stop the discharge of faecal matters from his stomach area. Due to prolong hospitalization, many surgeries, continuous treatment for about 5 months, he lost confidence in the treatment given so far by the opposite parties and in order to have proper view he decided to have a second opinion with regard to his ailment. Therefore, he approached Professor Dr.N.Rangabashyam, a Surgical Gastro Enterologist at Chennai for his second opinion. After examination and review, the complainant was advised by the said doctor to undergo another surgery to safeguard his life at Appollo Hospital at Chennai. The complainant, therefore, got admitted in the said hospital on 7.5.2002 and two operations were performed on his i.e., on 13.05.2002 and 16.5.2002 in order to save his life. The complainant was discharged from the Apollo Hospital at Chennai on 21.05.2002 and got admitted at Sree Ramana clinic at T.Nagar for a week time in order to have further supervision and care. The complainant concluded that he restored good health only at that point of time. The complainant accuses the opposite parties 1 to 3 with improper diagnosis, investigation and treatment and due to their professional negligence and deficiency, they could not cure his ailment for which he approached the 1st opposite party at the beginning. According to him, the estimate cost for treatment and hospitalization was increased to the maximum. Originally the 1st opposite party informed him the total cost would be around Rs.24,000/-, but ultimately the complainant incurred a total expenditure of Rs.4,50,359.85. The complainant also incurred incidental and transport charges to the tune of Rs.50,000/- besides he lost his business during that period that would totally caused him to incur a loss of Rs.5 lakhs. The aforesaid conduct and attitude on the part of the opposite parties had caused mental agony, physical strain, stress and financial loss that was due to the professional negligence and deficiency service rendered to him by the opposite parties 1 to 3 and therefore he has come forward with this complaint claiming the following reliefs from the opposite parties to direct the opposite parties 1 to 3 to pay a sum of Rs.5,00,359/- towards his medical treatment and to pay a sum of Rs.5,00,000/- as compensation for the damages and mental agony suffered by him along with costs.
4. The opposite parties 1 to 3 have denied the allegations of the complainant in their written version separately filed before the District Forum and the 1st opposite party contended that he had performed the first surgery after taking into consideration of the relevant tests and after conducting necessary investigations and cardiac assessment and after finding the complainant fit for surgery, he performed the surgery on 3.11.2001 and he noticed development of jaundice on 5.11.2001 and after a scan test as the complainant has to be done Sphincterotomy , otherwise he would developed Cholongitis and thereafter the 2nd opposite party was arranged to perform the surgery on 7.11.2001 at Rigid Hospital and thereby the 2nd opposite party conducted the ERCP surgery and Sphincterotomy was also done and since the 2nd opposite party found that the stone was found in the bile duct and could not be removed due to anatomical variation and he send back the patient to the 3rd opposite party. At the same time same the complainant had slight swelling around the neck and face and the symptom would be described as Surgical Emphysema which would happened due to some perforation of Oesophagus. Dr.Rajam Santosham treated the complainant and subsequent development could be treated only by Laporotomy and the 2nd opposite party conducted Laporotomy surgery on 9.11.2001 and found at that time there was a stone in the bile duct and also a perforation and as the condition of the patient become critical he was shifted to ICU and he was kept under a ventilator and life support systems and after that he was fully recovered and shifted to ward on 14.11.2001 and after become normal and discharged on 19.11.2001 with advise to come for review on 24.11.2001 and subsequently he came for complications on 24.2.2002 with the diagnosis of faecal fistula which is to be cured by medicines for 6 weeks and thereafter if necessary surgery was advised and was discharged. Subsequently he came to know that Dr.Rengabashyam has performed the surgery and at the best the 1st opposite party had given due care and management in giving for treatment. The 2nd opposite party contended that he had performed ERCP and at that time he could not remove the stone due to Periampulary Diverticulam and he had performed Stenting in the CBD in order to ease of the blockage of the stone of the complainant and sent back the complainant to the 3rd opposite party Hospital and thereby there was no deficiency of service on the part of the opposite parties 1 and 2.
5. The 3rd opposite party contended that they are having 100 beds accommodated hospital offering treatment in various field and only as the request of the distinguished specialist in the field of medicines would admit their patient in the hospital as consultant to provide necessary treatment to them. Since there was no allegation against the 3rd opposite party and there was no negligence on the part of the 3rd opposite party.
6. The District Forum after an enquiry and on perusal of the materials and came to the conclusion that there was negligence and deficiency of service on the part of the opposite parties 1 and 2 and being provided the facilities to them, the 3rd opposite party is also in negligence and deficiency of service vicariously liable and thereby the complaint is allowed and directing all the opposite parties 1 to 3 jointly and severally to pay a sum of Rs.5,00,359/- to the complainant towards medical expenses met by him for treatment taken and leave the opposite parties themselves to fix the ratio for payment of the amount by themselves and to pay a sum of Rs.2.50,000/- as compensation for damages and mental agony and another sum of Rs.2500/- as costs.
7. Aggrieved by the impugned order of the District forum the opposite parties 1 to 3 have come forward with separate appeals in F.A.No.544/2007, 541/2007 and 184/2007 respectively. Since all the appeals are arose against one and the same order in C.C.No.191/2003 passing the District Forum, Chennai (North) all the appeals are taken up together for common hearing and after hearing both sides in all the appeals, the common order being passed on merits.
8. We have heard both sides arguments, oral submissions and perused the written arguments and materials placed before us in this regard. It is the admitted case of both sides that the complainant having complaint of abdominal pain for which he was admitted in the 3rd opposite party hospital on 2.11.2001 and the 1st opposite party performed Laproscopic Cholecystectomy surgery to remove Gall Bladder on 3.11.2001 and thereafter since the 1st opposite party found symptoms of Jandice which may be due to stone in the common bile duct confirming through the liver function test on 6.11.2001 for which he was sent to the 2nd opposite party for removal of stone by ERCP and the same was done by the 1st opposite party at the Rigid Hospital and as the 2nd opposite party found that the stone could not be removed in the CBD, he had performed Sphincterotomy surgery in order to make free flow of bile easily and sent back to the 1st opposite party. On 9.11.2001 the 1st opposite party performed another surgery and discharged from the Hospital on 19.11.2001. Subsequently on 23.2.2002 the complainant came to the 3rd opposite party nursing home due to complaints of pain in the abdomen he got admitted on 25.2.2002 in the 3rd opposite party nursing home and at that time his stomach got burst and bleeding was started with faecal matters and after coming to the conclusion for conservative treatment for Colonic Fistula by way of Fistulogram on 2.3.2002 and discharged on 4.3.2002 and since the fistula had not closed, the 1st opposite party suggested for surgery in order to remove the Gall bladder along with fistula. Thereafter the complainant did not turn up to the opposite parties 1 to 3.
Subsequently the complainant contacted Prof.Dr.N.Rangabashyam on 13.5.2002 and 16.5.2002 for further treatment and management in the Apollo Hospital and he became fully recovered from his ailment and other complications. The complainant alleged that the opposite parties 1 to 3 given improper treatment from the beginning itself negligently and careless manner for removal of gall bladder by way of performing Laparascopic Cholecystomy on 3.11.2001 and subsequently the second opposite party arranged to perform the ERCP surgery on 7.11.2001. Due to that the complainant developed Subcutaneous Emphysema on neck, face and chest at the 2nd opposite partys Hospital (Rigid Hospital) and it was found Duodenum Perforation and Common Bible Duct injury with Bible Peritonities which made the 1st opposite party performed another Laparotomy surgery on 9.11.2001 which followed the complications. Subsequently on 23.2.2002 the complainant visited the 1st opposite party for complaint of pain and got admitted on 25.2.2002 and thereafter the problem was not solved and corrective surgery was performed by Dr.Renga Bhasayam during the month of May 2002. For these allegations the 3rd opposite party being the Hospital stated that they have facilities for various type of treatment in various fields for which they are giving facilities on the basis of concerned doctors requests and thereby in these case the 1st opposite party opted for their Hospital to give treatment for the complainant and for the purpose of ERCP treatment no such facilities was available . The 2nd opposite party was also referred by the 1st opposite party and for this activities no way the 3rd opposite party Hospital is liable. But as far as the 1st and 2nd opposite parties are concerned, the 2nd opposite party vehemently stated that the patient was attended by way of reference from the 1st opposite party after the surgery on laparotomy of the 1st opposite party since the 2nd opposite party performed ERCP on 7.11.2001 relating to the presence of stone blocking in the CBD and if possible to remove the obstruction to the common bile duct. According to him, the condition of the complainant at the time was Pyogenic Cholangitis condition of serious one with fever, confusion and had difficulty in breathing and in order to save the life of the complainant he performed the surgery at Rigid Hospital. Among 3 methods of surgery for the same he opted Stenting he could not remove the stone due to anatomical variation found in the complainant since the complainant had a pouch in the bile duct he could not remove the stone and thereby Stenting in the CBD was done to make the flow of bile easily. He sent back to the complainant to the 3rd opposite party Nursing Home on the same day. The 2nd opposite party performed surgery but he could not remove the stone in the bile duct canal in order to make the flow easily the Stenting was fixed which made the complainant to have some symptoms of swelling in the neck and other parts of the body and on assessment the 1st opposite party came to know that there was a perforation in the CBD which could not be set right immediately and advised the patient for conservative treatment and thereafter, after 6 weeks even then the perforation was not closed and another surgery was suggested which was performed by Dr.RangaBhasyam, subsequently during the month of May 2002 in the correct procedure.
9. Whether this procedure and treatment adopted and followed by the opposite parties 1 and 2 would not amount to negligence and deficiency of service is the point to be considered.
10. Since the doctor who performing and giving treatment is the proper person in their field to decide what kind of procedure, management of protocol in giving treatment for particular nature of disease and mode of procedure available for the same and discretion with them to decide the same on their own unless and until it is proved that it was the wrong or erroneous one which made the complainant to suffer. As far as our case is concerned as admitted by the 1st opposite party at the beginning he was referred by one Dr.J.Azeezur Rahman, after a scan and as on 7.9.2001 that shows the complainant had stone in the Gall Bladder. Admittedly the complainant approached the 1st opposite party on 2.11.2001 had not taken any new scan and other tests to confirm the existence of stone in the Gall bladder, its position etc the number of stones present to ascertain with necessary scan tests or any other tests prescribed for the same in order to proceed further surgery he simply taken the report of the scan taken on 7.9.2001 for deciding surgery which was taken nearly 2 months earlier before the complainant was referred to the 1st opposite party. The restore of the stone and size and increase or decrease in size etc may possibly vary during the course of 2 months duration from 7.9.2001 to 7.11.2001. But without considering the same the 1st opposite party straightaway performed the surgery and the Gall Bladder was itself removed on 2.11.2001 without ascertaining the necessity to remove the same once for all instead of removing Gall bladder stones alone.
Since the complainant developed Jandice on 5.11.2001 the 1st opposite party conducted necessary test given, scan etc which could have been done even before performing the surgery after admission, thereby the complainant was referred to the 2nd opposite party for further removal of stone in the CBD by way of ERCP procedure. According to the 1st opposite party at the time of referring the complainant to the 2nd opposite party he was in normal condition, but the 2nd opposite party stated that having received an emergency call from the 1st opposite party to remove the stone by ERCP and he was performed the surgery at Rigid Hospital immediately and at the time complainant was in critical condition and thereby he could not remove the stone in the bile duck since there was an obstruction by the stone he made Stenting process in order to make easy to flow of bile fluid which resulted of swelling in the neck, chest, legs, which is called emphysema and thereby the 1st opposite party had to rush up with emergency treatment and performed and another surgery by removal of stent etc and as he found there was a perforation in the duodenal wall in between the CBD which is called Retro Duodenal Perforation. After that the patient was in the ICU and after shifting to the room on 14.11.2001 and after a few days he was discharged on 19.11.2001 as he was fit to walk and he was discharged with a direction to come for review on 24.11.2001. After that since the complainant had complications once again having pain etc got admitted on 25.11.2002 having seepage of feacal matter from the spot of surgical scar on the abdomen under Ex.A3. The 1st opposite party given treatment for fistula and discharged on 4.3.2002 and thereafter the complainant was forced to undergo two surgeries by Dr,N.RangaBhashyam in between 7.5.2002 to 21.5.2002 which made them completely cured with satisfaction as per document under Ex.A4. These facts are all not denied by the opposite parties. The Both sides have relied upon various rulings relating to the medical negligence and finding on them and also medical literature relating to the surgeries of Cholecystectomy and Management of Bile duct obstruction etc from the book of Mastery of Surgery, Vol-I Fourth Edition. The complainant / Respondent also relied upon the various details in this regard relying upon the rulings reported in
1. I (2013) CPJ 51 (NC) in the case of Pragathi Hospitals and Ors “vs- Kumari Shirisha Madhuri and Ors in which in para-4 it is held as follows: œcomplication which developed after the surgery of 28.4.1994 and which eventually led to the second surgery of 5.5.1994.?
2. II (2013) CPJ 329 (NC) in the case of Antony Hospital “vs- C.L.DSilva? in which in para-12 is observed as follows: œIn the instant case, it is very clear from the facts stated in the foregoing paragraphs that a reasonable degree of care was not taken in the treatment of the patient.?
3. I (2007) CPJ 434 in the case of B.N.Rajesh “vs- Dr.Madappa and Anr in which in para-11 it is held as follows: œThe complainant as stated above has undergone four surgeries and he appears to have spent considerable amount for his treatment.?
11. The opposite parties have relied upon the following rulings reported in
1. IV (2012) CPJ 610 (NC) in the case of Tilat Chaudhry and Anr “vs- All India Institute of Medical Sciences and Anr œ it is shown as follows: œCBD injury is a well known complication of laparoscopic cholecystectomy procedure (LCP)-It must be presumed that incidence of CBD injury is a well known risk when patient undergoes LCP “ Same cannot be correlated as the act of negligence or carelessness on part of operating surgeon-Merely because the laparoscopic cholecystectomy had to be converted to open cholecystectomy procedure, it cannot be said that LCP adopted by surgeon was counter indicative-Once it is shown that due medical protocol was followed, no case of medical negligence is made out against Ops “ Deficiency in service not proved.?
2. I (2013) CPJ 414 (NC) in the case of Kersi F.Dalal “vs- Janak K.Mehta (Dr.) and Ors in which it is observed as follows: œDoctor treated appellant conservatively since parameters relating to his blood pressure, temperature and condition of stomach were not unduly normal “ When appellants lower abdominal pain continuing, he was immediately referred to specialist surgeon and then a qualified Radiologist for conducting the required diagnostic tests which included sonography and x-ray-Hospitalization was advised since there was possibility of surgery.?
and also 3rd opposite party relied upon the following rulings reported in (2009) 9 Supreme Court Cases 221 in the case of Malay Kumar Ganguly “vs- Dr.Sukumar Mukherjee and others with Kunal Saha (Dr.) “vs- Dr.Sukumar Kukherjee and Others? in which in this regard at Page 223 in para Capital-D
it is observed as follows:
D. œConsumer Protection “ Medical Negligence “ Failure to provide basic amenities by Hospital “ Held, amounts to medical malpractice but hospital is not bound to provide facilities for all treatments “ Further held on facts, treating a patient suffering from the disease, TEN, in burns wards was highly desirable but hospital was not obliged to have a separate burns ward “ Medical negligence arises when existing facilities are not properly made use of “ Medical Practice and Practitioners.?
12. Further the opposite parties 1 and 2 relied upon the precedent by this Commission in F.A.No.849/2010, dated 31.1.2012 in order to establish the failure of medical negligence by the complainant.
13. We have carefully considered all the materials including the medical literatures and rulings relied upon either side. It is the admitted fact that the 1st opposite party on 2.11.2001 admitted the complainant for removal of Gall Bladder stones only on the basis of earlier scan report on 7.9.2001 referred by the previous Doctor and without having any fresh tests report etc to ascertain the exact status of Gall Bladder and stones and performed Laparoscopic Cholecystomy on 3.11.2001 in which after the surgery since the complainant developed Jandice due to a stone was left out for which he referred the complainant if the 2nd opposite party for the performance of ERCP surgery by the 2nd opposite party in order to remove the obstruction but the stone could not be removed by the 2nd opposite party and thereby he sent back the complainant with the same condition to the first opposite party on 7.11.2001 itself with symptoms of swelling around the neck and face and the condition would be described as Surgical Emphysema and thereby the 1st opposite party once again done surgery on 9.11.2001 in order to save the patient and kept in ICU till 14.11.2001 as per report under Ex.B1 and he was discharged on 19.11.2001 and even after that once again the complainant developed discharge of feacal matter through the skin scar of abdomen was admitted for the treatment of fistula the 1st opposite party after giving treatment he was discharged on 4.3.2002 with suggestion for further surgery, if the wound is not cured within 6 to 8 weeks and thereby the complainant once again got admitted in Apollo Hospital where he was treated by Dr.Ranga Bhasyam and after that the complainant was completely cured. The District forum in its order has elaborately discussed everything on the basis of both sides materials and found that at the time of earlier admission of the complainant was having normal health condition only after performance of Laporotomy he developed jaundice due to retention of stone in the CBD and sent the patient to the second opposite party with normal health condition. But the second opposite party alleged that on the basis of the 1st opposite partys request he performed ERCP on the complainant at that time he was having critical illness and he could not remove the stone due to anatomical variation of the complainants body. But the 2nd opposite party even though explained the nature of anatomical variation ( presence of a pouch like structure in the bile duct) whether it is abnormal or rare one and how it prevented the further course of treatment and reason for not able to remove the stone are not explain and sent bank to the 1st opposite party with the same condition instead of referring to the other experts or specialists to set right the symptoms and removal of stone with the consultation of the 1st opposite party and even after that the 1st opposite party had not referred the complainant to other experts or to have consultation once again attempted for the removal of stone in the CBD which is necessitated to have one more surgery and this could have been avoided if at the time of 1st surgery done with necessary tests including fresh scan etc. Without such facilities like for ERCP are available in the 3rd opposite party hospital as alleged by the 1st opposite party the ERCP surgery was conducted by the 2nd Opposite party at Rigid Hospital when once again referred the patient to the 1st opposite party with the same condition with symptoms of Embassima, 1st opposite party once again in 3rd opposite party Hospital for ICU care and treatment when the allegations of the complainant is concerned that the complainant got admitted for a simple process of surgery for removal of Gall Bladder stone on 2.11.2001 which made the complainant to suffer body pain and physical strain expenses because of opposite parties wrong and negligence in performing the surgery without necessary relevant tests even though they are experts in the field of Gastro Enterology which made the complainant to suffer with more than 4 surgeries undergone and made him to run pillar to post from 2.11.2001 to 21.05.2002 and also made him to spend nearly Rs.5,00,000/- towards medical expenses which are all going to prove the negligence and deficiency of service on the part of the opposite parties 1 and 2.
For this the complainant relying upon the rulings reported in I 2007 CPJ 434 in the case of B.N.Rajesh “vs- Dr.Madappa and Anr in which it is observed as follows :
œConsumer Protection Act, 1986 “ Section 2 (1) (g) “ Medical Negligence “ Operation _ Removal of kidney stone “ Instead of single simple surgery, patient made to undergo 4 surgeries “ But for negligence of operating surgeon, no need for complainant to undergo subsequent 3 surgeries “ Considerable amount spent “ Patient made to suffer due to stomach pain and complications “ Medical negligence proved “ Rs.1 lakh compensation awarded.?
14. Further as far the negligence on the part of the opposite party No.3 is concerned who have made the opposite parties 1 and 2 to avail the facilities when they alleged that the Hospital is not having facilities for performing ERCP surgery and inspite of knowing that the facilities was availed by the 1st opposite party subsequently also would go to prove that the 3rd opposite party Hospital without taking into consideration of all the requirements of the opposite parties 1 and 2 in giving treatment to the patient having proper verification regarding the nature of requirements of the 1st opposite party and the 1st opposite party performed various surgeries on the complainant which would be sufficient for that the 3rd opposite party is also vicariously liable for negligence for which the respondent / complainant relied upon the rulings reported in IV 2004 CPJ 40 SC in the case of Smt.Savita Garg “vs-The Director, National Heart Institute in which in para 15, 16 it is held as follows:
œTherefore, as per the English decisions also the distinction of contract of service and contract for service, in both the contingencies the courts have taken the view that the hospital is responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. Therefore, the distinction which is sought to be pressed into service so ably by learned counsel cannot absolve the hospital or the institute as it is responsible for the acts of its treating doctors who are on the panel and whose services are requisitioned from time to time by the hospital looking to the nature of the diseases. On both, the hospital as the controlling authority is responsible and it cannot take the shelter. Under the plea that treating physician is not impleaded as a party, the claim petition should be dismissed.?
œSpring Meadows Hospital and Anr “vs- Harjol Ahluwalia through K.S.Ahluwalia and Anr, reported in III (1998) SLT 685=1998 (4) SCC
œVery often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned.
The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify.?
The appellants relied upon the rulings reported in (2009) 9 Supreme Court cases 221 in the case of œMalay Kumar Ganguly “vs- Dr.Sukumar Mukherjee and others with Kunal Saha (Dr.) Dr.Sukumar Mukherjee and others? in this regard in which at Page-223 in para Capital-D it is observed as follows:
D.œConsumer Protection “ Medical Negligence “ Failure to provide basic amenities by Hospital “ Held, amounts to medical malpractice but hospital is not bound to provide facilities for all treatments “ Further held on facts, treating a patient suffering from the disease, TEN, in burns wards was highly desirable but hospital was not obliged to have a separate burns ward “ Medical negligence arises when existing facilities are not properly made use of “ Medical Practice and Practitioners.?
But the facts referred in our case the above rulings will not be helpful to the 3rd opposite party and the rulings relied upon by the Respondent / complainant as cited above earlier more applicable in our case and thereby we are of the view the findings of the District forum regarding 3rd opposite party to be held vicariously liable is also acceptable one and thereby we are in concurrence with the findings of the District Forum regarding the negligence and deficiency of service by the opposite parties 1 to 3 and accordingly the findings to that effect is to be affirmed.
15. As far as the award of compensation and expenses towards medicines and costs are concerned the District forum awarded a sum of Rs.5,00,359/- towards medical expenses met by him on the basis of documents under Ex.A9. On perusal of the documents under Ex.A9 and as per averment in para 18, and 19 in the complaint the complainant had spent Rs.4,50,359.85 only as per the abstract for the purchase of medicines from 3.11.2001 and upto 14.6.2002 and for the remaining Rs.50,000/- it is alleged the same towards transport and incidental charges for which no supporting documents have been filed as per the averments in para-18 of the complaint filed by the complainant. Regarding other direction for payment of Rs.2.5. lakhs as compensation for medical negligence and sufferings of the complainant and costs of Rs.2500/- towards costs are concerned the imposition of costs of Rs.2500/- cannot be considered as an abnormal one which is to be affirmed. As far as the compensation of Rs.2,50,000/- is concerned without specific quantum against each one of the opposite parties it is ordered to be decided by the parties themselves. By taking into consideration of the role played upon by the opposite parties in this case, since the 3rd opposite party being an hospital only provided facilities to the 1st and 2nd opposite parties for their consultation and performing surgeries though without verifying the nature of requirements of the facilities which are alleged to have been not availed with the 3rd opposite party by the 1st opposite party since the 3rd opposite party is also found vicariously liable to pay compensation to the complainant, we are of the view that a sum of Rs.50,000/- could be awarded would be justifiable amount as compensation and as far as remaining Rs.2,00,000/- is concerned we are of the view that the 1st opposite party having played major role could be directed to pay a sum of Rs.1,50,000/- and the 2nd opposite party to pay Rs.50,000/- only and in respect of medical expenses for Rs.4,50,000/- is concerned as already pointed out we are of the view that the 1st opposite party could be directed to pay Rs.3,50,000/- and the 2nd opposite party to pay Rs.1,00,359/- and with this modification we are inclined to allow these appeals in part for the foregoing discussions and reasons made above and thereby accordingly in all the 3 appeals respectively.
In the result, all the three appeals are allowed in part by confirming the findings of the District Forum relating to the negligence and deficiency in service as against the opposite parties 1, 2 and 3 respectively
1. The order of the District Forum Directing the opposite parties 1 to 3 jointly and severally to pay a sum of Rs.5,00,359/- to the complainant towards medical expenses met by him for the medical treatment and to pay another sum of Rs.2,50,000/- as compensation for damages and mental agony suffered by the complainant is hereby set aside.
2. Instead the 1st opposite party shall pay a sum of Rs.3,50,000/- and the 2nd opposite party shall pay a sum of Rs.1.00,359/- respectively to the complainant towards medical expenses spent by the complainant for taking treatment under them.
3. The 1st opposite party shall pay a sum of Rs.75,000/- and the 2nd opposite party shall pay Rs.50,000/- and the 3rd opposite party shall pay Rs.50,000/- respectively towards the deficiency of service and compensation for mental agony as the 3rd opposite party is also found vicariously liable.
4. The 1st opposite party in all totaling to pay a sum of Rs.4,25,000/- and the 2nd opposite party in all totaling to pay Rs.1,50,359/- and the 3rd opposite party is to pay Rs.50,000/- only in all.
5. The order of the District Forum directing the opposite parties to pay a sum of Rs.2,500/- as costs to the complainant is hereby confirmed and the same shall be paid by the opposite parties 1 and 2 equally.
The above directions shall be complied within 6 weeks from the date of this order, failing which the complainant is entitled to claim the same with 9% interest from the date of default.
No order as to costs in the appeals.