At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad
By, THE HONOURABLE MR. JUSTICE GOPALA KRISHNA TAMADA
By, THE HONOURABLE MR. T. ASHOK KUMAR
By, MEMBER & THE HONOURABLE MR. S. BHUJANGA RAO
For the Appellant: M/s. V. Gourisankara Rao, Advocate. For the Respondent: R1, M/s. M. Sudheer Kumar, R2, Served, R3, Y. Kondal Reddy, Advocates.
Oral Order: (GopalaKrishna Tamada, President)
The unsuccessful complainant in C.C.No.197/2010 before the District Forum, Ranga Reddy District is the appellant and this appeal is directed against the order dated 02-4-2013 wherein the District Forum dismissed the complaint and refused to order any amount towards compensation.
The brief facts that led to filing of the complaint are as under:
The complainant, a white ration card holder, was constantly suffering from terrible stomach ache. On 05-3-2009 when the pain became severe, she was taken to Niloufer hospital for treatment. Opposite party no.1, who attended the complainant advised the complainant to visit her at her private clinic for better treatment. After conducting necessary tests, opposite party
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o.1 informed the complainant that her uterus was damaged and advised to undergo an operation at Chaitanya Clinic where she is a consultant. On 30-6-2009 at about 9.20 a.m. without obtaining the written consent from the husband of the complainant, opposite party No.1 conducted the operation and removed the uterus. The complainant was forced to spend an amount of Rs.37,000/- towards operation. On 30-6-2009, the complainant was shifted to Gandhi Hospital due to failure of the operation and the complainant was under treatment at Gandhi hospital till 11-7-2009 and was discharged without any proper treatment. The complainant alleges that she developed post operative complications and even unable to attend the nature calls. Alleging medical negligence, the complainant after issuing a legal notice approached the District Forum and raised a dispute by filing this complaint.Opposite party No.1 resisted the complaint contending that she is a fully qualified doctor having experience and conducted number of Hysterectomy operations since 1998. She submitted that she entered Government service in the year 1998 as Assistant Professor (Obs. & Gye.) and worked at King George hospital, Visakhapatnam from 1998 to 2005 and thereafter was transferred to Niloufer hospital, Hyderabad and has been working there and also running a private clinic at her residence since 2008 as per service rules of the Government of Andhra Pradesh. The complainant approached her for the time first time on 05-3-2009 at her private clinic with a complaint of continuous and excessive bleeding for 15 days and pain in abdomen along with ultra sound scan report. Opposite party No.1 conducted ultra sound scan at her clinic on 05-3-2009 and diagnosed the complaint as ‘Polymenorrohagia ‘ and that the complainant was having a big fibroid in her uterus which is the root cause of her problem besides urinary tract infection and she was also anaemic. The complainant came to her on 17-6-2009 with reports. The complainant had already undergone Caesarean operations twice and had crossed 40 years of age and as she had big fibroid in uterus with excessive and continuous bleeding coupled with urinary track infection and PID, opposite party No.1 advised her to undergo Hysterectomy operation. After the complainant and her husband expressed their willingness, she operated the complainant at Chaitanya hospital on 30-6-2009 at 9.30 a.m. under spinal anaesthesia. The operation was uneventful and the complainant was shifted to post operative ward. While so, on the intervening night of 30th June and 1st July, 2009, the complainant complained of pain in right side of her chest and also shortness of breadth and immediately the complainant was shifted to Gandhi hospital for better treatment and she was treated for symptom of air embolism which is a rare complication during post operative period in case of surgeries and was discharged on 11-7-2009. The doctors at Gandhi hospital did not find any fault with the procedure adopted by her and submitted that there was no deficiency of service or negligence on her part in conducting the surgery.Opposite party No.3 also filed counter contending that the complainant was admitted in emergency ward of Gandhi hospital on 01-7-2009 and necessary treatment was given to her and was discharged on 11-7-2009 as per the advice of Gynaec Specialist.The District Forum framed the following points for consideration i.e. as to whether there is any medical negligence in conducting the Hysterectomy (uterus operation) and to what relief?The complainant during the course of evidence filed her affidavit evidence and also marked Exs.A1 to A11. Opposite party No.1 filed her affidavit evidence as R.W.2 and got marked Exs.B2 to B6 and Dr.M.Hymavathi of Gandhi Hospital filed her affidavit evidence on behalf of opposite party No.3 as R.W.1 and got marked the case sheet as Ex.B1.Having considered the entire material available on record, as no evidence was forthcoming by the complainant with regard to deficiency of service/medical negligence, the District Forum rejected the claim of the complainant.As stated supra, the said order is under challenge before us.The main contention of the learned counsel for the appellant, Mr.V.Gourisankara Rao is that there are laches on the part of the complainant in not examining anybody from the medical field to establish that the Hysterectomy operation failed because of the medical negligence and also cross examining the opposite parties to elicit the truth and hence requested this Commission to remand the matter to the District Forum for fresh enquiry.Heard. From a perusal of the impugned order, it is clear that opposite party No.1 filed affidavit as R.W.2 and another doctor by name Dr.Hymavathi filed affidavit as R.W.1. For the reasons not known, the complainant counsel had not chosen to cross examine them, which fact is clear from the impugned order. In cases of this nature, in our considered view, it is always necessary to lead evidence to establish the fact as to whether there is any medical negligence or not? Except the sworn statement of the complainant and the documents which were marked as Exs.A1 to A11, there is absolutely nothing on record to establish that there is any medical negligence.The learned counsel for the appellant further contended that expert evidence in case of this nature is required to come to a just conclusion as to whether there is any medical negligence or not and came up with an application, FA.IA.No.494/2014 requesting this Commission to permit the petitioner to cross examine Dr.Janaki (O.P.1) and Dr.Hymavathi who is working in Gandhi Hospital. After hearing both sides, the said petition was ordered.In a case of this nature, apparently the opposite parties shall be cross-examined which facility was not availed by the complainant though available and now that the counsel for the complainant has come up with an application to cross examine the doctors, we are of the opinion that unless and until the said doctors are cross-examined in detail, the truth about the ailment cannot be known. As the said doctors were not cross-examined and now that we allowed the present application, we are of the view that the complainant may be given opportunity to cross-examine the said doctors i.e. opposite parties 1 and 3 for which purpose the matter requires remand. But at the same time, the same shall not be done without imposing costs.Accordingly this appeal is allowed and the order of the District Forum is set aside and the matter is remanded to the District Forum on payment of costs of Rs.7,000/- (Rupees seven thousand only) out of which an amount of Rs.4,000/- shall be paid to Mr.M.Ravindra Reddy representing R3 counsel and the balance of Rs.3,000/- shall be paid to the Bar Association of this Commission. After ascertaining that the said costs are paid, the District Forum is herby directed to restore the matter to its file and decide the same afresh after giving opportunity as indicated above.