The Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.5 lakhs to the complainant and damages and to pay the costs. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.29.05.2008 in C.C.61/99.
This appeal coming before us for hearing finally on 14.09.2011, upon hearing the arguments of the either side and perused the documents, as well as the order of the District Forum, this Commission made the following order:
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties having suffered an adverse order in OP.61/2009, on the file of the District Consumer Disputes Redressal Forum, Salem on 29.05.2008, wherein, directions were given to pay compensation of Rs.5 lakhs with costs of Rs.3,000/-, challenges the same in this appeal.
2. Factual matrix necessary for just decision of this case:-
The complainant’s husband by name Kanagaraj herein after called ‘Patient’ was admitted, on 09.07.98 in the hospitals of the second opposite party, which is run by the first opposite party, since he was suffering continuously head ache, stomach pain and vomiting. As requested by the opposite parties, on payments, necessary tests were taken, treatment commenced, which were not at all satisfactory. The opposite parties, without taking the scan to diagnose the problem, continued the treatment under some presumption that should be construed as negligence. Because of the non-diagnoses of the disease and improper treatment, the health condition of the patient became deteriorated, even causing swelling of left cheek, left side head, neck and despite questioning no proper answers were given. Relatives were not informed about the condition. The request of the complainant to diagnose the disease properly, to take, if necessity areas, MRI scan also was ignored.
3. The wrong diagnose and wrong deficient treatment, amount to deficiency in service, caused the body of the patient became bluish, blood was oozing and finally he died on 12.09.98. Questioning the treatment, claiming damages to the extent of Rs.15 lakhs, restricting the same to Rs.5 lakhs, legal notice was issued, for which, a false reply was given, justifying their deficient treatment. Because of the death of the husband at the young age, the complainant was put to mental agony and other loses, for which, she is entitled to a sum of Rs.5 lakhs as compensation. Hence, the claim.
4. The appellants / opposite parties not challenging the admission of the patient in their hospital on 09.07.98, resisted the case as follows:-
The patient when admitted, had severe head ache and vomiting, for which, treatment was given by Dr.Senthil Kumar on the basis of the representation and thereafter after admission, the patient was treated for enteric fever since he was suffering from the said fever for 10 days, even before the admission. On the date of admission, it was suspected menigitic and Tuberculosis, which were examined by Dr.P.S. Panneerselvam. In order to investigate further, patient was advised to have MRI scan, Angiography, but the attendant of the patient was not willing to take MRI. The patient, all of a sudden, developed breathlessness, giddiness and fell down. Immediately, he was rushed to ICU, where life saving drugs were administered, putting the patient with ventilator support, but unfortunately, there was no response for CPR and he died at about 12.30 p.m.
5. There was no negligence on the part of the opposite parties. The tests conducted by the hospital revealed normal, does not mean, the patient has no other disability, since he had the head ache and vomiting continuously. Therefore, the opposite parties insisted the parents of the deceased, the patient to undergo for MRI and CT Scan, which is available just 100 metres away from the second opposite party’s hospital, but the patient and his family members refused. The patient was examined by Neuro Physician and Neuro Surgeon appropriate medicines were prescribed at appropriate time. In fact, the complainant was not at all present and she does not know, what kind of treatment was given to her husband. Therefore, it is false, frivolous and mischievous to say, that the opposite parties have committed negligence or deficiency in service, since death had happened to the patient due to cardiac arrest, despite treatment given in the ICU. In the absence of any negligence or deficiency, there is no question of paying any compensation much less Rs.5 lakhs as claimed by the complainant. Other allegations are denied as false, praying dismissed.
6. The District Forum on the basis of the pleadings supported by affidavits while evaluating the materials, felt that when the patient was improving, not taking MRI, which is not the reason for the death, cannot be attributed to the complainant or the patient that the opposite parties have failed to diagnose the disease properly, that in the hospital, no proper nursing care was given, resulting fall of the patient developing complication that should be treated as deficiency in service. In this view, the District Forum granted an award as prayed for, namely directing the opposite parties to pay a compensation of Rs.5 lakhs with costs of Rs.3,000/-as per the order dated 29.05.2008, which is under challenge.
7. On 09.07.1998, the patient, that is husband of the complainant, was admitted in the opposite parties hospital for treatment since he had continuous head ache, stomach pain and vomiting. In the hospital, cerebro spinal fluid tests [CSF] were conducted, which was normal. Despite this fact, the patient was looked after or treated, not only by the first opposite party, but also by other doctors such as consulting Neuro Surgeon and Neuro Physician etc., problem not cured. But on the day prior to the fateful day, the complainant fell down and became unconscious. Therefore, he was immediately rushed to ICU and despite administration of life saving drugs, as well as resuscitation, patient died, declared so, at 12.30 p.m. on 12.09.98. The cause of death was 'Possibility of Cerebral Aneurismal Ruputure followed by cardiac arrest' as indicated in the Discharge Summary-Ex.A1, not under challenge. At the time of the admission, the patient was looked after by his parents, payments were made. But, the wife of the patient, aggrieved by the death of her husband, suspecting the nature of the treatment given, labeling the same as improper treatment, issued a notice, claiming compensation, which failed to harvest any money, resulting a consumer complaint, which yielded the result as prayed for, resulting this appeal.
8. The learned counsel for the appellants would contend that when there was no iota of evidence to prove the alleged medical negligence or deficiency in service, the District Forum granted an award as prayed for, against the settled position of law, which should be upset, opposed.
9. In a case of medical negligence or any other case, the initial burden is upon the complainant, to prove his or her case. If the evidence so let in, satisfied the preliminary requirement, then it is for the other side, to negative the same. Admittedly, the complainant is not an expert. Therefore, her evidence whatever she might have told, may not have much evidentiary value to bring the medical negligence unless that evidence is supported by the case record or any other expert evidence. In this case, the complainant has not even attempted to examine any doctor, and she has not filed any medical literature also, drawing the attention of the Forum, demonstrating how the opposite parties should have committed negligence. In a case of medical negligence, that too, when the qualified doctors have handled the patient, it is sufficient if they have made out a case that as prudent doctors, have taken necessary care, patient was treated despite the result was adverse. To take contra view, regarding the treatment, branding the same as improper treatment or improper diagnose, that should be challenged with reference to expert evidence, supported by medical literature, for which, we do not have any materials. On the other hand, we are having medical records, not questioned, which proves the nature of the treatment given properly by the doctors and the care taken by them, to save the patient, but the result was otherwise, for that, doctors cannot be held responsible, generally, since in any serious cases, no doctor can be given guarantee for life, since it is not with them, whereas it is elsewhere. For the reasons which we are going to record, the treatment adopted, medicines administered, not at all questioned, except saying improper treatment, which is insufficient. Unfortunately, the District Forum has taken a strange view, against the medical evidence, that, the complainant or her relatives not followed the instructions of the doctor, cannot give relief to the doctors, since that is not the cause of death.
10. It is the specific case of the opposite parties that despite their instructions, advise to go for MRI Scan, the patient and his relatives refused. It is an admitted fact, that the patient fell down, become unconscious on 12.07.1998. The District Forum find fault with the fall of the patient, as if, that is the cause for further problems including 'Cerebral Aneurismal Ruputure followed by Cardiac Arrest', for which, we do not have any evidence. It is not the case of anybody, that by fall, the patient sustained any head injury, causing ruputure in the brain vessels or something like that. Therefore, mere giddiness and fall cannot cause the problem of cerebral in nature, which was the cause of death in this case. But, unfortunately, the District Forum had observed that the patient has not been attended properly and there was no proper nursing care also, which is not the case of the complainant, as seen from the averments in the complaint as well as in the affidavit.
11. The fact that the patient was improving to some extent, as recorded in the Case Sheet does not mean, that there was complete cure. Therefore, when the doctor who attended the patient has advised the patient and his relatives to go for tests, the patient should have undergone the tests for further investigation, which was not properly considered by the District Forum. Whereas, it observed, that not taking MRI Scan is not reason for eventually death. MRI Scan, whether it is taken or not, cannot be the cause of death, and MRI Scan is taken to study the brain, further in order to solve the problem, such as noting any blood vessel problem or tumor or clot etc., Therefore, when the patient had some problem, they should have followed the advise of the doctor and it appears, taking advantage of the observation of the doctor, that there was some improvement, in our opinion, the patient and his relatives refused to go for MRI Scan or CT Scan thereby prevented the doctor to examine the brain further, to prevent the complication. Such persons are not entitled to accuse the doctor, as if, they have committed deficiency or not cared to give proper treatment.
12. The Case Sheet relied on by the opposite parties marked as Ex.B4 is not under dispute and the entries therein also not challenged. As seen from the Case Sheet, the doctors who attended the patient, including Dr.Palaniappan, advised to go for CT Scan or MRI Scan as per the notings available in the Case Sheet. But, the patient was not willing for further investigation, by taking MRI probably, as said above since there was some improvement temporarily. The entry so made on 12.7.98 in the Case Sheet is not questioned. The brain problem or vessel problem, which were not visible, could not be diagnosed clinically, unable to be detected, by prudent doctors, advised and therefore, for that, the patient or the relative alone can be find fault. In the Discharge Summary also [Ex.A1], it is said, the patient was advised to go MRI Angiogram to rule out the possibility of Cerebral Aneurysm. Since the patient improved symptomatically, he was not willing for any sophisticated investigation, in spite of explanation that the possibility of AV Malformation or Aneursym should be ruled out if not, the risk is explained otherwise. Despite fact that the doctors have advised for MRI Angiogram to rule out the possibility, expected, they were without the cooperation of the patient, which resulted Cerebral Aneurismal Ruputure, then followed by cardiac arrest.
13. The District Forum very much relied on the oral evidence of PW1, as if, it proved the deficiency or the improper treatment said to have given by the opposite parties. Dr.Paneerselvam’s qualification and efficiency not under shadow. While he was cross examined, he would admit, that the blood pressure of the patient was set right, than Zanocin drug was administered as antibiotic, further admitting immediately he has not advised to take CT Scan, that does not mean he has not at all advised the patient to take MRI Scan or CT Scan as the case may be. As per the other tests report namely CSF nothing came out positive and therefore CT Scan or MRI was advised on 10.07.98, once again on 11.7.98 CT Scan was advised, patient not willing. Family history of the patient also revealed that his father had similar head ache, and the patient was having the head ache for 10 years or so. Thus, it is seen, despite repeated advise and suggestion, patient was not willing for invasive investigation and MRI, that too, after explaining the risk. Even on 12.7.98 once again CT Scan, MRI Scan advised, and at that time, the patient had sudden breathlessness and giddiness, while straining and fell down. Therefore, the answer elicited from Dr.Paneerselvam, as if, he was not adv
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ised at the first instance, for the MRI does not mean that he has not at all advised for MRI Scan, which can be seen from the further answers given as seen from Page 4 of the deposition. He has further stated even on 12.7.98 morning when he examined the patient at 7.30 a.m., patient was moved freely. But unfortunately, the mishap happened, for which, the opposite parties cannot be held responsible, unless the treatment given by them, as recorded in the Case Sheet are proved to be fallacy or against the standard protocol. Except the testimony of PW1, and affidavit, no other materials either in the form of literature or in the form of expert witness, adduced on the side of the complainant, to prove the alleged negligence. This being the proved fact, we are of the considered opinion, that the District Forum had committed error, as if, the opposite parties have committed mistake or negligence in treating the patient and ordered to pay a sum of Rs.5 lakhs as compensation, which is unwarranted in our view. For the above said reasons, the appeal deserves acceptance and the complaint is liable to be dismissed. 14. In the result, the appeal is allowed, the order of the District Forum in COP.61/99, dt.29.05.2008 is set aside, and the complaint is dismissed. There will be no order as to cost throughout. 15. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellants/ opposite parties duly discharged, since appellants succeeded, and there is no need to retain the FDR.