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2006 (3) CPR 92 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
K.S. Gupta, Presiding Member and
Dr. P.D. Shenoy, Member
Baburao Satappa Irrannanavar—Petitioners/Respondent
versus
KLE Society’s Hospital and Research Centre & Anr.—Respondents/Petitioners
Revision Petition No. 1008 of 2005 and Revision Petition No. 492 of 2005
Decided on 31-7-2006
Counsel for the parties:
For the Petitioner:Shri C.M. Angadi, Advocate.
For the Respondent:Shri Sailash Madi-yal, Advocate.
IMPORTANT POINT
Where patient was not healthy before the operation and surgery was required and there was experts evidence corroborating the factum of proper operation and due post-operative case and there was absence of cross-examination by complainant, the forum and state commission wrongly held hospital and surgeon for negligence in medical service.
Headnote:Consumer Protection Act, 1986 — Section 19 — Appeal and Counter-appeal — Appeal against orders of fora below granting compensation for medical negligence in service — Counter-appeal for enhancement of compensation — Case of gastric obstruction — Advised surgery — Operation successful — Post-operative complication caused by Fortwin injection — Expert evidence for hospital and surgeon — Not cross-examined by complainant — No evidence in rebuttal — Whether finding of deficiency in medical service sustainable ? (No) — Appeal of Hospital and Dr. allowed — Counter-appeal of
complainant dismissed — Case law
referred.
Held: This is a case of alleged medical negligence. One of the important issues to be decided in this case is whether the consumer fora can conclude that hospital and the operating surgeon were negligent without basing the decision on the evidence of the experts as well as extracts of medical texts and also especially when three experts have given their evidence on affidavit who were not cross-examined by the complainant/ or his advocate despite opportunities were being given. The obvious answer to these questions is that the consumer fora are not correct in holding the operating surgeon/hospital negligent. (Para 2)
Held also: In view of the above, analysis we hold that it is for the complainant to prove that there is negligence on the part of the hospital and staff. It is not for the hospital and doctors to prove that there were not negligent. Repeated opportunities given to the complainant to cross-examine the expert witnesses
were discarded by the complainant which has resulted in non-rebuttal of the evidence adduced by the experts who have clearly held that surgery was the only remedy available to the patient who suffered from gastric Outlet Obstruction with electrolyte imbalance and that “there is no negligence on the part of the attending doctors, anesthetic management and surgeons.” The treatment given by the surgeon is correct.(Para 27)
State Commission and District Forum erred in disbelieving the expert’s evidence.(Para 28)
Held in addition : Though, evidence on affidavit of three experts were filed by the opponents before the District Forum, the complainant had chosen not to cross-examine them. Accordingly, their evidence has gone un-rebutted. Despite, further opportunity to cross examination of three experts given by the State Commission, this golden opportunity was not availed at all by the complainant. Hence we have no reason to disbelieve their evidence. (Para 32)
To prove the negligence of any doctor the complainant has to lead adequate evidence with supportive medical texts. This has not been done by the complainant. A careful perusal of the clinical notes of the hospital which runs into several pages indicate that sincere efforts were made by the hospital authorities and the doctors concerned to perform the procedure and post-operative care. Hence, we cannot throw the blame Ops 1 & 2 in the absence of cogent and reliable evidence supporting the contentions of the complainant.(Para 38)
Held finally: Accordingly, revision petition of the KLE hospital and Dr. Godhi is allowed and the orders passed by fora below set aside and complaint dismissed. As the complaint itself is dismissed the revision petition for enhancement of compensation by Shri B.S. Irranavar is also dismissed. In the peculiar facts and circumstances of the case, there shall be no order as to costs.(Para 39)
Result : Complainant’s Revision Petitions dismissed. O.P’s R.P. allowed and complaint dismissed.
Dr P. D. Shenoy, Member — These two Revision Petitions are filed against the order dated 4.2.2005 passed by the State Commission, Karnataka in Appeal No. 1135/2003.
2. This is a case of alleged medical negligence. One of the important issues to be decided in this case is whether the consumer fora can conclude that hospital and the operating surgeon were negligent without basing the decision on the evidence of the experts as well as extracts of medical texts and also especially when three experts have given their evidence on affidavit who were not cross-examined by the complainant/ or his advocate despite opportunities were being given. The obvious answer to these questions is that the consumer fora are not correct in holding the operating surgeon/ hospital negligent.
Case of the complainant
3. In this case, the complainant has alleged that his wife Pramila aged 64 years suffering from gastric obstruction was admitted in the KLE Society’s Hospital (hereinafter referred to as hospital) on 19.7.1997 for treatment. Dr. A.S. Godhi examined her and advised her to undergo surgery. He operated her on 8.8.1997 at about 12 noon. After the operation she was kept in a recovery room till 8.30 p.m. On 9.8.1997 when the patient complained of pain at 4 a.m., Fortwin injection was administered. The condition of the patient started worsening due to respiratory failure and she went into semi-coma. At about 3.30 p.m. excessive concentration of oxygen i.e. 15 litres per minute was given to her. At 8.00 p.m. the patient was put on mechanical ventilator when she had respiratory arrest. It should have been done at 3.30 p.m. instead of at 8.00 p.m. The patient died at 8.30 p.m. due to criminal negligence of Dr. Godhi who came to the hospital only at about 10.00 p.m. There was medical negligence of the hospital and also the attendants in the said hospital. Primary cause of death of the deceased Pramila is respiratory failure leading to severe respiratory acidosis. Secondary cause is general anesthesia. Contributory cause is surgery. Though there was no necessity of surgery as the patient was in normal condition, Dr. Godhi operated her. The complainant spent Rs. 43,361/- towards medical expenses. On 13.10.97, the complainant issued notice to the opponents calling them to pay compensation of Rs. 4 lakhs and also entire medical expenses to the tune of Rs.41,361/-.
Case of the Hospital and the Surgeon - Dr. Godhi
4. The deceased Pramila was admitted in hospital on 19.7.97. Dr. Godhi examined her and advised her to undergo operation for removal of gastric outlet obstruction. Dr. Godhi explained to her in detail the risks and consequences of the treatment. The deceased and the complainant voluntarily agreed for the surgery. On 8.8.1997, she was operated upon and she was kept in recovery room till 8.30 p.m., wherein her condition was continuously monitored. Later on she was shifted to surgical intensive care unit. There she was constantly attended by the doctors. On 9.8.97 at 4.00 p.m., the patient complained of pain. The duty doctor after consulting the experts administered injection Fortwin to allay anxiety and alleviate pain. This treatment was appropriate and correct. The injection Fortwin and general anesthesia do not lead to respiratory failure. Opponents have also denied the allegation that excessive concentration of oxygen was administered to the patient. The oxygen was administered as part of treatment for respiratory failure under supervision of experts. The mechanical ventilator was applied as per the advise of concerned experts. Dr. Godhi came to the hospital at 8.00 p.m. itself and treated the patient. The opponents have denied the allegation that the complainant has spent Rs.41,316/- towards medical expenses of deceased. The compensation claimed by the complainant has no basis. The deceased was admitted at the hospital on 19.7.1997 for gastric outlet obstruction. She was suffering from pyloric obstruction with severe electrolyte imbalance. As a
