Back
2004(3) CPR 76
TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
A. Raman, President and Tmt. R. Vanaroja, Member
C.S.R. Memorial Hospital - Appellant
versus
M. Ramasamy & Anr. - Respondents/Complainants
A.P. No. 54/99(Against OP No.232/96 on the file of the DCDRF, Madurai)
Decided on 9-2-2004
For the Appellant:M/s. V. Ramajegadeesan, Advocate.
For the Respondent:Ms. Suchitra Raghavan and M/s. PT. S. Narendravasan, Advocates.
IMPORTANT POINTIn a case of medical negligence there must be a nexus established between the fact of death and the act of alleged negligence.
Headnote:(i) Consumer Protection Act, 1986 - Sections 12 & 17 - Medical Negligence - There must be a nexus established between fact of death/disability and the act of negligence - Mere from the fact that patient was not cured of illness or it became worst, it could not be presumed that there was something wrong with treatment given by doctor - Forum should insist upon some sort of proof of allegations.
Held: In all such cases of medical negligence, mere suspicion cannot hold sway. There must be a nexus established between the fact of death and the act of negligence. For the Doctors, when they take up a case, do not and cannot guarantee 100% success in all cases. They have no magic wave to wave off the illness or the disability of the patients. At best, they can only do what is expected of them in a given case, by following the medical procedure known, and adopting the accepted and approved course of treatment and advice of course, the experience the Doctor has in such matters would come in handy in dealing with such cases. Therefore, merely from the fact that the patient was not cured of the illness or it became worst, it cannot be presumed nor would it follow that there was something wrong with the treatment given to a patient by the Doctor. It is always easy to allege and attribute negligence against Doctors. But at the same time, it cannot be forgotten that allegation alone cannot be substitute for proof. When we are dealing with such cases, it is necessary that a Consumer Forum adopts a careful approach to see that the allegations do have tinge of proved facts. No doubt the hardship, the loss, the injury or the disability and the sufferings of a human being cannot be forgotten. But one can only sympathies, but sympathies cannot dislodge the burden of proof or corrode the natural justice. When a medical professional is accused of negligence and hauled up before the Forum of this nature, alleging deficiency in service, the Forum should insist upon some sort of proof of the allegations. Otherwise, the prestige of the medical profession would be at stake. It will not be proper to make such professionals a laughing stock of the society. Though strict proof in the sense it is required in cases of civil or criminal in nature, is not to be expected, there must be some proof of acceptable nature and prima facie material, so that the Forum will be justified in coming to a conclusion on the question of deficiency of service.(Para 5)
(ii) Consumer Protection Act, 1986 - Sections 12 and 17 - Medical Negligence - Complainant suffered injury on his left big toe and was treated by 1st Opp. party for a week - As he did not get relief he was referred to opp. party No.2 hospital where he was indoor patient and ultimately his leg upto knee had to be amputated - Distt. Forum holding 1st Opp. party deficient in service awarded compensation and dismissed complaint as against Opp. party No.2 – Appeal - A case of only allegations of complainant met with counter allegations of opp. party - Complainant was a diabetic patient and had been having abscess frequently - He was a chronic diabetic - No material to indicate carelessness or lack of diligence on part of opp. party No. 1Impugned order could not be sustained. (Paras 5 and 6)
Result: Appeal allowed.
A. Raman, President - The 1 st. opposite party is the appellant. The complainant was an experienced tailor and was carrying on his avocation as such. He has two sons and a daughter besides his wife who are dependent upon him. He has no other source of income. On 3-2-1995, on his return from a temple, the complainant was tripped by a stone and lost his balance. At that time, the complainant did not suffer any pain, but there was a cyst formed on his left big toe. After a week, he was having fever and body pain. The 1st opposite party clinic is situate near the house of the complainant and therefore he went there for treatment. The wound on the left big toe was cleaned and dressed up and he was given medication for fever and body pain. He was advised by the 1st Opposite party to come to the hospital regularly for a month and take treatment till the wound in the left big toe was cured. Daily, dressing was done for the cyst on his left toe. He also took the medicines prescribed by the Doctors, regularly. The complainant was paying the necessary fees to the Doctors for the service rendered by them. But the cyst on the left big toe did not subside and on the other hand, it began to grow in size. Therefore the complainant along with his wife and son, enquired the Head of the administration of the 1st opposite party as to why the wound has not yet healed though he has been continuously taking treatment for the same at their hands. He was then advised by the 1st. opposite party to admit himself as an in-patient and take treatment. They also stated that if he did so, he will be completely cured. Accordingly, the complainant got himself admitted as an in-patient on 17-3-1995. On 20-3-1995, his urine, blood and excreta were examined and his left foot was also X-rayed. On the basis of the report of the X-ray, they advised him that if the portion of the toes viz., the top of the foot is opened up, the wound would get healed. Accordingly, they made an incision with a knife. From the next day onwards, the Doctors working in the hospital of the 1st opposite party went on strike. On account of this strike, the complainant and others who were admitted as in-patients in the hospital were put to considerable hardship, pain and sufferings. The staff in the hospital during the time, daily washed the complainant's leg in a solvent mixed with bleaching powder and made him dip his feet into the same. This increased the burning sensation in his leg. Despite the complainant reporting about the same, the staff of the 1st opposite party hospital insisted and compelled the complainant to dip his foot. Thus, the 1st opposite party failed and omitted to render proper medical treatment in the hospital. The 1st opposite party also failed to take suitable alternative steps to attend to the patients when the Doctors went on strike. Therefore, the complainant wanted to be shifted to some other hospital. Dr. Karthik Babu, an expert Doctor attached to the 1st opposite party hospital stated that the strike would be called off soon and persuaded the complainant to stay put in the hospital. But the strike continued to go on. The complainant was put to great hardship. The wound in his foot became big, got ulcerated and swelled considerably and it became impossible for the complainant to move his leg. The attempts by the complainant to get experts from other hospitals were also failed by the Opposite parties. On the advice of Dr. Karthik Babu, the complainant was taken to the hospital of the 2nd opposite party.
There, after examination, the complainant was informed that proper treatment had not been given to the complainant and that as a result of the same, it has become necessary to amputate his left leg from above knee. The 2nd opposite party also informed that they would try medication and cure the complainant to which the complainant consented. The 2nd opposite party administered costly medicines and gave treatment to the complainant, but there was no improvement
