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2009(4) CPR 335
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM
M.V. Viswanathan, Judicial Member and Smt. Valsala Sarangadharan, Member
K.S. Francis –Appellant
versus
The Director, Little Flower Hospital
and Ors. –Respondents
Appeal No. 131 of 1999
Decided on 19.6.2008
For the Appellant:Viju Abraham, Advocate.
For the Respondents:P.K.M. Hassan and others, Advocates.
IMPORTANT POINTS
1. Non-impleadment of treating doctor or nursing staff could not be treated as fatal to the complaint preferred by the consumer.
2. Where doctor treated patient for injury in eye caused due to explosion of filled soda bottle and doctor failed to take steps to detect if any foreign body had gone inside the eye and a piece of glass was detected after a month which was taken out by second operation, it was a case of negligence and deficiency in service.
Headnote:(i) Consumer Protection Act, 1986—Sections 12 and 17—Medical negligence—Complaint opposed as bad for non-joinder of necessary party—Complainant having suffered injury in right eye was treated and operated by opposite party No. 2—Defence plea was that in fact operation was carried out by Dr. Thomas Thachil and not by OP No. 2 Thomas Cherian—District Forum accepted defence version and held complaint bad for non-joinder of necessary party—Appeal—Complainant deposed that he was told by hospital staff that surgery was done by OP No. 2—It was for OP No. 2 to show that said treatment were conducted by Dr. Thomas Thachil but OP failed to produce best evidence—Complaint could not have been dismissed on that ground.
Held: It is the case of the opposite parties that Dr. Thomas Thachil examined the complainant on 16.11.1996 and conducted the surgery and corneal suturing on the right eye of the complainant. Admittedly the complainant did not take any steps to get the aforesaid Dr. Thomas Thachil impleaded in the complaint in OP No. 823 of 1997. The Forum below came to the conclusion that the said complaint filed by the complainant is bad for the non-joinder of necessary parties.
The complainant as PW1 has deposed that he was told by the staff of the 1st opposite party/hospital that the surgery on 16.11.1996 wad conducted by the 2nd opposite party/Dr. Thomas Cherian. Then it is for the opposite parties to show that the said surgery and treatment were conducted by Dr. Thomas Thachil DW1, the 3rd opposite party has categorically admitted in his cross-examination that there is an operation register maintained at the 1st opposite party/hospital and the said operation register would disclose the details regarding the doctors who conducted the operation. But unfortunately the opposite parties failed to produce the best evidence. So, the case of the complainant that the operation was conducted by the 2nd opposite party cannot be totally ignored. No evidence is forthcoming from the side of the opposite parties to show that the 2nd opposite party/Dr. Thomas Cherian had nothing to do with the operation and treatment of the complainant at the 1st opposite party/ Hospital. In the aforesaid situation and circumstances it is not proper on the part of the Forum below to hold the complaint as bad for non-joinder of necessary parties.
In the decision rendered by the Hon’ble Supreme Court in Savita Garg v. National Heart Institute, 2004 (3) KLT 919 (SC), it is held that non-impleadment of treating doctor or nursing staff could not be treated as fatal to the complaint preferred by the consumer. The aforesaid decision of the Hon’ble Apex Court would make the complaint in OP No. 823 of 1997 as maintainable. So, the complaint in OP No. 823 of 1997 is not liable to be ignored or dismissed on the ground of non-joinder of necessary parties. Hence, the complaint in OP No. 823 of 1997 is held maintainable. (Paras 7 to 9)
(ii) Consumer Protection Act, 1986—Sections 12 and 17—Medical negligence—Complainant-appellant suffered injury in right eye due to explosion of filled soda bottle—He was treated in OP hospital by operation—Since pain in the eye continued, foreign body was detected in eye and ultimately removed by operation and it was glass piece measuring one inch—Claim for compensation—Since injury had occurred due to explosion of soda bottle it was bounden duty of doctor who treated complainant to make earnest and sincere attempt to trace out foreign body if any in the eye—Discharge summary showed that operation was conducted by Iris Abscission which means internal parts of eye were seriously affected—Expert evidence however showed that eye vision was not affected by presence of foreign body—Failure on part of OP in taking CT Scan for detecting foreign body was negligence amounting to deficiency in service—Complainant held entitled to compensation assessed at Rs. 35,000 with cost of Rs. 500. (Paras 10 to 14)
M.V. Viswanathan, Judicial Member—The above appeal is preferred by the complainant in OP No. 823 of 1997 on the file of CDRF, Ernakulam. The complaint in said original petition was filed against the respondents 1 to 5 as opposite parties claiming compensation of Rs. 3,00,000 for the deficiency in service on their part in conducting the surgery on the complainant and also treating the complainant at the Little Flower Hospital, Angamaly (1st opposite party). The 1st opposite party the Director of Little Flower Hospital, Angamaly filed written version denying the alleged medical negligence on the part of the hospital and its doctors. The 1st opposite party further contended that the complaint is bad for non-joinder of necessary parties. The opposite parties 2 to 5 filed a joint written version denying the alleged medical negligence and deficiency in service on their part in conducting the surgery and further treatment for the complainant. The Forum below accepted the case of the opposite parties 1 to 5 and thereby passed impugned order dated 14.12.1998 dismissing the complaint in OP No. 823 of 1997. Hence the present appeal.
2. The facts of the case can be summarized as follows. The complainant approached the 1st opposite party/hospital (Little Flower Hospital, Angamaly) on 16.11.1997 with an injury to his right eye due to the explosion of a filled Soda bottle. The 2nd opposite party Dr. Thomas Cherian examined the complainant and conducted the operation. He could not find out any foreign body on examination. The complainant was treated as an in-patient and discharged on 29.11.1996 with an advice to come after one week. The complainant came to the 1st opposite party/hospital on 4.12.1996 due to severe pain. He was examined by the 4th opposite party Dr. Ani Sreedhar and after prescribing some medicines the complainant was asked to come after 2 weeks for check up. On 12.12.1996 the complainant again went to the 1st opposite party/hospital due to severe pain and he was admitted in the hospital. On that day evening there was bleeding from the injured eye. The opposite parties 2 to 5 examined the complainant. But they could not find out any foreign body in the aye. But when the suturing was removed the foreign body could be found out and the operation was conducted on 17.12.1996. But the foreign body could not be taken out and so on 18.12.1996 operation was conducted under local anaesthesia and the foreign body namely, the glass piece measuring one inch was removed from the right eye of the complainant. The complainant was discharged from the hospital on 23.12.1996. It is alleged that there was negligence on the part of the opposite parties in finding out the foreign body and that due to the negligence of the opposite parties that foreign body remained in the right eye of the complainant for one month and resulted in infection affecting the optical nerve and carrying complete loss of vision of right eye. Thereafter the complainant went to Madurai Aravind Eye Hospital and he was told that his vision to the right eye was lost in the course of and out of the treatment received from the 1st opposite party/hospital. It is further alleged that the opposite parties 2 to 5 failed to exercise professional competence, skill and care in the performance of the operation and in further treatment of the complainant that they failed to adopt the necessary technique of scanning or any such other advanced method to find out the foreign body namely glass piece which was remaining in the right eye of the complainant. Thus, the complainant claimed compensation of Rs. 3,00,000 for the negligence and deficiency in service on the part of the opposite parties.
3. The opposite parties denied the case of negligence and deficiency of service. They contended that on 16.11.1996 the complainant was seen by Dr. Thomas Thachil and the operation was done by Dr. Thomas Thachil. The 2nd opposite party Dr. Thomas Cherian had no occasion to conduct surgery or trea
