IMPORTANT POINT
ERCP procedure without any special consent is not permissible.

Mr. Ajit Bharihoke, Presiding Member—This present appeal is filed under Section 19 of the Consumer Protection Act, 1986 against the order dated 8.11.2007 passed by A. P. State Consumer Disputes Redressal Commission, Hyderabad (State Commission) whereby the State Commission dismissed the complaint of the complainant.

2. The brief facts relevant to dispose of this appeal are that the complainant/Shri K. S. Sastry’s wife, Mrs. K. Padmavati (hereinafter referred as ‘the patient’) was suffering from upper abdominal pain and consulted Dr. J.M. Gurunath, OP 3/Appellant No. 2 on 10.10.2000 at Appollo Hospital. She was put on drip in the emergency room. OP 3 prescribed two antibiotics without conducting any pre-operative tests. The complainant requested the doctor to administer Norfloxacin 400 mg. as it was administered from 14.10.2000 to 19.10.2000 but without conducting any blood culture tests, the OP stopped Norfloxacin. Thereafter, Dr. Rajneesh, Surgeon/OP 4 examined the patient on 19.10.2000 and advised for gall bladder surgery. Accordingly, the patient was shifted to OP 1’s hospital on 20.10.2000 at about 3.00 p.m. She was taken for Endoscopic Retrograde Cholangad Pancreotography (ERCP) without the consent of the complainant. While performing ERCP under anesthesia/sedative (injection IV), the patient suffered cardiac arrest/broncho spasm (respiratory arrest). Therefore, the complainant suspected about wrong treatment and hence entered in the room where his wife was unconscious and the doctor was trying to revive her condition. Thereafter, she was shifted to MICU. Dr. Mumtaz Ali, Pulmonologist/OP 5, examined the patient and advised Hydrocortisone 100 mg (IV) for every 6 hours alongwith other drugs. The complainant alleged that inspite of repeated requests made to OP 3 that the patient was already suffering from Intestinal Lung Disease/ILD and under treatment with steroids, the OP 3 without conducting necessary Pulmonary Function Tests (PFT), Arterial Blood Gases (ABG), CT Scan of Abdomen and Hepatobiliary Scan, directly performed for ERCP in a negligent manner. The complainant lodged a complaint with the hospital authorities but there was no avail. The patient was shifted to private room on 28.10.2000 and thereafter on 13.11.2000 due to serious condition of the patient, high risk surgery was performed by OP 4. The patient subsequently developed various complications and died on 24.11.2000. The death summary issued by OP 1/hospital did not reveal treatment details. Therefore, aggrieved by the negligent attitude of OPs, the complainant filed a complaint before the State Commission.

3. The OPs resisted the complaint and denied the allegations made against them. OP 3 stated that all precautionary measures with utmost care and caution was taken during treatment of the patient. There was no deficiency in service on their behalf during pre and post operative period. The complainant was covered under Central Govt. Health Service Scheme, therefore, he is not entitled for compensation.

4. The State Commission after considering the pleadings and evidence partly allowed the complaint holding that there was a negligence on the part of O.P. No. 3 and held O.P. No. 1 being the hospital as vicariously liable for the acts of O.P. No. 3. It directed the O.P. 1 and OP 3 to pay Rs.4,00,000/- towards mental agony to the complainant with interest @ 9% p.a. together with costs of Rs.5,000/-. However, the complaint against the other OPs was dismissed

5. Aggrieved by the impugned order, the OP 1/Appellant No. 1 and OP 3/Dr. Gurunath filed the instant appeal.

6. We have heard the arguments from both the parties. Learned counsel Mr. Avneesh Garg, for the OP submitted that the State Commission erred in holding OP 3 for negligence in treating the patient and O.P No. 1 being Hospital for vicariously liable. The counsel for OP further submitted that the intestinal lung disease (ILD) was diagnosed long back by lung biopsy. The PFT has no significance as it