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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member and Dinesh Singh, Member
Dr. Sunny Varghese and Anr. – Appellants
versus
Sathyaprabha Sujathan and Ors. – Respondents
First Appeal No.193 of 2012 and First Appeal No.310 of 2013
Decided on 11.12.2020
For the Dr. Sunny Varghese:Mr. S. Gopakumaran Nair, Sr. Advocate with Ms. Priya Balakrishnan, Advocate
For the Sathyaprabha Sujathan:Mr. Venkita Subramoniam T.R. and Mr. Varun Mudgal, Advocates
For the Venniyil Dr. Sukumara Pillai Memorial Hospital:Ms. Usha Nandini, Advocate
IMPORTANT POINT
Non-disclosure of bleeding disorder by patient before Tonsillectomy surgery cannot be held to be medical negligence on part of doctor.
Headnote:
Consumer Protection Act, 1986 – Section 19 : [Consumer Protection Act, 2019 – Section 41] – Medical Negligence – Contributory negligence – Determination of – Husband of complainant was suffering from throat pain – Tonsillectomy surgery performed however patient suffered uncontrolled bleeding – During treatment patient succumbed due to Acute Respiratory Distress Syndrome – State Commission held that it was a case of contributory negligence and awarded compensation – Congenial bleeding disorder was already existing ailment in the patient – It was not disclosed by patient or his attendants at the time of clinical examination during admission or at any time before the Tonsillectomy surgery – Surgery itself was conducted properly – Referral for further treatment and specialised tests to rule out bleeding disorders was made immediately – Non-disclosure of bleeding disorder by the patient before the Tonsillectomy surgery cannot be held to construe negligence on bail of doctor – State Commission erred inholding negligence on hospital and doctor.
Result: Complaint allowed.
ORDER
Dr. S.M. Kantikar, Presiding Member.—These two Appeals arise out of order of the State Consumer Disputes Redressal Commission, Kerala (for short the “State Commission”) dated 07.01.2012 in CC/16/2001 whereby the State Commission held Contributory negligence and the compensation was awarded partly to the complainant for medical negligence, resulting in the death of her husband Mr. Sujathan (the deceased -patient).
2. For the convenience the facts are drawn from the FA 193 of 2012. The parties are referred as similar in the Complaint before the State Commission. The Appellant No. 1, Dr. Sunny Varghese is the Opposite Party No. 2, the Appellant No. 2 Venniyil Dr. Sukumara Pillai Memorial Hospital as the Opposite Party No. 1 and the Respondent is the Complainant is Ms. Sathyaprabha Sujathan, the wife of deceased.
3. Brief facts of the case are that on 05.02.2000 the complainant’s husband Mr. Sujathan (hereinafter referred to as the ‘patient’) was taken to the Opposite Party No. 1 Hospital with the complaint of pain in throat with blood in the saliva while spitting, as a consequence of having fish curry for dinner on 02.02.2000. The Opposite Party No. 2, the ENT Surgeon examined the patient and X- ray of neck was done. The X-ray showed a fish bone piercing in the left tonsil. The patient was advised for Tonsillectomy which was performed by Opposite Party No. 2 on 06.02.2000 at Opposite Party No. 1 hospital. Thereafter, in-spite of the Tonsillectomy surgery, the patient suffered uncontrolled bleeding, therefore on 07.02.2000 he was referred to Medical College Hospital at Kottayam. The patient got admitted there and took treatment till 11.02.2000. Thereafter, patient was referred back to the Opposite Party No. 1, but the re-admission was refused by Opposite Party No. 1. The patient was again re-admitted on 12.02.2000 to the Medical College Hospital, Kottayam. The condition of the patient started deteriorating therefore he was referred to Little Flower Hospital, Angamally wherein the diagnosis of Hemophilia-A was made. However, during treatment the patient succumbed due to Acute Respiratory Distress Syndrome (ARDS) on 01.03.2000. Being aggrieved the complainant (wife of the deceased patient) filed a complaint in the State Commission alleging deficiency in service and medical negligence of the Opposite Parties Nos. 1 and 2 for not diagnosing the bleeding disorder before the Tonsillectomy surgery.
4. The Opposite Parties contested the complaint by filing written versions. Their plea was that the Opposite Party No. 2 was a surgeon having 15 years of experience. According to the Opposite Party No. 2 the patient was brought to the casualty department on 05.02.2000 at 7:45 p.m. and the patient stated the history of accidental fish bone injury while taking food a week back. He did not state family history of bleeding tendency. On examination, there was left tonsillar fossa bleeding but no infection. All necessary blood investigations including Bleeding Time (BT), Clotting Time (CT) and Platelet Count were done. The test reports were within normal limits. Thereafter, under general anesthesia the patient was examined and no fish bone was found. Since, the conservative method to stop the bleeding failed, tonsillectomy and cauterization of the left tonsillar fossa was done. Two days after the surgery, the patient developed bleeding from the left tonsillar fossa, thus suspected some bleeding disorder and the patient was referred to the Medical College Hospital, Kottayam. As per the discharge summary of Medical College Hospital, Kottayam clearly mentioned that on repeated interrogation only, the patient revealed about the family history of bleeding disorder. Thus, the patient was treated as per accepted medical protocols. The patient and his wife (the complainant) have concealed the history of bleeding disorder in the family. If it would have been disclosed, treatment would have taken a different mode. Thus, the diagnosis was not a negligent
