Burden of proof in medical negligence claims lies with the complainant, requiring cogent evidence to demonstrate negligence, which was not met.

ORDER

DR. S.M. KANTIKAR, PRESIDING MEMBER

1. The instant Complaint was filed under Section 21 of the Consumer Protection Act , 1986 by the Registered Voluntary Consumer Organisation (Consumer Protection Council, Tamil Nadu) - Complainant No. 1 on behalf of M.K. Vaidyanathan - Complainant No. 2 for alleged medical negligence of the treating doctor and the hospital, causing death of his son, Vignesh.

2. The facts stated in the Complaint are that Mr. Vignesh, about 20 years, young MBA student (since deceased, hereinafter referred to as the “patient”), son of Mr. MK Vaidyanathan (Complainant No. 2) met Dr. J. S. Rajkumar (OP-2) in a gathering who assured his obesity treatment by Bariatric Surgery. The OP-2 assured to do the surgery without any complications at Lifeline Hospital, Chennai (for short ‘Hospital’-OP-1) and he would lose about 50 Kg weight in 3-6 months and thereafter another 40 Kgs. The package of treatment was given Rs.3.25/- lakh. It was informed that the surgery was to be done in two steps i.e. ‘Sleeve Gastrectomy’ and then ‘Duodenal Switch’. The OP-2 explained about the side effects and risks, gave the warning that the patient had to eat in smaller quantity of food at more frequent intervals.

3. Accordingly, on 24.03.2006 the OP-2 examined the patient and confirmed his Bio-Mass Index (BMI) as 64/65 and categorised the patient under super obese category. The OP-2 started on diet supplements called Optifast. The patient was admitted to Lifeline Hospital, Chennai on 04.04.2006 and the OP-2 performed the laparoscopic ‘Sleeve Gastrectomy’ on 05.04.2006. After the surgery, the OP-2 told the patient’s father that the second procedure ‘Duodenal Switch’ was not necessary. On 06.04.2006 the patient was shifted to ward. On 08.04.2006, in the morning, patient complained severe abdominal pain. It was alleged that the OP-2 after examination told that there was a fluid collection in the abdomen and advised in the evening to perform an emergency short procedure (45 minutes) to remove the collection; but later on it was learnt that he had performed a regular surgery (exploratory laparotomy) by opening patient’s abdomen. After 3- 4 days, the OP-2 informed the Complainant No.2 about the leak in the abdomen, therefore the patient was put on ventilator for better recovery. On 11.04.2006, the OP-2 informed the Complainant that patient developed septic shock and started injection Xigris costing about Rs. 2.5 lakh per injection. On 16.04.2006 further ‘Cansidas’ a medicine for the fungal infection was started. It was further alleged that, a film shooting was going on in the hospital premises on 17.04.2006 with hundreds of people polluting the entire atmosphere. The construction activity was also raising dust from the columns. It was alleged that due to prolonged ventilation, the OP-2 performed tracheostomy on 21.04.2006 and on the next day the patient was shifted to isolation ICU. On 25.04.2006, the OP-2 informed the patient's father and relatives that a leak was found and that the patient was having a ‘Gastric Fistula’. Thus moping was needed for fast recovery. After 2 hours of the procedure, the OP-2 informed the patient's father that a third surgery for stomach removal might be necessary. Therefore, the Complainant alleged that the previous two surgeries were failure. The OP-2 referred the patient to Dr. Surendran at Apollo Hospital on 26.04.2006 only after paying total amount paid was Rs.27 lakhs while the package promised was for Rs. 3.25 lakhs. It was alleged that, the Complainant No. 2 came to know about the life-threat