BIJU @ PAUL JOSEPH vs K.KUNHU MOHAMMED

THE complainant is an electrical labour contractor, and he runs a business of gold covering in the name and style of Shine Gold Coverages at Kanhangad. On 25.11.1994 the complainant was admitted to the K.H.M. Hospital, Manikoth, with complaint of fever and constipation. After various tests including x-ray and clinical examination by opposite parties the complainant was administered medicines and parental fluids till 29.11.1994. His ailment was initially diagnosed due to appenticitis by the second opposite party and later ileo-caceal T.B. and medicine for the said disease was prescribed from 1.12.1994 onwards. But his condition only worsened. He was not able to pass urine. Temperature did not subside and stomach pain persisted. His relatives came and on 5.12.1994 got himself discharged. He was taken to his native place at Kanjirappally and got himself admitted to Kadamapuzha Hospital on the 9th. THEre Dr. Unnikrishnan diagnosed and found that he was suffering from only virus fever and he had no other disease. He got cured responding to treatment for viral fever. He had to suffer mental agony, physical pain, fatigue etc. due to the wrong diagnosis and treatment by the opposite parties. On his behalf Advocate Mr. Santhosh Thomas issued Lawyer''s notice to the three doctors who treated him at Kanhangad claiming a compensation of Rs. 1,00,000/and costs Rs. 300/-. THE opposite parties denied liability in their reply notice.

ALLEGING deficiency of service and negligence he filed the above complaint before us claiming Rs. 5,01,000/as damages. The first opposite party in the complaint is Dr. Kunhummohammed of K.H.M. Hospital, Manikoth, where the petitioner got himself admitted. The second opposite parties is Dr. Satheesh Shenoy who admitted the complainant, conducted tests and commenced treatment, opposite party No. 3 is Dr. Balakrishna Shetty, consultant Surgeon, who took over the treatment and after clinical tests diagnosed the disease as a suspected case of chronic appendicitis and after subsequent tests formed an opinion that the patient is suffering from ileocaceal Tuberculosis and prescribed treatment for the said disease. On notice being issued all the three opposite parties appeared and filed joint version. It was stated that the second and third opposite parties are not consultants attached to the K.H.M. Hospital. Opposite party No. 2 visits the hospital on call and third opposite party is a Consultant Surgeon of Padmasree Hospital and Research Centre, Mangalore and Honorary Assistant Surgeon, Government Wenlock Hospital, Mangalore. He visits K.H.M. Hospital twice a week for consultation and surgery. According to me version, the complainant came to the hospital on 25.11.1994 at 9.15 a.m. complaining of fever of more than seven days, cough, pain in the abdomen and constipation. The second opposite party after clinical examination found that the fever is of low grade and suspected chronic appendicitis or amoebic colitis with mild respiratory infection. He was admitted to the hospital. After admission blood examination, chest x-ray and ultra sonography scan were done. Treatment on the basis of the said diagnosis was started and continued. Since the complainant still complained of pain in abdomen and constipation he was referred to the 3rd opposite party for expert opinion. Barium meal x-ray was taken for identification of colonic disease including ileocaceal T.B. On 2.12.1994 complainant developed difficulty in passing motion and urine. This was also treated. He responded well to the treatment. On 5.12.1994 he was discharged advising to continue the treatment for one more week and thereafter to come up for further evaluation which is essential for final diagnosis. He did not turn up. All other allegations against opposite parties are false. Including professional charges, x-ray, cost of medicines etc., the complainant had spent only Rs. 3,077.35 in the K.H.M. Hospital. There was no deficiency or negligence in treating the patient. The complainant alongwith two other political leaders Vidyasagar and Jose Puthumana came to the opposite parties and demanded Rs. 10,000/or in the alternative to reinstate Miss Shyamala, a trainee nurse, who was discharged from the hospital for misbehaviour. The opposite parties did not oblige and hence this false complaint.

The points which arise for consideration are: (i) Whether the opposite parties were negligent in treating the complainant and whether there was deficiency in the service rendered by them? (ii) If so, what is the amount of damages to which the complainant is entitled? Point No. (i):

EVEN though the complainant filed a witness list consisting of four witnesses none of them were examined. The opposite parties had also filed a witness list of two witnesses none was examined on their side also. The complainant prayed for taking out a Commission for the examination of Dr. Unnikrishnan who treated him at Kadamappuzha Hospital, Kanhirappally, and Dr. G. Nalla Thampi, Professor of Medicine, Calicut Medical College, as an expert witness. The petition was allowed and Sri S. Reghu Kumar was appointed as Commission. But no steps were taken by the complainant for the examination. Thus we are left with only documentary evidence produced by both parties. The complainant and the opposite parties filed affidavits in support of their contentions. The complainant filed 26 documents which are marked in the case as Exts. Al to A26. Exts. A2 to A14 (B) will prove that the complainant was admitted in first opposite party hospital, the clinical and other tests carried out there, the medicines prescribed by opposite parties 2 and 3 and the expenses incurred for the same. Ext. A15 is the reference letter given by the second opposite party on discharge of the complainant from the hospital on 5.12.1994. The discharge card is Ext. A16. Exts. A17 and A18 evidence payment of Rs. 1.400/and Rs. 750/to the hospital at the time of discharge. The history sheet of the treatment is Ext. A 19. Ext. A20 shows the expenses for vcertificate issued by Dr. Unnikrishnan, Kadamappuzha Hospital, which shows that the complainant was having viral fever. Ext. A22 is the bill for treatment at Kadamappuzha, and Ext. A23 is the discharge card of the said hospital. Ext. A24 is the Lawyer''s notice dated 21.2.1995 of the complainant to the opposite parties. Ext. A25 (a), (b) and (c) are the postal acknowledgement cards evidencing the receipt of notice by the opposite parties. The reply to said notice is Ext. A26 dated 7.3.1995.

THE first opposite party produced the Lawyer''s notice Ext. A24 marked as Ext. Bl and the reply notice Ext. A26 marked as Ext. B2. THE postal acknowledgement receipt of Ext. B2 is produced and marked as Ext. B4. The above documents reveal the following tests having been carried out-blood and urine test, x-ray of the chest, ultrasound scanning, barium meal x-ray. The exhibits also show the medicines administered by opposite parties 1 to 3. It is the complainant''s case that his ailment was wrongly diagnosed and the medicines incorrectly prescribed. Thus the treatment under opposite parties 2 and 3 only aggravated his ailment causing him unnecessary expenses and mental agony. The opposite parties 1 to 3 were negligent and careless and their only object was to extract as much money from the complainant as possible. Due to the after effects of unnecessary medication his general health deteriorated. Dr. Unnikrishnan of Kadamappuzha Hospital at Kanhirappally was able to identify the ailment as viral fever without any tests and his prescription cured the complainant completely. The case was posted for hearing on 20.12.1996. We note that all the opposite parties who treated the complainant are qualified medical practitioners having post-graduate qualification, proficiency and experience. They cannot be faulted if they felt that different tests have to be carried out to identify the disease. We have held that a wrong diagnosis cannot be considered as deficiency of service [see 1995 (1) CPR 258 Cheroth Suhara v. Dr. K.K. Subramanyan and Another]. The complainant has failed to prove that the medicines prescribed had after effects and the deterioration of his health is due to wrong prescription. The complainant was discharged from the opposite party''s hospital on the 5th and he got admitted at Kadamappuzha Hospital only on the 9th. The possibility of the complainant contacting viral fever in between also cannot be eliminated. Apart from the affidavit of the complainant there is no other evidence to implicate the opposite parties either with deficiency of service or negligence. In the circumstances we hold that there is no deficiency of service or negligence on the part of the opposite parties.

POINT No. (ii): The amount claimed in the complaint is Rs. 5,01,000/-. In the Lawyer''s notice Ext. A24 it was stated that the estimated amount of compensation as Rs. 2,00,000/but the amount claimed is Rs. 1,00,000/-. In the affidavit the total compensation claimed is Rs. 5,35,000/-. The amount said to have been spent for treatment in the hospital by the complainant is only Rs. 10,000/-. It is also evident from the various exhibits that the hospital bills including professional charges, cost of x-ray, medicines etc., add up only around Rs. 4,000/-. The complainant has no definite case regarding the amount, which he had spent for treatment. His claim is in the region of wild estimates. In view of our finding on point number (i) it is not necessary, to labour much on point No. (ii) to establish the unsustainability of the claim. In the result, the complaint is dismissed. We, however, direct the parties to suffer their respective costs. Complaint dismissed.