CONSUMER AWARENESS And RESEARCH SOCIETY vs HEALING TOUCH HOSPITALS PRIVATE LIMITED

THIS complaint was presented before this Commission on 27.10.1992 under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 by M/s. Consumer Awareness and Research Society (1st complainant) and S. Anoop Kumar (2nd complainant) for a direction to the opposite parties to pay to the second complainant a sum of Rs. 2,00,000/- and costs for the negligence of the opposite parties resulting in the death of the second complainant''s daughter aged about one year.

THE case of the complainants as unfolded by the averments made in the complaint is that one Karunya one year old daughter of the second complainant was brought to Dr. D. Ramesh the third opposite party at about 8.00 a.m.on 5.10.1992 for medical treatment, that the third opposite party admitted her in Healing Touch Hospital at Secunderabad i.e., second opposite party which is managed by the first opposite party, that the third opposite party after advising the junior Doctor to put the baby on oxygen left the hospital at about 12.30 p.m. even without examining the baby and has not come back to the hospital, that the staff of the hospital gave false hopes about the return of Dr. Ramesh, that the duty doctor after seeing an X-ray report of the child informed the second complainant and others attending on the child that the X-ray was clear and there was no cause for anxiety, that the condition of the child became worse at about 3.00 a.m. i.e., in the early hours on 6.10.1992, that at about 5.30 a.m. Dr. Ramesh the third opposite party when contacted by the second complainant with the help of the duty doctor told him on telephone that all possible medicines were given and there was nothing more to be done in the matter and advised the duty doctor to shift the child to NIMS Hospital, that thereupon he went round some places like Gandhi Hospital for securing an Ambulance and that meanwhile at about 7.35 a.m. on 6.10.1992 the child died. It is the further case of the complainants that though they paid the fees to him Dr. Ramesh has not even examined the child and has not evinced any interest in giving treatment to the child and he has not taken due care expected of an ordinary Medical Practitioner and that there is deficiency in service on the part of the third opposite party i.e., Dr. Ramesh. THE further case of the complainants is that the opposite parties 1 and 2 have not provided adequate facilities and that due to the negligence of the third opposite party, the child died. The first and second opposite parties filed a joint counter stating that at about 11.15 a.m. on 5.10.1992 Dr. Ramesh, the third opposite party after thoroughly examining the child admitted her in their Healing Touch Hospital as the child was suffering from severe Bronch opneumonia which is a very serious condition in small children, that the child was brought to Dr. Ramesh after 5 days of the disease in a very serious stage, that the prognosis was very poor and it was explained to the parents of the child, that Dr. Ramesh gave necessary instructions to the Pediatricians of their hospital with regard to the management of the case, Dr. Ramesh once again examined the child and gave further instructions regarding treatment before leaving the hospital, that there were competent Paediatricians on duty round the clock and they followed up the case meticulously and did everything required to improve the condition of the child, that there is no truth in the allegation that Dr. Ramesh did not see the X-ray report till 7.00 p.m., that Dr. Ramesh never instructed to shift the child to NIMS Hospital, that the complainant also did not request for shifting the child to NIMS and there was no need for an Ambulance, that in spite of efforts made by the Paediatricians on duty and also by other doctors the condition of the child deteriorated and the child died at about 8.20 a.m. on the next day and that there was no deficiency in service on the part of the opposite parties. It was further stated in the counter that there was no need for Dr. Ramesh to come back to the hospital as the child was put under the care of qualified Paediatricians who took all possible precautions in treating the child and that the child died only due to the negligence of the second complainant in bringing the child at a belated stage and also due to the disease from which the child was suffering. It was also stated in the counter that the allegations in the complaint that the second complainant was not given telephone facility and that the opposite parties 1 and 2 are exploiting the patients by charging exorbitant medical bills and there are no adequate facilities in the hospital are false.

Dr. D. Ramesh, the third opposite party filed a separate counter affidavit denying the allegations made in the complaint and contending that there are no merits in the complaint, that the complaint was filed only with a malafide intention to get the compensation, that there was no negligence on his part, that at the time of admission at about 11.00 a.m. on 5.10.1992 the second complainant told him that the child was suffering from fever for the last 6 days and there was breathlessness during the past 5 days and the child refused feeds on the previous day and that he thoroughly examined the child and found that she was suffering from severe Central Cyanosis, that preliminary diagnosis revealed that there was status asthmaticus with respiratory failure and acute viral pneumonia in acute respiratory failure, that the baby was also not responding to routhe oral commands, that he immediately informed the second complainant that the condition of the baby was very serious and advised him to admit the child in the second opposite party hospital which is the exclusive Paediatric Speciality Hospital with all latest equipment regarding the child care in twin cities, that the baby was admitted in the hospital at about 11.15 a.m., that he immediately prescribed some injections and other medicines, that the B.P. of the child was 60/40 as against the normal 100/60, the pulse rate was 160 per minute as against the normal rate 90-100, that the child was kept under the supervision of pediatricians and that before going home he once again checked the condition of the child at about 12.30 p.m. and found there was slight improvement in the condition of the child. He denied the allegation that he has not examined the child personally. He further stated that he telephoned to the duty doctor in that evening and enquired about the condition of the child and that the duty doctor informed him that there was nothing to worry and the baby was responding slowly. He denied the allegation that he advised the duty doctor to arrange for shifting of the baby to NIMS Hospital. He stated that he gave all possible treatment to the child, that he is a hard working paediatrician in Hyderabad and that he took necessary care in giving treatment to the child and there is no negligence on his part. He also stated that the second complainant did not telephone to him at about 5.30 a.m. on the next day and that he was not at his house from 6.00 a.m. to 7.30 a.m. on the next day having gone to his friend''s house to attend on his child who was sick and that by the time he reached the hospital on 6.10.1992 he was informed that the child died. He has finally prayed for dismissal of the complaint.

THE second complainant filed his affidavit and also filed third party affidavits of (1) S. Lalitha Kumari, wife of the second complainant, (2) V.V. Ramani, the mother-in-law of the second complainant, (3) V. Somasekhar, the brother-in law of the second complainant, (4) S. Anil Kumar, the brother of the second complainant; (5) Ram Singh Rathod, colleague of the second complainant, (6) Mr. G. Vinay Kumar, another Colleague of the second complainant, and (7) Dr. D. Anand, another colleague of the second complainant. THE second complainant was cross-examined as PW 1 on the basis of his affidavit and Exs. A-l to A-6 were got marked for the complainants. Dr. Ramesh, the third opposite party was cross-examined as RW 1. Third party affidavits of (1) Dr. Y. Ravinder Rao; (2) Mrs. Veronica Paul; (3) Dr. K.V. Rao; (4) Dr. Sarvesh; (5) Miss Gillian Florence Almeida; (6) Jagannath and (7) T. Vijaya Raghunandana Rao were filed on behalf of the opposite parties. Dr. Y. Ravinder Rao who is the Managing Director of the opposite party No. 1-Company and who gave an affidavit was cross-examined on behalf of the complainants as RW2. One A. Jagannath who gave an affidavit on behalf of the opposite parties and who claims to be the Manager of the opposite party No. 1-Company was cross-examined for the complainants as RW 3. One Dr. K.V. Rao, paediatrician who gave an affidavit on behalf of the opposite parties was cross-examined as RW 4. THE case sheet maintained by the opposite parties in regard to the treatment of the second complainant''s daughter was filed and marked as Ex. B-1 on behalf of the opposite parties. The point for consideration is whether there is deficiency in service on the part of the opposite parties and to what relief the second complainant is entitled.

WE heard the learned Counsel for both parties. WE have carefully gone through the entire material on record. The case of the complainants is that due to the negligence of the third opposite party doctor and due to non-availability of adequate facilities in the second opposite party-hospital managed by the first opposite party-Company, the daughter of the second complainant died. The opposite parties stoutly contend that there is no deficiency in service on their part. The first aspect of the case of the complainants as mentioned in the complaint is that when the second complainant brought his one year old daughter Karunya to him, Dr. Ramesh, the third opposite party simply instructed his junior doctor to put her on oxygen and went away even without examining her though the second complainant and his relations were expecting Dr. Ramesh to examine the child. Dr. Ramesh categorically stated in his counter affidavit and in his proof affidavit that he carefully examined the child, diagnosed the case, prescribed the treatment and gave necessary instructions to the duty doctor present at that time and that before leaving the hospital at about 12 or 12.30 noon on that day he again examined the child and then left the hospital. The second complainant as PW 1 categorically stated in his cross-examination that Dr. Ramesh (third opposite party) examined his daughter and asked the duty doctor to put the child on oxygen. It therefore follows that Dr. Ramesh examined the child, diagnosed the case, prescribed the treatment and gave necessary instructions to the duty doctor to look after the child. Hence it is difficult to accept the case of the complainants that Dr. Ramesh simply instructed the duty doctor to put the child on oxyzen even without examining her. The next aspect of the case of the complainants is that Dr. Ramesh has not exercised a reasonable degree of care in giving treatment to the child, that he has not come back to the hospital till the next morning and that due to the failure of Dr. Ramesh to attend on the child at any time from 12.00 noon on 5.10.1992 till the time of her death on the next morning amounts to deficiency in service. The opposite parties relied upon the entries in the case sheet (Xerox copy marked as Ex. B-l) in regard to the condition of the child at the time of admission and the treatment given to the child. As Ex. B-l is a Xerox copy of the case sheet, we directed the opposite parties to file the original case sheet and the opposite parties produced the original case sheet.

WE have carefully gone through the entries mentioned in the original case sheet. They show that at about 11.30 a.m. on 5.10.1992 Dr. Ramesh examined the child and noted down in the case sheet that the child was having fever for six days, breathlessness for five days, refusal of feeds for one day and the child was in toxic condition and ailment was diagnosed as Status asthmaticus with acute respiratory failure, acute viral pneumonia. On the second page of the same sheet Dr. Ramesh prescribed 9 items of medicines. As RW 1, Dr. Ramesh categorically stated that all the entries made on 5.10.1992 were made by him in his handwriting. The complainants have not disputed this. But the case of the complainants is that this case sheet was fabricated for the purpose of this case and it was not prepared when the child was in the hospital. In the light of this controversy we have to examine whether the case sheet was fabricated by the opposite parties for the purpose of this case.

A careful perusal of the entries found in the case sheet indicates that at 12.15 p.m., 4.00 p.m., 6.00 p.m., 8.30 p.m., 10.00 p.m., 12.00 midnight on 5.10.1992 and at 2.30 a.m., 5.00 a.m., 6.00 a.m., 6.30 a.m., 6.45 a.m., 7.00 a.m., 7.30 a.m., 7.40 a.m. and 7.50 a.m. on the next day i.e., 6.10.1992 the duty doctor examined the child and noted the condition of the child and the treatment given to the child. There is no dispute by the complainants that Dr. Ramesh is a famous paediatrician. In para 2 of the complaint itself it was mentioned that Dr. Ramesh is a famous paediatrician in Hyderabad and he is a panel doctor of Indian Airlines. All the entries made on 5.10.1992 on which date the child was admitted in the second opposite party hospital were made by Dr. Ramesh in his own hand. The condition of the patient was mentioned in the case sheet in detail. Dr. Ramesh stated as RW 1 that the persons who brought the child informed about the previous history of the child and accordingly he noted the details of the ailment of the child in the case sheet. Of course the second complainant denies having informed Dr. Ramesh about the history of the child. As it is quite unlikely that a Medical Practitioner would mention the history of a patient in the case sheet of his own accord without being informed by the persons who brought the patient, it is hard to believe the case of the complainants that nobody informed Dr. Ramesh about the history of the child and Dr. Ramesh noted down the history of the child in the case sheet to suit his convenience and to buttress his plea that the child was in a serious condition and that in spite of the best possible treatment given by him the child expired. It is also quite unlikely that a famou-paediatrician like Dr. Ramesh would have gone to the extent of fabricating a case shweet for the purpose of this case and would have mentioned the history of the child in the case sheet of his own accord without being informed by the persons who brought the child. Therefore we are not inclined to accept the case of the complainants that the case sheet was fabricated by the opposite parties for the purpose of this case. The other aspect of the case of the complainants is that after leaving the second opposite party hospital at about 12.00 or 12.30 noon on 5.10.1992 after giving necessary instructions to the duty doctor, Dr. Ramesh has not cared to see the child at any time thereafter, that Dr. Ramesh has not even given necessary instructions to the duty doctor at any time after leaving the hospital on that day and that had Dr. Ramesh come back to the hospital again on that day the child would have survived. It is true that Dr. Ramesh after leaving the second opposite party hospital at about 12.00 or 12.30 noon on 5.10.1992 he has not again come back to the hospital to see the child. He asserts in his counter affidavit as well as proof affidavit that after diagnosing the case as status asthmaticus with acute respiratory failure he prescribed the required medicines and gave necessary instructions to the duty doctor, that the duty doctor constantly attended on the child and that his presence at any time thereafter on that day was not necessary inasmuch as the best possible treatment was prescribed by him and the duty doctor was following the same. It may be seen that it is not the case of the complainants that the medicines prescribed by Dr. Ramesh as mentioned in the second page of the case sheet are not the correct medicines and that the diagnosis made by Dr. Ramesh is not correct. It is also not the case of the complainants that if some other medicines were prescribed the child would have survived. Therefore we are of the view that the presence of Dr. Ramesh at any time after 12.30 noon on 5.10.1992 at which time he left the hospital is not necessary particularly when the duty doctor was himself a paediatrician and when he was constantly watching the condition of the child as revealed by the entries made in the case sheet. Dr. Ramesh as RW 1 stated in his cross-examination that the X-ray of the child did not reveal anything which went against his diagnosis, that at about 4.00 p.m. on that day the duty paediatrician informed him that the child was in the same serious condition except that there was no cyanosis and that according to him there was no need to change the course of treatment already prescribed by him. Dr. K.V. Rao, the duty paediatrician at the relevant time stated as RW 4 that there was bluish discoloration of the baby at the time of admission on that morning, that Dr. Ramesh gave him necessary instructions in regard to the treatment of the child, that he followed the instructions given by Dr. Ramesh, that he constantly attended on the child, that he also talked to Dr. Ramesh on the phone on that evening, that the condition of the baby suddenly deteriorated in the morning time on the next day and that the child died within a short time thereafter.

The learned Counsel for the complainants points out that Dr. K.V. Rao, RW 4 is not a competent paediatrician, that on the morning of 6.10.1992 he advised the parents of the child to take the child to NIMS Hospital in Hyderabad and accordingly issued Ex. A-6 letter and that this circumstance indicates that Dr. K.V. Rao was not in a position to manage the situation and that in the circumstances it has to be concluded that Dr. Ramesh was negligent in delegating his responsibility to Dr. K.V. Rao. The learned Counsel for the complainants placed reliance on a decision of the Hon''ble Supreme Court in Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr., I (1998) CPJ 1 (SC), wherein it was held that even delegation of responsibility by a doctor to his junior with the knowledge that the junior was incapable of performing his duties properly amounts to negligence. In this case we have sufficient evidence to show that Dr. Ramesh himself examined the child, noted the history of the child and the condition of the child in the case sheet and then prescribed some medicines and thereafter instructed Dr. K.V. Rao to put the child on oxygen and sometime thereafter before leaving the hospital he again examined the child and left the hospital after giving necessary instructions to Dr. K.V. Rao. Dr. K.V. Rao himself is a paediatrician is not in dispute. The mere fact that on the morning of the next day Dr. K.V. Rao advised the parents of the child to take the child to NIMS Hospital as mentioned in Ex. A-6 letter given by him cannot be taken as a circumstance to conclude that Dr. K.V. Rao is not a competent doctor. As the condition of the child suddenly deteriorated in the morning time on the next day, Dr. K.V. Rao might have advised the parents of the child to shift the child to NIMS and on that ground alone it cannot be concluded that Dr. K.V. Rao is not a competent doctor. Therefore it cannot be said that Dr. Ramesh simply delegated his responsibility to a junior doctor with the knowledge that the junior doctor was incapable of performing his duties properly. The entries in the case sheet, and the evidence of Dr. Ramesh as RW 1 and of Dr. K.V. Rao as RW 4 reveal that the child was in a critical condition with acute respiratory failure and was suffering from status asthamaticus indicating a prolonged and refractory attack of asthama. In the case sheet we find the following entries at 7.00 a.m. on 6.10.1992 that the general condition bad, child in deep coma etc., at 7.30 a.m. on 6.10.1992 C.P.R. done, heart revived, E.T. tube passed and ventilation done. At 7.30 a.m. Heart rate feeble, irregular respiration etc., at 7.50 a.m. child again had cardic respiratory arrest, CPR done, intracardial adrenation given etc. No response, Pupils - fixed dilated, No heart sounds, No breath sounds and declared dead at 8.20 a.m. These nothings in the case sheet clearly indicate that the child was in a critical condition and RW 4 who was attending on her, did his best to save the child. The fact that the child survived till at about 8.00 a.m. on the next morning i.e., for about 24 hours from the time of bringing the child to the hospital though she was in critical condition indicates that proper treatment was given by RW 4 under the instructions of Dr. Ramesh. Therefore we are not inclined to accept the contention of the learned Counsel for the complainants that Dr. Ramesh simply delegated his responsibility to an incompetent doctor.

THE learned Counsel for the complainants next points out that at the relevant time no ventilators were available in the second opposite party hospital and that the child would have survived had ventilators been arranged. It is true that the opposite parties admit that there are no ventilators available in the second opposite party hospital at the relevant time. As the complainants have not placed any material to show that in the condition in which the child was at the time of admission in the second opposite party hospital ventilators were necessary and that ventilators would have saved the child, we are not inclined to accept the contention of the learned Counsel for the complainants that on account of the non-availability of the ventilators in the second opposite party hospital at the relevant time the chances of survival of the child became bleak and on that grounds the first and second opposite parties are to be found guilty of not providing adequate facility 15.It is next contended for the complainants that in the prescription chit Ex. A-5 issued by Dr. Ramesh "calmpose" tablets were also prescribed, that normally calmpose tablets cannot be given to the children and that on that count it has to be held that Dr. Ramesh is guilty of negligence. We have gone through Ex. A-5 which is Xerox copy of the prescription admittedly given by Dr. Ramesh, the third opposite party. We find calmpose tablets were also prescribed by Dr. Ramesh as a last but one item in Ex. A-5. Dr. Ramesh as RW 1 stated that he has not used the calmpose tablets to the child, that the duty doctor prepared Ex. A-5 chit and got it signed by him at a later date for reimbursement purpose and that the case sheet does not show that calmpose tablets were used for the child at any time. We have gone through the second page of the case sheet wherein under the caption "treatment" some medicines were prescribed by Dr. Ramesh and we do not find "calmpose" tablets having been prescribed by him. THErefore it is difficult to accept the case of the complainants that calmpose tablets were administered to the child and therefore the condition of the child suddenly deteriorated. Even otherwise also we are not inclined to accept this contention because Dr. Ramesh categorically stated as RW 1 that some times calmpose tablets are used to a baby as a life saving drug and there is no contra evidence to show that calmpose tablets cannot be used for children. 16. THE learned Counsel for the complainants next points out that in view of the proof affidavit given by the second complainant, his close relations and his colleagues stating on oath that Dr. Ramesh has not exercised due and reasonable care and in view of the fact that the child died within 24 hours from the time of admission, it has to be concluded that there is deficiency in service on the part of Dr. Ramesh. We have carefully gone through all the proof affidavits given by the second complainant, his wife, his brother-in-law, mother-in-law and his colleagues. A reading of these affidavits shows that they are all stereotyped statements. Except stating that Dr. Ramesh has simply entrusted the child to the care of a junior doctor even without examining her, nothing was mentioned in these affidavits to show that there was negligence on the part of Dr. Ramesh. THEre is no medical evidence from the complainants'' side either suggesting incorrectness of the diagnosis made or indicating inadequacy of the treatment given by Dr. Ramesh (opposite party No. 3). As the second complainant (father of the child) himself admits as PW 1 that Dr. Ramesh examined his daughter before asking the duty doctor to put her on oxygen and as the material on record discloses that Dr. Ramesh thoroughly examined the child, diagnosed the case and prescribed the treatment and instructed the duty doctor who was a paediatrician to follow up the treatment prescribed by him and that Dr. K.V. Rao who is admittedly a paediatrician constantly attended on the child and gave the treatment prescribed by Dr. Ramesh and as there are no circumstances to show that either Dr. Ramesh or K.V. Rao did not give proper treatment to the child as discussed supra, we are of the considered opinion that the case of the complainants that the child died due to the negligence of Dr. Ramesh or of Dr. K.V. Rao does not merit acceptance and this complaint is merely an off shoot of the agony and distress caused to the second complainant on account of his daughter''s death in the second opposite party hospital and that there is no deficiency in service on the part of the opposite parties and the complainants are not entitled to any compensation. In the result the complaint is dismissed but without costs in the circumstances of the case. Complaint dismissed.