DR. B. RAMA CHANDRAIAH vs P. LALITHAMMA

This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 2.8.2011, passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred to as the ''State Commission'') in two cross appeals F.A. No.789/2008 and F.A. No. 792/2008 between the parties, vide which, while dismissing both the appeals, the impugned order dated 15.5.2008, passed by the District Consumer Disputes Redressal Forum, Kadapa in Consumer Complaint No. 83/2007, filed by the present respondent, allowing the said complaint, was upheld.

The facts of the case are that the complainant/respondent, P. Lalithamma fell down in her house, during the intervening night of 29.8.2006 and 30.8.2006, while on her way to the bathroom. She complained of pain in the right leg at the thigh position. She was taken to the Nursing Home of the OP doctor on 30.8.2006 morning, where after examination, she was advised to undergo surgery. The said surgery was conducted by the OP Doctor on 31.8.2006 near thigh portion of her right leg. The version of the complainant is that following the surgery, she had shooting pain at the operation spot and her condition did not improve despite the treatment given by the OP doctor, who finally advised her on 14.9.2006 to go to some higher Institution. The husband of the complainant took her to BIRRD Institution at Tirupati in the first instance. Subsequently, she was taken to Kamineni Wokhardt Hospital, Hyderabad and finally to the KIMS Hospital, Secunderabad and admitted there on 17.12.2006. She was treated for hemiarthoplasty right hip from 17.12.2006 to 22.12.2006. According to the complainant, the doctor at KIMS Hospital told her that the surgery done at the OP hospital was an utter failure. The complainant filed the consumer complaint in question, seeking directions to the OP doctor to pay a sum of Rs.2 lakhs for the expense incurred for recovery, Rs.3 lakhs as compensation for mental agony etc. and Rs.2,000/- as litigation cost.

In their written reply filed before the District Forum, the opposite party stated that the surgery was done with proper and due care with the assistance of three more doctors. There was no negligence on their part in treating the patient during surgery and post-operative care. The patient got recovered and discharged from the hospital on 14.9.2006 with an advice to continue prescribed medicine for three months and come for review after one month, but the complainant did not turn up for review. The OP doctor also stated that the husband of the complainant was a practising Advocate at Kadapa and he got his elbow surgery done from him seven years back, but till date, he had not paid their bills. The present consumer complaint had been filed to evade payment of those bills. The OP also replied that the discharge summary issued by the KIMS Hospital does not speak about any negligence on the part of the OP. it only describes Hemiarthoplasty right hip (loosening AMP in situ), but does not disclose the reasons which caused such loosening. The OP stated that there was no negligence on their part in treating the patient and hence, the complaint should be dismissed with costs.

The District Forum, after taking into account the averments made by the parties, allowed the complaint vide order dated 15.5.2008, directing the OP to pay a sum of Rs.1,00,000/- towards medical expenses and Rs.30,000/- for compensation for mental agony and Rs.2,000/- towards litigation cost. Being aggrieved against the said order, both parties challenged the same by way of cross appeals before the State Commission, and the said appeals having been dismissed vide impugned order, the OP doctor is before this Commission by way of the present revision petition.

It was contended by the learned counsel for the petitioner that the discharge summary issued by KIMS Hospital stated the diagnosis as Hemiarthoplasty right hip (loosening, AMP in situ). It had not been stated anywhere that there was any negligence on the part of the OP doctor. The learned counsel has drawn attention to a letter written by the petitioner to Dr. A.V. Gurava Reddy, Chief of Orthopedics at KIMS Hospital, Secunderabad, requesting him to clear his doubts as to how the operation done by him, was a failure, and how he had not taken minimum standard of care, expected from a qualified doctor. In response to the said letter, Dr. A.V. Gurava Reddy of the KIMS Hospital stated vide his letter dated 29.10.2007 that he never commented that the OP doctor was negligent, and the surgery performed was inappropriate. The learned counsel argued that these documents had not been taken into consideration by the consumer fora below, while deciding the case. The learned counsel stated that the OP doctor had advised the patient on his own on 14.9.2006 to go to some higher institution. Further, written arguments had also been filed on behalf of the petitioner, saying that the factum of going for second surgery was not a ground to draw inference of negligence on his part.

The learned counsel for the respondent stated on the other hand that the factum of negligence on the part of the OP doctor was clearly made out from the facts and circumstances on record, because even after the surgery on 31.8.2006, the patient remained admitted in the said hospital for 14 days, but still, her pain did not subside. Ultimately, she had to go for further treatment to another hospital, where second surgery had to be performed upon her, with the implication that there was something wrong with the first procedure done by the OP doctor. The learned counsel has drawn attention to the discharge summary issued by the KIMS Hospital, which makes it clear that the second surgery was done to take care of the loosening Austin Moore Prosthesis (AMP). The learned counsel stated that the OP doctor had not prepared the case sheet at the time of the surgery, but these documents were made later on. The learned counsel further stated that the OP had not obtained informed consent from the complainant. It has been stated in the case sheet that the OP had informed the husband of the complainant about four types of surgeries, of which the husband opted for A.M. Prosthesis, but this fact does not find mention in the reply filed by the OP doctor before the District Forum, leading to the inference that the said version was included in the case sheet at a later stage.

In reply, the learned counsel for the petitioner stated that in the complaint itself, it had been mentioned that the complainant and her husband "accepted for surgery".

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

The first point that merits consideration in the present case, relates to the issue, whether the informed consent of the patient was taken by the OP doctor, before carrying the procedure upon her. The State Commission has dealt with the issue in detail and referred to the judgment given by the Hon''ble Supreme Court of India in Samira Kohli vs. Dr. Prabha Manchanda, reported in 2008(2) SCC 1, in which the principles relating to informed consent have been enunciated in detail. It is a settled legal proposition, therefore, that a doctor is required to seek and secure the consent of the patient before commencing a treatment, which includes surgery as well. A doctor is also supposed to provide adequate information to the patient to enable him/her to make balanced judgment as to whether to submit himself/herself to a particular treatment. In the present case, the State Commission observed that the OP had not produced the consent form, nor denied the statement of the complainant that she or her husband were not informed of her general condition and the proposed course of treatment, as also the risks involved therein. The contention of the OP doctor, that the patient and her husband had ''accepted surgery", does not absolve him of the responsibility to obtain proper consent from the patient, as stated in the judgment of the Hon''ble Apex Court, stated above. Moreover, there is force in the arguments given by the complainant and referred to by the State Commission that the case sheet mentioned that the OP had informed the complainant''s husband about four types of surgeries, but the said fact does not find place in the reply submitted by the OP doctor before the District Forum. In the light of these facts, the conclusion arrived at by the State Commission that the OP doctor is guilty of not obtaining informed consent of the patient, is based on sound reasoning, and is upheld.

Now, coming to the issue whether there was any negligence on the part of the OP doctor in treating the patient or not, the facts speak for themselves that the patient remained in the Hospital of the OP doctor for 14 days, following her surgery on 31.8.2016, but still she did not recover from her pain etc. and ultimately, the OP doctor advised her to go to some higher institution. In the discharge summary given by the KIMS Hospital, Secunderabad and the reply sent by Dr. A. Gurava Reddy of the said Hospital, vide his letter dated 29.10.2007, addressed to the OP doctor, it has been stated that procedure was performed upon the patient for loosening Austin Moore Prosthesis (AMP). The State Commission in their well-reasoned order have brought out that the OP doctor could not relieve the complainant from pain by diagnosing the source of pain and prescribe proper medicines, rather he continued to administer the same medicine. The State Commission has also concluded that the OP doctor should have advised the patient to go to higher institution much earlier, rather than keeping her in his hospital for a number of days.

Based on the discussion above, it is manifestly clear that there is no illegality, irregularity or jurisdictional error in the orders passed by the consumer fora below, since the OP doctor has not been able to explain why proper informed consent was not taken from the patient before performing the procedure, and why the patient had to undergo second surgery at the KIMS Hospital. Moreover, it has been made clear by the Hon''ble Supreme Court in their judgment, Rubi (Chandra) Dutta Vs. United India Insurance Company Ltd., (2011) 11 SCC 260 that revisional jurisdiction should be exercised only if there is a patent error of jurisdiction or material injustice in the orders passed by the consumer fora below. In the present case, there is no such situation which may merit the invoking of the revisional jurisdiction. This revision petition is therefore, ordered to be dismissed and the impugned order is upheld.

There shall be no order as to costs.