GANGADHARAN vs K.A.Abdul Salam

THIS appeal, against the order of District Forum, Idukki in O.P. No. 52/1998 raises the question of liability of the opposite parties for alleged negligence in the medical treatment of the complainant. It raises the following facts.

THE case of the complainant/respondent, as stated in the complaint was that, when pain developed on his right middle finger he approached the S.N. Hospital, Murikkassery, owned and run by 1st and 2nd opposite parties and was treated as an outpatient on 24.4.1997. Local anaesthesia was applied by opposite parties which resulted gangrene. THErefore, he consulted Dr. K.V. George, Dermatologist of Taluk Head Quarters Hospital, Thodupuzha who in turn removed the dead tissues from the finger end; the finger is now out of shape, out of use which resulted in discontinuing his profession as a driver. Learned Counsel for the appellant contended that the District Forum arrived at the conclusion on mere conjectures and surmises since the complainant has not produced any evidence to show that the opposite parties administered anaesthesia with adrenaline which alleged to have resulted in the deformity of the complainant; whereas Ext. B1 clearly shows the medicines prescribed by the opposite parties.

We have called for the records of the District Forum and perused it. It is not in dispute that complainant was treated by opposite parties and Ext. B1 shows that complainant was treated by opposite parties from 18.4.1997 to 24.4.1997. Further, Ext. A3 certificate shows that complainant was undergoing treatment as an inpatient from 3.5.1995 to 6.5.1995 at Taluk Head Quarters Hospital, Thodupuzha.

AFTER filing the appeal, appellant filed a petition (I.A. 149/2000) to admit fresh evidence - certificate of registration issued by Travacore - Cochin Medical Council permitting 1st opposite party to practice modern system of medicine. Reason for failure to produce the certificate in the District Forum is explained as an inadvertant mistake on the part of his Counsel. No doubt, in exceptional situations if there is sufficient cause admission of fresh evidence at appeal stage is permissible. Opposite parties produced this certificate to resist the observation made by the District Forum in its order that opposite parties are not academically qualified medical practitioners. It is very pertinent that the District Forum used the word "academically" which only means in the context of the case that the complainant has no degree certificate issued by a University which is not disputed. So also a reading of the order of District Forum shows that failure to produce the certificate before District Forum has in no way influenced the Forum for arriving at the impugned decision. In addition, in Para (2) of the complaint, complainant admits that opposite parties are registered medical practitioners. When such is the situation the petition to admit the certificate is without any purpose, hence rejected.

THE question to be considered is whether the finding of the District Forum, that mixing of adrenaline with anaesthesia by opposite parties without considering its possible consequences is the cause for deformity to the complainant, is well founded and sustainable. Learned Counsel for appellant contended that the finding of the District Forum that the opposite parties applied anaesthesia and adrenaline as found by the District Forum is not supported by any evidence and he argued the order of the District Forum is infirm and unsustainable. In the above context, the crucial question is, whether the complainant has successfully proved negligence on the part of opposite parties. Definitely in alleged negligence on the part of doctors, burden of proof lies on the complainant. Complainant as P.W. 1 produced an O.P. Ticket dated 24.4.1997 issued by the opposite parties (Ext. A1). He states he was under treatment of opposite parties till 3.5.1997 since the condition of his finger worsoned he consulted the doctor at Thodupuzha Taluk Hospital and was treated there as inpatient from 3.5.1997 to 6.5.1997 and continued treatment as outpatient till 20.6.1997, and produced the prescriptions from Taluk Hospital [Ext. A II(a) to Ex. A III (d)]. Further he produced a certificate issued by Dr. K.V. George of Taluk Hospital which states that the complainant had undergone treatment for gangrene on middle thump following local anaesthesia injection at the site. It further states that the gangrene might have resulted from use of adrenaline mixed with local anaesthesia well at the site.

IT is the further case of the complainant that on 24.4.1997 opposite parties injected him on the finger and operated, then he felt immobility in the finger. In his deposition Dr. K.V. George deposes that the decomposition of finger would happen if medicines like adrenaline is used in the end (tip) of the finger.

FIRST opposite party as D.W. 1 marked the case sheet as Ext. B1 which shows no mention of either anaesthesia nor adrenaline. His specific case is that he has done only cleaning and dressing (C & D) and applied T.T. injection. Further, he explains the procedure adopted by him and states that O.P. Card is handed over to the patient at the time of registration when the patent approaches for further treatment later, his case sheet is traced out by the number in the O.P. Card. He admits that, now he has with him only Ext. B1 and nothing else. We further admits that in the case sheet history of the patient, doctor''s opinion are not entered and the case sheet is prepared in the evening from memory. From the above, it is revealed that opposite parties had not issued the case sheet to the complainant but produced Ext. B1 claiming to be the case sheet. P.W. 2 Dr. K.V. George also states that he has not received the case sheet kept by opposite parties.

It is very pertinent to note that the complainant''s specific case is that he was treated by opposite parties, since the ailment worsened he had undergone treatment at Taluk Hospital and the doctor (P.W. 2) who treated and cured the ailment specifically states that the sole reason for deformity/decomposition of finger is wrong treatment in applying adrenaline with anaesthesia at the end of the finger. He further opined that if C&D was only done or even if no treatment was done, this complication would not have arisen. There is no case that the complainant had undergone treatment at some other hospital after treatment by opposite party before treating at Taluk Hospital.

WHILE considering the rival cases of the parties, it is necessary to bear in mind the general law as regards burden of proof. Burden of proving negligence of doctors is on the complainant who asserts it, hence complainant has to produce evidence that the deformity caused due to the negligence of opposite parties. Since the complainant alleges deficiency on the part of opposite parties along with the O.P. Card, only document received from opposite parties, and P.W. 2 a qualified doctor (Masters Degree holder in Dermatology) with 20 years experience explains the reason for the deformity of the complainant as applying medicines like adrenaline at finger end in the previous treatment, opposite parties being the doctors previously treated the complainant has to explain the nature of treatment adopted by them supported by evidence. In the instant case much evidence is not available with the complainant. The opposite parties has not issued to the complainant the case sheet and other treatment records except Ext. B4. When direct evidence is not available to substantiate the plea of negligence for reasons beyond the control of complainant as stated above, doctrine of "res-ipsa loquitur" (things speak themselves) comes into play. In the light of the admitted fact of treatment by opposite parties and deformity resulted and its reasons explained by P.W. 2, the burden of proof as per the above stated rule of res ipsa loquitur is shifted from the complainant to the opposite parties. Though opposite parties admit that they have treated the complainant at the initial stage and prescribed medicines, the case sheet/treatment records with the history of patient/nature of ailment, doctors'' opinion were not produced by the opposite parties. In such a situation the inference is obvious. When the hospital or the doctors state that case sheet and treatment records are not maintained by them, a Fora could not exhonerate them of all liability. The presumption in such a situation is that had the records been produced they would have gone against the said party.

IN the light of the above stated discussions, there was nothing wrong in the District Forum placing reliance on the opinion of P.W. 2 especially when it was not even remotely suggested to him that P.W. 2 doctor was a professional rival of the appellants or in enmity towards them. Hence the finding of negligence on the part of opposite parties by the District Forum is well founded and requires no interference. As regards the amount of compensation awarded by District Forum, appellant contended that it was fixed without evidence and that too without a finding of negligence. In the light of the finding of negligence on the part of appellants only remaining question is, whether compensation was fixed on evidence or not ? Complainant claimed compensation on different heads viz., treatment expenses, for deformity caused, for mental agony, and costs. As regards treatment expenses, since the complainant has not produced any evidence like medical bills etc. he is not eligible for the entire amount claimed in the complaint. In the absence of any contention by opposite party that the service was free, he would have spent some amount at opposite parties'' hospital and definitely at Taluk Hospital also. And regarding deformity suffered, complainant produced a certificate of disability issued by the Medical Board which states disability is ''mild'' and only 2 per cent. Then as regards mental agony, it is accepted that there is no hard and fast rule for assessing mental agony. Principle behind awarding damages is "restriction in integram" since there is no claim for loss of income; complainant is eligible only for physical injury and mental pain and for the expenses incurred for treatment. Considering all the above stated facts we are of the view that complainant is eligible to be compensated but, the award of compensation of Rs. 10,000/- is on the higher side. In our opinion an amount of compensation of Rs. 5,000/- would sufficiently compensate.

IN the result we modify the order of the District Forum reducing the compensation awarded, from Rs. 10,000/- to Rs. 5,000/- to the complainant. The appeal is accordingly, partly allowed to the extent indicated above. This amount shall be paid by the appellants to the respondent together with costs awarded by the District Forum within three months from the date of receipt of copy of this order. There will be no order as to costs in this appeal. Appeal partly allowed.