J SRIDHARA BHAT vs M PRAKASH KAMATH

FOR the sake of convenience, the parties in this order are referred to according to their position in the complaint filed before the District Forum.

THE complainant has filed this appeal challenging the order dated 5. 12. 2005 passed by the District Consumer Forum, Bangalore Urban I Additional, in Complaint No. 666/1995, by which the District Forum has dismissed their complaint. The facts of the case in brief are that the daughter of the complainant by name Kumari Usha (for short, the "child"), who was aged about 10 years, was suffering from "typhoid Fever", as diagnosed in Geetha Clinic. On 27. 5. 1994 she was brought to Sri Vinayaka Nursing Home belonging to opposite party No. 1 Dr. Prakash Kamath (for short, "o. P. 1") with the history of suffering from fever and headache since five days, loose motion since two days and vomitting since one day. Dr. Kumar of Geetha Clinic brought the child to Sri Vinayaka Nursing Home and got her admitted on 27. 4. 1994 at about 9. 00 p. m. At that time O. P. 1 was not available in Sri Vinayaka Nursing Home. Therefore, the Duty Doctor examined the patient and admitted the child to Sri Vinayaka Nursing Home. Dr. Kumar wanted treatment to the child by a specialist paediatrician and suggested the name of O. P. 1. From the averments in the complaint it is seen that before admitting the patient to Sri Vinayaka Nursing Home blood test was done in Ideal Clinical Laboratory on 25. 5. 1994 and the Widal test was found positive and, therefore, the disease was tentatively diagnosed as Typhoid Fever.

The main grievance of the complainant in the complaint is that O. P. 1 examined the child in the morning on 28. 5. 1994 and thereafter he left for Mangalore and during his absence the child developed complications and ultimately died because of lack of treatment in Sri Vinayaka Nursing Home. At the time of filing the complaint, Dr. V. Seshadri (O. P. 2) was not impleaded as a party. Subsequently, an application was filed by the complainant to implead him as a party to the complaint. Accordingly, O. P. 2, who is a General Surgeon and Visiting Consultant in Sri Vinayaka Nursing Home, was impleaded as O. P. 2. On 29. 5. 1994 O. P. 2 examined the child and advised the Duty Doctor to continue the same prescription as suggested by O. P. 1.

THE case of O. P. 1 is that before admitting the child to Sri Vinayaka Nursing Home, Dr. Kumar, who is an Ayurvedic Doctor, had treated the child in Geeta Nursing Home. The said Kumar after examining the child on 28. 5. 1994 suggested the discharge of the child from the Hospital, as the child was alright. However, the complainant wanted to take the opinion of O. P. 1. O. P. 1 after examining the child informed the complainant that in the night of 28. 5. 1994 he had to go to Mangalore for "upanayanam" of his son and he would not be returning to Bangalore till 1. 6. 1994. On examination O. P. 1 advised the continuation of the treatment given by Dr. Kumar. On 29. 5. 1994 as instructed by O. P. 1, O. P. 2 examined the child and noticed gastroenteritis and suggested for continuation of the same treatment as prescribed by O. P. 1. Unfortunately, the child developed breathlessnes and complained of discomfort and ultimately died at about 8. 35 a. m. on 30. 5. 1994. After the death of the child, the complainant gave a complaint to the Ulsoor Police. The Ulsoor Police recorded the statement of O. P. 1 on 16. 6. 1994 and seized the records pertaining to the child from Sri Vinayaka Nursing Home. The Commissioner of Police referred the matter to the Director to Health and Family Welfare Services for opinion as to whether there was any negligence on the part of O. P. 1. The Director of Health and Family Welfare Services referred the matter to the Chairman of the Medical Board, Victoria Hospital, Bangalore, to constitute a Board for holding enquiry. Accordingly, the Board held an inquiry. After completion of the inquiry, the Board gave a report stating that there was no negligence on the part of the O. P. 1 in treating the child. The Board has further observed that the child was treated effectively and the child received proper treatment for Typhoid Fever.

ON the basis of the rival pleadings, the District Forum has formulated two points for consideration and has answered both the points in the negative. In this appeal the only point that arises for consideration is; whether the District Forum is right in dismissing the complaint? It is not in dispute that the child was treated in the first instance by Dr. Kumar in Geeta Nursing Home. The said Dr. Kumar has also looked after the child after admission of the child in Srivinayaka Nursing Home. But Dr. Kumar has not been made a party to the complaint. Dr. Kumar prescribed medicines such as, (1) Cirfran 250 mg. , (2) Calpol tablet and (3) Polybion Syrup. The same medicines were continued even after the admission of the child in Sri Vinayaka Nursing Home. According to O. P. 1 he examined the child on 28. 5. 1994 and found that the child was suffering from Typhoid Fever and advised for continuation of the same treatment. The further case of O. P. 1 is that he had to go to Mangalore to attend the Upanayanam of his son and, therefore, he would not be available till 1. 6. 1994. In support of this contention O. P. 1 has also produced the Invitation Card and other materials. From this it is seen that though O. P. 1 examined the child in the morning and also in the evening of 28. 5. 1994, he did not give any treatment on 29. 5. 1994 and 30. 5. 1994 and during his absence O. P. 2 examined the child and advised the same treatment to be given, since it was not a surgical case. There is also evidence to the effect that Duty Doctor Dr. Kumar was attending to the child. The complainant has not produced any evidence to show that the line of treatment given to the child was not the required line of treatment so as to say that there was any negligence on the part of the O. Ps.

ON the complaint of the complainant, the matter was referred by the Commissioner of Police to the Medical Board of Victoria Hospital and the Medical Board after conducting a detailed inquiry has recorded a finding to the effect that the line of treatment given to the child was in order and there was no negligence on the part of O. P. 1. In the absence of any positive evidence adduced by the complainant to prove negligence on the part of the O. Ps. in our view, the District Forum is right in dismissing the complaint.

THE learned Counsel appearing for the complainant submitted that there is some tampering of the records maintained in Sri Vinayaka Nursing Home. But in order to show that the records were tampered with a view to avoid any possible litigation the complainant has not produced any evidence. When the Board of Victoria Hospital consisting of experts after holding an inquiry has recorded a finding that there was no negligence on the part of O. P. 1 and in the absence of adducing any independent expert opinion by the complainant, we are of the view that there is no reason to take any different view from that of the District Forum. In the result, we pass the following order: (1) The appeal is dismissed. (2) Parties to bear their own costs.

Appeal dismissed.