K. KOTAIAH IRAS vs DR. T. ANJAIAH & ORS.

Late Kumari Manasa daughter of the complainant/appellant aged about 15 years at that time, consulted respondent no.2 Dr. R. Narasimha Rao at Railway Hospital, Lalaguda, Secunderabad. He diagnosed that she was suffering from Lichen Planus and prescribed a topical steroid namely Dipsalic. She again visited respondent no.2 on 19.05.2005 after her blood test had been carried out. Her medication was changed and she was advised to take a medicine namely Dapsone. She again visited the hospital on 11.06.2005. At that time she was suffering from high fever and had rashes all over her body. She was admitted as an in-patient and came to be treated by respondent no.1 Dr. T. Anjaiah. On 17.06.2005, she was discharged from the railway hospital and referred to Yashoda Super Speciality Hospital, respondent no.3 in the complaint. She was treated at Yashoda Super Speciality Hospital till 21.06.2005 when she was discharged from there. Thereafter, she was treated at respondent no.6 Global Hospitals, Hyderabad. She breathed her last at Global Hospitals on 12.07.2005. Alleging negligence in her treatment by respondent no. 1 to 3 & 5 i.e. Dr. T. Anjaiah, Dr. R. Narasimha Rao, Yashoda Super Speciality Hospital and South Central Railway Hospital, the complainant approached the concerned State Commission by way of a consumer complaint.

The complaint was resisted on several grounds including that it was barred by limitation and the complainant was not a consumer as defined in the Consumer Protection Act. On merits, it was alleged that there was no negligence or deficiency in the treatment of the daughter of the complainant.

The complaint having been dismissed by the State Commission vide its order dated 21.07.2010, the complainant/appellant is before this Commission by way of this appeal.

The first question which arises for consideration in this appeal is as to whether the consumer complaint which came to be filed before the State Commission on 26.07.2007 was barred by limitation or not. Section 24A of the Consumer Protection Act, to the extent it is relevant prescribes a limitation of two years from the date of accrual of the cause of action, to file a consumer complaint. The cause of action is a bundle of facts which a person approaching a court or a forum has to prove in order to succeed in his case. The learned counsel for the appellant/complainant submits that despite efforts made by the complainant, the record relating to the treatment of his daughter at Railway Hospital, Yashoda Super Speciality Hospital and Global Hospitals was not made available and in the absence of the record, the complainant was finding it difficult to approach the State Commission with an appropriate consumer complaint. In my view, the complainant was justified in making efforts to obtain the requisite record from the hospitals where his daughter had been treated before approaching the State Commission by way of a consumer complaint. The said record was not made available to him by the Railway Hospital when the patient was shifted from that hospital to Yashoda Super Speciality Hospital. Though the counsel appearing for Yashoda Super Speciality Hospital maintains that alongwith the discharge summary issued by Yashoda Super Speciality Hospital, the record of treatment at their hospital was also sent to Global Hospitals, there is no such indication in the discharge summary. As far as Global Hospitals is concerned, that does not even claim to have delivered the entire record relating to treatment of the patient to the complainant while issuing the death summary. The complaint filed on 26.07.2007 therefore, cannot be said to be barred by limitation. In any case, even if there is a delay of some days in filing the complaints, if the period of limitation is computed from the date of death of the daughter of the complainant, there are sufficient grounds for the condonation of the small delay. The complaint therefore, ought not to have been dismissed on the ground that it was barred by limitation.

The next question which arises for consideration is as to whether the complainant can be said to be a consumer of the Railway Hospital at Lalaguda. The learned counsel for the complainant/appellant has in this regard, drawn my attention to the decision of the Hon''ble Supreme Court in Civil Appeal No.171 of 2004 Laxman Thamappa Kotgiri Vs. G.M. Central Railway decided on 06.01.2005. In Laxman Thamappa Kotgiri (supra), the wife of the appellant took treatment at B.R. Ambedkar Hospital of the Central Railways where she died. A consumer complaint was then filed alleging negligence in her treatment at the said hospital. The complaint having been dismissed by the State Commission and the dismissal having been upheld by this Commission, the matter was taken by the complainant to the Hon''ble Supreme Court by way of a Special Leave. Allowing the appeal, the Hon''ble Supreme Court inter-alia observed and held as under: "6. There is no dispute that the Hospital in question has been set up for the purpose of granting medical treatment to the Railway employees and their dependents. Apart from the nominal charges which are taken from such an employee, this facility is part of the service conditions of the Railway employees. V.P. Shantha''s case has made a distinction between non-Governmental hospital/nursing home where no charge whatsoever was made from any person availing of the service and all patients are given free service (vide para 55(6) at page 681) and services rendered at Government Hospital/Health Centre/Dispensary where no charge whatsoever is made from any person availing of the services and all patients are given free service (vide para 55(9)) on the hand and service rendered to an employee and his family members by a medical practitioner or a hospital/nursing home which are given as part of the conditions of service to the employee and where the employer bears expenses of the medical treatment of the employee and his family members, (paragraph 55(12) on the other. In the first two circumstances, it would not be free service within the definition of the Sec. 2(1)(o) of the Act. In the third circumstance it would be.

Since it is not in dispute that the medical treatment in the said Hospital is given to employees like the appellant and his family members is part of the conditions of service of the appellant and that the Hospital is run and subsidised by the appellants employer, namely, the Union of India, the appellant''s case would fall within the parameters laid down in paragraph 55(12) of the judgment in V.P. Shantha''s case and not within the parameters of either para 55(6) or para 55(9) of the said case."

It is true that the decision in State of Orissa Vs. Divisional Manager, LIC and Anr. (Supra), relied upon by the learned counsel for the respondents appears to hold to the contrary. However, since the decision is that of a smaller Bench and the decision in V.P. Shantha''s case was rendered by a large Bench, we are of the opinion that it is open to this Court to follow the larger Bench which we will accordingly do."

The above decision was later applied in a subsequent decision in Kishore Lal Vs. Chairman, ESIC , Civil Appeal No.4965 of 2000 decided on 08.05.2007 in respect of treatment at an ESI Hospital. In view of the above referred authoritative pronouncement of the Hon''ble Supreme Court, there is no escape from the conclusion that the complainant/appellant was a consumer of respondent no.1, 2 & 5, he being an employee of Indian Railways and the hospital in question being a hospital funded by South Central Railways.

The next question which arises for consideration in this appeal is as to whether the respondent no.1 & 2 namely Dr. T. Anjaiah and Dr. R. Narasimha Rao can be said to be deficient or negligent in rendering services as far as the treatment of the deceased at Railway Hospital at Lalaguda is concerned. As rightly held by the State Commission, the onus was upon the complainant to prove the alleged medical negligence on the part of the aforesaid respondents in the treatment of his daughter at Railway Hospital, Lalaguda. Admittedly, no doctor was examined by the complainant/appellant before the State Commission to prove the alleged medical negligence, though a lot of medical literature was submitted by him before the State Commission. It is an admitted position that a Committee consisting of three eminent doctors namely Dr. B. Balaraju, M.D. Prof. & HOD of Medicine, OMC, OGH, Hyd., Dr. G. Ranga Rao, M.D. Prof. & HOD of Dermatology, OMC, OGH, Hyd. & Dr. D. Aruna, M.D. D.M. Asst. Prof. Dept. of Clinical Pharmacology, OGH, Hyd. was set up at the instance of the local police to hold an enquiry with respect to treatment of the daughter of the complainant. The aforesaid Committee, after considering the matter, concluded as under: "Hence it is now concluded by the committee that the possible causes of death in this case i.e. Dengue & EBV, which are equally fatal and can produce similar clinical picture, cannot be set-aside before considering the death to be due to Dapsone reaction alone. From the above inferences and conclusions drawn by the committee, it can infer that there is no negligence on the part of treating doctors, at railway hospital, in view of their timely intervention both in the investigations and treatment part. They should not be held responsible for the death of deceased as the deceased had other ailments like Dengue Fever and infection with EB Virus besides the possibility of Dapsone reaction." Though the above referred report is sought to be assailed by the complainant/appellant on several grounds, the fact remains that no member of the Committee was summoned before the State Commission in order to impeach the aforesaid report. No request was made by the complainant/appellant to the State Commission to summon one or more members of the Committee for cross-examination by him in order to impeach their report. In the absence of their presence before the State Commission, it will not be appropriate for this Commission to consider the challenge to the report of three eminent doctors on the basis of the medical literature being relied upon by the complainant/appellant. The above referred report coupled with the absence of examination of any doctor by the complainant/appellant, in my view is sufficient to return a finding that no negligence on the part of the doctors in the treatment of the daughter of the complainant at Railway Hospital could be established. To this extent, the view taken by the State Commission does not call for any interference by this Commission in exercise of its appellate jurisdiction.

It transpired during the course of hearing that though the daughter of the complainant/appellant was treated at Railway Hospital for as many as six days, the record relating to her treatment at the Railway Hospital was not forwarded by the said hospital to Yashoda Super Speciality Hospital when the patient was referred to Yashoda Super Speciality Hospital for further management. In my view, it was imperative for the Railway Hospital to forward the entire record including the report of all investigations, the notings recorded by the doctors from time to time of their visit to the patient as well as the notings recorded by the Para Medical Staff with respect to her condition and symptoms from time to time, in order to enable the doctors at Yashoda Super Speciality Hospital to make an adequate and informed assessment as regards the disease she was suffering from and further treatment she required at Yashoda Super Speciality Hospital. The learned counsel representing the Railway Hospital states that as per the standard practice being followed by the said hospital, only a reference letter used to be sent while referring a patient to another Hospital and the record pertaining to treatment of the patient at Railway Hospital was not being sent. The learned counsel states that though they may not have sent the record to Yashoda Super Speciality Hospital but their doctors had visited Yashoda Hospital as well as Global Hospital and were in touch with the doctors who were treating the patient. She also states that the notings made at Yashoda Super Speciality Hospital do refer to the treatment at Railway Hospital which indicate that the doctors at Yashoda Super Speciality Hospital were fully aware of the treatment given at Railway Hospital. Obviously, the noting recorded by the doctors at Yashoda Super Speciality Hospital with respect to the treatment given to the patient would be based upon the information gathered by them from the family members of the patient. Such information, in my view, was not an adequate substitute for the record relating to the treatment since the family members of the patient can never be in a position to explain each and every information recorded by the first hospital when the patient is transferred from that hospital to another hospital. Therefore, it becomes necessary for the hospital referring the patient to another hospital, to send the entire record relating to the treatment of the patient to the hospital where he/she is being referred for further management. The actual shifting of the patient, if immediately required, need not be deferred for the record but it has to be sent to the hospital immediately after the patient is shifted so that the doctors in the hospital where the patient is shifted, are able to give further treatment taking into account the treatment given in the referring hospital and the condition and the symptoms of the patient recorded by the doctors in that hospital. Therefore, the Railway Hospital, in my view, was deficient in rendering services to the complainant by not sending the record relating to treatment of the daughter of the complainant at the aforesaid hospital, to Yashoda Hospital either alongwith the reference letter or soon thereafter.

There is no evidence of Yashoda Super Speciality Hospital having asked the Railway Hospital to make available the record relating to treatment of the daughter of the complainant at Railway Hospital to them. Though the doctors at Yashoda Super Speciality Hospital would not have been justified in deferring the treatment of the patient at Yashoda Hospital for want of the said record, Yashoda Super Speciality Hospital, in my view, ought to have simultaneously requested the Railway Hospital to send immediately the requisite record in order to enable them to treat the patient in the light of the information entered in that record. By not making an attempt to obtain the requisite record from the Railway Hospital, the Management of Yashoda Super Speciality Hospital, in my view, was also deficient in rendering services to the complainant to the aforesaid extent.

As far as Global Hospitals is concerned, no negligence or deficiency in the treatment of the daughter of the complainant at the aforesaid hospital has even been alleged.

The learned counsel representing Yashoda Super Speciality Hospital submits that it was for the referring hospital i.e. the Railway Hospital to send the record and there was no obligation on the part of Yashoda Super Speciality Hospital, to call for the record. I however, do not find any merit in this contention since in my opinion, any responsible doctor would like to have the benefit of the record of the previous treatment of the patient, while the patient is under his treatment.

For the reasons stated hereinabove, the appeal is disposed of with the following directions: (1) The appeal to the extent the complaint is made against respondent no.1 Dr. T. Anjaiah, respondent no.2 Dr. R. Narasimha Rao and respondent no.6 Global Hospitals, Hyderabad is dismissed.

(2) South Central Railway Hospital which owns and manages the Railway Hospital where the daughter of the complainant was first admitted and treated is directed to pay a sum of Rs.2,00,000/- as compensation to the complainant/appellant.

(3) Respondent No.3 Yashoda Super Speciality Hospital is directed to pay a sum of Rs.1,00,000/- as compensation to the complainant/appellant.

(4) In the facts and circumstances of the case, there shall be no order as to costs.

(5) Payment in terms of this order shall be made within three months from today failing with it shall carry interest @ 8% per annum from the date of filing of the complaint.