NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.4690 OF 2009
(Against the order dated 12.10.2009 in First Appeal No.37/2007 of the State Commission, Andhra Pradesh)
Pragathi Hospitals, Nizamabad,
Managed by Pragathi Hospital Trust,
Hyderabad Road, Nizamabad
Represented by its Trustee
Dr. Ala Lakshma Reddy,
S/o. A.V. Ganga Reddy,
Nizamabad.
2. Dr. Meenakshi
W/o. Dr. P.V. Ramakrishna,
R/o Nizamabad.
3. Dr. P.V. Ramakrishna
S/o S.Venkatachalam
R/o Nizamabad ……….Petitioners
Versus
Kumari Shirisha Madhuri,
D/o Hanmanth Rao,
Teacher, R/o Srinagar (Village)
Varni Mandal,
Nizamabad District
2. Dr. Shyamsunder Reddy
S/o Not Known,
R/o. Nizamabad (Deleted)
3. Dr. Seetharamaraju
S/o Not Known,
R/o. Nizamabad (Deleted)
4. Dr. N.S. Rao,
S/o Not Known,
R/o. Nizamabad (Deleted) .....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner : Mrs. Radha, Advocate
For the Respondent : Mr. B. Suyodhan, Advocate
PRONOUNCED ON: 01.11.2012.
ORDER
PER MR.VINAY KUMAR, MEMBER
The three revision petitioners were arrayed as OPs-1,2 and 3 respectively, before the District Forum in the complaint filed by Kumari Shirisha Madhuri. The Complainant had listed there other doctors as OPs-4, 5 and 6. The order of the District Forum, Nizamabad dismissed the complaint against them and fixed the responsibility, jointly and severely, on OPs 1, 2 and 3 to pay a compensation of Rs.5 lakhs to the Complainant, with 9% interest from the date of the complaint. The appeal of OPs 1,2 and 3 in FA 37/2007 was dismissed by the AP State Consumer Disputes Redressal Commission with cost. The order of the State Commission is now challenged in the present proceedings by OPs 1,2 and 3.
2. Before the District Forum, the case of the Complainant was that her mother, Smt. Parvata Vardini was operated for hysterectomy in the OP-1 hospital on 28.4.1994. Her condition worsened when she developed abdominal swelling and respiratory problem. Allegedly, it was informed that a puncture wound was found in her intestine and leakage from it had to be removed. On 4.5.1994, another surgery was performed on her by OPs 3 to 6 but the patient died on the next day i.e. 5.5.1994.
3. On the other hand, the contention of the OPs was that on 2.5.1994 the patient complained of breathlessness. Her blood urea and serum creatinine were slightly above normal. On 3.5.1994 distension of abdomen was noticed and 4.5.1994 she was running temperature. Here, as per the written response of the OPs:-
“Then X-ray of abdomen was taken which showed large gas shadow under the left side Diaphragm with multiple fluids levels. As Dr.Lakshma Reddy was not at Nizamabad on that day, the respondent no.5 was called to see the case. He advised Giproteam as the cause for above condition of the patient is not know. As per his advice, respondent no.6 who is a senior anesthologist was called and the respondent no.5 performed surgery at 6.30 p.m. which went uneventfully. It is false to allege that five litres of fluids was found in the abdomen. Patient recovered from anaesthology was 8.30 p.m. and was shifted to post operative ward. On 5.5.94 at 3.30 a.m. the patient developed Hypertension and was treated for the same. Patient died at 11.15 a.m. Death certificate was issued. The patient died of Cardoi-Respiratory failure due to septic and shock with some underlying renal problem.”
4. The District Forum and the State Commission both have relied heavily on the case sheet of the patient (Ext. A-7 before the District Forum) as evidence of the complication which developed after the surgery of 28.4.1994 and which eventually led to the second surgery of 5.5.1994.
5. Significantly, the Complainant along with OPs 4,5 and 6 have been arrayed as the respondents in the appeal before the State Commission as well as in the present revision petition. But, the proceeding before this Commission of 16.9.2010 shows that the counsel for the revision petitioners sought deletion of the names of respondents No.2 to 4 (OPs 4 to 6) on the ground that they were not a necessary parties to the present proceedings. This was contested by counsel for respondent No.1 (the Complainant) stating that respondent No.3 was the doctor who, during the second surgical operation, had noticed the puncture in the jejunum and therefore his appearance was necessary. The Commission after hearing the two counsels ordered deletion of respondents No.2 to 4 from the array of the parties. Again, on 9.5.2012, counsel for the respondents submitted that the presence of respondent No.3, already ordered to be deleted from the list of parties, was necessary. This argument was kept open for consideration on the next date of hearing, but has not been pressed by the respondents. The revision petition was finally heard on 23.8.2012 and reserved for orders.
6. We have perused the records and heard the counsels for the two sides. It needs to be noted that the revision petition assails the impugned order stating that:-
“The State Commission erred in holding that, the non-examination of respondents 3 and 4 herein (Opposite Parties 5 & 6) who conducted the subsequent operation, gives rise to the conclusion that the perforation occurred during the first operation and the petitioners herein are negligent. The reasoning of the appellant authority that the Opposite Parties 5 and 6 failed to file affidavit evidence and explain the circumstances under which the perforation to jenjunum was occurred, obviously they did not like to depose in favour of the petitioners as the perforation was caused when the opposite parties 2 and 3 performed the operation is perverse and unsustainable in law.”
7. This contention needs to be viewed in the light of the evidence placed before the fora below. No evidence was adduced that an abdominal ulcer, perforated or otherwise, existed before the first surgery on 28.4.1994. On the contrary, the GYNAECOLOGICAL CASE SHEET shows that the first evidence of it came in the morning of 4.5.1994. It reads—
“X Ray plain abdomen in erect posture
Large gas shadow before Lt diaphragm
With multiple fluid levels
? Volvlus
Posted for Laprotomy at 6 pm”
8. The State Commission has observed that—
“Though Opposite Parties 1 to 3 in their affidavit evidence stated that they had operated her for hysterectomy on 28.4.1994 they did not observe any puncture to jejunum. Opposite parties 5 and 6 had performed an operation on 5.5.1994 when they found puncture in the jejunum. Opposite Parties 1 to 3 could not explain why such a puncture was caused.”
Due to this, the State Commission has noted that OPs 5 and 6 should have been the best witnesses to answer questions on the of puncture in the jejunum but OPs 1,2 and 3 chose not to examine them.
9. In our view, the record in the GYNAECOLOGICAL CASE SHEET and the Written Response of the OPs, noted above, clearly support the view taken by the State Commission. We therefore, find no substance in the above contention of the Revision Petitioner.
10. The other ground raised in the revision petition, as well as argued by their counsel is that, as per medical literature cited before the fora below, perforation of jejunum is an uncommon disorder which can be caused due to many reasons and is rarely diagnosed preoperatively. But, the counsel for petitioner could not explain how does this support their claim that perforation of the jejunum was not caused during the surgery for hysterectomy. Learned counsel for the respondents pointed out the petitioners should in that case, have examined the doctors who performed the second surgery. We find ourselves in agreement with the latter. No evidence has been led, before the fora below, by the petitioners/OPs 1,2 and 3 to show that it was not a surgical perforation which occurred in the course of the first surgery and which necessitated the second one.
11. We therefore, conclude that the revision petitioners have completely failed to make out any case against the decision of the A P State Consumer Disputes Redressal Commission in FA/37/2007 which could justify our intervention under Section 21(b) of the Consumer Protection Act 1986. The revision petition is therefore dismissed for want of merit.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
S./-
