1. THIS appeal is by the appellant/ complainant challenging the order dated 5.5.2005 passed by the District Consumer Forum, Bangalore Urban III Additional, in Complaint No. 1180/2004 dismissing his complaint.
2. THE facts of the case in brief are that the son of the complainant aged about 1 year and 4 months (for short, the "child") was admitted to the Hospital of respondent No. 1/opposite party No. 1 (for short, "OP-1") on 7.7.2003. OPs 2 and 3 attended to the child. According to the complainant he was informed that the child will be observed for a period of 7 days and thereafter the needful will be done. It was revealed that there was a hole in the heart of the child and the child needed immediate heart surgery and the complainant had to arrange about Rs. 1,05,000 for the said operation. THE complainant with great difficulty arranged money and deposited in OP 1 Hospital. THE further case of the complainant is that OPs 1 and 2 assured that the success of the proposed operation would be about 70%. Several tests were conducted. Ultimately, OPs 1 and 2 did not conduct any operation. According to OPs 1 and 2 the surgery was not conducted because the child was not fit or strong enough to withstand the operation. THE case of the complainant is that if OPs 2 and 3 had conducted the surgery, the child would have been survived. THErefore, according to the complainant, not conducting surgery by OPs 2 and 3 amounts to "negligence" and, therefore, he is entitled for compensation of Rs. 9,99,900.
The case of OPs 1 to 3 is that, in the first instance, the child was admitted to St. Martha''s Hospital. After some time, the child was brought to OP-1 Hospital. The child was also subjected to several tests. According to OPs 1 to 3, no surgery was conducted since the child was not in a position to withstand the surgery. Ultimately, the child succumbed to death. In support of their plea OPs 1 to 3 have produced the Hospital records to establish that they have given the required treatment but in spite of their best efforts they could not save the child.
The District Forum after considering the case of both sides has passed a very well considered order dismissing the complaint.
3. THE only point that arises for consideration is : Whether the District Forum is justified in dismissing the Complaint ?
The complainant had taken the child to OP 1 Hospital on the ground that the child was suffering from high fever on 6.10.2003. OPs 2 and 3 examined the child and asked the complainant to bring the child again on 16.10.2003. On that day, the child was admitted to OP-1 Hospital. From the documentary evidence produced by OP-1 Hospital relating to the treatment given to the child it is found that the child was suffering from ''complex congenital heart disease Atrial Septal Defect with severe pulmonary arterial hypertension and bilateral superior venaecavae''. After keeping the child for some time, the Doctors who attended on the child advised the complainant to take the child to St. John''s Medical College Hospital as the child was suffering from ''nutritional anemia and thrombocytopenia'', since the said Hospital had the latest devices in hematology in Bangalore, and discharged the child. Accordingly, the child was taken to St. John''s Medical College where the child was examined and the Doctors in St. John''s Medical College specifically advised the complainant to bring the child again for medical examination. But for the reasons best known to the complainant, instead of taking the child to St. John''s Medical College, he took the child to OP-1 Hospital. Thereafter, the child was admitted in OP-1 Hospital and put on ventilation since the condition of the child was serious. Ultimately, the child succumbed to death on 11.12.2003. From the records of OP 1 Hospital, it is seen that OP-1 Hospital has given the best treatment and has conducted several tests. Further, OP-1 Hospital did not proceed to conduct any surgery because the health condition of the child was not stable. Whether a surgery is to be conducted and at what point of time is a matter to be decided by the Doctor. In the instant case, when the Doctors were of the opinion that surgery need not be conducted because of the health condition of the patient, it cannot be said that there is any negligence on the part of the Doctors. The complainant has not produced any expert evidence to show that if surgery had been conducted immediately the child would have been survived. Therefore, in our view, the District Forum is right in dismissing the complaint after recording a finding that there was no negligence, on appreciation of evidence. Further, it is to be noted that though the complainant was required to pay more money than what he had deposited in OP-1 Hospital, OP-1 Hospital has refunded a sum of Rs. 50,000 to the complainant on compassionate grounds, even though legally the complainant was not entitled for refund of the money. Further, the Insurance Company/ OP-4 has reimbursed the medical expenditure incurred by the complainant for the treatment of the child. Therefore, we are of the view that there is no reason to interfere with the impugned order.
4. IN the result, we pass the following Order :
(1) The appeal is dismissed. (2) Parties to bear their own costs.
Appeal dismissed.
