Mr.A.M.Subbaraj, v. 1. M/s.Vedanayagam Hospital, & 2 Others

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hospital (opposite No.1) as opposite party No.2 told that he would be available on that date and for the subsequent days to do surgery and the post-surgery treatments. The complainant states that, on 26.06.2017 opposite party No.1 hospital did TURP+ BNI on the complainant. But he learnt that opposite party to the complainant's dismay, digmay, he learnt No.2 did not attend the surgery and left it to opposite party No.3 (Dr.B.V.K. Viswaroop Bobby) against opposite party No.2's promise and advice.

The complainant states that, opposite party No.2 discharged the complainant on 30.06.2017. On 30.06.2017, before the complainant was discharged, as a courtesy call to thank opposite party No.2, the complainant came to opposite party No.2's chamber. Then he complained that there was no progress in his Urination. To this, opposite party No.2 told him that it would take a fortnight to get a full recovery. The complainant states that, not getting any recovery and blood oozing while Urination, after 3 weeks, on 20.07.2017, and also to obey the advice on discharge prescribed by Dr.Gowtham Chopra, of Opposite No.1's Hospital, the complainant once again came to opposite party No.1 hospital for the post-surgery treatment and met opposite party No.3 (Dr.SVK. Viswaroop Bobby), the opposite party No.3 prescribed some medicines for infection and that was consumed by the complainant. Opposite party No.2 failed to direct the complainant for uroflowmetry as suggested by Dr.Gowtham Chopra of the hospital of the opposite party No.1 On 14.08.2017, still not having any progress in urination etc, the complainant visited opposite party No.1's hospital and paid Rs.300/- as a consultation fee and met opposite party No.3 (Dr.BVK.Viswaroop Bobby). The complainant informed opposite party No.3 that he had not recovered yet. The opposite party No.3 promised that the complainant would get well soon.

Though two and a half months elapsed after the treatment was

given, still not getting cured, again, the complainant visited opposite party No.1 and met opposite party No.3 (Dr.SVK. Viswaroop Bobby). He got annoyed and drove away the complainant saying that the complainant did his best and had no more to help. The complainant's own sister, an MD Gynaecologist advised the

complainant to once again meet the opposite party No.2. So, the complainant, on

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22.02.2018, sought opposite party No.2's appointment for 23.02.2018. Getting appointment to meet opposite party No.2 at 4.00 p.m. on 23.02.2018, the complainant visited the opposite party No.1's hospital and paid Rs.300/- towards a consultation fee. The complainant underwent Uroflow test on his own so as to make the diagnosis and prognosis easier. At 4.05 p.m., opposite party No.2 let the complainant into his chamber. No sooner than the complainant entered opposite party No.2's room, opposite party No.2 shouted at him for no fault of the complainant. Opposite party No. 2 never allowed the complainant to speak his mind about the complainant's problem in Urination. The complainant, then, understood that treatment given by opposite party No.2 has come a cropper and opposite party No.2 deliberately and knowingly made a false promise to him. And only to hide this, opposite party No.2 derided the complainant. Though opposite party No.2's act was boisterous and egregious, the complainant did not lose his composure and remained PHLEGMATIC and UNFLAPPABLE staving-off his tears. Opposite party No. 2 teased the complainant and asked him what made him to meet opposite party No.2 and No.3 when the complainant replied that he did not see any improvement even after treatment, opposite party No.2 perused the Uroflow report and told him that it was GERIATRIC and so he was helpless. This is completely contradictory to opposite party No.2's earlier promise and guarantee that the complainant's problem was not due to old age and could be fully cured making his flow of Urination normal.

The complainant states that, opposite party No.2's reliability is very poor. Palpably, opposite party No.2 and No.3 have miserably failed. The opposite party No.2 treated the complainant very badly as if opposite party No.2 gave him a probono treatment, forgetting that an enormous fee of more than Rs. 61,000/- was collected from him. The opposite party No.2 was STODGY and used QUIBBLES. The complainant states that even a cursory perusal of the Uroflow test reports received from opposite party No.1's Hospital dated 03.06.2017, 23.06.2017 and 23.02.2018 clearly prove that the medical service of Opposite Party No. 1 and No.3 is of gross negligence, imperfection and deficiency in service.

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The complainant states that the treatment of the opposite party comes under the ambit of false promise and guarantee, gross negligence, imperfection and deficiency in service.

The complainant states that he suffered mental agony, loss of money, time and energy, body pain after treatment, medical expenses on capsules, etc., blood loss and damage of his regular work.

The complainant states that against opposite party No.2's

promise, guarantee and advice opposite party No.2 did not attend the surgery and left it to opposite party No.3. So, opposite party No.2 have made a false promise, guarantee and committed medical negligence allowing opposite party No.3 to conduct the medical surgery. The opposite party No.2 have committed imperfection in conducting the surgery. Thereby, the Opposite party No.2 committed medical negligence and deficiency in service. For which, the complainant has lost his money and suffered mental agony and body pain. So, opposite party No.1 to 3 are liable to pay a compensation in the following manner:-

a) Surgery and other medical expenses : Rs.61,000/-

b) Subsequent medical expenses : Rs.1,00,000/-

c) Mental agony, sustained pain : Rs.4,00,000/-

d) Compensation for deficiency of service and imperfection : Rs.4,00,000/- Total : Rs.9,61,000/-

The complainant states that legal notices dated 05.03.2018 were served on the opposite parties No.1 to 3 and they replied in writing. (Reply is enclosed). The complainant states that in their reply the opposite parties came to plead that they never used to give GUARANTEE and have cited excerpts from MODI'S JURISPRUDENCE that doctors are not GUARANTORS of absolute safety, to escape from their statutory responsibilities.

The complainant states that the CONCISE OXFORD

DICTIONARY defines GUARANTEE as "A FORMAL PROMISE OR ASSURANCE

ESPECIALLY THAT AN OBLIGATION WILL BE FULFILLED OR THAT SOMETHING

IS OF A SPECIFIED QUALITY AND DURABILITY".

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The complainant states that unless or until a promise was made by a doctor on whom a patient did have extra- ordinary trust, the latter would never have accepted to undergo the ordeal of this surgery and part with a huge money and to spend energy and time.

The complainant is an educated man and won't suggest for a

surgery on his volition. He is a retired police officer living only upon his NIGGARDLY PENSION. The only wrong committed by him was taking the assurance of opposite party No.2 into confidence and having undergone surgery in his hospital. This is a concocted story of the opposite parties. In their replies in Page 27, they lie that the complainant, "after the TURP, approached them after a gap of several days". They never uttered a word to the complainant asking him to meet them again, and in page 27 too there is no whisper of it.

The complainant states that Dr.Gaudam Chopra gave a

prescription of medicines, on 30.06.2017 when the complainant was discharged. This is admitted by the opposite parties in their reply in page 18. This prescribes first two medicine (tab. CIFREN 500 mg and Tab.Raciper 40 mg for 5 days. Tab. Calpol.J in the event of pain and syrup CREAMFFIN Plus 20 ml for one month to escape constipation). The complainant states that in reply at page 22 in para 12, they admit that on 30.06.2017 the complainant complained that he had no progress in urination and they answered that it would become alright, step by step. The complainant states that though the opposite parties had not advised the complaint either to take medicines for several months or to meet them again, the complainant met opposite party No. 3 after 3 weeks, i.e. on 20.07.2017, as there was no cure and urination had bleedings and as the same problems still persisted. The complainant states that the opposite party No.2 detected

infection and prescribed In their reply at page 25, the opposite they lie that the complainant was medicine for a continuous period). a medicine only for 7 days. parties admit this. (Later advised to take this Unless the opposite parties had done unhygienic surgery, there is no room for infection because the complainant never had infection prior to the surgery.

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The complainant states that the three opposite parties failed to do justice to the fee of Rs.300/- received from the complainant. OBVIOUSLY, THIS IS A

DEFICIENCY IN SERVICE ON THEIR PART.

The complainant states that the word 'DEFICIENCY' of is defined in the CONCISE OXFORD DICTIONARY as 'A LACK OR SHORTAGE', UNIVERSAL DELUXE DICTIONARY defines this word DEFICIENCY as ' KOik ,d;ik> FiwT '. The complainant states that thereby, the opposite parties No. 1 to 3 also failed to do justice to the fee of Rs.300/- received towards consultation from the complainant. This clearly is a DEFICIENCY IN SERVICE PERPETRATED by the opposite parties No.1 to 3.

The complainant states that in page No.29 of their reply, the

opposite parties deliberately lie. They never advised the complainant to visit the opposite parties once in 6 days. Advice on discharge given by the said Dr.Gowtham Chopra free mentioned that the complainant should visit once in six days as falsely replied by the Opposite parties. This is a dishonest reply from the opposite parties. They try to put the blame on the complainant with an intent to escape from their statutory liabilities.

The complainant states that as to Dr.Gowtham Chopra's Advice

on Discharge, the complainant met opposite party No.2, after three weeks. Pages 30 and 32 of the reply from the opposite parties deceitfully blame the complainant as if he failed to observe their advice to follow DIABETOLOGIST'S ADVICE, on 11.09.2017. The complainant's states that he strictly adhered to the advice and regularly visited the SHANTHI GEARS SOCIAL SERVICES, Coimbatore and consulted Dr. Palaniappan, M.D., the DIABETOLOGIST.

The complainant states that the complainant also met

Dr.Sivasankaran, MBBS, MS., MCH (URO), the Urologist. Prescription given by him also was followed by the complainant.

The complainant states that the opposite party No.2 blatantly lies that the complainant's had not possessed any reports from a Diabetologist and failed to show the reports to him.

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The complainant states that the complainant, in fact, had all those reports, prescriptions and when he attempted to show them to the opposite party No.2, the latter declined to peruse them. As soon as the complainant entered into his chamber, the opposite party No.2 shouted at the complainant, obviously for no fault of the complainant. It was because the complainant underwent Uroflow test at the hospital (Opposite Party No.1), even before the opposite party No.2 advised him to do so. (The reports from SHANTHI GEARS SOCIAL SERVICES, Coimbatore, and the prescriptions from Dr.Palaniappan, the Diabetologist are enclosed.

The complainant states that Opposite Party No.2 misleadingly tries to explain why infection was found. He attempts to conceal the fact that the urinal infection was because of the unhygienic way of surgery on the part of the opposite parties.

The complainant states that the stratagem of the opposite party No.2 is defeated with the reports dated 27.02.2017, 22.03.2018 and 28.06.2018, received from SHANTHI GEARS SOCIAL SERVICES.

The complainant states that the HbA1c level of the complainant was 6.1 on 27.02.2017; 5.6 on 22.03.2018 and 5.3 on 28.06.2018 which are absolutely normal to disprove the version of the opposite party that infection was due to his uncontrolled diabetics.

The complainant states that even the test reports of 20.07.2017, tested at the hospital of opposite party No.1, found no sugar. This is shown in page 28 of the reply of the opposite parties.

The complainant states that the opposite party No.2, on

23.06.2017 made the complainant believe that the poor flow and interrupted stream was not just because of his old age and he guaranteed full recovery. But, after the surgery, he does a somersault in page 23 and says it was due to old age. The complainant states that in page 37 of their reply, the opposite parties try to hide under MODI'S MEDICAL JURISPRUDENCE'S 21^stEdition and a case law. If so, what made the opposite parties to lure the complainant by giving false promise to undergo TURP?.

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The complainant states that in page 37 of their reply, they repeat the same blame on the complainant that the latter did not take treatment for diabetics. This blame is proved false with the reports received from SHANTHI GEARS SOCIAL SERVICES, Coimbatore.

The complainant states that in page 35, 37 and 38 the opposite parties speak about the consent letter of the complainant. It is a clear case of ridiculousness. All patients have to sign such forms compulsorily, right at the moment of surgery, at the operation theatre when they were mentally not fit and had no option except to put their signatures. Patients who were under charged atmosphere and under psychological pressure cannot apply their minds to the words minutely return in the forms.

ejP pgjp A. uj;jpdNtY> M.A.,B.L., mth;fs; vOjpAss; Efh;NthNu

ePjpgjp vd;w E}ypy;> gff; k; vz;.35y;> ghuh 2y; me;j xg;Gjy ; 'tl;lhu nkhopapy;" ,Uff; NtzL; k; vdf; Fwpg;gpLfpwhh;fs;. NkYk; mNj gf;fj;jpy; 'me;j Nehahsp kd hPjpahf gf;FtKs;s jFjpAk>; cly; hPjpahd jFjpAk; ,Uff; NtzL; k"; vd Fwpg;gpLfpwhh;fs;. The complainant states that also, a cursory personal of page 38 in their reply would prove that the opposite parties have forged this record (consent letter) and added para 6, written in ink, and below para 5. If para 5 is read, that clearly would prove the DISHONESTY of the opposite parties. Their act is criminal, i.e., FORGERY

AND FABRICATION TO CHEAT THE COURT OF LAW.

The complainant states that in page 42 the opposite parties attempt to escape from their responsibilities under the aegis of EXPERT OPINION purely on belief that, Urologists, earning more than Rs.1,00,000/- per day, would never prefer to spend their own lucrative day in attending a court to help a poor complainant. The complainant states that the opposite parties believe that they can shirk their responsibilities and attempt to say that their educational qualification only is suffix, to escape from the clutches of law and derelict their patients. The complainant states that the opposite parties cite case laws

that were delivered in different cases that are completely not applicable to this present case.

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The complainant states that their reply in para 43 is absurd. It is natural for any old man to keep ward off any damage and danger to his kidneys. They exaggerate that the complainant had lost peace of mind due to fear. The complainant states that in para 44 of their reply, the opposite parties say that they advised the complainant to follow DIABETOLOGIST'S ADVICE AND PERIODICAL REVIEW WITH HIS INTERNIST. This is false. The Advice on Discharge by Dr. Gowtham Chopra never mentioned this.

The complainant states that in para 26 of page 25 of their reply, the opposite parties utter a lie that they gave the complainant medicine to continue long but the complainant failed to consume them for 4 months. And another stark lie is that the complainant was advised to appear before them for a continuous period. This is a blatant lie and the opposite parties never did so either orally or in writing. Their reply in page 18 would prove this.

The complainant states that their replies in pages 46, 48 and 49

reflect more of a CORPORATE'S THREATS THAN OF A PROPER REPLY TO

ADVOCATE'S NOTICE.

The complainant states that he does not know the NICETIES and

INTRICACIES of medical science.

The complainant states that the opposite party No.2 has taken

pains to disprove our complaint and cover up his deficient service on 23.06.2017. He has obtained letter from his staffs. The complainant was given with SPINAL ANESTHESIA. So he could see the doctor present, and the doctor who did surgery. The opposite party No.2 was not at all seen there by the complainant anywhere in the operation theatre. Opposite party No.2 and 3 lie together to conceal the truth mentioned in para 7 of legal notice.

The complainant states that Opposite Parties 1 to 3 ought to have diagnosed correctly what the problem a patient might have for difficulty in urination etc., and the complainant never requested the opposite parties to do TURP. Only the opposite parties wrongly diagnosed that the complainant's problem was due to BENIGN

ENLARGEMENT OF PROSTATE.

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The complainant states that there is no cure. It means that the opposite parties miserably failed either diagnose correctly or true do the surgery precisely. This purely is medical negligent. CONCIDE OXFORD DICTIONARY describes NEGLIGENCE as (1) (a) a lack of proper care and attention, carelessness.

(b) an act of carelessness. UNIVERSAL DELUX DICTIONARY explains this word NEGLIGENCE AS "fUjj; pd;ik> Gwff; zpg;G".

The complainant states that the opposite parties maintained that they have necessary education qualification and that is enough to escape from wrong diagnosis and cite case laws in their support.

The complainant states that the opposite parties have added para 6 (consent letter) after the complainant put his signature and after several days after realizing that their surgery was an utter failure. This act of TAMPERING WITH

FABRICATING AND FORGING WITH THE CONSENT LETTER IS A CRIMINAL ACT

AND PART OF THE OPPOSITE PARTIES. CONCISE OXFORD DICTIONARY

EXPLAINS THE WORD TAMPER WITH AS MEDDLE WITH OR MADE

UNAUTHORIZED CHANGES. THE WORD FABRICATE DESCRIBED AS "INVENT OR CONCOCT" (EVIDENCE ETC.,) IN THE SAME DICTIONARY. The complainant states that the complainant's case is that he went to the opposite parties seeking full relief to his frequent urination, poor flow, interrupted stream and strainful to pass urine. Opposite party No.2 gave a false guarantee and hope that the complainant would get full relief after a TURP. The complainant did not get any cure and approached the opposite parties again and again and paid Rs.300/- twice as a consultancy. As a complainant did not get recovery he met the opposite party No.2 for consultation. And on 23.02.2018, after paying Rs.300/- as consultation fee, he met the opposite party No.2. His in different and diabolical act towards the complainant led him to seek remedy from another urologist Dr.Sivasankaran, MBBS, MS, MCH (URO), Dr.Sivasankaran gave some prescriptions on 22.03.2018 and 10.04.2018. As the complainant did not get any improvement even after consumption of these medicines Dr. Sivasankaran referred the complainant to the UROLOGY CLINIC, 5,

GOWTHAM CENTRE ANNEXURE, 1054, AVINASHI ROAD, COIMBATORE 641 018.

On 03.05.2018 the complainant went to the clinic and underwent some tests as

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suggested by Urologists Dr. M.Ramalingam, MCH, FRCS (URO) and Dr. K. Senthilkumar, MCH FR. The test report reveals "VOIDED ON COMMAND WITH ABDOMINAL STRAINING WITH LOW FLOW". THIS CLEARLY INDICATES SHEER MEDICAL NEGLIGENCE BY THE OPPOSITE PARTIES. This also is RES IPSA

LOQUITUR. AND SO, NO EXPERT EVIDENCE IS NECESSARY.

The complainant states that all the opposite parties committed MEDICAL NEGLIGENCE. The complainant did not have any improvement even after the TURP done by the opposite parties. THEIR DIAGNOSIS AND TREATMENT WERE NEGLIGENT. On 14.08.2017 and 23.02.2018, Rs.300/- were paid as consultation fee to the opposite party No.3 and 2 respectively. Both of them failed to do justice for the fees they received. AND THIS IS A CLEAR CASE OF DEFICIENTLY IN SERVICE BY

OPPOSITE PARTY NO.1 AND 2.

The complainant states that the act if the opposite parties comes under the ambit of false promise gross negligence and deficiency in service. The complainant suffered mental agony, loss, body pain during treatment medicine, blood loss, paid, time, money attend the routine work.

Hence, this complaint has been filed by the complainant under Sec.12 of the Consumer Protection Act, 1986, directing the opposite parties No. 1 to 3 to pay Surgery and other medical expenses for sum of Rs.61,000/-, to pay Subsequent medical expenses for sum of Rs.1,00,000/-, to pay Mental agony, sustained pain for sum of Rs.4,00,000/-, to pay Compensation for deficiency of service and imperfection for sum of Rs.4,00,000/- and to pass such other reliefs and Orders.

II) The brief averments of the written version filed by the 2^nd opposite party and adopted by 1^st and 3^rd opposite parties are as follows :-

The complaint filed by the complainant against this opposite party is vexatious as well as totally unsustainable both factually and legally. The complainant is put to strict proof of the averments made in the complaint and the documents. Even at the outset, this opposite party submits that there is no truth or merit in the contention that there was deficiency in the services. The

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complainant is neither been truthful nor has come before this Honorable forum with true or genuine case or grievance. Therefore, the complaint deserves dismissal inlimine on this sole ground.

Without prejudice to the foregoing contentions of the complaint, the opposite party submits the following

It is submitted that the complainant visited this opposite party for a consultation on 03.06.2017 as an out-patient and an out-patient report was generated and the complainant himself disclosed the following

= administered by Homeopathy Medicine for the past 1 year for = prolonged time to void (the complainant said it takes 15 minutes to empty) = frequency of urination (8 times during day and 3 times at night) = poor flow for the past 1 year

= diabetic mellitus and administered by tablets

= undergone Heamorrhoidectomy in the year of 1983

and further stated that

- frequent urination

- poor flow

- interrupted flow

The complainant was suggested for an Uroflow test and he

underwent the test on the same day. The test report showed that the complainant excretes urine 8.4 ml /second and he excreted a total of 206.20 ml in 71.7 seconds which indicates that the complainant was having a high probability of obstruction in the urethra.

To confirm, a SCAN KUB AREA OF ABDOMEN was done on the

complainant on the same day i.e. 03.06.2017 and it was confirmed that the Prostate was enlarged to an extent of 1.97 cm than the normal size.

Normal Prostate size is 40 x 35 x 36 and the capacity will be 26 cc. but, the Intra Vesical Projection Prostate of the complainant was 41 cc. This opposite party clearly diagnosed and confirmed that frequent urination, poor flow and the interrupted flow to the complainant was due to BENIGN ENLARGEMENT in the PROSTATE and the same is stated in the 6th and 7th page of

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the detailed reply notice dated 12.4.2018 with diagram and web address. A complete blood test was also done to the complainant and HBA1C was 6.12 which was above normal and the complainant was prescribed to take a capsule SILDOO 8 mg at night time for 20 days and was advised for a review on completion of 20 days with Uroflow Report. The zerox copy of the Out-patient copy is produced herewith as document No: 1 This opposite party herewith is referring the Medical Science Text Book Campbell Urology, 11^thEdition, page no.2440, Part XIV, The Prostate Measures Of Obstruction

Subvesical obstruction can only be measured by invasive pressure flowstudies, while nonintubated free flows rates provide at best an indirect measure for the probability of obstruction being present (Abrams, 1995)

It is commonly accepted that a maximum flow rate of less than 10 ml./sec Indicates a high probability of obstruction

while a flow rate of greater than 15 mL/sec indicates a low probability with 10 to 15 mL/sec presenting an intermediate range.

Aging men and women experience a decrease in the maximum urinary flow rate that is nearly linear in nature. In the Olmsted County study, the medium flow rate decreased from

20.3 mL/sec for men 40 to 44 years old

11.3 mL/sec for men 75 to 79 years old the globally accepted medical text clearly indicated that those who excrete 10 ml. sec is in a high probability of obstruction

in this case, the complainant excreted only 8.4 mL/sec the Uroflow Meter Test clearly showed that there was an Obstruction in the complainant

Further, this opposite party states that on completion of clinical tests the complainant was provisionally and clinically diagnosed that there was an enlargement in the prostrate and to that, he has to undergo TURP and BNI surgery and advised to take the SILDOO 8 mg capsule for 20 days and was advised to meet this opposite party along with the UROFLOW test report. The complainant met this opposite party as advised on 23.06.2017 and the UROFLOW test report showed not much of an

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improvement and the age of the complainant was also taken into account to determine the flow as stated in the above said medical science text. As such, the complainant was advised to undergo for TRANSURETHRAL RESECTION OF PROSTRATE (TURP) with BLADDER NECK INCISION (BNI) surgery.

This opposite party further states that as requested by the

complainant in the fourth paragraph of the complaint, this opposite party performed the surgery with the assistance of 3rd opposite party, anesthetist and with paramedical staff to the complainant with diligent care, with ethics, standard principles as established and accepted by the medical science with the procedure and techniques and complied to all the required protocols and suggested formalities, apart from his very rich experience in such surgeries. No qualified and skilled doctors those are specialized in their specific branch will assure or promise as alleged by the complainant and this opposite party is one of the best doctors in the state. The epistles that had given by the team can be seen in the 19^th, 20^thand the 21^stpage of the detailed reply notice and accordingly, the sixth paragraph of the complaint is answered. The zerox copy of the same is produced herewith as document No: 2.

The complainant in his fifth paragraph of the complaint used

wordplay that the opposite parties had collected the charges exorbitantly, which is stoutly denied and condemned.

Further, the seventh paragraph of the complaint is the own

imagination of the complaint and therefore, denied. The complainant visited as an out- patient on 20.07.2017 for a review with acute infection and this opposite party advised for a complete urine test. The test was done and the test report showed pusells, RBC and Bacteria were plenty and hence the oozing. As such, the complainant was prescribed medicines for 7 days and was advised to come for a review after seven days for continuation of treatment. When the 3d opposite party was treating the complainant on 20.07.2017, what necessity arose to suggest the complainant for a Uroflow test by Dr.Gowtham Chopra? If it is true, the complainant should have produced as his complaint document, but have not done. Hence, it is clear that it is a false allegation... The zerox copy of the Out- patient copy dated 20.7.2017 and the zerox copy of the urine lab report is produced herewith as document No: 3 and 4.

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This opposite party further states that the complainant visited for a review on 14.8.2017 i.e. on completion of 20 days and stated that he took the urine problem tablets for 3 days and stopped. Since the complainant failed to take the prescribed medicines continuously, the infection was not controlled as expected. Thereafter, the complainant was reviewed on 11.9.2017 and had a thorough check and it was found that there was no burning sensation and oozing. Since the complainant was a diabetic patient he was advised to consult a diabetologist to save the kidneys. The zerox copies of the Out-patient copy dated 14.08.2017 and 11.9.2017 are produced herewith as documents No: 5 and 6.

The complainant states in the 11th paragraph of the complaint that his own sister is an MD Gynaecologist and her insisting to meet this opposite party with prior appointment on 23.02.2018 at 4 pm is correct and rest of the contents are firmly denied. Nothing resisted the complainant's sister to meet her own fraternity to enquire about the progress and the treatment provided to her own brother in person or by telephone. The complainant visited this opposite party with Uroflow test report and the report was perused and it was informed that there was a good improvement in the flow and certainly there would be wear and tear of age which is unavoidable. When questioned about the medication for the urinary infection, the complainant coolly said he stopped it 4 months ago and for the diabetics he did not show any prescription of the diabetologist for the treatment taken. The zerox copy of the Out-patient copy dated 23.02.2018 is produced herewith as documents No: 7

Further, this opposite party states that the complainants' eleventh, twelfth, thirteenth and fifteenth paragraphs of the complaint is no way connected to this opposite party since it is concocted to the mindset of the complainant. But this opposite party has a vast experience, performed too many surgeries, conducted so many workshops and also a good and a senior surgeon in the state of this branch. As such, nothing was necessitated to give false promise or statement whatever so. Further the complainant in his 14th paragraph of the complaint stated that the opposite parties were negligent, imperfect and deficient in service. But, this opposite party states that he understood that the complainant have not gone through their detailed reply dated 12.04.2018 and have no knowledge of medical

17

science to peruse the reports. In the reply notice, the opposite parties have clearly shown the improvement of the flow of the complainant with the test reports dated 03.06.2017, 23.06.2017 and 23.02.2018.

It is most respectfully submitted that this opposite party is serving to the patients those who come for treatment and there is no intention to make money from the patients or to be scandalous or negligent in his service. The claim of the complainant is speculative with an intention to make an illegal gain at the cost of this opposite party.

The allegations of the Complainant are nothing but defamatory and the Complainant has caused serious injuries to the reputation of this Opposite party apart from causing mental agony without considering monetary benefits This opposite party has already answered to this 17^thparagraph of the complaint in the 6th paragraph of this written version.

This opposite party most humbly states that the complainant has narrated the paragraphs 18 to 22 to his own whims and fancies of the complaint At the time of review dated 20.07.2017, the complainant was strictly instructed to follow the prescription and to come for a review on completion of 6 days but, the complainant visited this opposite party after completion of 20 days and further added that the improvement was in progress despite geriatric and he was informed to take periodical reviews and tests and advised to follow the instructions strictly. This clearly proves that the complainant was very much negligent to follow the clear instructions given by the opposite parties. This opposite party clearly indicated in page No: 27 of the detailed reply. The opposite parties most humbly state that they have adhered the ethics and treated the complainant as accepted in the medical science as on date and as such, the complainants allegation in the paragraphs 23 to 34 are stoutly denied. This opposite party most humbly states that the complainant has stated that he is an educated man and as such, he has taught the meanings with the help of Concise Oxford Dictionary to the opposite parties. To his kind information, all the opposite parties are well qualified, well trained, talented, very good surgeons and have the best reputation in the society and among the doctors and that it is irrelevant to focus on the definition of words. Therefore, instead of feeling good about the complainant's

18

education and knowledge this opposite party wants to focus more on the truth of the matter and what really happened.

The complainant has stated in the 33rd paragraph of the complaint that he had taken treatment with Dr. Sivasankaran, MBBS., MCH (URO) and followed the prescription as advised. The said Doctor might had seen the discharge summary, prescription and the treatment provided to the complainant before and after surgery. If any of the same was against medical science or ethics, the doctor would had commented about this and other opposite party but there were none. When there were no comments about the performance from the date of visit to his own prescription, it shows that, the opposite parties were in the right path as on date and there was no negligence or deficiency in the services as alleged by the complainant. This opposite party further states that 35th paragraph of the complaint is stoutly denied and condemned because; no doctor will refuse to see the reports of the patients who is sick. But in this case, when this and other opposite parties are treating surgeons of the complainant, how would they refuse to peruse the reports that were brought at the time of review?. If so, what obligation is there for the opposite parties to advice the complainant again to follow the diabetologist advice and periodical review with his internist can be seen in the sixth document of this written version. Further this opposite party states that the complainant himself stated in the complaint that he is an educated person and must know therefore, that the diabetic mellitus is the asylum for all sickness and unless it is controlled, the outcome would be fickle. Therefore, there was nothing to mislead; as stated in the 36th paragraph of the complaint and it was not true too.

The complainant himself disclosed on 03.06.2017 in the History

column of the out-patient copy of this opposite party that he was on medication for diabetic mellitus. Further the complainants fifth document of the complaint revealed that he was a diabetic mellitus patient and in the same document the urologists Dr. K.Senthil, Dr.M.Ramalingam never commented or opined about the surgery performed to the complainant or the treatment provided. Even the Shanthi Social Services consultant urologists' Dr.N.Sivasankaran, MBBS, MS, MCh (URO) never commented about the surgery or the treatment provided or the medication to the complainant. If this

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opposite party was at fault, then there was negligence. The complainant was not very clear of the blood sugar test because, it varies now and then and when the complainant was in medication, ultimately the sugar level would be controlled and as such 37th to 39th paragraphs are denied stoutly and for 40 to 42 paragraphs are answered in the detailed reply and have quoted

Modis Medical Jurisprudence and Toxicology (Page No: 518)

Twenty-First Edition

Edited by

C.A.FRANKLIN

"SURGEONS, DOCTORS AND NURSES ARE NOT INSURERS THEY ARE

NOT GURANTORS OF ABSOLUTE SAFETY THEY ARE NOT LIABLE IN

LAW MERELY BECAUSE A THING GOES WRONG …."

But in this case, nothing went wrong against the complainant and the outcome of the surgery was success.

Further this opposite party states that the complainant highlighted himself as an innocent because he has stated that all the patients have to sign such forms compulsorily before the surgery and hence he has signed in the consent form on 25.6.2017 at about 8 pm in the presence of his own witnesses wife Mrs.S.Menaka and Beena. It is ridiculous to state he was mentally not fit or had no option except to sign in the consent form before the surgery. Even a illiterate patient may raise this issue and also, this opposite party use to explain in detail about the surgery, anesthesia, outcome of the surgery and the effects that may occur post operatively and it was explained to the complainant who is educated and was a DSP and to the attendants and then the signature was received in the presence of witnesses honestly and not as stated by the complainant in the forty three and forty fourth paragraphs of the complaint. The zerox copy of the consent form for surgery dated 25.06.2017 and the zerox copy of the consent form for anaesthesia dated 26.06.17 at about 10.45 am are produced herewith as documents No: 8 and 9.

Further this opposite party states that if the claim of the

complainant is genuine, then, it is the responsibility of the complainant to document an opinion from an expert whom is in the same branch and it is mandatory, and also an

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order of our Apex Court to establish the claim that is known to the complainant and hence, forty fifth paragraph of the complaint is countered accordingly. This opposite party states that the entire team of doctors and the paramedical staff are well qualified in their branch. Further it is stated that all the surgery was performed with diligent care, efforts all protocols were taken standard principles and medical text books were followed on the complainant and the outcome of the surgery was successful and nothing went wrong. The Apex Court was held in its Jacob Mathew versus State of Punjab and Another that "the Practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care". This opposite party has answered for the forty sixth and forty seventh paragraphs of the complaint in the reply notice and the same shall be taken as the counter.

Further this opposite party states that document No. 7 of this written version is counter to the paragraph 49 of the complaint. In document No: 7

= * Advised restrict fluid after 8pm

=* Timed voiding

=* Diabetic control

* Review SOS

Not only to this complainant but to all the patients those who have undergone the surgery would be advised orally to come for a periodical review and for any urgency or emergency, they should contact the emergency numbers given in the discharge summary. Hence fiftieth paragraph is answered accordingly.

While knowing nothing the complainant has sent the notice for no reason to the opposite parties and in turn they replied in detail for the queries and doubts raised in the notice with evidences of established texts and medical science as accepted at present with techniques and that no threat was made against him. The complainant made allegation against the opposite parties to extort, as such, he took utmost effort to bring the opposite parties under the Act. The opposite parties have clearly replied in detail by citing the Apex Court verdicts and the medical procedure that are accepted globally. Further, the complainant alleged that this

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opposite party had not performed the surgery to him but to disprove the same this opposite party had sent the copies of the letters who assisted him at the time of the surgery, to the complainant. Apart from all. this opposite party is producing the case sheets maintained from the date of admission to till the date of discharge and the operation notes dated 26.6.2017 of the complainant which is self explanatory and the complainant can easily understand that the surgery was performed by this opposite party and not as Imagined by him. Accordingly 53rd paragraph is answered. The zerox copies of the case sheets and the operation notes of the complainant are produced as documents No 10 and 11.

The complainant himself states in the 54th paragraph of the

complaint that this opposite party diagnosed him wrongly. If the diagnosis was wrong, then the consultant urologist Dr.N.Sivasankaran. MBBS, MS, Mch (URO) of Shanthi Social Services might had written in his prescription on 10.4.2018 (document No:3 of the complaint) that the complainant was wrongly diagnosed by the opposite parties or the doctors Dr. R.Senthil and Dr.M.Ramalingam whom he consulted at UROLOGY CLINIC on 03.5.2018 (document No:5 of the complaint) might had transparently reported in their report. When nothing was opined by the elsewhere doctors of the same branch, the statement against to the opposite parties are defamatory on purpose. This opposite party states that the 55th paragraph of the complaint is unwarranted since they have social obligation in the society and for the 56th paragraph the Apex court have had given its verdicts in so many cases and as such, it is the liberty for the complainant to go through the same. If the complainant believes that this opposite party is trying to escape by citing the case laws, then it is the responsibility to review the judgments against the Apex Court on his own. This opposite party further state that the 5th paragraph of the surgery consent is reproduced herewith to the immediate perusal of the complainant so that he can come to a conclusion that 57th paragraph of the complaint is ridiculous.

"I have read the above information / the above information has been explained in detail to me. I have understood the aforesaid information and I am willingly given my consent surgery / procedure without any pressure. Despite giving every necessary and

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proper treatment if any problem mentioned above results, the Hospital, the Doctor or Staff members are not responsible".

The complainant being educated and a retired police officer had read the entire Consent form carefully earlier to the surgery le on 25.6.2017 and signed before his wife and other witness and nothing necessitate to tamper or to fabricate Further this opposite party slates that the complainant has

repeated his wrong claim again and again in most of the paragraphs of the complaint and this opposite party has also replied in the earlier paragraphs of this written version for 58 paragraph to till the end.

This and the other opposite parties have had sent the reply in

detail along with references which shall satisfy the complainant in all aspects for the entire allegation of the complaint and to the notice. The detailed reply notice dated 12.4.2018 shall also be taken as part and parcel of this written version and the opposite parties reserve their rights to file additional written version if and when the need arises. It is respectfully submitted that, the contentions raised in the complaint about the opposite parties are categorically denied and they were never careless, scandalous, negligent towards the complainant or caused mental agony so as to be liable to compensate the complainant.

Infact, from all the above, this Opposite party has replied to the notice of the Complainant in detail along with references from medical text books, related and relevant documents on 12.4.2018. Despite the efforts, the complainant has filed the complaint before this Honorable Forum. It is most humbly submitted that the opposite parties are not liable to pay any compensation as claimed. In contra, the complainant has to pay compensation to the opposite parties for torture, mental agony, and unwanted annoyance and also for the bitter experience caused. It is submitted that the present complaint is devoid of any ground or cause of action. The best of treatment was given and there was no unfair trade practice or negligence or deficiency in the services rendered. There is no bonafide reason to entertain the complaint or grant any order and it deserves dismissal.

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As such, in these and other circumstances, it is prayed that this Honourable Forum dismiss the above case with exemplary costs and thus render justice.

III) 1. To prove the case, the complainant as PW1 filed proof affidavit and the documents filed by the complainant were marked as Exhibits A1 to A18.

2. To dislodge the case, the 2^ndopposite party as RW1 filed proof affidavit for themselves and on behalf of 1^stand 3^rdopposite parties and the documents filed by the opposite parties were marked as Exhibits B1 to B12.

IV) On the basis of the pleadings, the evidence adduced and the contentions advanced, the following points arise for consideration:

1. Whether there is any medical negligence by way of Omission or Action, committed by the opposite parties?

2. If so, what are the reliefs to be granted?

V) Points No.1 & 2:

1. The complainant states that he consulted the opposite party No.2 for the complaints of frequent urination, interrupted stream and poor flow of urine. The opposite party No.2 made the complainant to undergo uro-flow test. Whereby the opposite party No.2 detected benign enlargement of prostate. The opposite party No.2 prescribed Sildoo 8 mg capsule for 20 days. He strictly followed the prescription and presented himself before opposite party No.2 on 23.06.2017.

2. The complainant averred that the opposite party No.2 advised the complainant that the complainant's problem was not due to old age and could be fully cured after Trans Urethral Resection of Prostate + Bladder Neck Incision (TURP + BNI). To the complainant's request that the opposite party No.2 should personally do the surgery, opposite party No.2 promised him so. Also, the complainant requested opposite party No.2 not to handover this job to somebody else to which opposite party No.2 told okay.

3. The complainant further states that he had paid the fee of Rs.61,000/- to the opposite party No.1 towards surgery and treatment as in-patient. He was

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admitted in the opposite party No.1's hospital on 25-06-2017 and surgery was done on 26-06-2017. On 30-06-2017 before getting discharged the complainant had met the opposite party No.2 and complained that there was no progress in his urination.

4. The consumer complaint presented by the complainant comprises of 63 paragraphs, of which the 17^thand 63^rdparagraph is the prayer part and it reads as "The complainant states that against opposite party No.2's promise, guarantee and advice, opposite party No.2 did not attend the surgery and left it to opposite party No.3. So, opposite party No.2 have made a false promise, guarantee and committed medical negligence allowing opposite party No.3 to conduct the medical surgery. The opposite party No.2 has committed imperfection in conducting the surgery. Thereby, the opposite party No.2 committed medical negligence and deficiency in service. For which, the complainant has lost his money and suffered mental agony and body pain. So, opposite party No.1 to 3 are liable to pay compensation as prayed for".

5. The inconsistencies or contradictions in the prayer part are:

"Opposite party No.2 did not attend the surgery".

"Opposite party No.2 has committed imperfection in conducting the surgery".

"Thereby the Opposite party No.2 committed medical negligence".

"So, the opposite party No.1 to 3 are liable to pay compensation".

6. The inconsistencies or contradictions in the averments are:

In the 6^thparagraph of the complaint it is stated that on 26.06.2017 the opposite party No.1 hospital did TURP + BNI on the complainant. But to the complainant's dismay, he (the complainant) learnt (to get knowledge from somebody / something) that opposite party No.2 did not attend the surgery and left it to opposite party No.3 against opposite party No.2's promise and advice. In the 53^rdparagraph of the complaint it is stated by the complainant that he was given with SPINAL anesthesia. So he could see (to get perceived by one's own senses) the doctor present, and the doctor who did surgery. The opposite party No.2 was not at all seen there by the complainant anywhere in the operation theatre. Opposite party No.2 and 3 lie together to conceal the truth mentioned in para 7 of legal notice.

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Exhibit-A1, B2 and B10 evinces that the surgery was carried out along with opposite party No.2; and No evidence to show but pleadings alone to say that opposite party No.2 has no role in the surgery. No allegations and no evidence against opposite party No.1 and 3 that they have omitted these things or committed these things as an act of medical negligence.

7. This Commission firmly believes that fault, causation and damages are the three keystones in any action based in negligence. In the medical negligence action there are two distinct types of case: those where the problem did not exist before the complainant was treated (the opposite party-doctor/hospital was the cause of the harm) and those where the harm or problem could have been prevented or improved upon by appropriate intervention by the opposite party-doctor/hospital. It is this latter category, is likely dealt in this complaint but not made out because what harm caused and in what intensity it was caused? By whom and how it was caused? Are the questions not raised and not answered either in the complaint or by way of evidence.

8. Factual cause and legal cause - Factual causation deals with the need to establish a casual connection of link between events of legal significance, namely the wrong in question and any detrimental effect on the complainant alleged to be the result of that wrong. Legal causation is the enquiry into proximity, remoteness and extent of liability. While factual causation is merely a dispassionate enquiry into what caused the complainant's condition. No wrong, No cause, No damages - so no case, no complaint and the one is dismissed without cost.

In the result, the Complaint is dismissed without cost.

Points for determination was drafted and typed by Member-2 and the rest was dictated by Member-2 and typed by the Steno-Typist, corrected and pronounced by us on 26-09-2024 in the open Commission.

(sd) (sd) (sd)

MEMBER-I MEMBER-II PRESIDENT Witness examined on the side of the complainant :

1. Mr. A.M.Subbaraj - Complainant - PW1

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Witness examined on the side of the opposite parties :-

1. Dr.S.V.Kandasamy -2^ndopposite party and on behalf of 1^stand 3^rdopposite parties -

RW1

Exhibits marked on the side of the complainant:- (Exh- A1 to A18)

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Exhibits marked on the side of the 2^nd opposite party and on behalf of 1^st and 3^rd opposite parties:- ( Exh- B1 to B12)

(sd) (sd) (sd)

MEMBER-I MEMBER-II PRESIDENT