Dr. Vincent C.K. vs Jessy Jayapal and Others

THIS revision petition has been filed by the petitioner/opposite party against the order dated 7.7.2011 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ''the State Commission'') in Jessy Jayapal v. The Administrator, San Joe Hospital, Perumbavoor and others, Appeal No. 214 of 2004, by which, while allowing appeal, order of District Forum dismissing complaint was set aside and OPs were held liable for negligence and matter was remanded back to District Forum for determining compensation. Brief facts of the case are that complainant/respondent No. 1 filed complaint alleging negligence and deficiency in service on the part of the opposite parties 1 to 3 in treating the complainant at the first opposite party''s hospital. The complainant alleged that there occurred medical negligence on the part of 3rd opposite party Dr. Vincent C.K. in conducting surgery on the complainant at the first opposite party Sanjo Hospital, Perumbavoor and there occurred negligence in fixing the implant for the fracture midshaft right humerus along with same - sided comminuted Supra Condylar fracture with inter condylar extension. It is also alleged that the complainant sustained permanent disability on account of the medical negligence in fixing the implant for the fracture and that as a result of the disability, the complainant suffered mental agony, inconvenience and financial loss. Thereby the complainant claimed compensation at Rs. 3 lakhs from the opposite parties 1 to 3.

OPS . 1 and 2 denied negligence on their part, but admitted that surgery was performed by OP3/petitioner. OP3 filed written statement before District Forum denying negligence on his part. It was further contended by him that first surgery was done by Mr. Dr. M.C. John attached to Sanjo Hospital, Perumbavoor and there occurred implant failure which was corrected by a second surgery by replacing the failed implants. It was further submitted that after the second surgery, complainant was not having any difficulty and prayed for dismissal of complaint Learned District Forum after hearing both the parties dismissed complaint against which, appeal field by the complainant was allowed by learned State Commission vide impugned order against which, this revision petition has been filed. Heard learned Counsel for the parties at admission stage and perused record.

LEARNED Counsel for the petitioner No. 1 submitted that, as per hospital record, first surgery was not performed by the petitioner and learned State Commission has committed error in holding negligence on the part of petitioner, hence, revision petition be allowed and impugned order be set aside. Learned Counsel for the respondent No. 1 admitted that first surgery was not done by the petitioner, but as he was seen there, complainant attributed that surgery was done by the petitioner and in such circumstances, he has no objection if revision petition is allowed. Learned Counsel for the respondent Nos. 2 and 3 also admitted that first surgery was not done by the petitioner, but it was done by Dr. M.C. John and he has no objection if revision petition is allowed to the petitioner''s extent.

IN the complaint, complainant alleged that first surgery was conducted by the petitioner/OP3, but this fact was denied by the petitioner from the inception. After going through the medical report which was filed by respondent Nos. 2 and 3, learned Counsel for the respondent No. 1 admitted that by inadvertence, it was shown that surgery was done by the petitioner, whereas actually surgery was done by Dr. M.C. John. Learned Counsel for the respondent Nos. 2 and 3 also admitted this fact as per operation note of the hospital record, according to which, Dr. M.C. John performed operation and Dr. Mathew was Anesthetist and Rani and Limi were Theatre Nurse. When all the respondents admit that first surgery was not conducted by the petitioner, by no stretch of imagination, petitioner can be held responsible for any negligence for first surgery on the body of the complainant/respondent No. 1 in such circumstances, revision petition is to be allowed and order of learned State Commission to the extent of petitioner''s liability is to be set aside. Consequently, revision petition filed by the petitioner against the respondents is allowed and impugned order dated 7.7.2011 passed by the learned State Consumer in Jessy Jayapal v. The Administrator, San Joe Hospital, Perumbavoor and others, Appeal No. 214 of 2004 (supra), is set aside to the extent of petitioner holding him guilty of negligence and deficiency and complaint stands dismissed against the petitioner. There shall be no order as to costs.