THIRUMATHI R. DIVYA & ORS. vs TCR MULTISPECIALITY HOSPITAL & ORS.

The instant complaint is a filed by three complainants- the husband, wife and their child namely, Thirumathi R. Divya, as Complainant No. 1, Thiru Dilipkumar, as Complainant No. 2 ( husband of Complainant No 1) and their daughter Drishyan, a minor about 22 months of age, as Complainant No. 3. Complaint is filed against the OPs, namely, TCR Multispecialty Hospital, OP 1 and Dr. C. S. Kailash,(OP-2) an Orthopaedic Surgeon oworking at OP-1. The complainants made MIOT International Hospital (Madras Institute of Orthopaedics and Traumatology) Hospital, as OP 3 (in short, MIOT), a pro-forma party.

At the admission stage, heard the arguments from Mr. V. Elanchezhiyan, the learned counsel for the complainants. He submitted that all the three complainants are victim of medical negligence committed by the OPs. The complainants No.1 and 2 suffered road accident on 15.8.2014. Both the complainants 1 and 2 were admitted in OP 1/hospital on 15.8.2014, treated by OP-2 for fracture injuries and discharged on 23.8.2014.

Few days after discharge, both the complainants suffered infection of operated site and took treatment in different hospitals, incurred lot of expenses.

The Complainant No. 3 is represented through her next friend, mother, complainant No. 1. At the time of accident Complaint-1 was carrying pregnancy of 22 weeks. It is alleged that during treatment of fracture at OP-1 hospital, there was lack of care towards the pregnancy, it resulted complications like IUGR (intra uterine growth retardation) and premature delivery. Hence, alleging medical negligence on the part of OPs, complainants filed this complaint. The counsel also argued on the I.A. No. 1014 of 2016 for seeking permission under Section 12(1)(c) of the Consumer Protection Act, 1986.

Learned counsel for the complainants has taken a suit under Section 12(i)(c) of the Consumer Protection Act, 1986 and submitted that since all the complainants sustained injuries in the same accident and were treated in the same hospital, they have same interest in the outcome of the consumer complaint. It is contended that the causes of action of the complainants is the same because the complainants had developed hospital acquired infection i.e. nasocomial infection as a result of lack of sanitation and sterilization of the hospital infrastructure. It is, thus, argued that this is a fit case for grant of permission under Section 12(1) (c) of the Consumer Protection Act, 1986 to pursue the joint complaint.

We find no merit in the above contention merely because the complainants sustained injuries in the same accident and treated in the same hospital, will not give rise to a case for grant of permission under Section 12(1) (c) of the Consumer Protection Act, 1986.

On perusal of record, it transpires that the complainant No. 1 had suffered segmental fracture of right femur and was treated for the same whereas complainant No. 2 was treated for comminuted fracture proximal tibia with tibial tuberosity avulsion fracture, as also the fracture of right clavicle. Whether or not, there was deficiency in treatment in respect of surgeries of the complainants, are two distinct causes of action. It is not necessary that the treating doctor was negligent in treating one patient, it is to be assumed that he was negligent in the treatment of second patient also. So far as the plea of negligence to the extent of not keeping the infrastructure properly, sterlized and sanitated is concerned, plea of the complainants is not acceptable for the reason that undisputedly both the complainants had allegedly developed infection at fracture site, after a lapse of considerable period. The complainant No. 1 is alleged to have developed same fracture four months after the discharge whereas the complainants No. 2 is stated to have developed infection almost after 12 months from the discharge.

Therefore, in order to establish that whether it was nasocomial infection or the infection was the result of lack of sterilization and sanitation in the hospital infrastructure, it would require separate evidence in both the cases.

Thus, in our considered opinion, this is a clear case of mis-joinder of parties and causes of action, which does not fall within the parameters of Section 12(1) (C) of the Consumer Protection Act, 1986.

In view of the above discussion, we decline to grant the permission under Section 12(1)(c) of the Consumer Protection Act, 1986, to proceed jointly with the complaint. The application is dismissed. As a consequence, the complaint is rejected on the ground of misjoinder of parties and causes of action. It is, however, clarified that this shall not prevent the complainants from filing the consumer complaint before the appropriate fora on the same cause of action.

With this finding, the complaint is disposed of.