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NANDAGOPAL & ANR
WRITTEN STATEMENT AND OBJECTIONS FILED BY 2ND RESPONDENT (OP) IN THE ABOVE CASE:1. The address stated in the cause title regarding this respondent, is not having full description and it is incomplete as to the department. 2. The complainant has not made Sri Siddartha Hospital & Research Centre a party in the proceedings and complainant is alleging against this respondent as if the Hospital belongs to this respondents. This is fully denied as false. Without impleading Sri Siddartha Hospital & Research Centre as a party the claim petition is bad for non-joinder of necessary party. 3. It is not within the knowledge of this respondent that complainant was admitted to the Respondent Hospital on 01-11-2011 for delivery since she was pregnant. Only Siddartha Hospital & Research Centre represented by its proper authority can disclose such aspects. This respondent in no way admitted complainant or tested complainant or advised complainant at the time of alleged admission date or even prior to it or even not suggested any caesarean
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surgery or not even advised at any subsequent dates to the complainant or any of her relative. 4. It is false to say that this respondent has advised the complainant to remove the uterus after surgery. After personally verifying with the records available with Sree Siddartha Hospital & Research Centre, B.H.Road, Agalakote, Tumkur-572107 by this rspondnt. It is found that Dr Omkara Murthy, Assistant Professor, Sree Siddartha Hospital & Research Centre, B.H.Road, Agalakote, Tumkur572107, is the main Surgeon who treated, advised, and operated caesarean surgery and live female baby was born at 8-15 pm. Placenta removed with difficulty with placenta accrete and postpartum haemorrhage (PPH) problems. This is being done under the supervision of 1st respondent and Dr Omkara Murthy. Later for treating such haemorrhage with hysterectomy operation, which is one and only treatment, in such emergent condition to save patient life, this respondent was called in and from the records and in actual reality this respondent was called in after the start of haemorrhage. 5. It is false to say that respondents have not consulted experts in treating the bleeding. The 1st respondent being expert in the field has adviced Dr Omkara Murthy to do Hysterectomy by taking help of this respondent, which is the proper treatment and procedure on such occasion and the patient was referred by Dr Omkara Murthy to ventilator support due to available ventilators were occupied in the Sree Siddartha Hospital & Research Centre. This respondent has cleared her entrusted work successfully and departed. This respondent has in no way expressed any helplessness
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to the complainant. This respondent not referred patient for ventilator. 6. The placenta is an organ that the uterine wall supply. to connects allow accreta the
developing fetus to mother's blood
nutrient is a
uptake, waste elimination, and gas exchange via the Placenta severe obstetric complication involving an abnormally deep attachment of the placenta, through the endometrium and into themyometrium (the middle layer of the uterine wall). The placenta usually detaches from the uterine wall relatively easily, but women who encounter placenta accreta during childbirth are at great risk of haemorrhage during its removal. Placenta accreta is very rarely recognised before birth, and is very difficult to diagnose. For Placenta accrete the one and only treatment is hysterectomy to save life of patient. 7. It is false to say that bleeding continued after hysterectomy surgery. The complete stoppage of bleeding observed during end of hysterectomy surgery. This respondent is not aware of why ventilator support is referred and it can be known only after impleading necessary parties. 8. The contents of para 4 of the complaint is herewith fully denied and also not within the knowledge of this respondent. However the following clarification is given regarding Hematoma which is misconceived to file this case. “A hematoma or haematoma, is a localized collection of blood outside the blood vessels, usually in liquid form within the tissue. Hematomas can occur within a muscle. Some hematomas form into hard masses under the surface
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of the skin. This is caused by the limitation of the blood to a subcutaneous or intramuscular tissue space isolated by fascial planes. This is a key anatomical feature that prevents such injuries from causing massive blood loss. In most cases the sac of blood or hematoma eventually dissolves; however, in some cases they may continue to grow or show no change. If the sac of blood does not disappear, then it may need to be surgically removed.” The complainant has not disclosed in clear terms why surgery conducted in bangalore and not produced any documents in proof of the same. The alleged surgery conducted in bangalore Hospitals is in no way related to previous surgery and treatment and complainant is put to strict proof of the same. 9. The contents of para 5 of the complaint is fully denied and there is no negligence from this respondent, this respondent is in no way responsible for the complainant’s expenses or sufferance. This respondent has not inflicted any mental or physical injury to the complainant. 10. The complainant alleges only one negligence about
non providing of ventilator equipment in Hospital. To allege such negligence, complainant has to implead Hospital management. Complainant cannot go against its staff. And this respondent is not entitled to give full details of it. 11. It is false to say that complainant has issued claim
notice to this respondent. This respondent has not received any notice nor it has been served on this respondent. It is not within the knowledge of this respondent about the reply given by 1st respondent.
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The alleged cause of action to the date of 01-11-2011
and subsequent date of notice dated 25-02-2012 as mentioned in complaint is not with any negligence on the part of this respondent. The risk involved in the surgery is not the creation of any medical professionals. Its inherent in the baby birth as elicited above. Before and during Surgery of Hysterectomy no lapse and negligence of this respondent is alleged in the complaint or can be traced out from the records of the case. Hence this respondent is not a necessary party to the claim petition. This respondent is indeminified by insurance policy with no. 423201/48/2012/27, valid from 19-04-2011 to 18-042012, with The Oriental Insurance Company Limited , BO Tumkur, TGMA Building, JC Road, Tumkur. Even if any alleged negligence is proved by complainant she may claim with insurer, after impleading them as necessary party. 13. A cause of action which is manifestly vexatious and
meritless, in the sense of not disclosing a clear rights to sue would require such complaint to be thrown out at the threshold for the reason no person would be entitled to inconvenience through the medium of the process of law. 14. This respondent further submits, that, the averments
which are not specifically denied or traversed hereby are deemed to be denied as false and complainant will be put to the strict proof of the same. This Defendant’s craves for kind indulgence of this Hon’ble Court and this Hon’ble Court may be pleased to allow this respondent to raise additional grounds, if any, at the time of hearing the suit.
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As per the guidelines issued in the following case
before supreme court, the medical negligence cases before consumer court should have prima facie allegations against Medical professionals to be proceeded with or else the complaint needs to be referred to civil court. The above complaint lacks in specific allegation against this respondent about the way in which this respondent made negligence. The point is fully elicited in Indian Medical Assn. vs. V.P.Shantha & Ors. (1995) 6 SCC 651, and in particular on the following observations: “It has been urged that proceedings involving negligence in the matter of rendering services by a medical practitioner would raise complicated questions requiring evidence of experts to be recorded and that the procedure which is followed for determination of consumer disputes under the Act is summary in nature involving trial on the basis of affidavits and is not suitable for determination of complicated questions. It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency in rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning (as in Chinkeow v. Government of Malaysia (1967) 1 WLR 813 P.C.) or use of wrong gas during the course of an anesthetic
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or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the Civil Court for necessary relief. We are, therefore, unable to hold that on the ground of composition of the Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed by the said Agencies for determining the issues arising before them, the service rendered by the medical practitioners are not intended to be included in the expression 'service' as defined in Section 2 (1)(o) of the Act. Wherefore the complaint is not maintainable and the Hon’ble court may be pleased to dismiss the petition against this respondent with cost in the ends of justice. Date:- 04-03-2013 Place:- Tumkur Respondent-2
Advocate for Respondent- 2
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