(Per Smt.Neelima Sant, Hon’ble President)
The Complainant had filed this complaint u/s 12 of Consumer Protection Act. 1986 for deficiency in Service by Respondents- doctors.
The case of the Complainant is that, one Anusayabai Ganesh Kuhire, wife of the complaint was admitted in the hospital of Res. No. 1 on 28.11.2011 she was referred to Tirupati Diagnostic Center i.e. Respondent No.2 for sonography. Respondent No.2 examined her & gave report on the very next day i.e. on 29.11.2011.
On 29.11.2011 Respondent No.1 operated the deceased and diagnosed that she was suffering from “ Obstruction with perforation (ileal/ileum) due to Strictureinileum” The deceased remained in the hospital as an indoor patient & discharged on 08.12.2011 But she did not feel well. So again she approached responadent No.1 on 18.12.2011 Respondent advised to take her for further treatment to a specialist & handed over reference letter.
On 19.12.2011 the Complainant took deceased to Seth Nandlal Dhoot Hospital, Aurangabad where several tests were Carried out. In C.T. Scan of Abdomen it was found that “moderate left pleural effusion with collapse consolidation of the underlying lung parenchyma.” Neither Respondent No.1 in his final diagnosis nor Respondent No.2 in his ultrasound report opined about this. This amounts to negligence on the part of both the Respondent, as per the allegation.
The Complainant being a poor person could not bear the expences of Dhoot Hospital & shifted the deceased to Shri Sainath Rugnalaya, Shirdi on 20.12.2011 where in the deceased was diagnosed with ‘post operative enterocutaneous fistula. As there was no change in the condition of deceased the Complainant saught discharge on 09.01.2012.
Lastly the Complainant was advised to take the deceased to Govt. Hospital, popularly known as Ghati Hospital, Aurangabad On 21.01.2013 she was admitted, certain tests were carried out. Finally one Dr. Saif wrote a letter to Respondent No.1 for providing Histopathology Evaluation Report of the resected ileal segment. But Respondent No.1 failed to provide the same. So doctors of Ghati Hospital were forced to follow trial & error method to which deceased did not respond. At last on request of relatives discharge was given on 08.03.2012 & unfortunately Anusayabai died on 14.03.2012.
The Complainant says that gross negligence can be attributed to the handling of deceased which is evident from the post operative reports. Which says that a fistula a product of negligent operative & post operative treatment developed and a wound through which faeces were passing. Moreover Respondent No.2 failed to diagnose collapse of left lung. Respondent No.1 also did not send the dissected ileum for histo-pathology evaluation which could have helped in deciding the line of treatment.
The Complainant issued legal notice to both the respondents to which Respondent No.2 only replied. The complainant is claiming Rs. 10,00,000/- as Compensation from Respondent No.1&2 jointly & severally.
The Complainant has filed all the medical papers relating to treatment given to the deceased in Dr. Misal Hospital, Seth Nandlal Dhoot Hospital, Shri Sainath Hospital and Ghati Hospital Aurangabad & Tirupati Dignostic Center.
Both the respondents appeared before Froum & resisted the claim. It is contended by Respondents that the deceased was brought to his hospital on 28.11.2011 in a precarious condition. She was in shock and B.P was 50 ml of mercury. The disease of the patient was in advance stage. Her condition was explained to the Complainant & other relatives & High risk consent was obtained from them. Deceased was suffering from perforation peritonitis with septicemia which is a known medical complication. It is further contended that in such cases surgery is a must. Sonography report showed that there had accumulated about a liter pus in her body & it was medical emergency. So he operated on Anusuyabai on 29.11.2011 & did his best to cure the disease. She was Kept in well equipped hospital & was attended by trained staff. Respondent No.1 who is a qualified Surgeon performed the surgery. But the complainant & other relatives were negligent regarding treatment. They delayed decision of surgery. For no reason they shifted the patient from hospital to hospital. Proper care for hygiene, nutrition is not taken. All these factors have adversely affected the health of the deceased.
All the allegations are made in ignorance of medical Complications. There is no iota of truth in allegations.
Lastly Respondent No.1 prays that the complaint be dismissed with heavy cost.
Respondent No.2 contended in his written version that deceased Anusayabai was referred to him to conduct sonography of abdomen & x-ray of abdomen in standing position. to R/o intestinal perforation & obstruction. He conducted the tests accordingly. The result showed findings of intestinal perforation which is a medical emergency.
After receiving the notice of the complainant he reviewed the x-ray. It clearly show the findings of intenstinal perforation Both phrenic cardipohrenic angles are clear & the visualized lung fields are clear. So the allegation of missing the lungs collapse & pleural effusion is absolutely wrong.
The Complainant contended that C T scan conducted later on show collapse of lungs. It is clear that the said complication must have developed subsequently. Any patient can develop such complications later on especially when patient is in bad condition. All these things were brought to the notice of the complainant in reply. But the complainant has unnecessarily dragged the Respondent No.2 before the Forum. Lastly the Respondent No.2 Prays that Complaint of the Complainant be dismissed with cost.
Heard Learned Conusel Shri J.I.Lahore, for the Complainant and Learned Counsel Shri S.B.Deshpande for Respondents at length Both the parties also placed written arguments on record. Perused all the documents filed by the parties. Following points arise for our consideration & we answer them accordingly.
Points Answer.
Whether it is proved that there was
Medical negligence or Deficiency
in service by Respondent No.1 In the negative
Whether it is proved that there was
Medical negligence or Deficiency in
Service by Respondent No.2 In the negative
What Order? As per final order
Reasoning to point no.1&2
The learned Counsel for the complainant contended that deceased Anusayabai was operated in the hospital of Respondent No.1 on 29.11.2011 She was suffering from obstruction with perforation. On 08.12.2011 she was discharged but did not feel well. Again On 18.12.2011 Anusayabai was brought to the Misal Hospital & Respondent No.1 advised to take her to a specialist On 19.12.2011 C.T. scan of abdomen in Dhoot Hospital was carried out and it was found that “moderate left pleural effusion with collapse consolidation of lung” was there. Respondent No.1 & 2 did not opined about the same in the report. On 20.12.2011 decesed was again shifted to Sainath Rugnalay, Shirdi. There deceased was diagnosed with post operative fistula. As there was no change, in hert condition, discharge was taken On 09.01.2012 and lastly deceased was shifted to Ghati Hospital, Aurangabad. on 20.01.2012. The doctor asked for Histopathology Evaluation Report of the resected ileal segment but Respondent No.1 could not provide the same. and doctors of Ghati were forced to follow trial & error method. Fistula is a product of improper and negligent operative & post operative treatment and there was wound through which faeces were passing . The respondent did not inform the complainant about the incurable nature of the disease. The Respondent No.1 should have sent the Specimen removed by surgery for Histopathological test. All these facts indicate that there was gross negligence in handling of deceased. The learned counsel referred number of Judgements in his written argument below as.
Achutrao Khodwa Vs. State of Mah. 1996 (2 ) SCC, 634
Smt. Savita Garg Vs. Director National Heart InstituteAIR 2004 S.C. 5088
Nizam’s Institute of Medical Sciences Vs. Prashant 2009 Cri. L.J. 3012 S.C.
Jacob Mathew Vs. State Of Punjab 2005 Cri. L.J. 3710 S.C.
N.K. Kohli Vs. Bajaj nursing 1992 (2) CPR 79 Bhopal
In view of the decisions cited above he prayed that complaint be allowed.
Shri. Deshpande Learned counsel for Respondents submitted that Respondent No.1 is well qualified doctor, he is M.S. in General Surgery. His hospital is well equipped hospital with trained staff. Complainant no where alleges that he was not qualified to treat the deceased. Deceased was brough to his hospital in a precarious condition. She was in shock and B.P.was 50 ml of mercury. Her serious condition was explained to relatives She was suffering from perforation peritonitis with Septecemia which is a well known medical Complication & surgery was a must. It was medical emergency. High risk consent was obtained & Operation was performed which was uneventful. The report showed that there accumulated about one liter pus in her body. The sample is only preserved and sent to histopathology Laboratory when T.B. or cancer is suspected and not in each & every case. After operation proper care was being taken & Patient was improving. But relatives of the deceased were negligent towards paitent. They took discharge on request against medical advice. For no reason they shifted the patient form one hospital to other & this adversely affected her health & unfortunately she died on 14.03.2012. There is absolutely no truth in the allegations made against Respondents. Learned counsel relied on
III (2006) CPJ 293 (N.C) Sukumari Sahu Vs. Tata Memorial Hospital
II (2006) CPJ of (N.C) B.Anthony Raj Vs. S.H.Thomas Hospital
III (2005) CPJ 9 (S.C) Jacob Mathew Vs. State Of Panjab
I (2006) CPJ 250 Sevakram Vs. Dr. Prakash Shah & Other medical information & literature regarding peritonitis. On the basis of which he prayed to dismiss the complaint.
On perusal of complaint it seems that the allegations against respondents are three fold.
Post operative fistula developed due to improper & negligent operative & post operative care.
Respondent No.1 did not sent the dissected ileum for histopathological evaluation which would have helped in deciding the line of treatment.
Respondents No.1&2 failed to diagnose collapse of left lung.
The Case papers show that Deceased Anusayabai was admitted in the hospital of Respondent No.1 on 28.11.2011 in very precarious condition. Her blood pressure was 50 mm of hg & pluse 120/min. She was suffering from “perforation peritonitis with septicemia”. Respondent No.1 has obtained the high risk consent of the relatives on case papers in vernacular which reads as under. “ मेव्हणीची तब्येत अत्यंत सिरीयस असल्याची पूर्ण कल्पना दिली आहे व अजाराविषयी समजावून सांगितले आहे व पुढील उपचार करण्यास संमती देत आहे.” Similar consent was also obtained on consent letter for operation. On which the thumb impression of deceased & sigh of complainant is there. The case paper further show that operation was uneventful & General Condition (G.C) of patient was improving. The radiological report show that there was more than 1000 cc free fluid in abdomen. Case papers also disclose that antibiotics & medicines & blood were regularly administered to the patient. Flatus & motion passed smoothly & wound was healthy. The learned counsel for the respondents has cited many references in medical Journals showing complications of peritonitis. It is clear from all this literature that One of the post-operative complications of peritonitis mentioned is fecal fistula & further it is mentioned that the number of perforations & development of fecal fistula are the factors which significantly affected Mortality. Usually peritonitis occurs when an infection develops in the peritoneum from a perforation or hole in the stomach, intestine, appendix. Patient also can get peritonitis from complications other than illness In all these cases bacteria can infect the peritoneum. The treatment usually includes Surgery & antibiotics. Peritonitis is potentially life threatening condition.
Respondents No.1 is M.S. in general surgery & thus is qualified to conduct such operation. In present case it was an emergency & accordingly Respondent No.1 carried out the surgery. The operation was successful and general condition of patient was improving. The proper post operative care was being taken as is clear from case papers. But on 18.12.2011 the relatives of the deceased took discharge at their own risk on request. It is clearly mentioned that. “आम्ही आमच्या सल्ल्याने व जिम्मेदारीवर डॉक्टरांच्या सल्ल्याविरुध्द रुग्णास घरी किंवा दुस-या दवाखान्यात नेत आहोत. (आर्थिक अडचणीमुळे)” There after deceased was shifted to Seth Nandalal Dhoot Hospital, Aurangabad, on 19.12.2011. Form there again she was shifted to Shri. Sainath Hospital shirdi on 20.12.2011. Her condition could not improve so discharge was taken on 09.01.2012. At last she was admitted to Ghati on 21.01.2012 & took discharge on request on 08.03.2012. The C.T.Abdomen report of seth Nandal Dhoot Hospital also has no mention about post operative fistula. It is only the case paper dated 20th December of Sainath Hospital Shirdi that says about post operative fistula. Under such circumstances we find much force in the arguments advanced by the learned counsel for the respondent that shifting of patient from one hospital to another & improper hygine has adversely affected the heath of thedeceased. Especially when fecal fistula is one of the known post-operative complications of peritonitis.
Regarding the second allegation that Respondent No.1 did not send the dissected ilem for histopathological evaluation. It seems that one Mr. saif from Ghati Hospital has written a letter to Respondent No.1 demanding histopathological report. when the condition of patient is detiriorated. But the learned counsel for the Respondent submitted that Respondent No.1 did not at all suspect tuberculosis or malignancy. Sample is only preserved & sent to histopathology laboratory only when T.B. or cancer is suspected & not in each & every case. The medical literature filed by the Respondent also do not state the necessity of histopathological evaluation. Complainant did not adduce any sort of evidence in the form of expert evidence or no medical literature was brought showing that practices adptod by Dr.Misal are not in accordance with the established medical procedure. Mere allegations are not sufficient to show that there was medical negligence.
Thirdly the complainant allege that Respondent No.1&2 failed to diagnose collapse of left lung. Respondent No.1 only referred the patient to Respondent No.2 who is a radiologist for sonography of abdomen & X-ray of abdomen in standing position of R/o intestinal perforation or abstruction. Accordingly Respondent No.2 performed the test & submitted the report. The photo copies of the sonography plate & its printed report is filed by the complainant himself which do not reveal collapse of left lung. The C.T.abdomen report of Seth Nandalal Dhoot Hospital do speak about collapse of left lung. But printed report is only on record & not the copy of the plate. Under such circumstances it was necessary for the complainant to adduce expert evidence or examine the doctor of Dhoot Hospital to show that there was collapse of lung from beginning but Respondent No.1&2 failed to diagnose the same.
The learned counsel relied on many Judgements of Superior Coutrs.
The learned advocate for the complainant has referred following case law in his written argument.
Nizam’s Institute of medical sciences Vs. Prashant S. Dhananka
2009 Cri.l J 3012 S.C
In this case pre-operative tests have definitely revealed a huge tumor & erosion of ribs & vertebrae which necessarily required intervention by Neuro-surgeon & further investigation which was not done and the patient immediately after operation developed Paraplegia. Thus the facts are totally different & the ratio of the Hon’ble Apex court is not applicable to the present case.
Savita Garg Vs. National Health Institute 2004 AIR S.C. 5088
In this case it was held that “Once evidence is produced to satisfy that patient died because of lack of proper care & negligence, then the burden lies on the hospital to justify that here was no negligence on the part of the treating doctor.” In the present case no evidence is produced to show lack of care or negligence. Moreover the case papers show that proper care was taken. So the cited case law is not applicable.
Achyutrao Khodwa Vs. State Of Maharashtra
The Hon’ble Apex Court has held that “Courts would indeed be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability. As long as doctor acts in a manner accepted to the medical science & attends the patient carefully, it would be difficult to hold doctor guilty of negligence”. in fact this observeation favours the respondent instead of complainant.
The learned advocate for the respondent relied on following decisions of the Hon’ble Apex-Court & Hon’ble National commission.
III (2005) CPJ 9 (S.C)
Jacob Mathew Vs. State of Punjab
This decision is relied on by both. the parties. The Hon’ble Apex Court has held that “Simple lack of care, error of judgement or accident is not a proof of negligence. Availability of better alternative course of method but not accepted by the doctor or the doctor does not possesses highest skill does not constitute negligence”.
III (2006) CPJ 293 (NC) Sukumari Sahu Vs. Tata Memorial Hospital
And
II (2006) CPJ 80 (NC)
B.Anthomy Vs. State Thomas Hospital
In both the cases Hob’ble National Commission has held that “No medical literature in support of allegation-No expert evidence-No medical negligence is proved.”
Appeal No.1099/2005
Dr.S.S.Misal Vs.Noorani begum & other
This is the Judgement of Hon’ble Maharashtra State Commission Circuit Bench at Aurangabad The appeal was filed by the present respondent. The deceased was also suffering from perforation & peritonitis with toxaemia. The Hon’ble commission held that “Complainant did not lead any evidence with supportive medical text to prove negligence. It is not for the doctor to prove that he was not negligent.” & reversed the order of the forum below.
From all the discussion regarding facts of the case & case law referred we are of the opinion that the complainant has utterly failed to prove the negligence or deficiency in service at the hands of res.no. 1 or 2 So we answer the point no’s 1 & 2 in the negative & pass the following order.
Order
The Complaint is Dismissed.
No order as to cost.
