PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant joined the service with the Opposite Party No.1 as a temporary watchman on probation for period of one year w.e.f..23/12/1982 in the grade of 325-8-389-EB-9-461 plus allowances as admissible under the Port Trust Rules. Even today also, the Petitioner is holding the very same post of watchman with a basic pay of 6,060/-. For the last several years, the Complainant and his family members are supposed to get medical facilities at the Port Trust Hospital at Wadala (East), Mumbai. The staff and doctors of the said hospital are employees of Opposite Party No.1. The Complainant and his family members are getting medical facilities free of charge from Bombay Port Trust Hospital. The expenses for the same are born by Opposite Party No.1.
2) The Complainant’s wife by name Suruchi was admitted in the Opposite Party No.1 Hospital on 26/11/2004 at about 2 to 3 p.m. as she was facing problem of omitting. Opposite Party No.2 is the Chief Medical Officer of Opposite Party No.1. Previously the Complainant’s wife was taking medical treatment at the very same hospital for about 2 years for diabetes. The Complainant’s wife was also suffering form urine stone about 2 years prior to the date of her death. She was provided medical treatment in the aforesaid hospital and after treatment she was cured. It is submitted that the Complainant’s wife expired on 27/11/2004 in Opposite Party No.1 Hospital. Opposite Party No.2 furnished necessary report of death under the provisions of the Coroner Act. Original case papers are with Opposite Party and this Forum may call upon the Opposite Parties to produce all original case papers with reference to the said indoor patient No.5774. The Police Authorities of Wadala Police Station referred the case for post mortem to J.J. Hospital. Post Mortem was conducted on the very same day at J.J. Hospital and concerned Dr. S.B. Wathare gave a cause of death under Certificate bearing No.80993 in which it is mentioned that death was due to “DM with Myocardial Ischemia with Hepato Megaly (natural).” The Complainant produced copy of the cause of death certificate alongwith complaint at Exh.‘D’.
3) On the same day i.e. on 27/11/04, the Complainant made complaint to Opposite Party No.1 and forwarded its copies to Chairman and Dy. Chairman as well as Chief Security Officer, Chief Vigilance Officer and Wadala Police Station. It is grievance of the Complainant that after admission of his deceased wife in the Opposite Party No.1 Hospital, the doctor on duty has not attended her inspite of being in the serious condition. Senior Doctor by name Mudassar was also informed but he has not attended the patient. The patient was admitted by Dr. Pallavi. In such circumstances, the Complainant made grievance about the negligence on the part of doctors and requested to take immediate action.
4) Inspite of making complaint to various authorities, there is no response from the Opposite Parties. Opposite Party No.2 was negligent and was sitting tight over the entire negligence rendered by the Opposite Parties. In such circumstances on 11/02/2005, the Complainant approached Wadala Police Station and requested for providing a copy of the FIR and also for taking action against the concerned negligent doctor. The Complainant also made an application for getting Accidental Death Report which was supplied to him on 17/02/2005. On 17/05/05, the Complainant received reply from Sr. Police Inspector of Wadala Police Station, that the Complainant may take necessary action against the doctor.
5) In the mean time, the Complainant made an application to the Opposite Parties praying to hand over the entire case papers regarding the medical treatment which was given to his wife. The Opposite Parties gave reply by a letter dtd.10/03/05, stating that hospital record will be made available to the Court or Police only and it cannot be provided to the Complainant. Thereafter, the Complainant through his advocate made a representation to the Opposite Party for providing necessary case papers. Thereafter the Opposite Parties made available to the Complainant medical record. According to the Complainant, he has fully satisfied that there is medical negligence on the part of Opposite Parties and consequently, there is deficiency in services rendered by Opposite Parties. It is contention of the Complainant that necessary proper medical treatment was not given to his wife. The Complainant’s wife was regular patient of the Opposite Party and therefore, Opposite Parties were aware about the medical history of the patient. It is alleged by the Complainant that Opposite Parties have prepared medical case papers afterwards. It is recorded in the case paper that patient was breathless and she was having problem of Sweating but no necessary treatment was offered. ECG was not taken at appropriate stage. Even though patient was unconscious, the concerned doctor never turned throughout the night and on the next day till 8.30 a.m. morning. At 8.30 a.m. the patient was shifted to ICU, which clearly shows that there is negligence on the part of Opposite Party. The chart maintained by the nurses etc. disclosed that pulses were feeble at 4.30 and blood pressure was drastically reduced. There was delay on the part of Opposite Party in shifting the patient to ICU for taking necessary action. Cardiologist and Urologist were not consulted. Relative of the patient never informed about the development of the patient. According to the Complainant, if timely treatment could have provided and expert doctor’s treatment, could have saved life of his deceased wife. But on account of negligence on the part of Opposite Parties his wife expired in the hospital of Opposite Party No.1. Therefore, the Complainant has filed this complaint.
6) The Complainant has prayed to direct Opposite Parties to pay compensation of Rs.15 Lacs to the Complainant and he has also prayed for any other relief as this Forum may deem fit and proper.
7) Opposite Party No.1 & 2 have filed common written statement and thereby resisted claim of the Complainant contending interalia that the Complainant is not a ‘Consumer’ and there is no deficiency in services on the part of Opposite Parties. It is submitted that medical services rendered by B.P.T. Hospital to the Complainant’s wife were totally free of any charge. Therefore, services rendered by BPT Hospital do not fall within the ambit of ‘service’ under Sec.2(1)(o) of the Consumer Protection Act. As such, present complaint is not maintainable under the Consumer Protection Act. The Complainant is not a ‘Consumer’ and therefore, complaint deserves to be dismissed.
8) It is submitted that complaint is bad for non joinder of necessary parties. In this complaint the Complainant has not joined the concerned Dr. Syed Muddassir as a party and therefore, complaint is labial to be dismissed.
9) It is submitted that doctors of BPT Hospital who gave treatment to the Complainant’s deceased wife are competent doctors and they exercised all reasonably possible skill and care in the discharge of their duties. In the present case, failure to achieve success was not because of negligence of doctors but because of factors beyond the professional man’s control and there was no deficiency in service provided by the Opposite Parties. Therefore, complaint is liable to be dismissed.
10) It is submitted by Opposite Parties that on 26/11/2004, the Complainant’s wife was admitted in B.P.T. Hospital at about 2.30 p.m. with history of fever for three days, persistent vomiting since 25/11/2004, and stoppage of Human Actrapid. She was known case of Diabetes Mellitus and she was taking treatment for diabetes for a period of 2 years, i.e. from June, 2003 in B.P.T. Hospital and before that in private. She had not taken her Diabetes treatment i.e. Insulin/Tablets for the past 3 to 4 days when she was admitted in B.P.T. Hospital on 26/11/2004. There was no history of loose motion, no history of chest pain or no urinary complaints. On examination, she had mild dehydration her vital parameters were Pulse 96, B.P. 90/70. Her clinical diagnosis was Diabetes Mellitus with fever. She was treated with I.V. Fluids two bottles of normal saline, one ringer lactate injection, omnatex injection, injection Rantac was given and her blood was sent for investigation. Reports received within one hour which is as follows: Blood sugar 347, Serum Acetone Absent, Serum Bil 3.3, Blood Urea 52. Serum Creatinine 2.2 ECG normal. So her clinical impression was uncontrolled Diabetes Mellitus with fever cause of fever to be evaluated. At 5 p.m., she was started on 5% dextrose Saline with human actrapid. At 2 a.m. in the morning, she was given injection Lasix and catheterization was done, since urine output was less. She was seen by Medical Officer on call duty Dr. Syed Muddassir at 2.15 p.m., 5.00 p.m. and 7.30 p.m. and necessary treatment was started immediately after admission.
11) Opposite Parties have relied upon medical literature in support of their contention that risk associated with uncontrolled diabetes is higher. The Complainant’s wife was having diabetes from June, 2003, she was taking treatment for diabetes in B.P.T. Hospital and before that in private hospital. Before admission in the B.P.T. Hospital on 26/11/04 for about 3-4 days she had stopped taking treatment for diabetes i.e. Insulin/Tablets. Relying upon the medical literature, it is submitted that diabetes ‘Diabetes is a Cardiovascular Disease’. It is submitted that after death of Complainant’s wife post mortem was conducted and it is found that her death was due to Diabetes Mellitus Myocardial Ischemia with Hepato Megaly (natural). According to the Opposite Party, the Complainant’s wife met with natural death. The complaint is misconceived and devoid of merit, therefore, liable to be dismissed.
12) Opposite Parties have specifically denied allegations that doctors have not attended the Complainant’s wife after admission till next day morning. Relying upon the medical case papers, it is submitted that as per the indoor case papers Dr. Muddassir have seen the patient at admission on 2.15 p.a., 5.00 p.m. and then at 7.30 p.m. in the ward on 26/11/04 alongwith Dr. Pallavi and instructions were given to Dr. Pallavi for further treatment. Dr. Pallavi as then seen patient at 02.10 a.m. on 27/11/04 Dr. Muddassir had seen again the patient at 8.00 a.m. on 27/11/04. It is submitted that all necessary treatment was given to the Complainant’s wife and there is no substance in the allegation made by the Complainant.
13) It is submitted by the Opposite Party that death of Complainant’s wife took place within 24 hours after admission in the B.P.T. Hospital. Therefore, as per the provisions of the Coroner Act, dead body was sent for post mortem examination. Further it is submitted that on the same day i.e. 27/11/2004, indoor case papers, investigation report referral notes as well as O.P.D. case papers of deceased patient Smt. Suruchi Nangare were sent to the Police Authorities and therefore, question of preparing case papers afterwards does not arise. The Opposite Parties have denied allegations made in that respect and further submitted that as already case papers were provided to the Police Authorities, no case papers were provided to the Complainant on his demand. The Opposite Parties have stated about the treatment given to the Complainant’s wife and denied allegations of negligence and deficiency in service made by the Complainant contending that complaint is liable to be dismissed with cost. In support of written statement Dr. (Mrs.) Aarti Ugaokar has filed her affidavit.
The Complainant has filed rejoinder and thereby denied allegations made in the written statement. During pendency of this complaint on the basis of application made by the Complainant medical case papers were sent to the Dean, J.J. Hospital, for exert opinion. It appears that Dean, J.J. Hospital, formed committee of 3 members for giving expert opinion. Medical Superintendent, J.J. Hospital, alongwith his letter dtd.11/09/2007, submitted expert opinion. After receipt of the expert’s opinion on 22/01/2008, the Complainant made an application for cross-examination of the expert. This Forum after hearing both the parties rejected the Complainant’s application for cross-examination of expert vide order dtd.23/10/2008. evision Application No.103/2008 preferred by the Complainant against aforesaid order of this Forum was dismissed by the Hon’ble State Commission on 14/11/08. The Opposite Parties have filed their written argument. The Complainant has also filed his written argument. Heard Ld.Advocate Sau. Warunjikar for the Complainant and Ld.Advocate Shri. Parab for the Opposite Party and then the matter was closed for order.
14) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved negligence and deficiency in service on the part of Opposite Parties
while treating Complainant’s deceased wife ?
Findings : No
Point No.2 : Whether the Complainant is entitled for compensation or any Other reliefs prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are undisputed fact that the Complainant is serving a watchman in B.P.T. The Complainant had produced copy of appointment order alongwith complaint at Exh.‘A’. Averments made in the complaint that for about 2 years prior to death, Complainants wife was taking medical treatment for diabetes in B.P.T. Hospital and she also took medical treatment for urine stone in the said hospital are admitted by the Opposite Parties. B.P.T. Hospital is run by Opposite Party No.1 and payment all doctors and other medical staff working in B.P.T. Hospital are paid by the Opposite Party No.1.
It is undisputed fact that on 26/11/04 at about 2.30 p.m. the Complainant’s Mrs. Suruchi was admitted in B.P.T. Hospital, Wadala (E), Mumbai. Opposite Party No.2 is the Chief Medical Officer of B.P.T. Hospital. According to the Complainant, his wife was facing problem of omitting and so she was admitted in the hospital. According to the Opposite Party, at the time of admission, Smt. Suruchi – wife of Complainant, in B.P.T. Hospital she was examined by Dr. Muddassir and that time she had fever for last 3 days and was continuous omitting. The patient was known case of diabetes and she had stopped taking medicines for diabetes about 2-3 days. Opposite Party have produced copies of the medical case papers.
Ld.Advocate for the Complainant has submitted that after admission of patient Suruchi in the B.P.T. Hospital, Doctors failed and neglected to attend patient even though the patient was in serious condition. No proper treatment was given to the patient. After admission concerned doctor’s did not visit the patient till next day morning. Urologist and Cardiologist were not consulted. It is submitted that due to the negligence and deficiency in service on the part of Opposite Party, patient – Suruchi expired in the hospital on 27/11/08.
Ld.Advocate for the Opposite Party submitted that the Complainant has made false allegations against the Opposite Party without any basis. The Complainant had even lodged complaint to the police and according to the Complainant, Sr. P.I. informed him to take independent action against the doctor. It is submitted that after admission of patient – Suruchi in B.P.T. Hospital, proper treatment was given. Dr. Muddassir attended the patient on 26/11/04 at 2.15 p.m., at 5.00 p.m. and at 7.30 p.m. Alongwith Dr. Pallavi, Dr. Pallavi gave treatment as per instruction of Dr. Muddassir. Dr. Pallavi had seen the patent at 2.10 a.m. on 27/11/04 and at 10.00 a.m. on 27/11/04. In support of his contention, Ld.Advocate for the Opposite Party has referred to the medical case papers.
On the basis of application made by the Complainant all the medical case papers were sent to the Dean, J.J. Hospital, for expert opinion and Medical Superintendent, J.J. Hospital, submitted expert opinion.
It appears from that Dean, J.J. Hospital has formed committee consisting of Chairman and two members to give expert opinion. Expert Committee has given medical opinion which is as under –
“After going through the papers, in respect of death of Smt. Suruchi Krishna Nangare. The Committee report is as follows :
1. Smt.Suruchi Nangare was admitted at 2.30 p.m. on 26/11/2004 by Dr. Syed Mudassir in casualty and later transferred
to Ward A-3 at 16:15 hrs.
2. At 2.25 p.m.: Patent was admitted with complaints of fever with chills for last 3 days and continuous vomiting for last one day. Patient was a known case of diabetes and was on regular treatment from Bombay Port Trust Hospital. But she had stopped medications for 2 days before admission. As per records she was also suffering from ureteric stones.
3. At the time of admission patient was in hypotension with blood pressure of 90/70 mm Hg with signs of dehydration. Provisional clinical diagnosis made was of Diabetic ketoacidosis with pyrexia.
4. Patient was treated with intravenous fluids, Antibiotics (Inj. Omnatax) and Inj. Insulin Investigations done at that time
were:
Blood Sugar: 347 mg%, Serum Bilirubin:3.3mg%, Hemoglobin : 14.8gm/dl,
Total WBC count: 9000/cu mm, Blood Urea: 52mg%, Serum Creatinine:2.2mg%
Creatinine:2.2mg%, Serum ketones: Absent, ECG: Normal.
5.At 4.15 p.m. : Patient was then shifted to Ward A-3. As per records patient’s pulse was very feeble and Blood Pressure was 100/80 mmHg. Patient was conscious and oriented but was having breathlessness. Patinet was again evaluated at 5 p.m. by Dr. Muddassir and Dr. Pallavi Lohoti. Patient was started on insulin drip (DNS +100 Human Actrapid 100 ml/hr).
6.At 7.30 p.m. : Patent became restless and had sweating. Patient was examined by Dr. Muddassar and Dr. Pallavi (at 7.30 p.m.) and advised nasal Oxygen. Patient was having feeble pulse. Urine output over 2 hrs was 150 ml. Patient was having violent behaviour in the form of shouting loudly and getting out from the bed. Patient was also having breathlessness. Patient’s condition was informed to Dr. Pallavi. Patient was given Inj. Lasix and Inj.Compose. Patient was seen by Dr. Pallavi at 2.10 a.m. Patient urine output till 5.30 a.m. was 50 ml.
7.At 7.00a.m. : Patient’s condition further deteriorated. Patent was semiconscious and was dyspnoeic Patient was attended by Dr. Pallavi at 7.50 a.m. and Dr. Muddasar by at 8.00 a.m. Patient was shifted to ICU. Patient was unconscious with hypotension (systolic blood pressure: 70 mm Hg) Patient was put on Inj.Dopamin. Thereafter patient’s general condition further deteriorated and probably had cardiac arrest for which external cardiac massage was given. All resuscitative measures were carried out. Despite all resuscitative measures patient could not be revived and was declared dead at 8.45 a.m. Patient’s body was sent for post mortem at J.J. Hospital, Mumbai.
8.Post mortem was done by Dr. Wathore in J.J. Hospital from 5.30 p.m. to 6.30 p.m. The cause of death was given as “Death due to Diabetes mellitus with Myocardial Ischemia with Hepatomegaly.”
9.From all the records and evidences this Expert Medical Team has come to the following conclusions: -
1)Patient was known case of diabetes and when she was admitted, she was brought in serious condition with
hypotension and dehydration. Patient was properly treated with antibiotics, intravenous fluid and insulin drip.
2)As per history, physical examination and investigation patient had renal disease, hepatic disease and cardiac disease
indicative of multi organ failure and was in critical condition.
3)As per post mortem report patient died due to a myocardial ischemia which is common in diabetic patients.”
Allegations made by the Complainant that after admission of his wife in B.P.T. Hospital on 26/11/04 no proper treatment was given to the Complainant’s wife is not supported by the Expert Committee. It is alleged by the Complainant that on 26/11/04 after admission none of the doctor attended the patient even thought patient’s condition was serious. On the next day morning when Complainant’s wife was in critical condition, she was admitted in ICU, but due to the negligence and deficiency in service, death of Complainant’s wife took place on 27/11/2008. The allegations made by the Complainant are not supported by medical case papers produced on record. It appears from the medical case papers that Dr. Muddassar attended the patient on 26/11/04 at 2.15 p.m., 5.00 p.m. and 7.30 p.m. alongwith Dr. Pallavi and they had given necessary treatment to the patient. Further it appears from case papers that Dr. Pallavi had seen the patient at 2.10 a.m. on 27/11/04 and she had administered Inj. Lasix and catheterization was done. On 27/11/04 at about 8.00 a.m. patient was shifted to ICU. It appears that after death of Complainant’s wife, the Complainant had made complaint to the police and on the same day B.P.T. Hospital sent copies of all the case papers to the Police Authorities. Copies of the case papers were also given to the Complainant. In the medical case papers particulars of medical treatment given to the patient – Suruchi are recorded. Copy of Post mortem is produced on record by the Complainant in which provisional cause of death is stated as “Death due to DM Myocardial Ischemia Hepato Megaly (natural). As mentioned above expert committee after going through the case papers has given its opinion. In the opinion the expert committee has not stated that there was any negligence or deficiency in service on the part of Opposite Parties. Hence, we hold that the Complainant has failed to prove negligence or deficiency in service on the part of Opposite Party. In the result we answer point no.1 in the negative.
Point No.2 :- As the Complainant has failed to prove negligence or deficiency in service on the part of Opposite Parties, the Complainant is not entitled to claim any compensation or any other relief form the Opposite Parties. Therefore, we answer point no.2 in the negative.
For the reasons discussed above, complaint deserves to be dismissed. Therefore, we pass following order -
O R D E R
i.Complaint No.139/2005 is dismissed with not order as to cost.
ii.Certified copies of this order be furnished to the parties.
