PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant Smita Joshi (Desai) visited Dr.N.D.Motashaw (Opposite Party No.3) and Dr.Swati Dave (Opposite Party No.4) for pelvic pain, irregular spotting & burning sensation in the vaginal at Dr.Motashaw clinic during 2002-04. The Complainant also suffered from burning sensation in urinary tract for which she was under treatement of Dr.Phiroze Soonawala. A Diagnostic Laproscopy was advised by Dr.Motashaw and a diagnostic cystoscopy by Dr.Phiroze Soonawala. It is averred in the complaint that it was told to the Complainant that this procedure are very simple and she will be discharged from the hospital after 48 hrs. The Complainant got admitted in the Opposite Party No.1 hospital on 21/06/2004 and was operated upon on 22/06/2004. According to the Complainant she ran a temperatureupto 104 centigrade on the very next day of surgery. She was administered with heavy doses of all possible antibiotic but even then the temperature persisted. The Complainant was referred to Dr.Mangal Jain, a physician at Breach Candy Hospital. As a result she had to overstay in the hospital and during the period she was kept on antibiotic. The Complainant was discharged on 30/06/2004.
2) After discharge, the Complainant regularly visited Dr.Motashaw and Dr.Dave at their consulting rooms where post operative dressings were done by Dr.Dave.
The wound showed discharge at the time of the very first dressing. Dr.Dave did three dressings but discharge continued. Dr.Dave referred the Complainant to Dr.R.R. Mehta, a General Surgeon (Opposite Party No.2) who is attached to Breach Candy Hospital. The Complainant suffered pain in abdonmen as well as wounds. On 18/08/2004 Dr.R.R.Mehta examined the Complainant and advised biopsy of the wound on the very next day. According to the Complainant, Dr.R.R.Mehtra also advised her to get operated in his private clinic saying that it would be less expensive. The Complainant contacted Dr.Dave on telephone who told the Complainant that urgent surgery is necessary and he also advised to get operated in Dr.Mehta’s clinic.
3) Dr.Mehta operated the Complainant in his private clinic under local anesthesia on 19/08/2004. It is alleged by the Complainant that during the course of surgery Dr.Mehta was telling his assistants that the Complainant must have got this infection during laproscopy and mini laprotomy procedures and it is so deep that he would not be able to do it under local anesthesia. After surgery was over, the Complainant asked Dr.Mehta to explain the cause of her sufferings. That time Dr.Mehta told her that something was wrong with her body and cyst which was removed from her ovary was infectious. Wound swabs were handed over to Complainant parents to submit the same to Paras Laboratory for histological examination. After surgery the Complainant was not able to walk so her parents literally carry her from hospital of Dr.Mehta and put her in a taxi.
4) As per the Complainant, she was advised to go for dressing at alternate days in the evening at 6.30 p.m. at private clinic of Dr.Mehta. On 05/09/2004 Dr.Mehta informed the Complainant that she needs to undergo one more surgery. Then the Complainant went to meet Dr.Motashaw and Dr.Dave and requested to them to explain as to why small procedure is leading to two more surgeries. They told the Complainant that her cyst which they had removed from her ovary was infectious and is causing all these troubles.
5) On 07/09/2004 the Complainant was admitted to the Breach Candy Hospital as an O.P.D. patient and was operated by Dr.Mehta in presence of Dr.Matoshaw and Dr.Dave. The Complainant was advised to continue dressings at Dr.Mehta’s clinic every alternate day. The Complainant had pad Rs.10,000/- in cash to Dr.Mehta as his operation fees for the first surgery in his clinic but Dr.Mehta refused to give any receipt for the payments so also he refused to give in writing about the medical procedure performed by him and even sick certificate which was needed to submit at Complainant’s office to avail of leave.
6) Thereafter the Complainant went to Dr.Motashaw’s clinic and informed her about the strange behaviour of Dr.Mehta. Then Dr.Motashaw gave her sick certificate. The Complainant disclosed here intention to seek second opinion which Dr.Motashaw and Dr.Dave agreed with the Complainant and consulted Dr.T.E.Udwadia, a General Surgeon of Breach Candy Hospital on 14/09/04. Dr.Udwadia aksed the Complainant to show culture report of wound discharge swab(pus) of the first surgery performed by Dr.Mehta on 19/08/2004. The Complainant was not having concerned report as Dr.Mehta had never asked her to go for culture report of wound discharge. Dr.Udwadia did dressing of Complainant’s wounds till June,2005. According to the Complainant Dr.Udwadia has shown adequate concern for sufferings and psychological trauma. Dr.Motashaw and Dr.Dave have refunded her operation fee of Rs.35,000/- to the Complainant. The Complainant had approached hospital manager several times and informed them about her case and requested for compensation for negligence on the part of Hospital for infection control. But the Hospital denied its responsibility vide their letter dtd.10/02/2005. The Hospital claimed to have evaluated the Complainant’s case by Senior doctors but denied to give me a copy of the evaluation report to the Complainant.
7) Then the Complainant lodged the complaint to Maharashtra Medical Council against Dr.N.D.Motashwa, Dr.Swati Dave & Dr.R.R.Mehta. The Complainant also approached an organization called ACASH. Her medical record was not maintained properly. Experts from ACASH opined vide their letter dtd.02/03/2006 that “it appears from the papers that the Complainant got resistant type of hospital infection either from surgical instruments or O.T. or surroundings.” According to the Complainant as she developed post operative fever within a few hours of surgery which was the hospital infection and discharging wounds was also the hospital infection. It is submitted that these infections could be due to contamination from injection given at the time of surgery and/or inadequate care in sterilization of laproscopes and other surgical instruments. It is alleged by the Complainant that it in practice of Breach Candy Hospital that if patient develop hospital infection, they are treated by the hospital doctors outside the hospital to keep the hospital records clean. It is submitted that the Complainant consulted top general surgeons and gynecologists in Mumbai and they all have opined that hospital infection is the cause of her sufferings. Till today the Complainant is not fully recovered and she has suffered huge financial loss. Therefore, the Complainant has filed this complaint.
8) The Complainant has prayed to direct Opposite Parties Nos.1-4 to pay compensation to the Complainant to the extent of Rs.19 Lakh and to pay damages for mental agony suffered by the Complainant for the past 2 years.
9) Opposite Party No.1 has filed written statement and thereby denied the allegations made by the Complainant submitting that the Complainant has filed highly exaggerated claim. Initially the claim was filed for Rs.30 Lakhs and the Hon’ble State Commission refused to admit the said complaint observing that claim was no justified. Then the Complainant filed this complaint before this Forum. The Complainant has not produced any evidence with respect to the negligence or deficiency on the part of Opposite Party No.1-Breach Candy Hospital. It is contended that Opposite Party No.1 has been unnecessarily joined as a party and complaint against Opposite Party No.1 is false and frivolous and therefore, deserves to be dismissed with cost.
10) It is contended that the complaint deals with complicated question of facts and law and this Forum cannot decide this complaint in a summary manner. It is alleged by the Opposite Party No.1 that Complainant had deliberately suppressed relevant material facts from this Forum and on this ground also complaint is liable to be dismissed. The Complainant has not disclosed that Opposite Party No.1 has informed the Complainant that her infection was not because of the improper sterilization of surgical equipment or hospital borne but was due to endogenous infection harbored by the patient herself. ACASH has not disclosed the name of the expert who has given opinion and that so-called expert from ACASH has not come to Opposite Party Hospital for inspection and does not even knew the sterilization protocols followed by the Hospital.
11) It is alleged by the Opposite Party No.1 that the Complainant has resorted to total falsehoods solely to suit her convenience. She has falsely claimed that case papers have discrepancies because of multiple doctors have signed the same. She has falsely claimed that Breach Candy Hospital treats infections patient outside their Hospital. As the Complainant has deliberately not disclosed relevant information the complaint should be dismissed with cost.
12) It is submitted on behalf of the Opposite Party No.1 that Breach Candy Hospital is a multi specialty Hospital and is fully equipped to manage any type of problems or complications. There are 5 operation theaters at the Hospital which are fully equipped with modern live saving equipments. According to the Opposite Party No.1 surgical instruments used for Complainant’s operation were best sterilized by autoclaving. Laparoscopes and other delicate instruments are chemically sterilized. These instruments are placed in Cidex which completely disinfects these equipments. Operation theatre sterilization is done by disinfecting aerosols using Bacillocid 2 %. Operation theatre is also fitted by an ultra violet lamp which destroys the atmospheric bacteria.
13) Opposite Party No.1 has given particulars of treatment given to the Complainant by Opposite Party No.3 doctors 2-4.
14) Opposite Party No.1 has denied all the allegations made by the Complainant. It is submitted that the opinion given by ACASH is not an opinion given on affidavit so it cannot be relied upon. Below the opinion there is disclaimer that “ACASH does not take responsibility for the opined being produced in the Court. ACASH will not give any affidavit on this opinion nor will its expert be made available for the cross-examination in the Court.” Therefore, such type of opinion cannot be relied upon. According to the Opposite Party No.1, besides Complainant, number of patients were operated on the same day in the same operation theatre and none of them have been suffering from any mycobacterium or other infections therefore, allegations made by the Complainant against Opposite Party No.1 are baseless allegations. It is submitted that there is no negligence or deficiency in service on the part of Opposite Party No.1 therefore complaint deserves to be dismissed with cost.
15) Opposite Party No.2 has filed separate written statement and thereby submitting that the Complainant has already filed complaints on the same cause of action before Maharashtra Medical Council and so present complaint is based the same facts is not maintainable before the Forum. It is contended that after delivery of the patient, Opposite Party No.2 did everything in the capacity of ‘GOOD SAMARITAN’ to help the Complainant who was suffering from non healing wound.
16) It is submitted that the Complainant has deliberately suppressed relevant and material facts from the Forum. The Complainant has not disclosed the facts that the Swab was sent for culture on 07/09/2004 and did not grow any organisms. The Complainant has deliberately withheld the fact that the biopsy report was “Post Operative Lipogranuloma’. According to Opposite Party No.2, the Complainant has falsely alleged that Opposite Party No.2 advised her to get biopsy done at his private clinic. According to the Opposite Party No.2 for monitory reasons, it was the Complainant who requested Opposite Party No.4 to get the biopsy done at Opposite Party No.4’s clinic.
17) According to the Opposite Party No.2, the Complainant has falsely alleged that he told his assistance that he could not do biopsy procedure under local anesthesia as the wound was deep. It is contended that for a biopsy depth of wound was not consequence. Biopsy can be taken from any part of the wound. Further it is submitted that the Complainant has falsely alleged that he told his assistance that the infection was due to laparoscopy and mini laparotomy. No such remarks were made by Opposite Party No.2. It is submitted that the Complainant discontinued his treatment midway without his knowledge. As the Complainant deliberately suppressed material facts from this Forum and resorted to the falsehood the complaint deserves to be dismissed with cost.
18) It is submitted that Opposite Party No.2 Dr.R.R.Mehta after his MBBS did FCPS and FICS. He is attached to Breach Candy Hospital since last 25 years. The Complainant was operated by Opposite Party No.3 in Opposite Party No.1 hospital with the assistance of Opposite Party No.4. Further management of the wound was done by Opposite Party No.2.
19) As regards non-healing wound, it is submitted by Opposite Party No.2 that healing process varies from patients to patients on many factors which can be systemic cause for local reasons. Biopsy of wound helps in understanding the reason for non-healing of the wound. In this case there was slow wound healing therefore, biopsy was undertaken. Opposite Party No.2 has denied all the allegations made by the Complainant and submitted that there was no negligence on his part and the allegations made in the complaint are false and frivolous and therefore, complaint be dismissed with cost.
20) Opposite Party No.3 has filed separate written statement and thereby she has also denied allegations made by the Complainant. It is submitted that Opposite Party No.3 Dr.Motashaw is MD (Bombay), FRCS (Edin.), FACS, FICS, FRCOG (Hons. Lond.) is a Consultant Obstetrician and Gynecologist from Mumbai. She is currently a Consultant Obstetrician and Gynecologist at Breach Candy Hospital, P.D.Hujuja National Hospital and B.D.Petit Paress General Hospital. She is founder President of Indian Association of Gynecological Endoscopy for 9 years. International Adviser, American Association Gynecologic Laparoscopists and Honorary Member of American Association of Gynecologic Laparoscopists. Opposite Party No.3 has submitted that the Complainant has filed this complaint with malafide intention to tarnish image of Opposite Party No.3. Infact there is no element of any negligence in the services rendered by Opposite Party No.3 to the Complainant. The complaint is filed with malafide intention to extract money. It is submitted that for this purpose all possible pressure tactics were used. Inspite for these pressure tactics, Opposite Parties doctors stood up and did not succumb to the threats as Opposite Parties doctors had done anything wrong. Opposite Party No.3 has also alleged that the Complainant has deliberately suppressed material facts and resorted to falsehood.
21) It is submitted by Opposite Party No.3 that the Complainant was suffering from pelvic infection, hydrosalpinx and she was having endometrioses in the broad ligament and she presented with a broad ligament cyst and mini laparotomy was undertaken to remove the broad ligament cyst. Pelvic infection (P.I.D.) is associated with sexually transmitted diseases. More sexual partners the more likelihood of pelvic infection.
22) It is submitted that around 2002-04 the Complainant visited Opposite Party No.3 and Opposite Party No.4 as she was suffering from burning sensation in the vaginal and pelvic pain. During the aforesaid period the Complainant also suffering from burning in micturition for which she was under treatment of Urologist. Opposite Party No.3 & 4 treated the Complainant medically with drugs. However, as the pelvic pain did not subside in spite of drugs and the Complainant later also had irregular spotting, surgery was contemplated. On 21/06/2004 adequate antibiotic coverage was started the day prior to surgery under instructions from the urologist. On 22/06/2004 a diagnostic cystoscopy, a hysteroscopy and laparoscopy followed by a mini laparotomy was undertaken for burning micturition, irregular spotting and chronic pelvic pain. Opposite Party No.3 has given particulars of the aforesaid procedure done on the Complainant. It is further submitted that on 24/06/2004 inspite of excellent antibiotic cover, the Complainant ran a temperature on post operative day 3. As abundant pre-caution, Opposite Party No.3 & 4 asked Dr.Mangal Jain attending physician at Breach Candy Hospital to see the Complainant. The Complainant was discharged after fever was control.
23) Opposite Party No.3 has denied each and every allegation made in the complaint and submitted that on 07/09/2004 the Complainant was admitted to the Breach Candy Hospital as a day care patient for exploration of the non-healing surgical wound. The wounds were explored under general anesthesia by Dr.Mehta. The swab from the wound was sent for culture and sensitivity. There was no evidence of acute inflammation. The Complainant was discharged from the Hospital on the same day and was asked to attend Dr.Mehta’s clinic for change of dressings on alternate days. The culture of the wound swab had not grown any organisms.
24) It is submitted by Opposite Party No.3 that there was no negligence on the part of Opposite Party No.3 therefore there is no question of paying compensation to the Complainant. Allegations made in the complaint are false and frivolous and therefore, complaint deserves to be dismissed with cost.
25) Opposite Party No.4 has filed her written statement and thereby she has also resisted claim of the Complainant contending interalia that the allegations made in the complaint are false and frivolous. It is alleged that the Complainant has deliberately suppressed material facts and resorted to the falsehood therefore, complaint deserves to be dismissed. Opposite Party No.4 has supported the facts stated in the written statement of Opposite Party No.3 and adopted medical consideration as submitted by Opposite Party Nos.1-3. Opposite Party No.4 has stated as to why laparoscopy, cystoscopy, hysteroscopy and mini laparoctomy procedure was done on the Complainant.
26) Opposite Party No.4 has also denied each and every allegation made in the complaint and submitted that there was no negligence or rashness on the part of Opposite Party No.4. Allegations made in the complaint are frivolous and therefore, compliant deserves to be dismissed with cost.
27) Alongwith complaint, the Complainant has filed documents as per list of documents. The Complainant has produced opinion given by ACASH as expert opinion. She has produced medical case papers and surgical pathological report, etc. Dr.Mrs.Geeta E.Koppikar, Director-Medical of Breach Candy Hospital has filed affidavit of evidence. So also Opposite Party Opposite Party Nos.2,3 & 4 have filed their affidavit of evidence. Alongwith written statements Opposite Parties have produced medical case papers, medical literature, expert opinion of Dr.R.P. Soonawala, Dr.Usha Saraiya, Dr.Sharad Shenoy, Dr.Kamal Cheema. Opposite Parties have also produced experts opinion of Dr.Choudhary, Director of Hopkins Institute, Parel. Dr.V.N.Acharya, a Member of the Executive Committee of Hospital Infection Society – Mumbai Forum, Dr.(Mrs) Jayanti Shashtri Head of the department of Micro Biology, Nair Charitable Hospital and T.L.Hospital, Mumbai, experts opinion of Dr.T.E.Udwadia, Consultant Surgeon. It appears that on 05/09/2007 the Complainant filed an application and thereby requested to call for opinion of the expert committee who investigated the outbreak of atypical mycobacterium infection in Jahangir Hospital. This application was apposed by the Opposite Party submitting that Opposite Party has already filed an experts opinion and assistance of this Forum cannot taken for collecting evidence. The Complainant has not pressed her aforesaid application filed on 05/09/2007. The Complainant has filed her written argument on 31/12/2007. Opposite Party Nos.1-4 have also filed their respective written argument. Oral submissions of Complainant were heard on 14/10/2009. Thereafter, we heard oral submissions of Dr.Shenoy for Opposite Party Nos.1-4 and the matter closed for order.
28) The following points arises for our consideration and our findings thereon are as under –
Point No.1 : Whether the Complainant has proved negligence or deficiency in service on the part of Opposite Party Nos.1-4 ?
Findings : No
Point No.2 : Whether the Complainant is entitled for relief as claimed in the complaint ?
Findings : No
Reasons :
Point No.1 : Opposite Party No.1 Breach Candy Hospital is run by a Public Charitable Trust. Opposite Party No.2 Dr.R.R.Mehta is attached to Opposite Party No.1 Hospital as a Surgeon since last 25 years. Opposite Party No.3 Dr.N.D.Motashaw is a Consultant Obstetrician and Gynecologist at Opposite Party No.1 Hospital as well as P.D.Hinduja National Hospital and other hospitals. Opposite Party No.4 Dr.Swati Dave is also a Obstetrician and Gynecologist and full time Assistant of Dr.Motashaw for last 21 year.
In this case chronology of events is as under –
That the Complainant Smita Joshi (Desai) was visited Opposite Party Nos.3 & 4 for pelvic pain, irregular spotting & burning sensation in the vaginal at Opposite Party No.3s private clinic during the period from 2002-04. During the aforesaid period the Complainant was also suffered from burning sensation in urinary tract for which she was under treatement of Dr.Phiroze Soonawala. As pelvic pain did not subside inspite of the drugs, the Complainant was advised by Opposite Party No.3 Diagnostic Laproscopy and Soonawala advised Diagnostic Cystoscopy.
The Complainant was admitted in Breach Candy Hospital on 21/06/2004 and she was operated upon 22/06/2004 for Diagnostic Cystoscopy, a hysteroscopy and laproscopy followed by mini hysteroscopy. Laproscopy for burning micturition, irregular spotting and chronic pelvic pain. Cystoscopy was performed by the Urologist for her bladder symptoms. Hysteroscopy was done for irregular spotting by Opposite Party Nos.3 & 4 which showed sub-mucosal polyp and the same was avulsed and removed. It appears from the case papers on record that laproscopy revealed a broad ligament cyst on the right side and hydrosalpinx on the left side. When the broad ligament cyst was punctured, there was a certain amount of persistent oozing which could not be controlled. Decision was taken to perform mini laproctomy. As per the Opposite Parties for this a Pffannenstiel incision was made, the broad ligament cyst was excised and sent for histopathology. Endometriotic cyst was also found in the broad ligament which was excised and sent for histopathology. The hydrosalpinx of the left tube was incised, its margins everted and sutured with vicryl 3-0.
It is undisputed fact that after surgery adequate antibiotic cover was given to the Complainant. According to the Complainant on the next day of surgery she ran a temperaturewhich reached upto 104 centigrade. Inspite of heavy doses of antibiotic the temperature persisted. According to the Opposite Party No.3 that the Complainant ran temperature on post operative day 3. As a matter of abundant precaution, Opposite Party No.3 & 4 asked Dr.Mangal Jain, attending physician at Breach Candy Hospital to see the Complainant. The Complainant has admitted fact that she was referred to Dr.Mangal Jain, Physician at Breach Candy Hospital.
The Complainant was discharged from the Breach Candy Hospital on 30/06/2004 and she was advised abdominal dressing. Dressing was done by Opposite Party No.3 & 4. However, wound healing was not satisfactory so they referred the Complainants to Opposite Party No.2 Dr.R.R.Mehta. On 17/08/2004 Opposite Party No.2 examined the Complainant and advised biopsy under local anesthesia. On 18/08/2004 biopsy of lower wound was taken by Opposite Party No.2 under local anesthesia at his private clinic. This specimen was handed over to the Complaint to submit it to Paras Laboratory for histological examination. The Complainant was advised by Opposite Party No.2 to come for dressing on alternate day. On 23/08/2004 the Complainant brought a histological report to the clinic of Opposite Party No.2. The histological report had revealed “POST OPERATIVE LIPOGRANULOMA’.
There was no evidence of atypical mycobacterium. The Complainant attended clinic of Opposite Party No.1 for dressing on 25/08/04, 27/08/04, 30/08/04, 01/09/04, 30/09/04 and 5/09/04. Even though the wounds were clean, there wasn’t much improvement in the healing process. On 05/09/04 Opposite Party No.2 discussed the matter with Opposite Party Nos.3 & 4 and joint decision was taken to explore Complainants wounds under general anesthesia.
According to the Complainant on 05/09/2004 on enquiry Opposite Party No.2 informed her that she will have to undergo one more surgery then the Complainant made an enquiry with Opposite Party Nos.3 & 4 they told her that cyst which they ad removed from her ovary was infectious and is causing of this trouble.
On 07/09/2004 the Complainant was admitted in Breach Candy Hospital as day care patient. Wounds were explored under general anesthesia. The swab from the wound was sent for culture and sensitivity. The Complainant was discharged from the Hospital on the same day and was asked to come to clinic for change of dressing on alternate days. According to the Opposite Parties, the culture of the wound swab had not grown any organism. After 07/09/2004 the Complainant attended clinic of Opposite Party No.2 on 10/09/2004 and 13/09/2004. Thereafter the Complainant did not attend clinic of Opposite Party No.2 for dressing. It appears from the evidence on record that the Complainant approached Dr.T.E.Udwadia, a surgeon attached to Breach Candy Hospital. Dr.Udwadia attended the Complainant regularly who treated her with repeated dressing and investigated her for atypical mycobacterium which was not detected.
It is the main grievance of the Complainant that she developed post surgical infection after her surgery at Breach Candy Hospital. The infections were due to the faulty practices of the Hospital. According to the Complainant she developed two infections after surgery wound was immediate acute and manifested by fever and subsequent was a typical mycobacterium infection due to over sterilization of laproscopy used for the procedure. It is alleged by the Complainant that these infections was caused on account of substandard services of Opposite Party No.1. In support of her contention, that she has produced an expert opinion given by ASCASH (Association of Consumer Action on Safety and Healthy). Alongwith complaint she had produced letter dtd.02/03/06 received from ACASH. Letter is addressed to the Complainant in which it is stated
“This is in response to your letter dtd.6/02/2006. ACASH had sent the papers for expert opinion. The opinion has been received. As per ACASH’s policy the identity of the expert it not disclosed to the Complainant. I am stating here below the opinion given by the expert on the basis of the reports submitted by you. It is as follows:
I have gone through the xeroxes of the records sent to me. However, records are incomplete and not arranged in proper way. It was very unfortunate that Mrs.Smita Joshi suffered a lot. As per the papers it appears that she got resistant type of hospital infection either from instruments or from O.T. or surroundings. Occasionally a typical Mycobacterium Tuberculosis is also known to give same picture, but all the reports ruled out T.B. infection.”
At the foot of the letter there is disclaimer as follows -
“ACASH does not take responsibility for the opinion being produced in the Court. ACASH will not give an affidavit on this opinion nor will its experts be made available for cross examination in the Court.”
It is submitted that by the Complainant that affidavit which was filed by Dr.Jayanti Shashtri, Member of Executive Committee of Hospital Infection Society in favour of Opposite Party has withdrawal her affidavit. Three Members and Executive Committee of the Hospital Infection Society have been given opinion as follows –
“Mrs.Smita Joshi (Desai) suffered from Hospital acquired infection” (Health Care Associated Infection).”
It is submitted on behalf of Opposite Party that aforesaid allegations made by the Complainant that the Complainant suffered from Hospital acquired post operative infection are false and without any basis. According to the Opposite Party the Complainant suffered from indigenous infection. Opposite Party Nos.2,3 & 4 have stated about the procedure followed by them while treating the Complainant. According to Dr.Shenoy, Opposite Party Nos.2,3 & 4 who treated the Complainant are specialist in their respective field and they have treated the Complainant with at most care following standard treatment protocols. It is submitted that Opposite Party No.1 Breach Candy Hospital is well equipped multi specialty and well known Hospital of Mumbai. There was no deficiency of any kind on the part of Opposite Parties. However, the Complainant has filed this complaint only with malafide intention to tarnish image of the Opposite Parties. By referring to the medical case papers and affidavits of the Opposite Parties, it is submitted that the Complainant was suffering from Pelvic Inflammatory Disease (PID). Majority of the times cause of is an ascending infection from the vaginal which is basically due to sex. PID is associated with sexually transmitted disease. More the sexual partners the more likelihood of pelvic infection. It is further submitted that the Complainant was suffering from Hydrosalpinx and having Endometriosis in Broad Ligament. The Complainant was suffering from broad ligament cyst. As the Complainant was suffering burning sentential and pelvic pain and burning micturition. During the period 2002-04 she was treated with medicines by Opposite Party No.3 & 4 but her pelvic pain did not subside and therefore, diagnostic laproscopy and cystoscopy was undertaken. A mini laproctomy was also done on 22/02/06. Biopsy being a very simple and minor procedure same was done under local anesthesia. The patient as on antibiotic, as such, there was no question of sending the biopsy report for culture. Biopsy report did not show any presence of atypical mycobacterium. The wound still did not heal so decision of was taken to re-explore the wound under general anesthesia at Opposite Party No.1 Hospital. Wounds were explored under general anesthesia at Opposite Party No.1 Hospital. Swab from the wound sent for culture and sensitivity. Culture of the wounds swab do not grown any organism. Opposite Party Nos.2,3 and 4 have taken at most care while treating the Complainant and treatment protocol was not violated.
Dr.Shenoy has submitted that in this case the Complainant has failed to prove her allegations or deficiency in service on the Opposite Party Nos.1-4. According to the Opposite Parties, experts evidence of ACASH produced by Complainant cannot be relied upon as the expert evidence as it is not filed on the affidavit. Even the name of so called expert is not disclosed by ACASH. Further at the foot of the so-called expert opinions there is a disclaimer of the effect that “ACASH does not taken responsibility for the opinion being produced in the Court and that ACASH will not give affidavit of opinion nor export will made available on cross examination in the Court.”
It is submitted that same in the case in respect of opinion given by Dr.V.N.Acharya, Executive Committee Members of Hospital Infection Society. The aforesaid opinion is not submitted on the affidavit.
It is submitted that Opposite Party Nos.2,3 & 4 are well qualified doctors attached to Breach Candy Hospital have treated the Complainant with at most care by following standard protocol. The Complainant was treated in conformity with treatment protocol followed anywhere in the world. As regards precautions taken by Breach Candy Hospital for disinfection of the instruments used for surgery and disinfection of operation theatre etc. Dr.Shenoy by referring to the evidence adduced by Opposite Party No.1-4, submitted that Opposite Party No.1 is a premier multi specialty Hospital in Mumbai and it is observing sterilization protocols. All surgical instruments used for operation are best sterilized by autoclaving. In this process instruments are heated under pressure and this destroys all the bacteria including resistant spores and other organisms present. However, laparoscopes and other delicate optical instruments cannot be autoclaved and therefore, need to be chemically sterilized. These equipments are place in Cidex which completely disinfects these delicate equipments. Operation theatre is sterilized by disinfecting aerosols using Bacillocid 2 % which completely disinfects the theatre atmosphere. Operation theatre is also fitted by an ultra violet lamp which destroys the atmospheric bacteria. Hospital has installed special water filtration plant to ensure that all water to the Operation theatres is filtered and clean. All surgical linen used in the instant case was autoclaved. As regards, skin disinfection it is done by Betadine which was a standard protocol followed by all surgeons all over the world. According to the Dr.Shenoy, in view of the aforesaid adequate precautions taken by the Opposite Parties, allegations made by the Complainant that she suffered infection during the course of her operation cannot be accepted. In support of his aforesaid contention, Dr.Shenoy has relied upon affidavit of Dr.Udwadia who is attached as surgeon to Breach Candy Hospital for the last 25 years. According to Dr.Udwadia adequate precautions are taken in the Breach Candy Hospital to avoid hospital borne infection. He has stated about sterilization protocols followed in the Breach Candy Hospital.
It is submitted that after filing of this complaint the Opposite Parties had asked various experts to inspect Breach Candy Hospital and go give their opinion. Accordingly Dr.Abhay Chowdhary, Director of Haffkine Institute, Mumbai. Formerly Professor and Head of Microbilology Grant Medical College & Sir J.J. Hospital, Mumbai, inspect Opposite Party No.1 Hospital and given his opinion. Dr.Chowdhary in his expert opinion on affidavit has stated that he has gone through complaint, written statement and necessary documents provided to him and before giving his opinion he has taken inspection of all the relevant departments/O.T./ sterilization areas, etc. of Breach Candy Hospital. He has given his opinion that there was no NOSOCOMIAL (hospital sponsored or infection acquired from the hospital) infection in the Complainant. He has further stated that wound biopsy examined by Dr.R.R.Mehta on 21/08/04 did not show the organism and it is also reported that there were no atypical mycobacteria. Dr.R.P.Soonawala, practicing Obstetrician & Gynecologist has stated in his opinion that “the Complainant has received reasonable care at the hands of Opposite Party and there cannot be any negligence or deficiency in services on the part of Opposite Party.” Another Dr.Usha Sarriya, practicing Obstetrician & Gynecologist has stated in her opinion that “the Complainant has received reasonable care at the hands of Opposite Party and there cannot be negligence or deficiency in services on the part of Opposite Parties.” Similar opinion is given by Dr.Sharad Shenoy, a surgeon practicing at Linking Road. Dr.Kamal Chima has also filed his expert opinion with affidavit. Dr.Kamal Chima is an employed as Director- Medical with Principal Alikhan Hospital. Dr.Jayanti Shstri, Microbiologist at Nair Hospital and T.N. Medical College, Mumbai had filed expert opinion on affidavit in favour of Opposite Party stating that there was no hospital sponsored inspection in the. It appears that she is Executive Committee Members of Hospital Infection Society and due to difference of opinion with other Committee Members she has subsequently withdrawn her affidavit. Dr.Udwadia is a practicing surgeon at Breach Candy Hospital for the last 25 years has filed his expert opinion on affidavit stating that he has perused complaint, written statement of Opposite Party. Accroding to Dr.Udwadia Opposite Party Nos.2,3 & 4 are specialist in their respective fields and they are treated the Complainant with standard treatment protocols and there has been no negligence or deficiency in services on the part of Opposite Parties. He has stated that subsequently, the Complainant had approached him for treatment and he regularly cleaned and dressed wound of the Complainant and also investigated for the presence atypical microbacteria which was not detected. As per Dr.Udwadia, sterilization/disinfection protocols adopted by Opposite Party No.1 as per the standard followed anywhere in the world and there was no deficiency therein. Dr.Udwadia has opined that ‘it is most unlikely that slow healing of the Complainant’s wound was because of Hospital sponsored (nosocomial), infection as submitted by the Complainant. Had it been so other patients operated in the same OT on the same day would have been similarly infected. No patient operated on that day in the same OT has filed any complaint for wound infection.’ It is to be noted that the Complainant in her complaint has stated that after she stopped visiting Opposite Party No.2 she approached Dr.Udwadia and according to the Complainant, Dr.Udwadia showed adequate concern for her suffering and physiological trauma.
The Complainant in her written argument has stated that she suffered infection during surgery and it was not an endogenous infection as blamed by Opposite Parties. It is submitted that evidence adduced by Opposite Party No.2 is not consistent with the evidence of Opposite Party No.3 & 4 as regards the description of her wound. She has stated about out break of the post operative atypical mycobacteria at Jahangir Hospital, Pune and other instances in which number of patients were affected by Hospital sponsored infection. In this case the Complainant has not adduced any evidence that any other patient who was operated on the same day in Breach Candy Hospital had suffered similar infection. Absolutely there is no evidence on record to show that any other patient operated in the Breach Candy Hospital on the same day had suffered infection like Complainant.
The Complainant has stated that the chemicals which are used in the Breach Candy Hospital for disinfecting the surgical instrument are outdated. The Complainant has produced photo copy of articles Disinfection of Endoscopes: Review of New Chemical Sterilants Used for High Level Disinfection by William A. Rutala, published in volume 20 No.1, page 69 Infection Control and Hospital Epidemiology. Author of the above articles in its conclusion para have observed that “No product possess all of the characteristics of an ideal high level disinfectant.” It appears from the evidence on record that Opposite Party No.1 Hospital is following standard protocol for sterilization of surgical instruments laproscopes and OT. The Hospital has also installed special water filtration plant to ensure that all water to the OT is filtered and clean.
The Hon’ble Supreme Court in Jacob Mathew, Petitioner V/s. State of Punjab & Anr. – Respondent 2005(3) CPR 70 (SC) have observed “the fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge.” It is further observed that “So long as it can be found that the procedure which was in fact adopted was one which was acceptable to the medical science as on that date, the Medical Practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.” It is further observed that “Human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine.”
Burden of proving negligence and or deficiency in service rest upon the Complainant. Expert opinion of ACASH and of the Executive Members Hospital Infection Society, Mumbai Forum produced by the Complainant which are not on affidavit hence, same cannot accepted as an evidence. The evidence adduced by the Opposite Parties and expert evidence filed by the Opposite Parties who have not only perused medical papers, complaint and written statement of the Opposite Parties but some of the experts have actually inspected premises of Breach Candy Hospital and have been given there opinion stating that infection caused to the Complainant was not hospital sponsored infection. It is to be noted that in case of Hospital sponsored infection it is very likely that patent who were operated in the same operation theatre would likely suffer infection of like nature.
Considering the evidence, we hold that the Complainant has failed to prove her allegations that she suffered infections due to the poor sterilization of laproscope and other instruments and due to the faulty practice of Opposite Parties.
On the contrary from the evidence on the record it appears that Opposite Parties have followed standard protocol while treating the Complainant and experts have opined that there is no negligence or deficiency in services on the part of Opposite Parties.
It is alleged by the Complainant that Opposite Party No.2 while operating upon her in his private clinic under local anesthesia on 19/08/2004 was telling to his Assistant that the Complainant must have got infection during laproscopy and mini laproctomy and it is so deep that he would not be able to do it under local anesthesia. Opposite Party No.2 has specifically denied the above allegation. Opposite Party Nos.2 & 4 have also denied the allegation that Complainant told them about aforesaid utterance made by Opposite Party No.2. Absolutely there is no evidence to support the allegation made by the Complainant therefore for want of evidence we hold that the Complainant has failed to prove aforesaid allegation.
It is alleged by the Complainant that at the time of first operation she paid Rs.10,000/- to the Opposite Party No.2 and have demanded receipt for the same. However, Opposite Party No.2 refused to issued receipt of Rs.10,000/-. Opposite Party No.2 has admitted that he received Rs.10,000/- from the Complainant. However, as regards receipt it is submitted by the Opposite Party No.2 that the Complainant never asked for the receipt and he was supposed to give receipt of all the payments at the end of the treatment. But in the midway the Complainant left his treatment. Opposite Party No.2 has admitted fact for payment of Rs.10,000/- towards his fees and he has rendered the services for the same. If the Complainant had genuine grievance against Opposite Party No.2 then she must have immediately changed the doctor. The Complainant has changed doctor but after laps of considerable period. Considering the facts and circumstances, it appears that it will not be proper to attach malafide intention for non issue of receipt as suggested by the Complainant. It is further alleged by the Complainant that the Opposite Party No.2 has not given in writing the procedure followed by him while treating the Complainant. Opposite Party No.2 has denied the allegations and submitted that as per practice, notes of treatment has given to patient at the end of treatment. In the instant case the Complainant on her own accord left his treatment in the midway so he could not give notes of medical treatment to the Complainant. 3rd allegation made by the Complainant that Opposite Party No.2 refused to issue medical certificate which was needed for her to submit to her office for obtaining leave. It is submitted on behalf of the Opposite Party No.2 that the Complainant never asked Opposite Party No.2 to give medical certificate. The Complainant asked medical certificate from Opposite Party No.3 and Opposite Party No.3 has given medical certificate to the Complainant. Dr.Shenoy has submitted on behalf of the Opposite Parties that all the Opposite Parties has treated the Complainant with sympathetically. Even Opposite Party No.3 & 4 have refunded their professional fee of Rs.35,000/- and the Complainant has admitted the fact of refund of fee. Allegations made by the Complainant are not supported by any independent evidence. Considering the aforesaid facts and aforesaid allegations made by the Complainant, appears to be doubtful and unsafe to rely. Therefore, for the reasons discussed above, we hold that the Complainant has failed to prove negligence or deficiency in service on the part of Opposite Party Nos.1-4 in the result we answered point no.1 in the negative.
Point No.2 - As discussed above, the Complainant has failed to prove negligence or deficiency in service on the part of Opposite Parties. Therefore, the Complainant is not entitled to recover any compensation from the Opposite Parties. The Complainant is also not entitled for cost of the proceeding or any other relief against the Opposite Parties. Hence, we answer point no.2 in the negative.
For the reasons discussed above, the complaint deserves to be dismissed hence, we pass following order -
O R D E R
i.Complaint No.382/2006 is dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the party.
