ORAL ORDER
Per – Hon’ble Mr. S. R. Khanzode, Presiding Judicial Member
Heard Mr. J. B. Gai, authorized representative of the Complainants, Adv. Dara Irani on behalf of the Opponents Nos.1, 3 and 4 and Adv. Milind M. Mahajan on behalf of the Opponent No.2 on the point of admission of the complaint.
[2] This consumer complaint pertains to alleged deficiency in service vis-à-vis medical negligence on the part of the treating doctors and the hospital where Late Dattajirao Balwantrao Mane (hereinafter referred to as ‘the patient’ for the sake of brevity) was admitted and received treatment during the period 22/10/2009 to 15/11/2009 i.e. till his death which occurred and was declared around 07:00 a.m. on 15/11/2009.
[3] It is the contention of the Complainants that Late Dattajirao, a senior citizen, was under the treatment of a local doctor at Sangli and was suffering from chest congestion and breathlessness for about a period of one month from the month of September-2009 onwards. Late Dattajirao was also experiencing chronic right shoulder pain. He was receiving treatment at Sangli under a cardiologist and a neuro-physician. As per the advice of his family doctor and the doctors treating him at Sangli, he sought an appointment from the doctors at Pune attached to Ruby Hall Clinic, viz. Dr. Wadia and Opponent Dr. Jagdish Hiremath. Late Dattajirao was accordingly examined for his chronic right shoulder pain by Dr. Wadia on 21/10/2009 and even his MRI was taken. On the following day i.e. 22/10/2009, at the OPD of Opponent Dr. Jagdish Hiremath, he was seen by a junior of Dr. Hiremath who advised him to undergo treadmill test and which was undertaken immediately but was required to be aborted since Late Dattajirao experienced breathlessness and chest congestion. By that time Opponent Dr. Jagdish Hiremath arrived and examined the patient and who upon seeing the health condition of Late Dattajirao got him admitted in the Cardiac Care Unit of Ruby Hall Clinic and advised the patient to undergo angiography which was planned for the next day. On 23/10/2009, angiography was performed and during the procedure Opponent Dr. Jagdish Hiremath informed the patient’s son, who is also a practicing advocate, namely – the Complainant No.2 Mr. Rajendra D. Mane that there were three major blockages in the renal and cardiac arteries and one of the major arteries of the heart was almost 90% blocked and the blockage was not capable of being corrected by angioplasty. Therefore, bypass surgery was advised and looking to the urgency it was planned on the following day. A team of surgeons comprising of Opponent Dr. V. R. Karmarkar and Opponent Dr. Chaitanya Raina was also formed and they explained the procedure of surgery to the relatives of the patient including the Complainants. Accordingly, bypass surgery was performed on 24/10/2009 and it was informed that the surgery was successful.
[4] It is further alleged by the Complainants that on 31/10/2009 at around 01:30 a.m. Late Dattajirao suffered a cardiac arrest but was revived and was put on ventilator support. On 4/11/2009 the Complainants were informed about a small portion of the Late Dattajirao’s small intestine getting paralyzed and there was a leak from the intestine which got sealed by itself. It is further revealed that on 4/11/2009 Late Dattajirao was seen by Dr. Deshpande, another expert dealing with the relevant problem. It is also alleged by the Complainants that on 7/11/2009 the patient suffered second cardiac arrest but was again revived and continued to be on ventilator support. On 8/11/2009, surgery was performed on Late Dattajirao to explore/examine and rectify intestinal defect. On 11/11/2009 doctors treating Late Dattajirao informed the Complainants that there was an infection and which was causing concern to them. Condition of Late Dattajirao remained critical and he was continued on ventilator support. Not responding to the treatment, Late Dattajirao died on 15/11/2009, supra.
[5] In paragraphs (08) and (10) of the complaint, it is alleged by the Complainants as under:-
“However, the post-surgical sequence of events threw up many surprises and unexplained occurrences. The chronology of events which is appended hereunder shows that the happenings and occurrences seemed totally unexpected and not of the ‘specialist’ doctors had any answer to them. These unexplained and unexpected happenings and the lack of any coordinated medical care and treatment give rise to a serious doubt about the degree of medical treatment and the professional application by the concerned doctors. The sequence of events is strongly indicative that the course of medical treatment went wrong somewhere along its way and due to the casual attitude of the concerned doctors and hospital staff, the patient paid with his life…..
Now a days, Coronary bypass operations are performed routinely and the patient was expected to come out of the hospital within two weeks. The sequence of events and the accompanying circumstances have compelled the Complainants to believe that the source of post-operative infection suffered by the patient was either the surgeries themselves which were performed negligently or the lack of proper post-operative care and treatment given in the Hospital.”
[6] Above-referred statements show that the Complainants have a suspicion about the alleged medical negligence at the hands of treating doctors but failed to show any specific case of negligence. In paragraph (11) of the complaint, the Complainants tried to level allegations which according to them are based upon unexplained occurrences. These summarizations made the Complainants to believe on their own that the patient’s medical condition was not properly evaluated and the surgical procedures were performed without due care. It may be pointed out that to which surgical procedure the Complainants are referring viz. first one pertaining to bypass surgery or the second one pertaining to intestine is not clear. In the second surgery neither Opponent Dr. V. R. Karmarkar nor Opponent Dr. Chaitanya Raina were connected and so also, Opponent Dr. Jagdish Hiremath.
[7] About the infection which was contacted by the patient, the Complainants themselves were not sure about the source of infection and they alleged in that respect in paragraph (12) of the complaint as under:-
“The sequence of events and the accompanying circumstances have caused the Complainants to believe that the source of infection suffered by the patient was either the two surgeries which were performed at Ruby Hall Clinic or the lack of due and proper care and medical treatment given to the patient. The fatal infection was further aggravated by the lack of any coordinated treatment.”
[8] This itself shows vagueness in the allegations of the Complainants. There is absolutely no expert opinion placed on the record to prima-facie substantiate the above-referred allegations. Material placed on the record does not disclose per-se medical negligence of the treating doctors or any treatment given at Ruby Hall Clinic. Affidavit of the Complainant No.2 Mr. Rajendra Mane cannot be taken as an expert opinion on the subject besides the fact that he is also charged with emotions since this is a case relating to the death of his father and affecting his family.
[9] During the course of arguments learned authorized representative appearing on behalf of the Complainants tried to invite our attention to Consent Form (Exhibit-A of the complaint) on 23/10/2009 and about scoring of the name of Opponent Dr. Jagdish Hiremath and mentioning the name of the Opponent Dr. V. R. Karmarkar. This particular situation has already been explained by Opponent Dr. Vinayak R. Karmarkar in his affidavit dated 29/11/2012 in following words:-
“I state that with reference to Para No2 [a], there is no tampering with the consent form exhibit A. My initials Dr. V R K has been mentioned on the consent form by deleting the name of Dr. Hiremath, and this was done on 23.10.2009 itself before the surgery was done. The name of J S Hiremath has been mentioned as the physician thereon. There is no reason for us to tamper with the consent form, as falsely alleged in the affidavit.”
It may be pointed out that there is no dispute about the fact that Opponent Dr. Jagdish Hiremath is not a surgeon but a physician and cardiologist whereas, Opponent Dr. Vinayak R. Karmarkar is a surgeon and who did necessary bypass surgery. There is no reason to disbelieve statement of Dr. Karmarkar, supra.
[10] Learned authorized representative appearing on behalf of the Complainants further made reference to a letter dated 10/8/2010 written by Opponent Dr. Jagdish Hiremath and addressed to the Complainant No.3 Adv. Chandrakant Mane. He made particular reference to the following statement to show that Opponent Dr. Jagdish Hiremath was also taking care of the infection developed by the patient once the patient’s health condition started deteriorating. It reads as under:-
“The only explanation on my part is once patient beyond bypass develops a post operative infection/intestinal perforation, it becomes clearly that the domain of an intensivist and critical care areas. It goes away from the domain of cardiologist, despite cardiac arrest because any critical ill patient because of the disturbed electrolyte balance can develop cardiac arrest. Since it is my moral responsibility to see such patients, I have Dr. D. Duggal in my team. She is appointed by me and not by the hospital to look after my patients, so whenever such a patient takes a unusual turn and requires an intensive treatment she looks after the patient and I am involved more socially.”
We are afraid, an inference tried to be drawn by the Complainants referring to above-referred passage have no valid foundation and it cannot be accepted considering its rationality and reasonableness. Thus, prima-facie, there is no material to fasten any medical negligence on Opponent Dr. Jagdish Hiremath.
[11] Some reference is tried to be made to the nurses’ notes dated 26/10/2009. However, those were the clinical conditions of the patient and do not, per-se, establish any medical negligence on the part of the treating doctors or the hospital. Once intestinal problem of Late Dattajirao was identified/noticed, due care was taken to call an expert from the field, namely – Dr. Deshpande and the patient was accordingly examined by Dr. Deshpande and the treatment was advised accordingly.
[12] Cumulative effect of the above-referred discussion lead us to infer that, prima-facie, there is no case established to infer any medical negligence vis-à-vis deficiency in service on the part of either of the Opponents. Prima-facie, the Complainants failed to establish that the conduct of the Opponents ‘treating doctors’ fell below that of the standards of a reasonably competent doctors. Similarly, the Complainants, prima-facie, failed to establish proximate cause of the death of Late Dattajirao with the breach, if any, on part of the ‘treating doctors’ (of alleged medical negligence). Applying the ‘Bolam Test’ or the test ‘but for’ or ‘substantial factor’ to establish a proximate cause (Sunil Adhye Vs. Shailesh Puntambekar and Others ~ 2012-(1)-CPR-390), it cannot be said that prima-facie, any such case for medical negligence is made out. No doubt it is an unfortunate death for the family but to admit a consumer complaint of this nature, it needs something more as amply pointed out by the Apex Court in the case of Martin F. D’souza v. Mohd. Ishfaq, reported in 2009-(3)-SCC-1. We hold accordingly and pass the following order:-
ORDER
The complaint is not admitted and stands dispose off, accordingly.
In the given circumstances, the parties to bear their own costs.
Pronounced and dictated on 11th December, 2012
