Per Hon’ble DR. S.K. Kakade, Presiding Member.
- This appeal is filed by complainant who is the wife of deceased Sandeep Nigudkar against the O.P./Dr. against the order passed by District Consumer Commission Nagpur in Consumer Complaint No.613/2010 decided on 30/09/2011 in which three different judgments and orders were written. One by the President of the District Consumer Commission and two others by the Members of the District Commission. Since the two Members passed the order of dismissal of complaint by majority this judgment and order was pronounced. Aggrieved by dismissal of the complaint the complainants who are legal heirs of deceased Sandeep Nigudkar approached this Commission by filing this appeal.
- Brief facts of this appeal are as follows.
The appellants are legal heirs of deceased, appellant No.1 is the wife Smt.Mamta, appellant No.2 Palash the son of deceased, Aayushi who is daughter of deceased. The deceased Sandeep Nigudkar consulted the O.P./Dr. on 19/05/2009 when he was accompanied by his neighbor Mr.Dighe. On complaint of burning in chest for which he was investigated by doing E.C.G. and the doctor advised certain blood investigations, asked to show the reports on next day. Since the chest pain and burning sensation of Sandeep Nigudkar was increased he was again taken in the afternoon to the hospital when the O.P./Dr. was not present in the hospital. By around 1.15 p.m. Sandeep Nigudkar died. Alleging that the Dr.should have admitted Mr.Sandip and then treated according to the severity of the deceases he was negligent in not admitting the patient with chest pain. Further the life of Mr.Sandip could have been saved, the wife of Mr.Sandip and two children filed complaint against the Dr./O.P. in District Consumer Commission Nagpur.
- The O.P./Dr. defended the complaint by filing necessary pleadings and evidence. After final hearing the complaint, there was difference of opinion amongst President and the Members of the District Consumer Commission Nagpur. According to the judgment and order given by the then President Mr.Rane the Dr. was negligent in giving treatment to the deceased and compensation of Rs.9,60,000/- was awarded with interest @9% p.a. from the date of filing of the complaint. The Member Mr.Bansod passed dissenting order and by referring to various rulings/judgments and orders by Hon’ble Supreme Court as well as Hon’ble National Consumer Commission he dismissed the complaint with the conclusion that there was no negligence by the O.P./Dr. Further the second member Mrs.Yende supported the view and judgment and order passed by the Member Mr.Bansod as majority view was uphold finally the complaint was dismissed.
- The learned advocate by both parties filed joint pursis for remanding this matter back to District Consumer Commission to facilitate corrective application of mind to the issues.
- Learned advocate for the appellant submitted that the appellants/original complainant waiting for justice for quite long time. Deceased Sandeep Nigudkar died in the year 2009 subsequently the complaint filed before the District Consumer Commission Nagpur in the year 2010. As per the submissions of the learned advocate for the appellant that 44 years old mail patient who was complaining of chest pain and burning sensation in the chest was examined by the appellant/Dr. on the basis of E.C.G the O.P./Dr. gave prescription/medicines, but no hospitalization was advised considering the severity of symptoms. Since the patient was not admitted and not received treatment for his chest pain he died because of negligence of O.P. He invited the attention of the Bench to the order passed by Maharashtra Medical Council in which as per para Nos.8, 9 and 10, “the O.P./Dr. should have advised admission to the patient, also it will be incorrect to say that the patient was physical comfortable. The complaints of burning in chest with E.C.G. change associated with High Blood Pressure must have alerted the R.M.P.” Further the medical council has not accepted the oral submissions of the O.P./Dr. that the O.P./Dr. advised the patient but patient refused the same was not recorded in case paper, “whatever not recorded or what is not writing or mentioned is taken as not done”. Further after noting that the council is of the considered opinion that “RMP must be warmed that there was dereliction in duty”. Maharashtra Medical Council passed ath order “The RMP herein requires to issue the letter of WARNNING with the ‘Directions’, to the RMP that such dereliction in duty should not occur hence forth failing which more stringent action against the RMP will be taken. Therefore the complaint deserves to be disposed off. We direct so. The Registrar may inform all the concerned accordingly.” (page No.102). Hence the learned advocate for the appellant prayed for considering the opinion of Maharashtra Medical Council against the respondent/ Dr. and uphold the minority judgment given by the then President of Learned District Consumer Commission Nagpur.
6) Learned advocate for the respondent opposed the contentions of the appellant and submitted that the majority views i.e. the views taken by both the learned Members and the order passed by the majority is correct and legal. As per submissions of the learned advocate when deceased Sandip approached the O.P., O.P. Dr.Modak rightly advised E.C.G. in which according to the doctor there was no problem and hence Mr.Sandip was allowed to go home after prescribing medicines and after advising further investigation. He admitted that to this submissions there was no expert opinion submitted by the respondent No.1, but he invited the attention of the Bench to the medical literature filed by O.P.No.1 (reference page of 163) in which the details about E.C.G. are discussed. Further he referred the page No.165, there is another medical reference stating that poor R-wave progression is an important ECG finding which will be associated with number of cardiac conditions. The E.C.G. pattern can also occur in otherwise healthy individuals. With reference to this, learned advocate for the respondent submitted that there was no negligence on the part of the doctor rather he advised admission to deceased Sandip orally but the same was not mentioned in the case papers or the prescription. O.P.No.1 Dr. had filed application for filing expert opinion, the same was rejected by learned District Consumer Commission. He further invited the attention of this Bench to the majority judgment and order passed in which one of the Members has commented on the medical article referred page No.164. Further in the affidavit filed by the O.PNo.1 he has stated that he is having the qualification MBBS, M.D. he is working as Physician and Cardiologist for last 30 years. Considering his experience in treating such patients his advised and treatment was correct as per the condition of the patient at that time. Learned advocate further pointed out that there is no affidavit filed by Dr.Bisne in support of the complainant’s contentions that ‘Dr.Bisne said that the patient should has been admitted. Learned advocate for respondent No.1 prayed for dismissing this appeal and upholding the majority judgment as it is just legal and proper.
7) We have gone through the record after hearing of the arguments by both parties. We have also perused three different judgments and orders given by the President of the District Consumer Forum which is minority judgment, the judgments and orders passed by both the Members as dissenting order and support to dissenting order. On perusal of judgment and order passed by the learned Members Mr.Naresh Bansod who has given dissenting order has writing 25 pages in which he has commended the medical issues to E.C.G. in particular and the medical treatment. On the basis of medical literature which is filed by the O.P. It would have been appropriate that rather than commending upon the medial issues when the learned member sitting on the Bench does not have medical knowledge and no qualification to comment upon should have only commented of expert opinion if any hence in para No.36 of his judgment he has mentioned that “On the basis of documents and article which has filed by non appellant/respondent that the diagnosis and treatment given to the patient was as per world famous book of Davidson”. It is surprising to see such inference drawn by the learned Member. Further in the judgment learned Member has referred to at list 10 rulings in relation with medical negligence. Over all it is apparent that even without considering the opinion given by Maharashtra Medical Council, the learned Member has erred in interpreting the medical literature as well as so many rulings which he has referred. On perusal of the judgment and order given by the second Member Mrs.Jayashree Yende who has supported the other Members judgment and order considered that the O.P.Dr.is well qualified with 30 years of experience she also referred the article filed by the OP. and hence concluded that there was no medical negligence and supported the view of the Member Mr.Bansod.
8) On perusal of judgment and order given by the President of the Consumer Commission considered all the documents placed on record by both the parties and relied upon the prescription and advise given in writing by O.P.No.1 to the complainant that only few blood investigations were advised but no advise was given in writing that the patient needs admission rather he prescribed the medical test and asked the deceased Sandip to come on next day with report and also prescribed medicines for seven days. While confirming the negligence of O.P. in treating deceased Sandip due to which he died after reaching at home. Since Mr.Sandip was employed and was receiving salary there was financial loss to the family of the deceased Sandip and hence he allowed the complaint and awarded compensation based on the documents filed by the complainant.
9) In our view in the judgment and order passed by the President of the District Consumer Commission he has considered all the documents, affidavits in the balance manner not advising the patient admission and emergency treatment in whom serious cardiac symptoms alongwith some E.C.G. changes were present, itself can be termed as negligence. Oral advise given to the patient cannot be considered and hence we agree to the opinion expressed by the minority view i.e. by the President of the District Consumer Commission. Further the Maharashtra Medical Counsel in its order dated 12/10/2010 has warmed RMP (Registered Medical Practitioner) i.e. O.P. and the order is as followed ““The RMP herein requires to issue the letter of WARNNING with the ‘Directions’, to the RMP that such dereliction in duty should not occur hence forth failing which more stringent action against the RMP will be taken. Therefore the complaint deserves to be disposed off. We direct so. The Registrar may inform all the concerned accordingly”.
10) During the hearing of this complaint this appeal both the parties submitted joint pursis praying for remanding back this matter to District Consumer Commission Nagpur since in view of this remanding back this matter to facilitate corrective application of mind to the issues by the District Consumer Commission. In our view the deceased Mr.Sandip died in the year 2009 and complaint was filed in the year 2010. The same was decided in 2011 in which decenting judgments and orders were passed and the appeal against the order is pending before this Commission from 2012 till today. The nature of consumer complaint is of summary nature and the consumer complaint was supposed to be decided within three months from the date of filing. Though this complaint was decided in very next year of the filing i.e. in 2011 the complainant is awaiting for just and legal decision, as per our observations when the qualified and experienced doctor does not recognize the serious nature of Cardiac symptoms and also subsequently does not advise for admission and other treatment that resulted in to death of deceased itself to be considered as deficiency in service as well as medical negligence and order passed by Maharashtra Medical Council supports to this observation. When it is so obvious and logical that the order passed President of the District Consumer Commission Nagpur is just legal and proper, it is not necessary to waste more time by remanding back this complaint to District Consumer Commission Nagpur. Hence we reject the request by both party advocates to remand back the matter.
11) Thus in our view there was deficiency in service by the O.P. while treating deceased Sandip, which resulted into death of Mr.Sandip. The Judgment and order passed by minority view i.e. by the President of District Consumer Commission is just legal and proper, hence we uphold the minority view and set side the majority view of order. We pass the following order.
//ORDER//
i) Appeal is partly allowed with cost quantified to Rs.50,000/- to
be paid by the respondent to the appellant within period of
two months from the date of copy of this order.
ii) The judgment and order passed in Consumer Complaint
No.CC/613/10 dated 30/09/2011 passed by majority view is
hereby set aside.
iii) This Commission is upholding the judgment and order passed
by the President of the Commission Shri Vijay Rane and hence the respondents are hereby directed to comply the order passed by District Consumer Commission Nagpur within period of two months from the date of this order.
iii) Copy of this order be supplied to both parties free of cost.
[MR. DR. S.K. KAKADE]
PRESIDING MEMBER
Separate concurring judgment delivered by me.
[MR. A. Z. KHWAJA]
JUDICIAL MEMBER
