Dt. of filing- 13/11/2017
Dt. of Judgement- 24/04/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This consumer complaint is filed by Mohmmad Amir under Section 12 of the Consumer Protection Act against Dr. Ashok Mittal and Dr. Anindya Chattophadhyay alleging deficiency in service on their part.
Complainant’s case in short is that on 12.07.2017 his 05 year old son namely Muzzamil Amir was suffering from Abdomen Pain and vomiting, so he went to Medica Super Speciality Hospital , where on examination, his son was admitted under the supervision of OP No. 1 for work up and management and for some other test such as serology, uric test, TSH, Ferretin and also the Blood (RRBS) transfusion. Opposite Party advised certain medicine and after arrangement of blood from the said hospital, without checking it started blood transfusion on the same day. But during blood transfusion, complainant’s son’s face and body was full of rashes and had allergic reaction and the abdomen pain of the complainant’s son was also not under control. On being informed by the junior doctor to OP No.1 about rashes and allergy, blood transfusion was stopped. When complainant asked OP No.1 about the allergic reaction, OP No.1 did not answer and asked him to collect the blood from AMRI Hospital. Complainant collected the blood as asked. But still the abdomen pain did not subside. Thereafter on seeing blood report of his son, OP No.1 consulted OP No.2 and on 17.07.2017 surgery was conducted under the supervision of OP No.1 & 2. After surgery, under the supervision of OP No.2, normal diet was started on 21.07.2017 and thereafter complainant’s son was discharged on 22.07.2017. But after his discharge, on 23.07.2017, his son again had Abdomen Pain and had vomited several time, so he was again admitted on 24.07.2017 and was examine d by OP No.2. Due to wrong blood transfusion whole immune system of the complainant’s son was damaged and for which his son was to be hospitalised for 14 days. For such negligence on the part of the OPs, complainant not only suffered emotionally but also financially and thus present complaint is filed alleging medical negligence and so directing OPs to pay Rs. 4,00,000/- as damages and Rs. 20,000/- towards litigation cost.
Complainant has annexed with the petition of complainant, medical bills, medical report and discharge summary.
Opposite Party no.1 as well as OP No.2 have contested the case by filing separate written version denying and disputing the allegations made in the complaint petition.
Both the doctors have specifically contended that since hospital is not made party, case suffers for non-joinder of necessary party. It is further contended by them complainant ought to have filed the expert’s opinion and without the evidence of the medical expert in the specialised field, alleged negligence cannot be adjudicated.
Specific case of the OP No.1 is that before admission of the patient at Medica Superspeciality Hospital, he was treated at various hospitals like Institute of Child Health and by another senior doctor. So on clinical examination at the time of admission there was pallor cervical lymphadenopatty and mild hepatomegaly. Appropriate investigation were sent and treatment was started. Packed red blood cell provided by the blood Bank of the Medical Superspeciality Hospital was duly checked by the duty Paediatrician. Allergic reaction may happen to some person even if proper blood is transfused. After the patient suffered allergic reaction, remaining blood sample was retested but the blood was found satisfactory. The underline problem was with the patient in not being able to accept blood. On discussion and suggestion of M.O of blood bank of transfusing lenko-depleted packed red cells, the product as was not available in that hospital, complainant was asked to bring it from outside hospital hoping that same will not cause any transfusion reaction.
Both the doctors’ specific case is that decision to do surgery was taken based on clinical examination finding by treating team CT abdomen finding as well as confirmation by a positive Meckel’s scan. Patient did not undergo an ‘open surgery‘ rather he underwent a laparoscopic Meckel’s diverticulectomy which is the best way of handling such problem with better and smoother post operative outcome. The biopsy report confirmed diagnosis of Meckel’s diverticulam. It is further stated that the 2nd admission on 24.07.2017 was because of vomiting and abdominal distension which was managed successfully by conservative management, an open surgery was never required. So opposite parties have prayed for dismissal of the case.
During the course of evidence, both the parties have adduced evidence by way of filing their respective affidavit –in-chiefs followed by filing of questionnaire and reply thereto.
Ultimately, both parties have advanced their argument respectively. Opposite Parties have also filed prints outs as to what is Meckel’s diverticulum and its signs and symptoms. They have cited some case laws of Hon’ble State Commission in support of their argument that the expert’s opinion is necessary and the burden is upon the complainant to prove medical negligence by way of cogent evidence.
So, the following points require to be considered :
- Whether there has been any deficiency in service on the part of the Opposite Parties ?
- Whether the complainant is entitled to the reliefs as prayed for ?
Decision with reason
Both the points are taken-up for a comprehensive discussions in order to avoid repetition.
Complainant’s specific case of medical negligence is that his son was admitted at Medica Superspeciality Hospital on 12.07.2017 under OP No.1 who started blood transfusion of his son without checking or investigation of the blood collected from the said Medical Superspeciality Hospital. During transfusion of blood, face and upper part body of the son was full of rashes and allergic and when it was informed to OP No.1 by the junior doctor, transfusion of blood was stopped in the midway at night. So according to the complainant, Opposite Party being a renowned doctor without considering the medical ethics and policy prescribed wrong treatment in blood transfusion causing his son to be hospitalised for 14 days and put him almost at the verge of death.
On a careful perusal of the written version filed by the Opposite Party no.1, it appears that admission of the child on 12.07.2017 and blood transfusion done and that there was allergic reaction and rashness due to which the blood transfusion was stopped, has not been disputed and denied. However, it is evident from the written version as well as evidence of the doctor, it is specific case of the doctor OP No.1 that it was mild allergic reaction and when noticed immediately transfusion was stopped followed by some injections to control the allergic reactions. Child responded well and showed improvements within 10 – 15 minutes and very soon patient recovered from the transfusion related allergic reaction. According to doctor on checking of left over packed red blood cells with the fresh sample of the patient, it did not reveal any problem with issuance of the blood product.
It is further case of the doctor that the blood transfusion was done as the patient was suffering from severe anemia ( Hb 5.9 gm%). This has also been admitted by the complainant in his reply to the questionnaire put by the opposite parties that the child was severe anemic ( Hb 5.9% ).
It is also an admitted fact that the child was treated by a respected doctor namely Dr. M. N. Ahmed at another reputed children’s hospital before coming to Opposite Parties. Opposite Parties found patient was suffering from Meckel’s Diverticulum on diagnosis by way of using clinical experience, CT abdomen and Meckel’s scan and so surgery was done and then child recovered within ten days.
Complainant it seems has related the surgery done or the hospitalisation of the patient in the hospital for 14 days, with the blood transfusion done on the first day which n according to him had caused allergic reactions but he has not filed any expert’s opinion in this regard. Opinion of medical experts in the specialized field could only say whether there was any negligence as alleged. It has been held in a plethora of judgements that the burden of proof is on the complainant who is alleging medical negligence. In case of C. P. Sreekumar -vs. - S. Ramanujam reported in (2009) 7 SCC 130, Hon’ble Apex Court has held that the complainant alleging medical negligence has to prove his allegations and needs to substantiate his allegations by way of evidence. A mere averment alleging negligence cannot be considered to be evidence.
In case of Jacab Mathew –vs.-State of Punjab and Anr. Reported in (2005 ) 6 SCC 1, Hon’ble Apex Court relying on case of Bolam –vs.- Friern Hospital Management Committee, held that “ the accused doctor did something or failed to do something, which in the given facts and circumstances, no medical practitioner in his ordinary sense of prudence would have done or failed to do. If the medical practitioner has executed ordinary standard of care, then he is absolved of all liabilities “.
In case of Martin D’souza –vs. - Mohd. Ishtaq (Manu/SC/0225/2009 ) it has been again held by the Hon’ble Supreme Court that “ The Courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.
It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence ; unless there is some strong evidence to suggest that he is.”
In this case complainant has claimed that due to wrong blood transfusion, the whole immune system of the complainant’s son was damaged and for that his son was to be hospitalised for 14 days, as a result complainant had to bear huge medical expenses.
Admittedly complainant’s son had severe abdominal pain and was severely anaemic. Opposite Party no.2 the doctor who conducted the surgery has stated categorically that the patient was referred to him on 15.07.2017 after C.T. Scan on 14.07.2017 which suggested the possibility of a Meckel’s diverticulum. So patient was instructed to undergo a Meckel’s Scan on 15.07.2017 and report confirmed the presence of ectopic gastric mucosa confirming the presence of Meckel’s diverticulum. So the doctor explained to complainant and his wife in detail about the need for surgery to prevent further bleeding. But the complainant asked for some time and agreed and planned for surgery only on 17.07.2017. According to doctor Mickel’s diverticulum, which is a congenial diverticulum and is a slight bulge in the small intestine present at birth and a vestigial remnant of the omphalomesentric duct. The most common presenting symptoms is painless rectal bleeding such as melaenalike bleak offensive stools followed by intestinal obstruction, volvulus and intussusception. Occasionally meckel diverticulities may present with all the features of acute appendicitis. Also severe pain in the epigastyric region is experienced by the patient along with bloating in the epigastic and umbilical regions. At times, the symptoms are so painful that they may cause sleepless nights with acute pain felt in the epigastric and umbilical region.
It is evident from the medical documents that the surgery was done on 17.07.2017. It was a laparoscopic assisted surgery. It is stated that surgery was uneventful and all objectives of surgery was met.
Complainant has not claimed anywhere that there was no meckel’s diverticulum or the surgery was not required or wrongly done. If that be so, than there cannot be denial that the hospitalisation of 14 days happened due to the surgery which was necessary for the child, to cure him or to save him. The statement referred to above of the doctor clearly suggests that the surgery had nothing to do with the allergic reaction notice during blood transfusion on 13.07.2017. More so as already highlighted above complainant has not filed any expert’s opinion in this regard in support of his claim.
It may be pertinent to point out that complainant has also stated in paragraph 24 of the complaint petition that -
“Due to the skill and diligence of the doctors, complainant/petitioner was ultimately saved.” ( it appears in place of complainant’s son complainant has been wrongly stated ).
So the abovemade statement contradicts the own case of the complainantthat there was medicalnegligence. Admittedly opposite parties had treated the patient. No name of any otherdoctor has been statedthat because of his treatment child was saved.OP No.2had conducted the operationand even after dischargedon 22nd when broughton 24th, he was treated and examined under the supervision ofOP No.2. So if according to complainant,due to the skill and diligence of the doctors, his son was saved, it negates his claim of medicalnegligence on the part of Opposite Parties and thus thecomplaint is liable to be dismissed.
These points are answered accordingly.
Hence,
Ordered
CC/640/2017 is dismissed on contest.
