Per Shri Narendra Kawde, Hon’ble Member
This consumer complaint pertains to deficiency in service vis-à-vis medical negligence on the part of hospital and treating doctors.
2. Undisputed facts are that Late Mrs.Pramila Shailesh More, wife of complainant Mr.Shailesh Janardan More, (hereinafter referred to as ‘complainant’) since from the month of September 1999 in her second pregnancy registered with opponent No.1-Dr.Balabhai Nanavati Hospital (hereinafter referred to as ‘Hospital’) for pre-natal care. Earlier, after the pregnancy was detected and confirmed in the month of April 1999, Late Pramila was under pre-natal care of Dr.P.S. Malashe. However, due to death of Dr.Malashe, complainant registered name of his wife with the Hospital and since then she was examined by opponent No.2-Dr.(Mrs.)K. Sankari, who is Consulting Obstetrician and Gynaecologist attached to the Hospital. On 10/11/1999 Late Pramila was visiting her parents’ residence on account of Bhaubheej. On 12/11/1999, in the morning, Late Pramila witnessed severe pain in the abdomen and therefore, after consulting the Hospital, she was taken to the Hospital around 10.45 a.m. and on reaching there she was immediately taken to the Labour Room. She was admitted as a case of Emergency L.S.C.S. and accordingly, after obtaining consent of the complainant, necessary procedure was carried out. Stillborn male child was delivered. After her condition was stable, Late Pramila was taken to the adjoining room for further management. However, her condition gradually deteriorated and she died around 10.30 p.m. on the same day. Her postmortem examination was carried out and cause of her death based upon the Histopathology Report noted as “Due to haemorrhage shock in a case operated for L.S.C.S.”
3. It is a case of complainant that when Late Pramila rushed to the Hospital on 12/11/1999, opponent No.2-Dr.(Mrs.) K. Sankari was requested by the complainant to admit Late Pramila, but opponent No.2 expressed that since date of delivery of child was expected on 12/12/1999, Late P:ramila cannot be admitted at that stage, but ultimately Late Pramila was admitted and assistant to opponent No.2, namely, opponent No.3-Dr.Ms.Tamhane completed the procedure for admission. However, at that time Late Pramila was not examined by opponent No.2. Late Pramila was taken to the Operation Theatre around 11.45 a.m., around 01.30 p.m. opponent No.2 informed the complainant that stillborn child was delivered and that condition of Late Pramila was critical. Fact of excessive non-stop bleeding of Late Pramila was also informed to the complainant. Thereafter, opponent No.3-Dr.Tamhane further informed the complainant that their attempts to stop bleeding were not meeting the success and Late Pramila was kept under observations and around 4.30 p.m. further informed that condition of Late Pramila was further worsen and she became serious. Around 3.30 p.m. body of stillborn child was handed over to the complainant for further religious rights. Even after the condition of Late Pramila became serious and delicate, opponent No.2 did not personally visit Late Pramila and continued to give instructions over telephone. She came around 10.30 p.m. just to declare death of Pramila.
4. In the procedure of L.S.C.S. and further management, opponent No.2 was assisted by her assistants who are namely, as opponent No.3-Dr.Ms.Tamhane, opponent No.4-Dr.Priti Galvankar, opponent No.5-Dr.Ms.Nilambari and opponent No.6-Dr.Ms.Rashmi. It is not disputed that at the relevant time opponent No.3-Dr.Tamhane was Registrar while opponent No.5 Dr.Ms.Nilambari and opponent No.6-Dr.Ms.Rashmi were A.M.O. at the Hospital attached to the Gynaecology Department. Opponent No.7-Dr.Rajednra V. Joglekar was the Anaesthetist present at the time of L.S.C.S. Late Pramila after said procedure was made to stable. She regained consciousness, coming out of anaesthesia and opponent No.3-Dr.Tamhane under the direct supervision of opponent No.2 has taken over charge of Late Pramila for further management. Dr.Sharad Seth-opponent No.8 though cause title of the complaint described him as Assistant is in fact a Consulting Nephrologist and was summoned to look after the condition of Late Pramila in the late afternoon when problem related to kidney of Late Pramila was arose.
5. At the outset, it may be observed that there is no allegation of medical negligence as such is alleged in the complaint or even is revealed/established from the material placed on record against opponent No.1-Hospital and opponent Nos.3to8.
6. The allegation of medical negligence confined to opponent No.2 and that too particularly about management of condition of Late Pramila by not visiting her at all during post care of L.S.C.S.
7. Heard both the parties. However, at the time of arguments, Learned Counsel appearing for the complainant, on 19/01/2012 remained absent and subsequently on 03/02/2012 he refused to avail the opportunity given to him to make his submissions by way of arguments. These facts are recorded in detail in respective Roznamas/Order-sheets. All the opponents filed their written version and even the complainant in his rejoinder in answering to their written versions referring to a Civil Suit No.6606/2001 filed against the complainant by the Hospital to recover their dues, before the City Civil Court of Greater Bombay at Mumbai. Said suit came to be decided on 20/12/2008 and the certified copy of the judgement thereof is also on record. The opponents had taken objection for continuing this consumer complaint in view of said civil suit, particularly, when a substantial issue as to alleged medical negligence on the part of these opponents was raised by the complainant who was defendant in the said suit viz. because of such medical negligence he has no more liable to pay the dues of the Hospital. Issue No.2 in the said suit reads as under :-
“Whether the defendant proves that there was a positive negligence on the part of the plaintiff leading to the death of the patient and therefore the defendant is not bound to pay the suit claim?”
Said issue of negligence was answered in negative and it is revealed from said judgement that said suit was contested by both the parties leading their respective evidence and even doctors who testified on behalf of Hospital as experts or otherwise were cross-examined by the complainant, who was defendant in the said suit. Therefore, it is a regular remedy pursued by the parties to this complaint, said finding does come in the way of the complainant in this consumer complaint as far as the Hospital and even for that purpose the treating doctors are concerned. Negligence of the Hospital could be seen as the Hospital vicariously liable for the negligence of treating doctors/or its staff.
8. By way of evidence, complainant-Mr.Shailesh More sworn his affidavit in the initial stage while filing consumer complaint which is an affidavit by way of verification of a consumer complaint and it styled as “Affidavit of Evidence in proof for in support of claim”. He also filed an affidavit of documents at the same time which was the documents annexed to the complaint. The opponents did not dispute these documents though allegations of medical negligence inferred therefrom were categorically denied by them, so also the contentions of notice issued prior to filing of the consumer complaint dated 04/09/2001 and to which reply was sent by the Hospital on 04/10/2001. Other notice dated 30/10/2001 issued against opponent Nos.3to8 and which was specifically replied by opponent No.8-Dr.Sharad Sheth who was Consulting Nephrologist and in spite of such fact clearly stated by opponent No.8-Dr.Sharad Sheth, complainant continued to describe him as Assistant to opponent No.2.
9. As far as alleged medical negligence vis-à-vis deficiency in service on the part of opponent No.2-Dr.Sankari is concerned, it is alleged that on reaching to the Hospital around 10.45 a.m. on 12/11/1999 when she was requested to get admitted Late Pramila, she was hesitant in the beginning but subsequently got her admitted. It is the version of opponent No.2 that when Late Pramila was brought to the Hospital in taxi, by chance she could notice her and therefore, immediately went to her and examined her and arranged for admission. It is also the case of opponent No.2 that when Late Pramila was initially brought to the Hospital in the month of September, she being Head of Gynaecology Department and Consulting Gynaecologist there, did examine Late Pramila and looking to her history of first caesarean delivery and her condition, she had noticed that Late Pramila had undergone a previous caesarean delivery for Pre-eclamptic Toxaemia at Wadia Hospital and there was a problem with the healing of her wound which left a very weak scar on her abdomen. Besides this Late Pramila also had severe diverication of her abdominal recti muscles and therefore, her case was a high risk case, more prone to develop a Rupture Uterus and other complications in the second pregnancy. She also found on her clinical examination that there was more growth of foetus and also a risk of silent rupture as the foetal parts were very much superficial and palpable and therefore, she advised her a complete bed rest. It is her case that Late Pramila on the contrary ignored her instructions, continued to work almost till she was brought to the Hospital, and did not adhere to her advice. In this background, considering preponderance of probabilities, we find no reason to disbelieve version given by opponent No.2 that when by chance she noticed Late Pramila brought to the Hospital, she immediately went to her and examined her and further took steps as found necessary in her case.
10. The case was diagnosed after considering the history collected to the effect that from the previous night the movements of foetus were reduced and when she was brought to the Hospital in the morning of 12/11/1999, there were no movements of the foetus. Suspecting that the foetus might have died by that time and therefore, it was felt necessary to urgently remove it. The case papers of the Hospital including her operation notes and the written consent for Emergency L.S.C.S. obtained from the complainant did speak for themselves. Copies of these documents were made immediately available around 2.00 a.m., as admitted by the complainant himself, on the death of Late Pramila around 10.30 p.m. on that night i.e. the night of 12/11/1999. The Emergency L.S.C.S. was carried out by opponent No.2 herself after consulting opponent No.4-Dr.Priti Galvankar assisted by opponent No.5-Dr.Nilambari. The procedure followed is well recorded.
11. Why this particular procedure was required to be followed (in the best of their judgement) is stated by opponent No.2 in her affidavit corroborated by opponent No.4-Dr.Priti Galvankar. Besides this on behalf of opponent No.2 affidavits of experts, namely, Dr.Kumud Ingle and Dr.Shyam Desai were also filed. Both of them who are renowned persons in their field enjoy illustrious background and rich experience. They categorically stated that what is followed by opponent No.2 was not only proper but was also the best course adopted in the given circumstances by opponent No.2 and the procedure carried out is as per the standard procedure and was carried out perfectly. Pleading against such expert opinions, complainant tried to refer to his father who is perhaps a Government Pleader and Prosecutor. But we are afraid, such opinion as tried to be referred by the complainant of his father cannot be accepted against the expert opinion of the above referred persons who are experts in their own medical field.
12. Complainant also tried to submit that vaginal hystectomy could have been tried to save the patient and the child. Dr.Sankari in her affidavit categorically stated that such procedure is never followed in such type of cases.
13. Everything in detail she has explained on the subject. After taking out the stillborn child, the fact was immediately informed by opponent No.2 herself to the complainant. She also informed him about the critical condition of his wife. She was taken for further management to adjoining room which is fully equipped as even confirmed by opponent No.3-Dr.Tamhane. The complainant tried to say that looking to her condition late Pramila ought to have been admitted in the I.C.U. but Dr.Priti categorically explained as to how in the given circumstances, Late Pramila could have managed properly in the side Labour Room which was kept fully equipped. She was also referred to particular type of examinations (in the given circumstances), were required or may be required and taking help of or obtaining necessary expertise of expert doctors and availing their advice from time to time. Furthermore, it is revealed from the evidence of Dr.Priti Galvankar-opponent No.4 as well as opponent No.2 that the grievance of the complainant to the effect that after L.S.C.S.; opponent No.2 did not pay attention to Late Pramila and in spite of repeated calls, could turn only in the night just to pronounce death of Pramila; is devoid of any substance, nay, it appears to be a false allegation. Opponent No.2 stated that the treatment given to Late Pramila through out was given on her consultation and under her direct supervision and Dr.Priti Galvankar also corroborated her such statement. There is no reason to disbelieve them. Initial caesarian was carried out properly. As far as monitoring was concerned, there is no reason to hold that no proper treatment was given to Late Pramila or that what was required to be done in her case was not done. Even when she developed D.I.C. i.e. Disseminated Intravascular Coagulopathy (DIC), even that condition was attended properly and with due care. Death of Pramila was unfortunate but, certainly, there is hardly any evidence to show that there is a medical negligence vis-à-vis deficiency in service on the part of opponent No.2.
14. For the reasons stated above, we find that complaint is misconceived and hence, the order :-
-: ORDER :-
1. Complaint stands dismissed.
2. In the given circumstances, the parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 6th February 2012.
