A. P. SAHI, J (PRESIDENT)

1.       These two Appeals arise out of an Order passed by the State Consumer Disputes Redressal Commission, Maharashtra in Consumer Complaint No. 89 of 1998 wherein the Complainant had claimed compensation for medical negligence against the Opposite Party Doctor therein. The Complaint was allowed to the extent directing payment of compensation of Rs.6,00,576/- with interest of 9% per annum coupled with Rs.1,00,000/- for mental agony and Rs.25,000/- as costs of litigation.

2.       Aggrieved the Complainant has filed First Appeal No. 1180 of 2016 for enhancement whereas the doctor has filed First Appeal No. 1503 of 2017 for setting aside the Impugned Order.

3.       It may be pointed out that the doctor of the Hospital is under Insurance cover for a sum of Rs.10,00,000/- with Respondent No. – 2, Insurance Company.

4.       The deceased Late Shri Vinod Jagdish Kamble was the husband of the Complainant who visited Navjeevan Hospital where he was admitted on 02.08.1996 on complaint of fever and cold. Learned Counsel for both the Parties have handed over the discharge summary of the deceased from the Hospital on 03.08.1996 at 07.20 a.m. which records that the patient had been admitted on 02.08.1996 late at night with complaints of fever and chills for the past 3 days with weakness and vomiting for the past 2 days. It also notes that the deceased was undergoing the treatment of Dr. Shelke previously. On admission he was advised certain pathological tests including CBC, Urine Sugar and albumin, widal test and serum creatinine. The patient was also administered certain medicines on admission that are also noted on the treatment chart namely Injection Febrinil, Injection Quintor (mainly for typhoid to prevent complications of enteric fever), Injection Zeneric, IV Fluid with lactate and table saline.

5.       The allegation of the Complainant is that after admitting the patient the Opposite Party Doctor did not turn up and left the patient almost unattended with no proper treatment and the patient’s condition deteriorated as a result whereof by the morning of 03.08.1996 at 06.00 a.m. the Complainant had developed breathlessness and had not passed urine. The temperature was recorded 102°, Pulse was fairly high and the Blood Pressure was 96/68. The respiration rate was 30 breaths per minute. Certain medicines were again prescribed and were administered namely Lasi, Deriphylin, Decadrum and he was put in a propped up position. However, looking to his condition the doctor arranged for shifting him to the hospital of Dr. Upasani. Accordingly the patient was taken away at 07.20 a.m. and he was admitted in the Hospital of Dr. Upasani where later on the same day he expired on 09.15 p.m.

6.       The Complaint was filed by the widow alleging negligence and complete lack of treatment where the Opposite Party filed his Written Statement and after contest and going through the documents on record it was held that the case papers did not show actual administration of the medicines by the attending staff. It was also held that the Opposite Party was a Surgeon and there is no evidence to support that a Physician’s help was taken or called for any proper clinical diagnosis. The State Commission was of the opinion that there was no surgical issue involved and therefore care and caution should have been taken for prescribing and providing medical facilities including a clinical examination by a qualified physician.

7.       The State Commission also expressed a doubt as to why the patient was shifted to another Hospital when he was critical which indicates that the Opposite Party Doctor was not capable of attending to the patient and as such he could have been referred to another hospital at the very inception on 02.08.1996 itself. The State Commission thereafter dwelt into the law on the subject of medical negligence and professional negligence. The State Commission recorded findings in Paragraph No. 16 – 17 thereof to conclude that the doctor was not equipped with the knowledge and expertise to treat the patient yet he undertook to admit the patient and then shifted him belatedly after the patient had deteriorated beyond recovery.

8.       While deciding the quantum the State Commission took into account that the deceased was aged about 35 years and was working with the Government of Maharashtra in one of the Ministries.

9.       Learned Counsel for the Complainant in First Appeal No. 1180 of 2016 has urged that there was medical negligence established as no care was taken and as a matter of fact the doctor had been attending to another case of maternity at night as a result whereof he was not available to attend to the deceased patient. Apart from negligence it is also alleged that no diagnosis was made nor any tests were carried out and not only this learned Counsel has pointed out towards Paragraph No. – 7 of the Complaint to urge that looking to the fever and shivering of the patient, he seems to have collapsed on account of excessive administration of Saline. He has also relied on medical literature for which a reference has been made to Volume No. – 5 of the Oxford Text Book of Medicine, 3^rd Edition to substantiate his submissions.

10.     Learned Counsel for the doctor on the other hand has urged that the Impugned Order proceeds on erroneous assumptions of fact without there being any evidence to establish negligence. It is urged that the findings recorded are without any substance and based on surmises and conjectures. It is pointed out that the discharge summary clearly reflects that all due care and caution according to medical protocol was undertaken which has been completely ignored.

11.     On the issue of administration of saline learned Counsel has invited the attention of the Bench to the affidavit of Dr. Jagdish M. Upasani to confirm that the saline which was administered was not at all attributable in any way as the cause of death of the deceased.

12.     It is also submitted that the onus lay on the Complainant to demonstrate this which could have been done by producing the treatment records of Dr. Upasani’s Hospital where he was admitted and died later in the day. The said documents were neither filed nor was there any other evidence to substantiate the allegations of the Complainant. It is urged that as soon as it was found that the condition of the deceased patient was symptomatic of carditis he was immediately shifted to Dr. Upasani’s Hospital which is hardly at a distance of 5 minutes. It is therefore submitted that the only allegation of administration of saline has nowhere been proved and the medical literature relied on by the learned Counsel for the Complainant does not in any way aid his contentions as there are no facts to support the allegations.

13.     The first issue is with regard to the nature of the allegations regarding the qualifications and competence of the doctor. The doctor may be a surgeon yet he is a qualified doctor holding a degree of Masters in Surgery having an experience of 14 years. He has also worked as a Medical Officer in the General Hospital of Ulhas Nagar which is a 200 bedded hospital. It is stated in the Written Statement that he had attended casualties, emergencies and general out patients and had organized a large number of operations and camps whereafter he left his Government job and set up his own hospital in the name and style of Navjeevan Hospital at Kalyan. It is also urged in the State Commission in Paragraph No. 11 that he resided in the 2^nd Floor of the Hospital and therefore the allegation made by the Complainant that he was not available is wrong.

14.     While describing the manner in which the deceased patient was attended to Paragraph No. – 12 of the Written Statement needs to be extracted:

“12.    The respondent says and submits that, on 02/08/1996 at about 10.30 p.m. the complainant and Mr. Vinod had come to the hospital of the respondent with a complaint of fever with chills (Thandi-Tap) since 3 days, as also from weakness and vomiting since 2 days. At that time, complainant and Mr. Vinod had stated to the respondent and Mr. Vinod was taking treatment from Dr. Shelke since then and on that particular day since Mr. Vinod was having high fever, said Dr. Shelke was called for home visit at 9.00 p.m. and under his advice, they have come to respondent’s hospital. Respondent have admitted Mr. Vinod in his hospital and have immediately examined him. Initially, respondent interrogated Mr. Vinod hereby he stated as to no history of headache, urinary problem, cough or breathlessness, as also to no past history of hypertension, diabetis, pulmonary T. B., or any other major illness. The respondent have also enquired about the family history of Mr. Vinod but nothing specific as such was stated. On clinical examination, respondent observed as Mr. Vinod obvious averagely build and nourished temperature 101°F, pulse 104 per minute-regular, blood pressure – 100/64 mm/hg., Resporatory rate 26 per minute. JVP – not raised, no pellor and edema, no cyanosis, no neck rigidity, tongue coated and dehydration plus, respiratory examination – occasional crep, CVX (Cardio Vascular System) – NIL, per abdominal examination – liver and spleen not palpable. Respondent very specifically submits that, at time time   Mr. Vinod was not having ani cardiac problem nor any such symptous were seen by respondent in illness of Mr. Vinod. Under all these circumstances, respondent provisionally diagnosed illness of Mr. Vinod as due to enteric fever and had advised investigations like CBC, urine-sugar and albrain, widal test, sarum – cretonne and serum bilirubin. Respondent immediately started due and all possible treatment to Mr. Vinod. Respondent gave injection febrinil, injection – quintor (mainly for typhoid to prevent complications of enteric fever), injection – zeneric, intravenous fluid – ringer lactate – one point till morning and table saline. After starting treatment as above, at about 11:15 p.m. said Dr. Shelke of local area who had advised Mr. Vinod to gel himself admitted had come to enquire and see Mr. Vinod on Dr. Shelke’s arrival, respondent again attended Mr. Vinod along with Dr. Shelke, and have discussed with Dr. Shelke about illness and then Dr. Shelke have explained Mr. Vinod about the same. Thereafter, as stated above, respondent have again attended Mr. Vinod at 12:45 a.m., after completing all the formalities of the delivery of the above said Smt. Laxmibai Gabale, Therafter, respondent or his own again attended Mr. Vinod at about 2:00 a.m. and at that time, Mr. Vinod was sleeping.

                   The respondent say and submit that thereafter at about 6.00 a.m., the respondent was called by his staff for Mr. Vinod and accordingly, he immediately came and attended Mr. Vinod. That time, Mr. Vinod was having complaint of breathlessness and of not having passed urine. Then for the first time respondent suspected those symptoms of Mr. Vinod to carditis, therefore, respondent again examined Mr. Vinod and gave his life serving drugs like a injection, decadren, injection – deriphylin, injection losix and also gave him prep-up position, and then thought for and had advised the complainant to arrange for shifting of Mr. Vinod to the hospital of Dr. Upasini. Accordingly    Mr. Vinod was taken away at 07:20 a.m. for going to the hospital of Dr. Upasini, Meanwhile, the respondent was having continuous watch on Mr. Vinod. At the time of shifting of Mr. Vinod, respondent had given a transfer letter in the name of Dr. Upasini and it appears that, Mr. Vinod had died at about 9:15 p.m. i.e. about 12 hours after reaching the self hands of the pardise apologist.”

15.     It is thus clear that the doctor had taken care and which is substantiated by the discharge summary that has been relied on by the learned Counsel for both the Parties. No records of Dr. Upasani’s Hospital has been placed but the Affidavit of Dr. Upasani has been filed which is extracted herein under:

“I, Dr. Jagdish Murlidhar Upasani, age about 53 yrs, occupation Drctor, R/at Ratnabhima society, Kalyan (E), do hereby state on solemn affirmation as under:-

1. I say that I know Dr. Vijay Dhanraj Mahajan of Navjeevan Hospital, Kalyan East.
2. I say that I have established my own Hospital in the name and style of Nityanand Nursingh Home Opp.Gurati High School, Vali-Peer Road Bail Bazar, Kalyan (West).
3. I say that one Mr. Vinod Jagdish Kamble had come to my Hospital for treatment on 3.8.96 at 9.00 a.m. alongwith a Transfer letter from Dr. Mahajan of Navjeevan Hospital. I say that immediately he was admitted in my Hospital sooner he came to me. I say that he was suffering from Carditis due to exteric fever. I say that he was in my Hospital for 12 hours of that day. However, he died 9.15 p.m.
4. I say that I have never told verbally or otherwise to any of the relative of Mr. Vinod that due to delay in medicine at the hospital of Dr. Mahajan Mr. Vinod died. I say that I have examined Mr. Vinod at 9.00 a.m. in the morning, however, I have not seen any symptoms of excessive saline in Mr. Vinod. I say that the administration of saline cannot be said to be attributable to the death of Mr. Vinod.
5. I say that I am in agreement with medical opinion that in patients of enteric fever illness of the patient can become acute at any point of time. I say that infection of enteric carditis is very fulfilment and acute i.e. cases of enteric fever can at any point of time and within very short spane of time effect cardiac muscles of the patient.”

16.     The main plea of the Complainant in Paragraph No. – 7 of the Complaint is as follows:

“ 7.    After discussing various doctors about cause of death of Mr. Vinod, most of them have expressed their opinion that it might be due to excessive saline administered in the hospital of respondent and it is purely negligence.”

The said allegation stands answered by the Affidavit of Dr. Upasani.

17.     Learned Counsel for the Complainant has relied on the Oxford Textbook referred to above which states as follows:

                             “ Chronic fluid overload and heart failure

          Chronic overhydration is a long-term, and probably life-threatening complication leading to cardiovascular overload and increased mortality. The principal reasons for this are excess fluid intake and/or inadequate ultrafiltration. An increased cardiac output because of artirio-venous, fistula, chronic anaemia, hypertention, or coronary artery disease also contribute to cardiac malfunction. Weight gain between haemodialysis sessions in excess of 3 kg is a predictor of poor survival, in addition to the immediate side-effects of rapid fluid removal, which can result in headaches, cramps, vomiting and cardiovascular instability.”

18.     Learned Counsel for the Opposite Party doctor has also relied on Paragraph No. 37 of the Judgment in the case of C. P. Sreekumar (Dr.) MS (Ortho) versus S. Ramanujam reported in (2009) 7 SCC 130.

19.     There is no evidence on behalf of the complainant to indicate either by any expert or even appearing from any of the documents on record to establish that excessive saline fluid had been administered to the deceased so as to cause death. The affidavit of Dr. Upasani rules out such a possibility. Accordingly the contention in the Complaint about medical negligence to that extent does not appear to be correct and sustainable.

20.     The finding of the State Commission that the doctor was not competent also does not appear to be correct keeping in view the qualifications and the experience of the doctor as a surgeon as disclosed in paragraph No. – 7 of the Written Statement. The aforesaid fact had not been rebutted and the Surgeon is also equipped with the minimum degree of MBBS with an experience of 14 years. The doctor therefore cannot be said to be having no experience at all. It is not the case of the Complainant that the medicines which were administered as noted herein above and contained in the discharge summary of the hospital were not appropriate medicines. There is no evidence to contradict or find fault with the diagnosis of enteric carditis.

21.     Even though the patient deteriorated and later on died in a different hospital, the Complainant alleges that it was on account of negligence of the Opposite Party Doctor.

22.     This aspect has to be examined from the documents on record and we find that the discharge summary of the hospital indicates advice of pathological tests. No pathological tests seems to have been carried out nor any such attempt seems to have been made for getting it done by the Hospital.

23.     Once the patient had reported the past history of chills and fever, the doctor ought to have ensured the carrying out the tests which could have aided in an appropriate and prompt diagnosis about the exact ailment of the deceased that got aggravated and he ultimately expired, even though in a different hospital. The papers of the other hospital have not been filed, yet the fact that the patient had developed breathlessness in the morning at 06.00 a.m. and at the time of his discharge at 07.20 a.m. he was still in the Navjeevan Hospital. The condition of the patient therefore had deteriorated at the Navjeevan Hospital when the patient was under treatment of the Opposite Party Doctor Mahajan. In such circumstances there is a reflection of delayed action in not getting pathological tests conducted in order to ascertain the correct status of the health of the patient.

24.     The State Commission has arrived at findings on the basis of its inferences drawn but at the same time in our opinion has arrived at the correct conclusion that there was medical negligence. However, the negligence regarding excessive administration of fluid has not been established but the at the same time the fact that the condition of the patient deteriorated rapidly as a result whereof he had to be shifted to another hospital is clearly reflected. This circumstance in our opinion has been rightly been taken to be a reason to infer negligence on the part of the Opposite party Doctor that was attributable to his inability to deal with the patient appropriately. There is no explanation as to why the pathological tests were not immediately carried out and there is nothing to indicate that such facilities were not available at the time of the admission of the patient. If that was so the patient ought not to have been admitted and should have been sent to the hospital where he was sent on the next day.

25.     In the background above whether there is a negligence attributable, even though narrowed down to the extent indicated above, the same did result in the absence of correct diagnosis and a proper treatment that led to the deterioration of the patient in the hospital of the Opposite Party.

26.     So far as quantum is concerned we do not find any error in the calculation made by the State Commission so as to warrant a reassessment of the same for either reduction or enhancement.

27.     For all the reasons stated herein above, the Impugned Order does not require any interference and accordingly both the Appeals fail and are hereby dismissed.

28.     We are informed that the Opposite Party Hospital / doctor has deposited an amount through a bank draft that has been encashed and has been released in favour of the Complainant. We therefore direct that the said amount released in favour of the Complainant shall be treated to be full and final compensation to satisfy the decree of the State Commission which shall stand modified on the aforesaid terms. Accordingly no further amount would be payable and the claim for enhancement of compensation by the Complainant is rejected.