PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding the medical negligence on the part of Opposite Parties as they erroneously treated the son of the Complainant for tuberculosis when, he was actually suffering from cancer as alleged by the Complainant.
2) The facts of the complaint as stated by the Complainant are that, his son was suffering from pain in his right shoulder. Therefore, the Complainant & his son approached Opposite Party No.3 on 08/09/06 for medical checkup at Raj Nursing Home, Malad. The Opposite Party No.3 advised for MRI at Holly Spirit Hospital, Andheri (E) on 11/09/06. When the Complainant came to Opposite Party No.3 on 12/09/06, alongwith report it was shown 95% T.B. Opposite Party No.3 started the treatment of the son of the Complainant, but there was no improvement. On 29/09/06, Opposite Party No.3 informed the Complainant that there was a pus in the shoulder and the patient needed urgent operation.
3) The Complainant has further stated that Opposite Party No.3 informed him that the report has suggested “C T Guided FNAC in report dtd.11/09/06 but Opposite Party No.3 told the Complainant that such test is not needed. Complainant told Opposite Party No.3 that, there are no facility in Raj Nursing Home so the Operation be done in Holly Spirit Hospital but Opposite Party No.3 forced the Complainant to get the operation done at Raj Nursing Home.
4) The Complainant further stated that he was not satisfied with the treatment given by Opposite Party No.3. Therefore, he went to Dr. Rupa D. Patel at Ashirwad Hospital at Vapi on 21/09/06. Dr. Patel advised to undergo tests like TCDL body PSR. On 22/09/06, the Complainant met Opposite Party No.3 but Opposite Party No.3 did not consider the opinion of Dr. Rupa Patel.
5) Thereafter, the Complainant met Dr. Nirad Opposite Party No.2 with all the reports which were checked by Opposite Party No.2 on 10/11/06. It is stated by the Complainant that Opposite Party No.2 & 3 both suggested for operation instead of CT guided FNAC Test. The Complainant decided to go for operation. Opposite Party No.2 informed the Complainant to do operation at Bhatia Hospital where Dr. Suresh Vengsarkar, Opposite Party No.1 is attached. It is further stated that Opposite Party No.1 Opposite Party No.1 is a famous surgeon who can perform the Operation. The Complainant was also told by Opposite Party No.2 that the expenses for the operation would be Rs.15,000/- only. Accordingly Opposite Party No.2 referred the Complainant’s son to Opposite Party No.1. Accordingly the Complainant took his son to Bhatia Hospital on the same day i.e. 10/11/2006. Thereafter, Dr. Suresh Vengsarkar (Opposite Party No.1) operated on 11/11/06 at Bhatia Hospital. It is also stated by the Complainant that his son was under observation and treatment of Opposite Party No.2 from 11/11/06 to 14/11/06 at Bhatia Hospital. On 14/11/06 the patient was discharged. After discharge, the Complainant was called by Opposite Party No.2 on 25/11/06 at his Dadar Clinic. The Complainant paid Rs.32,000/- to Bhatia Hospital. Again in the same paragraph the Complainant states that he arranged only Rs.30,000/- and Rs.2,000/- concession was given.
6) The Complainant has further stated that, the Opposite Party No.1 told him that there was blood clotting in right shoulder and it is removed & sent to medical examination on 18/11/06. The Opposite Party No.1 told the Complainant that the Operation was successful. After that the Complainant went to Opposite Party No.2 at Dadar Clinic as his son was not comfortable and there was sever pain in the shoulder. Opposite Party No.2 assured the Complainant that the patient would be alright. On 19/11/06, Opposite Party No.2 checked the report of Bhatia Hospital and informed the Complainant that it was cancer. Opposite Party No.2 informed the Complainant to collect the sample from Bhatia Hospital and it over to Tata Hospital alongwith samples which were handed over to Opposite Party No.2. Opposite Party No.2 gave Complainant a letter addressed to Tata Hospital in the name of Dr. Ajay Puri on 24/11/2006.
7) The Complainant has stated that, when he collected the letter from Opposite Party No.2 from Bhatia Hospital, it was revealed that Opposite Party No.2 had malafidely done surgery on the patient knowing that it was cancer but all the Opposite Parties did not inform the Complainant this fact and operated upon the patient & committed fraud. For this operation, the Complainant incurred expenses of Rs.32,000/- as surgery cost and Rs.20,000/- as medical expenses(Total being Rs.52,000/-) till 24/11/2006.
8) The Complainant has alleged that the Opposite Party No.1 to 3 had given wrong treatment to his son, falsely informed the Complainant that the tumor was removed and surgery was performed. This has caused severe harm, loss & injury to his son & the Complainant.
9) The Complainant has further averred that, he then admitted his son in Tata Hospital. His son was admitted in CRW ward of Tata Hospital from 15/12/06 to 29/12/06. The Complainant incurred expenses of Rs.2,50,000/-. Now his son is under treatment of Radiation therapy and oral maintenance. Apart from the above expenses, the Complaint has also incurred expenses of Rs.10,000/-.
10) Lastly the Complainant has prayed that the Opposite Parties be directed to pay Rs.10 Lacs to the Complainant and cost of this complaint.
11) The Complainant has attached the xerox copies of the following documents in support of his complaint –
a) X-ray report of Mahavir Clinic – dtd.29/07/09.
b) Haemogram Report, dtd.01/08/06.
c) Widal Taste Report, dtd.17/08/06
d) Prescription by Dr. Bhagat, dtd.08/09/06.
e) Blood Report, dtd.09/09/06.
f) Rt. Shoulder joint report, dtd.09/09/06.
g) Holly Spirit Hospital Report
h) Dr. Bhagats Papers, dtd.12/09/06 & treatment.
i) Blood Report, dtd.10/11/06, Blood reports of Bhatia Hospital & X-ray report. sensitivity test report AFB Culture report.
Histopathology report.
j)Letter issued by Dr. Nirad.
k)Discharge card, dtd.10/11/06.
l)Bills Bhatia Hospital, dtd.12/11/06, Receipt dtd.14/11/06, Patient settlement Receipt Bill summary- final bill - P.
m)Papers form Ashirwad Hospital.
n)Papers from Tata Hospital.
12) The complaint was admitted and notices were severed on the Opposite Parties. Opposite Parties filed their written statements. Opposite Party No.3 in his written statement has stated that he is MS DNB (ORTHO) spine joint arthoplasty specialist. The first sentence of the factual matrix has been wrongly typed as patient Pratap Bharia was suffering. Actually it should be the “son of Mr. Pratap Baria was suffering from pain in the Rt. shoulder and he was brought to Opposite Party No.3 on 08/09/06 for medical checkup at Raj Nursing Home. The patient was checked. He was also asked for MRI in Holly Spirit Hospital on 11/09/06. The report showed 95% TB as per the opinion of Opposite Party No.3. Accordingly the patent was treated from 12/09/06 to 29/09/06 with anti T.B. medicines. However, there was no improvement. Therefore, on 29/09/06, Opposite Party No.3 informed the patient for exploration and biopsy/drainage of abscess. Opposite Party No.3 never saw the patient after 29/09/2006.
13) Opposite Party No.3 further stated that the report dtd.11/09/06 suggested CT guided FNAC test. It is a matter of record. He suggested tests which would confirm the diagnoses but “patient was not ready to do”. Patient wanted to take medicine 1st & then to do the tests. If the Complainant was not satisfied with the treatment of Opposite Party No.3, he should have discontinued the treatment on 21/09/06 itself when he has approached Dr. Rupa Patel a Homeopath at Wapi.
14) The Opposite Party has also stated that the Complainant has not produced any expert opinion in this matter.
15) The Opposite Party No.3 has further stated that, the Opposite Parties might find themselves liable for negligence if they made a wrong diagnosis causing injury to the patient, but a mistaken diagnosis is not necessarily a negligent diagnosis. No human is infallible. In present state of science even the most eminent specialist may be at fault in detecting the true nature of the disease. A medical practitioner can only be held liable if his diagnosis is so palpably wrong as to prove negligence i.e. absence of reasonable skill & care on his part. Burden lies on the Complainant to prove wrong diagnosis or line of treatment.
16) The Opposite Party No.3 has also quoted the principle of law as “Negligence cannot be assumed if something goes wrong with the patient. There should be a direct connection between injury suffered and the treatment. Finally the Opposite Party No.3 prayed for the dismissal with cost.
17) Opposite Party No.2 also filed his written statement wherein the Opposite Party No.2 denied all the allegations of the Complainant and specifically stated that he examined master Hiren Baria, the son of the Complainant on humanitarian ground without charging any fees and considering the urgency of the matter referred Master Hiren to his father i.e. Opposite Party No.1 for performing biopsy at Bhatia Hospital. After receiving the histopathology report from Bhatia Hospital, he referred the patient to Tata Hospital for further treatment. Under these circumstances, the Opposite Party No.2 has denied any negligence on his part and prayed for dismissal of the complaint with cost. He has attached his affidavit alongwith his written statement.
18) The Opposite Party No.1 also filed his written statement wherein the Opposite Party No.1 has stated that “it is not the case of the Complainant that the biopsy performed by me on 11/11/06 was faulty.” The diagnosis as per histopathology report at Bhatia Hospital was correct. There was malignancy in the case of the patient. It is the case of the Complainant that Opposite Party No.2 in collusion with Opposite Party No.1 intentionally did surgery knowing that it was a cancer by suppressing the ailment purposely operated & committed fraud. These allegations are false. The allegations of deficiency in service and alleged medical negligence are false. On the contrary the findings of Opposite Party No.1 & 2 are similar and correct.
19) The Opposite Party No.1 has further stated that the Complainant has claimed an hefty compensation of Rs.19,00,000/- without any justifiable reasons. It is not based on the evidence or on any loss suffered or on well recognized principles of quantification, of damages.
20) It is admitted by the Opposite Party No.1 that Opposite Party No.2 had referred the patient to him for performing biopsy. However, he was not aware of the fact that, Opposite Party No.2 had informed the Complainant that the cost of the surgery was Rs.15,000/-. It was admitted by the Opposite Party No.1 that the sample of the biopsy was sent to obtain medical histopathology report. It was obtained by Bhatia Hospital on 19/11/06. The Opposite Party No.1 has denied the allegation of the Complainant that, though Master Hiren was suffering from cancer, Opposite Party No.1 & 2 with malafide intention had done surgery on the patient. The Opposite Party No.1 performed biopsy as per recommendations of Opposite Party No.2. The Opposite Party No.1 has stated the fact that the patient was suffering from malignancy was revealed and confirmed only upon receipt of histopathological report on 19/11/05, after the operation on the son of the Opposite Party.
21) It is further stated by the Opposite Party No.1 that Opposite Party No.2 had communicated about the urgency of the biopsy on the patient. Therefore, he agreed to perform the biopsy without charging his surgical charges. The Opposite Party No.1 has admitted that the patient was admitted till 14/11/06 under his care in Bhatia Hospital. Histopathological report procured by Bhatia Hospital was forwarded by him to Opposite Party No.2. After that Opposite Party No.1 did not know the further development in the matter.
22) The Opposite Party No.1 has also explained that the patient was referred to Opposite Party No.2 by one of his doctor friend. Opposite Party No.2 ascertained that the said patient had painful swelling over right shoulder. He was being treated as a T.B. of shoulder for 3 months elsewhere in Malad. Opposite Party No.2 also informed that urgent biopsy was required to rule out cancer. Opposite Party No.2 requested Opposite Party No.1 to perform biopsy at earliest. He also informed Opposite Party No.1 that the father of the patient appears to be poor & give him possible concession. Accordingly, Opposite Party No.1 got the patient admitted in Bhatia Hospital. His blood reports, x-ray chest, x-ray shoulder were done. Thereafter, Opposite Party No.1 performed surgery on the patient. During the course of surgery, it was found that the lesion was in relation with scapula and the muscular overlying the bone, were stretched and vascular. There were loose pieces of bone with fragmentation. The biopsy was taken and the wound was closed in larger. Tissue was sent for histopathology. On 14/11/06, patient was discharged with instructions to show histopathology report to Opposite Party No.2. Accordingly, the report was forwarded on 19/11/06. Opposite Party No.2 perused the said report and confirmed that, it was a case of malignancy and accordingly he referred the patient to Tata Hospital for further treatment. It is denied by Opposite Party No.1 that he & his son (Opposite Party No.1) were fully aware that the Master Hiren was suffering from cancer and with intention to squeeze money, the surgery at Bhatia Hospital was performed. It was also stated that neither Opposite Party No.1 nor Opposite Party No.2 had charged any consultation fees or other professional fees from the Complainant. If any charges have been recovered by Bhatia Hospital, on his behalf he is ready to reimburse the same on humanitarian ground. Finally Opposite Party No.1 has prayed for the dismissal of the complaint.
23) Thereafter, the Complainant has filed his affidavit of evidence and written argument wherein he reiterated the facts mentioned in his complaint and denied the points raised by the Opposite Parties in their written statements. The Opposite Parties also filed the affidavits of evidence and written arguments wherein they reiterated the facts mentioned in their written statements. The Opposite Parties also filed the affidavits of Dr. Kantilal Shah, Dr. Vidyanand Prabhu and Dr. Anil Parelkar as the evidence of expert and these expert witnesses have asserted in their affidavits that there is no any medical negligence on the part of the Opposite Parties.
24) We heard the Ld.Advocates of all the parties and perused all the papers filed by all the parties and our findings are as follows.
25) Master Hiren Pratap Baria, Age-14 years, was referred by Dr. Wellapurkar to Opposite Party No.3, Dr. Akshaya Bhagat on 08/09/06 for pain in Rt. Shoulder & swelling over the post aspect of Rt. Shoulder. He was also having the history of fever. On 08/09/06 the Opposite Party No.3, 1st examined the patient Master Hiren Bharia for the above ailment. He advised x-ray of Rt. Shoulder, HB., CBC, ECR. From the investigation, as per the notes dtd.09/09/06, the Opposite Party No.3 diagnosed important Kochs’ infection. Then he advised MRI of Rt. Shoulder.
26) As per the report of Kumar Medical Centre dtd.09/09/06, Dr. Mehul Mehta, there was evidence of Hairlines fracture Greater Tuberosity of Rt. Humerus. Evidence of soft tissue swelling seen around Rt. Shoulder joint. This is the report of Dr. M.H. Mehta, Consulting Radiologist & Sonologist. There is also MRI investigation report of Holly Spirit Hospital, dtd.11/09/06. It was specifically noted that the above said ailments of the patient persisted 1½ months before 08/09/06. The conclusion of this MRI report was “Extensive soft tissue along both surfaces of scapula with erosion of underlying bones and involvement of the adjacent muscles is probably infective in aetiology ? Koch’s
Suggest = CT guided FNAC.
27) Taking into consideration the above said investigation reports, the Opposite Party No.3 started treatment for Koch’s AKT. This treatment was started from 12/09/06. The patient was again prescribed same medicine AKT on 18/09/06. Again on 29/09/06 i.e. after 3 weeks Opposite Party No.3 has seen the patient. The Opposite Party No.3 in his written statement has admitted that he treated the patient from 12/09/06 to 29/09/06 for TB. However, there was no improvement in the patient. Therefore, on 29/09/06, Opposite Party No.3 informed the patient for exploration and biopsy/drainage of abscess. The Complainant has also corroborated this fact in his complaint and stated that, as there was no improvement, on 29/09/06, Opposite Party No.3 informed Complainant that there was pus in the shoulder and patient needed urgent operation. However, the Complainant has alleged that the investigation report dtd.11/09/06 given by Holly Spirit Hospital suggested CT guided FNAC test but Opposite Party No.3 informed the Complainant that it is not necessary and forced the Complainant to get the operation done in Raj Nursing Home only. In this respect Opposite Party No.3’s has prescribed on 29/09/06 surgery C C AKT i.e. the Opposite Party No.3 has opted for surgery as well as AKT treatment. Opposite Party No.3 in his written statement also stated that on 29/09/06 he had suggested biopsy/drainage of abscess. This indicates that the Opposite Party No.3 was of the opinion to perform biopsy surgery as per the document prepared by him on 29/09/06.
28) In para 3 of the complaint, the Complainant has stated that “He had a question with Opposite Party No.3 that when it will be cured by medicine then why operation”. Though the language is not a correct language used by the Complainant we understand that the Complainant was not ready for the operation and he was of the opinion that the doctor Opposite Party No.3 should treat his son with medicines only.
It was also intended by the Complainant that the operation if was must, it should be done in Holy Spirit Hospital and not in Opposite Party No.3’s hospital as there were no facilities available. However, the Complainant has not mentioned as to what facilities were not available in Opposite Party’s Raj Nursing Home. Here the Complainant has alleged that the Opposite Party No.3 insisted on doing the operation in his own Hospital but, there is nothing on record to show that the Complainant forced the Complainant to get the operation done in Raj Nursing Home only. The Complainant has not taken any treatment of his son with Opposite Party No.3 after 29/09/2006.
29) The Complainant has also alleged that, as he was not satisfied with the treatment of Opposite Party No.3, he approached Dr. Rupa D. Patel at Vapi Hospital on 21/09/06 and the Complainant was advised tests like TCDL body PSR test, but Opposite Party No.3 did not do the above tests. Here the point is that, if Opposite Party No.3 has not done the tests suggested by Dr. Rupa Patel and when the Complainant was not satisfied with the treatment of Opposite Party No.3 why Dr. Rupa has not done those tests. Therefore, the Complainant has made these baseless allegations which cannot be acceptable by a prudent person. The strange thing is that the Complainant has again approached Opposite Party No.3 on 29/09/06 inspite of his dissatisfaction. Opposite Party No.3 has advised him biopsy operation/drainage of obsession, but Complainant did not go for the said operation and biopsy. From 29/09/06 to 10/11/06 i.e. one month and 11 days the Complainant did not bother for his son’s ailment. Only on 10/11/06, the Complainant approached Opposite Party No.2 for treatment. Opposite Party No.2 also advised operation and referred the Complainant’s son to Opposite Party No.3 the father of Opposite Party No.2 who is attached to Bhatia Hospital where Master Hiren Baria, the son of the Complainant was operated and an Histopathology tests revealed as well as confirmed that the patient (Hiren) was suffering from the cancer. Accordingly Opposite Party No.3 sent the Complainant and the histopathology report to Opposite Party No.2 and Opposite Party No.2, after perusing the report, directed Hiren to Tata Hospital for treatment of cancer.
30) In para 5 of the complaint, the Complainant has stated that he decided to do the operation of his son on the advise of Opposite Party No.2. The Complainant has alleged that, Opposite Party No.2 told him that only an amount of Rs.15,000/- would be required for the said operation, however, he had to pay Rs.32,000/- to Bhatia Hospital. Again in para 6 the Complainants states that he only paid Rs.30,000/- as Opposite Party No.1 gave a concession of Rs.2,000/- only. Thus, the Complainant is contradicting himself regarding the exact payment he made towards the operation to Bhatia Hospital. In this connection the Opposite Party No.1 has vehemently denied this fact and stated that he has not charged a single paisa for his consultation as well as for surgery performed on Hiren the son of the Complainant. He has further stated in his written statement that he is not aware of the fact that Bhatia Hospital has recovered only amount from the Complainant in this connection. There is no evidence whatsoever to show that Opposite Party No.2 had promised the Complainant that the operation expenses would be only Rs.15,000/-. It is only a bare statement of the Complainant that Opposite Party No.2 had promised him that the operation would be done for Rs.15,000/-.
31) It is further alleged by the Complainant that he went to Opposite Party No.2 on 19/11/06 with histopathology report, as the son of the Complainant was not feeling comfortable. There was severe pain in his shoulder but Opposite Party No.2 told the Complainant not to worry and his son would be alright. On the same day Opposite Party No.2 checked the report of Bhatia Hospital and informed the Complainant that his son is suffering from cancer. The Complainant has stated two different things in one go. At one time he states that Opposite Party No.2 told him that his son would be alright and at the same time he states that Opposite Party No.2 told him that there is cancer which shocked him. The Complainant has further stated that he was informed by the Opposite Party NO.2 to collect the sample and to handover to Tata Hospital. The Complainant has alleged in para 10 of his complaint that he collected the letter from Opposite Party No.2 addressed to Tata Hospital. At this point of time it was revealed to him that Opposite Party No.2 had malafiedly done surgery knowing that it was a cancer. In fact Opposite Party NO.2 has never performed surgery on Master Hiren. The Complainant also alleged that but Opposite Party No.1, 2 & 3, all had not informed the Complainant about this cancer and committed fraud. This is really a wild allegation. It is not known on, what basis, the Complainant has made such a baseless allegation. It is true that the histopathology report revealed that it is a case of cancer. This does not mean that Opposite Party NO.1, 2 & 3 had committed fraud. It is also true that Opposite Party No.3 on the basis of test report of Holi Spirit Hospital, treated the patient as a T.B. patient because it has stated in its report that “probably infection in aetiology ? Koch’s. It also suggested CT guided FNAC. But Opposite Party No.3 opted and treated the Opposite Party Koch’s (shoulder T.B.) and after a course of medicine for 21 days, on 29/09/06, he opted for surgical operation and biopsy to confirm the cancerous state of the patient. Even the report of Holy Spirit Hospital has not confirmed the cancer it has mentioned “Suggest CT guided FNAC. The biopsy is the confirmative Test for confirming the cancerous state of the patient. After 29/09/06, the Complainant never approached Opposite Party No.3.
32) Therefore, it is unjust to say that the Opposite Parties, malafidely in collusion with common intention had done surgery with the knowledge that there was a cancer. (As alleged by the Complainant in para 10 of his complaint.) The further allegations of the Complainant that Opposite Party No.1, 2 & 3 did not inform the Complainant and purposely operated wrongly upon the son of the Complainant and committed fraud are thus baseless and without any proof. Only on 10/11/06 when Opposite Party No.3 operated on the shoulder of Hiren and sent the material for histopathological test in Bhatia Hospital and the report was received on 18/11/06. It was revealed that there was a cancer. The Opposite Party No.2 who rightly referred Master Hiren to Tata Hospital for further treatment.
33) The Complainant has also alleged that, he incurred huge amount of expenses (Rs.32,000/- and Rs.20,000/-for medicines). In this respect also he has made a mistake. Previously he has already stated that because of Opposite Party No.3 gave him concession, he paid only 30,000/- to Bhatia Hospital. Now he is stating that he incurred expenses Rs.32,000/- at Bhatia Hospital. Whatever he has spent in this respect, it is for the hospitalization of his son. From the hospital papers it is seen that these expenses are for the various tests, bed charges and other hospitalization charges. An operation was performed on the shoulder of the son of the Complainant histopathological tests were done on the tissues taken out from the shoulder during operation. The Complainant has also not stated that these are illegal charges he has only stated that they are the huge expenses.
34) In para 12 of the complaint the Complainant has again made a general and vague statement that Opposite Parties (1 to 3) had failed to provide proper service due to negligence and defective service by misguiding the Complainant. The Complainant has further alleged that the Opposite Parties have given wrong treatment and informed the Complainant that the said tumor was removed & surgery was done. This is a sheer false & baseless statement. The surgery was actually performed by Opposite Party No.1 still the Complainant states that the Opposite Parties have falsely informed that the tumor was removed & surgery was shown. This is nothing but accusing the Opposite Party without any ground. The tests at Holly Spirit Hospital indicated Koch’s aetiology and Opposite Party No.3 treated as per the conclusion of the said tests report, still the Complainant falsely states that wrong treatment was given.
35) Apart from the above facts, it is also true that the ailment suffered by Master Hiren was malignancy. Opposite Party No.3 treated him for Koch’s infection. Thus, there was a wrong diagnosis of the disease. Still the diagnosis was done by Opposite Party No.3 on the basis of tests and reports of Holly Spirit Hospitals (The Pathological tests). Holy Spirit Hospital is not before this Forum. Therefore, for this Opposite Party No.3 cannot be held liable for wrong diagnosis. The Complainant had approached Opposite Party No.2 voluntarily and Opposite Party No.2 referred him to Opposite Party No.3. Opposite Party No.2 did not diagnose or give any treatment to Master Hiren. Opposite Party No.3 has performed surgery and done histopathology tests in Bhatia Hospital for which Bhatia Hospital has charged the Complainant for Rs.30,000/- Therefore, in our candid view there is nothing anything against Opposite Party No.2 & 3. Opposite Party No.1 & 2 have not acted or committed anything which would amount to negligence.
36) It is also alleged by the Complainant that Master Hiren was referred to Tata Hospital, the Complainant incurred expenses of Rs.2,60,000/- and in future also he would incur Rs.20,000/- per month and for this the Opposite Parties are liable and they should pay the said amounts. This is nothing but an absurd demand because Opposite Parties have nothing to do with these expenses at Tata Memorial Hospital.
37) The Complainant also prayed for Rs.10,00,000/- compensation at random without any justifying ground. The amount is not claimed on the basis of any principle of quantification of the complaint.
38) The Opposite Parties have filed the affidavits of Dr. Kantilal Shah, Dr. Vidyanand Prabhu and Dr. Anil Parelkar. They are all M.S. Ortho Surgeons and quiet Senior Medical Practioners in the medical field. They all have opined that the treatment of the Opposite Parties was right. Laboratory tests showed infective pathology (? Koch’s ) “In such cases especially in India, where Tuberculosis is common, even I would think of tuberculosis as the 1st diagnosis and treat with standard 4 drug AKT and see the results over a period of 3-6 weeks. In this case Dr. Bhagat, Opposite Party No.3, after 3 weeks treatment wanted surgery for biopsy & histopathology test for definitive diagnosis.
39) In Civil Appeal No.3541/02 Martin F D’Souza V/s. Mohammad Ishfaq, the Hon’ble Apex Court has observed that “A medical practitioner is not liable to be held negligent simply because things went wrong form mischance or misadventure or thorough an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his filed. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achyutrao Haribhau & Others V/s. State of Maharashtra & Others. AIR 1996 SC 2277 Or operates on the wrong part of the body and he would be also criminally liable if he operates on some one for removing an organ for illegitimate trade.”
“An error of judgment may or may not be negligent. It depends on the nature of the error.
“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man, clearly is not negligent merely because his conclusion differs form that of others…… The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care….
40) In the case in hand, the Complainant has not established that the Opposite Parties have acted negligently.
41) In view of the observations mentioned in para 25 to 38 above, and the observations of the Hon’ble Supreme Court in Civil Appeal No.3541/2002 Martin D’Souza V/s. Mohd. Ashfaq, we are of the candid view there is no deficiency in service on the part of Opposite Parties. Hence, we pass the order as follows –
O R D E R
i.Complaint bearing No.46/2008 is hereby dismissed for want of merit.
ii.There is no order as to cost.
iii. Certified copies of this order be furnished to the parties.
