Per Shri S.B.Mhase, Hon’ble President :

This appeal is directed against the order passed in consumer complaint no.576/2000 by District Consumer Forum, Thane.  The said order is dated 19/10/2007 and by the said order the complaint has been dismissed.  Therefore, the original complainant has filed the present appeal.

        The appellant’s wife/Rakhi was a patient.  She was initially admitted in the hospital run by the respondent at Wada, District-Thane.  On 21/03/1999 she delivered a female child-Anuja.  She was in the hospital for 10 days and she was discharged on 30/03/1999.  The said delivery was carried out by performing a caesarean operation.  Thereafter, she was readmitted in the hospital by the respondent on 16/04/1999 and the treatment started.  It is stated that she was in serious condition.  However, the respondent-doctor left for Surat for his personal work on 17/04/1999 and therefore, the complainant shifted his wife from the respondent’s hospital.  The complainant had taken her to hospital of Dr.Panandikar at Thane.  Dr.Panandikar had not admitted the patient and therefore, the complainant took her in KEM hospital where she was admitted at 11.45 a.m. on 17/04/1999.  It is alleged that Doctor gave 8-10 bottles of blood and she was operated for removing the puss and blood to the extent of 5-6 ltrs.  Ultimately, the wife of the appellant succumbed to the death on 24/04/1999.  It is the case of the complainant/appellant that his wife died due to the negligence of opponent and therefore, he has claimed damages of `2 lakhs, more particularly stated in the complaint. 

Opp.party has filed written version and he has stated that there was no medical negligence.  He contended that cesarean operation was done in case of wife of complaint since position of child in the womb had turned down because of which the child started becoming breathless.  He contended that said operation was normal and patient was discharged.  According to him, when second time patient was admitted, size of abdomen was increased due to distention  created on account of intestinal tuberculosis.  He further stated that he got that fluid examined and sent it to pathology before he went to Surat.  He stated that he arranged trained doctors and nurses to look after the patient in his absence and came back immediately on next date.  On arrival he came to know that complainant had taken discharge of patient and patient was taken to other hospital.  Therefore, he has denied the claim. 

        In short the case of the complainant is that when his wife got admitted in the hospital, the doctor should not have left the hospital to go to Surat and the act of leaving the hospital to go to Surat is a negligent act, which can be attributed to medical negligence.  In respect of this submission, Ld.Counsel for the respondent submitted that this is not correct.  Even though the Doctor had gone to Surat, he was satisfied with the condition of the patient and since the condition of the patient being satisfactory and he has diagnosed the patient as tuberculosis and pathology report was awaited.  He submitted that after making the patient comfortable, he left the hospital.  He also submitted that there was other doctors and staff in the hospital to look after the patient.  He submitted that after he left for Surat, patient’s relatives insisted for the presence of the doctor and since he was not there, on their own risk they have taken the patient form the hospital.  Thereafter, the patient was taken to hospital of Dr.Panandikar at Thane but since he refused to get the patient admitted ultimately, they took the patient to KEM hospital.  Ultimately after carrying the operation for Septicemia, the patient was succumbed to death.

        In the present matter no doubt the patient has succumbed to death, the question arises whether there is medical negligence on the part of respondent-Doctor.  Caesarean operation was carried out on 21/03/1999.  Thereafter, the patient was indoor patient for 10 days in the hospital and thereafter, discharged from the hospital.  After discharge, for second time the patient was admitted on 16/04/1999  with the complaint of stomach ache etc.  At that time Doctor clinically analyzed that the patient is suffering from tuberculosis and he started treatment for the same.  What is interesting to note is that, pathological report which was subsequently received was negative  Therefore, possibility of tuberculosis as per the clinical examination was ruled out.  Therefore,  the patient was not suffering from tuberculosis was a final conclusion.  Clinical examination was found to be incorrect due to pathological report.  We keen on record that  it is admitted fact by respondent before this Commission the pathological report of the fluid sent by the respondent-Doctor was negative.  Therefore, Commission has drawn above inference.

        It has been brought to the notice of State Commission that when the patient was admitted in the KEM hospital, one of the treatments which was given to the patient was of tuberculosis.  Here what we find that there was no pathological report supporting the case of tuberculosis.  Therefore, the treatment given either by the respondent-Doctor or by KEM hospital doctors was found to be clinical which was found to be incorrect treatment on the basis of pathological report.

        In the present matter, after death of appellant, appellant should have insisted for post mortem report because post mortem is the only method to obtain the cause of death.  In the present case, post mortem of deceased/Rakhi was never carried out.  On the contrary, appellant/husband accepted the dead body of Rakhi without carrying out the post mortem.  It is really surprising that doctors from KEM hospital had given opinion about cause of death without carrying out the post mortem.  However, how such report can be given is known to us. The cause of death is never subject of clinical analysis.  However, he stated the patient has died because of cardiac respiratory failure due to septicemia in case of perproative perintatis due to tuberculosis cause not relating to surgery.  What important to be noted is that once cesarean was carried by the respondent-doctor, another operation was carried out in order to  remove the effect of septicemia and to remove the fluid from the body of the deceased.  It is further interesting to note that pathological report in respect of fluid which was carried out by both the hospital wee negative and since they were negative, the patient was admittedly not suffering from tuberculosis.   Thereafter, perforation of peritorial walls of abdomen cannot be attributed to tuberculosis.  Therefore, the cause of death which has been given  by KEM hospital that it is perforative peritonitis due to tuberculosis, heal perforation etc. is absolutely incorrect.  This they cannot state because it is on clinical basis.  It is further interesting to note that how a doctor can analyse perforation of peritorial wall in absence of post mortem.  Thus, without opening the body the doctor came to an conclusion that there was perforation of peritorial wall.  On the contrary, operation notes which wee prepared in respect of septicemia operation don’t show that there were perforation to peritorial wall otherwise appropriate precaution should have taken or efforts would have made to close it and for that purpose the operation was carried out. If the infection continues,  further effect of septicemia cannot be stopped.  However, taking into consideration the certificate issued by KEM hospital, we have noted that our doubt in respect of certificate.  In spite of the opportunity given to the appellant to get explained the doctor by filing their affidavit of evidence, the said opportunity is not availed by the appellant.  However, in view of the facts that patient was twice operated which may result in infection to the peritorial wall which may result into septicemia. It was necessary for the complainant/ appellant to make both the hospitals and their doctors party to the proceeding.  However, for the best reasons known to the complainant/appellant he has not done so even though the complaint was remanded back by Hon’ble Natioanl Commission to the State Commission for re-hearing of the matter.  Under these circumstances however for want of material which will demonstrate that whether the doctor is responsible or he is negligent it is very difficult to conclude that it is a case of medical negligence.  Though times several we expressed it across the bar and sought assistance from the advocate of the appellant but no progress in this direction is made by her.  The responsibility to prove the medical negligence is of the complainant/appellant which he has not discharged in spite of assistant and guidance from the State Commission to the appellant given from time to time.  For that purpose at least 3-4 times we adjourned the matter so that appellant can use that time for purpose of taking appropriate steps in favour of the appellant.  Going out of way, we also asked Ld.Counsel for the appellant that what are the areas which are required to cover to fix the liability, however, such opportunity is not taken by the appellant.

        Under these circumstances, it has become rather difficult to come to an conclusion that respondent is medically negligent and therefore, the patient succumbed to death.  Only because after the admission the doctor has left the hospital, cannot be a ground to state that he was medially negligent on his part.  Another doctor was  available for said purpose in the hospital.  Therefore, it appears that it is the misconception of the appellant that whenever the patient is admitted in hospital, the doctor who runs the hospital should be made available 24 hrs. for it is wrong.  They are experts.  They have several duties to discharge.  The only thing we have to see is that whether he has made arrangements of nursing staff and another doctors so as to look after the patient. However, that question does not arise here because no sooner did the doctor left, the patient had taken discharge and actually shifted the patient.  Therefore, it is not the case that the complainant/appellant kept the patient in the said hospital and no further arrangements were made by the hospital to look after the patient.  When the patient became serious, his relatives had taken discharge from the hospital and after the discharge, the doctor/respondent is not responsible.  Therefore, we do not find any substance in the appeal.  Hence, we pass the following order:-

:-ORDER-:

1.           Appeal stands rejected.             

2.           Parties shall bear their own costs,

3.           Dictated on dais in presence of parties.

4.           Copies of the order herein be furnished to the parties as per rule.