Per Mr.B.S.Wasekar, Hon’ble President
1) The present complaint has been filed by the complainants u/s 12 of the Consumer Protection Act, 1986. According to the complainants their son deceased Tushar was working as Assistant in Video Shooting Private Company. Around 19th April, 2006, Tushar fell down from bicycle. He was complaining of backache. He could not attend his work for two days. On 23rd April, 2006, he was taken to Dr.Pawar/O.P.No.1. He gave medicine to him and directed him to approach Orthopaedic Surgeon. Dr.Vanand, Orthopaedic Surgeon was out of Mumbai. On 25th April, 2006, Tushar was taken to Kandivali for acupressure treatment but he asked to approach Orthopaedic Surgeon. Therefore, on 26th April, 2006, Tushar was taken to the hospital of O.P.No.2. The O.P.No.2 did not take proper history and diagnosed Tushar as Cellulitis. Without taking proper history, he gave injection Voveran and Elastocrepe bandage and leg elevation by pillows. He did not take blood tests, kidney function test and urine test. There is no record of breathing rate. On 27th April, 2006, Tushar started labourious breathing at about 3.00 P.M. Nurse did not call Dr.Shah immediately. At about 6.00 P.M. Dr.Shah came to his routine round and realized the seriousness. He gave I.V.Glucose Saline, I.V.Ringer’s Solution. He then transferred Tushar to Bhagwati Hospital where poor intensive facilities are available. Dr.Shah did not accompany Tushar and sent nurse and Ward Boy with him. It was necessary to refer Tushar to K.E.M. Hospital. There was deficiency in service on the part of both the opponents. There was lack of diagnostic skills. He did not call expert for consultation. Tushar died in K.E.M. Hospital within fourty eight hours of admission. Dr.Shah delayed his admission in K.E.M.Hospital. Therefore, the complaint is filed not only for compensation but to assure that such qualified doctor should attend refresher courses and other patients should not become victim of such deficient services from qualified doctors. The complainant has claimed compensation of `25,000/- from O.P.No.1/Dr.Pawar. He has claimed compensation of `2,95,865.50/- from Dr.Shah/O.P.No.2.
2) During pendency, matter was settled with O.P.No.1 and the Forum has passed the order dated 21st December, 2006 showing that O.P.No.1 paid `15,000/- to the complainant by draft and the complaint against the O.P.No.1 is withdrawn.
3) The O.P.No.2 filed his written statement and denied all the allegations. According to him, Tushar was brought to his hospital on 26th April, 2006 at 06.30 P.M. His clinical diagnosis was Cellulitis thigh. He was injured due to fall from bicycle. Treatment was given to him. His X-ray R Femur bone and R hip AP did not show any bone injury. Blood test was taken on next day. He was hemodynamically stable and his parameters were normal. He was kept in the ward under observation. At 05.30 P.M. he complained for difficulty in breathing. He examined him. His B.P. was down 80/50, 90/50. Therefore, he gave treatment by pushing fluids and probably he was going into septicaemea. He was transferred to nearest Municipal Hospital as his patient was not in a position to go to a private hospital. Orthopaedic Registrar on duty in Bhagwati Hospital examined him and suggested to shift him at K.E.M.Hospital as he was suffering from Septicaemea. The complainant has filed this complaint for extracting money. The complaint is false and frivolous. Expert medical opinion from renowned Ortho Surgeon may be called. There is no deficiency in service. This O.P. has tried his level best to save his life. There is no negligence on his part. Therefore, the complaint be dismissed.
4) Both the parties submitted written notes of argument. On the day of oral hearing, the O.P.No.2 and his advocate remained absent. After hearing the advocate of complainant and after going through the record following points arise for our consideration.
POINTS
Sr. No. | Points | Findings |
1) | Whether there is deficiency in service ? | No |
2) | Whether Tushar died due to negligence of O.P.No.2 ? | No |
3) | Whether the complainants are entitled for compensation as prayed ? | No |
4) | What Order ? | As per final order |
REASONS
5) As to Point No. 1 to 3 :- It is not disputed that late Tushar felldown from his bicycle and sustained injury. Firstly, he approached Dr.Pawar/O.P.No.1 on 23rd April, 2006. Till then he applied medicine at his house. He approached O.P.No.2 on 26th April, 2006 i.e. after seven days from fall. There is no dispute that Tushar died in K.E.M.Hospital on 30th April, 2006. He was with O.P.No.2 from 06.30 P.M. of 26th April, 2006 till the evening of 27th April, 2006. According to the complainant, the O.P.No.2 could not diagnosis Tushar properly and gave wrong treatment. Therefore, he was shifted to Bhagwati Hospital and then to K.E.M.Hospital. The complainants have settled the dispute with O.P.No.1 Dr.Pawar and withdrawn their complaint against the O.P.No.1. Now the question for our consideration is as to whether there was deficiency in service from O.P.No.2 and whether Tushar died due to wrong treatment or negligence of O.P.No.2. The wording of the complaint is vague. It is not clear as to what exactly the complainants are alleging against the O.P.No.2. The complainants have not produced any expert opinion to show that the diagnosis of O.P.No.2 was wrong and O.P.No.2 gave wrong treatment to Tushar. They have also not produced evidence to show that Tushar died due to negligence of O.P.No.2. On the other hand, there is one letter dated 17th July, 2006 from ‘ACASH’ Association for Consumer’s Action on Safety and Health. On perusal of it, it is clear that the complainant wrote letter to this Association dated 21st June, 2006 seeking expert opinion. As per this letter, final cause of death being Septicaemia due to Necrotising Fasciatis. There was significant delay and the blame goes to patient’s part. It is clear from this letter that concern Ortho Surgeon offered appropriate treatment at the stage of infection (Cellulitis stage). The cause of death was Acute Renal Failure secondary to Myoglobinurea. This reaches to kidney and blocks kidney tubuless that have the function of filtration of waste products. According to their opinion, such situation is usually fatal. Renal toxicity of injection Voveran though describe theoretically, it is very rare and it is one of the most commonly used analgesic-anti-inflammatory drug owing to reason of its high degree of safety. It is clarified that there was no negligence on the part of the treating doctor. The reason was primary delay in consulting Ortho Surgeon. Dr.Pawar was not Ortho Surgeon. The O.P.No.2 Dr.Shah is Ortho Surgeon. Tushar was taken to him seven days after the fall. This opinion was given on the request of the complainant vide letter 21st June, 2006. Thus, the complainants failed to produce expert opinion on record showing that Tushar died due to wrong diagnosis, wrong treatment or negligence of O.P.No.2. On the other hand, opinion called by the complainant from ‘ACASH’ shows that Ortho Surgeon is not responsible for the death of Tushar. The blame is given to the patient himself.
6) Considering the above reason, it is clear that the complaint deserves to be dismissed with compensatory cost. The complainants have lost their son. The complainants were represented by Shri Chandrakant Rathod and Dr.Jayant Unadkat. Later on, the complainants have withdrawn their authority. On perusal of record, there were allegations against the Additional District Consumer Forum, Mumbai Suburban. Therefore, complaint was transferred to South Mumbai District Consumer Forum and again transfer to this Forum. It shows the malafide intention of the representatives of the complainant. On query with complainant No.1, it appears that he has no knowledge about the allegations made in the complaint. The wordings of the complaint shows the lack of legal as well as medical knowledge of the representatives of the complainant. It appears that the complainants are mislead by their representatives Therefore, we are not imposing compensatory cost. Hence, we proceed to pass the following order.
ORDER
1) Complaint stands dismissed.
2) Inform the parties accordingly.
