Advocate Ashok Vibhute for the complainant
Advocate Shripad Panchpor for the Opponent
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Per Hon’ble Smt.Geeta Ghatge, Member
:- JUDGMENT :-
Date – 6th January 2014
The complainant has filed this complaint application against the doctor for medical negligence u/s 12 of the Consume Protection Act, 1986. Brief facts are as follows-
[1] Complainant’s son – Dadabhai, age 20 yrs. was suffering from pains in stomach, so he was taken to the Opponent’s hospital i.e. Dr. Pawar’s “Pawar Surgical Hospital” on 01/08/2007 at about 11.40 a.m. After examining personally by Dr. Pawar, Dadabhai was advised for operation of Appendicitis and was admitted in the Opponent’s Hospital.
[2] In the afternoon, complainant took discharge against doctor’s advise. At about 8.30 p.m., again severe pains were started in Dadabhai’s stomach. So he was again brought to the Pawar Hospital and was admitted there at about 10 p.m. Dr. Pawar again advised for operation and after the consent of the complainant, Dadabhai was operated on 02/08/2007 at about 10 a.m. for Appendicitis. As after operation Dr. Pawar left the hospital, the employee of the hospital injected Dadabhai. At about 8 a.m. Dr. Pawar came to the hospital, examined Dadabhai and advised to shift him at Yash Hospital as Pawar Hospital did not have ICU facility. Dadabhai was shifted to the Yash Hospital in ambulance in presence of Dr. Pawar. But without examining Dadabhai, Yash Hospital advised to take him in Ruby Hospital. Complainant alone took Dadabhai to the Ruby Hospital, where he was informed by the doctors that Dadabhai succumbed to death two hours before. Therefore, complainant again brought Dadabhai to Pawar Hospital. Thereafter Dadabhai was taken to Sassoon Hospital for post mortem.
[3] Complainant filed complaint against Dr. Pawar in police for medical negligence and he was prosecuted for the same.
[4] In the post mortem report of Dadabhai it is mentioned that, “Death was caused due to Haemorrhagic shock due to vascular damage with ileal perforation in an operated case (A case of medical negligence).
[5] Dr. Pawar has certified that, “the death was caused by cardio respiratory arrest due to septicemia due to Appendicitis” and hence it is the allegation of the complainant that Dadabhai suffered septicemia after operation which clearly shows that Dr. Pawar was negligent and did not take reasonable care and caution in the medical treatment of Dadabhai. As a result of which Dadabhai was died.
[6] Hence, complainant has filed this complaint before the Forum and considering the age life span and work nature of Dadabhai, demands Rs.19,00,000/- as compensation and cost of this complaint. In support of his complaint, complainant has filed affidavit and sixteen documents.
[7] After the service of notice of the Forum, the Opponent Doctor present through his counsel and filed his say. In his say, Dr. Pawar denied the statements and allegations made by the complainant. But admitted that, on account of stomach pains, Dadabhai was admitted in his Hospital for treatment and after the advice of operation, got himself discharged against medical advice. It is also admitted by the Opponent that, due to severe pains, Dadabhai again admitted to his hospital on 2/8/2007. He performed the surgery after the consent of the complainant. He performed the surgery of Appendicitis by taking all care and caution and also the post operative treatment was continued with due care under the observations of the Opponent.
[8] It is also denied by the Opponent that, Dhage gave injection to the Dadabhai. According to the Opponent, Dhage brought the injection only after the direction of the Opponent and it was given in the hands of expert nurse of the Hospital under the supervision and instruction of the Opponent.
[9] It is also contended by the Opponent that, after the surgery of Dadabhai, he was examined from time to time and found that his blood pressure, heartbeats and everything was normal. But when Dadabhai complained about the pains in the chest and abdomen, again his blood pressure, heart beats were checked by the nurse and was found normal. Hence, Opponent advised to give injection of vovern for pain relief. After giving the dose of vovern, Dadabhai got relief for short time and when again he was facing the pains, Opponent personally examined Dadabhai and found it necessary to shift Dadabhai in ICU. But as this facility is not available with the Opponent’s hospital, Opponent after the discussion of the complainant decided to shift Dadabhai in nearer hospital i.e. Yash Hospital and shifted him in Yash Hospital in ambulance. But as there was no vacancy of ventilator, Opponent after the consultation with complainant and doctor of Yash Hospital, send Dadabhai in Ruby Hospital along with one doctor of Yash Hospital. When Opponent phoned to the Ruby Hospital, it was informed to him that due to unavailability of ICU the patient was not admitted by the Ruby Hospital. Due to unavailability of ICU, complainant brought back Dadabhai to Opponent’s hospital, where he died.
[10] Opponent also denied the cause of death, mentioned in the certificate given by Dr. Taware. According to the Opponent, the post mortem report and the certificate given by Dr. Taware is not trustworthy. So he lodged complaint against Dr. Taware and requested the concerned authorities to verify the post mortem report. After verifying and scrutinizing all the case papers including the treatment given by the Opponent, the concerned authority give their report that, there was no any negligence on the part of the Opponent and no any improper treatment was given by the Opponent and the employees attached to the hospital.
Hence, it is the say of the Opponent that he had taken all the care for safety of Dadabhai’s life and there is no any kind of medical negligence on the part of the Opponent and the employees attached to his hospital. And hence, he has prayed for dismissal of the complaint with costs.
[11] After considering the pleadings of both parties, scrutinizing the documentary evidence, affidavits, questionnaires, cross examination on record, written argument and hearing the argument of both counsel, following points arise for our determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether Opponent Doctor is held liable for medical negligence and deficient service ? | In the affirmative |
2 | What order ? | Complaint is partly allowed. |
Reasons-
As to the Point No.1-
[12] The admitted facts of the present proceeding are that, late Dadabhai was admitted to the Opponent’s Hospital for the treatment as he was suffering from stomach pain. Dr. Pawar after examination advised him for surgery of Appendicitis. But as Dadabhai and his father i.e. the complainant were not ready for surgery, Dadabhai got himself discharged “Against medical advice”.
It is the allegation of the complainant that due to the medical negligence, improper treatment was given by Dr. Pawar and the employee attached to Pawar Hospital, he lost his son Dadabhai. In support of his allegations, he has produced voluminous documents on record. For this allegation, he has strongly relied on the medical certificate showing cause of death issued by Opponent Dr. Pawar, which contained that the death was caused due to –
a] Cardio respiratory arrest
b] Septicemia
c] Acute Appendicitis
According to the complainant this certificate itself shows that, after operation, Dadabhai suffered septicemia, which indicates that there was medical negligence during the operation and in post operative care and treatment. Opponent resisted this allegation strongly by saying that, when Dadabhai came firstly to the Opponent, with a complaint of pain in stomach, Opponent Doctor examined him and advised for surgery of Appendicitis. But complainant and Dadabhai were not ready to undergo surgery. Hence, they took discharge against medical advice, even after explaining them about the risks. And under such circumstances, doctor cannot be held liable for mishap. But here Forum noticed from the record that, Dadabhai got himself discharged before surgery and not after the surgery and during post operative treatment. Opponent doctor himself mentioned in his say and it is also found from the case papers of Pawar Surgical Hospital submitted on record that, after surgery Dadabhai’s condition was normal even though he was suffering from chest and stomach pains, his blood pressure, heart beats were in normal range. Under such circumstances, it is the inference of Forum that, the defence of discharge against medical advice cannot be sustained.
[13] It is further pointed out by the Opponent doctor that, when Dadabhai again approached to the Opponent doctor on the very day i.e. on 1/8/2007, after discharge, with the same complaint, and got himself admitted in Opponent’s hospital and consented for surgery. Opponent doctor performed the surgery of “Appendicitis” on the next day i.e. on 2/8/2007. During the surgery and post operative treatment, he took all care and caution under the observation of himself. After operation, Opponent doctor examined Dadabhai time to time and observed that health of Dadabhai was normal. Hence, during the operation there was no medical negligence and the treatment provided after operation was with due care and caution. In support of his say, Opponent filed Expert Doctor’s Panel Opinion. According to the opinion of the panel –
1. The treatment given to the patient was not wrong.
2. Operation performed by the opponent doctor was
not wrong.
3. No negligence is found.
But in view of the Forum, this panel opinion is not explainatory. On which ground, the expert committee came to the conclusion is not explained. Mere three lines are not sufficient to prove that the Opponent doctor is innocent. In case of medical negligence, the opinion of expert doctors committee is very much important and helpful to come to the final conclusion. And it is the main reason behind it to call for the expert doctors panel opinion. Hence, it is but natural to expect from the expert committee to give their opinion with reasons. Another noticeable point with regard to expert committee’s opinion filed on record is that, this opinion is not supported with affidavit. For these reasons, it is the conclusion of the Forum that, opinion given by the expert doctor’s committee cannot be accepted and considered as an evidence in this proceeding.
[14] It is mentioned in medical certificate of cause of death issued by the Opponent doctor that, death of Dadabhai was caused due to the cardio respiratory arrest and septicemia. And it is mentioned in the say of the opponent doctor that, after the operation, patients’ condition was normal and this fact was also seen from the case papers on record. Hence, issue arise before the Forum that, if the operation was performed without negligence and with due care then why chest and stomach pains were started and after giving the injection of vovern, why patient’s condition became serious ? But this has not been explained at all by the opponent doctor and also has not been explained as to what was the reason behind cardio respiratory arrest and septicemia. There is nothing on record to prove that all precautions were taken by the Opponent, during the operation and during the post operative treatment. If proper precautions were taken by the Opponent, the mishap would not had been happened.
[15] It has been repeatedly submitted by the opponent doctor that, all precautions were duly taken. Admittedly, there was no ICU and ventilator facility in the Pawar Surgical hospital, where surgery of Dadabhai was performed. From indoor patient record of Pawar Surgical Hospital submitted on record, can be clearly seen that, there had been regular operations performed including the operation of gastroscopy, general surgery, laparoscopy, cancer surgery, Appendix operation. However, in all possibilities, there may be situation of complication and where the number of operations are performed, the hospital should be fully equipped for all facilities including that of ICU and ventilator facility. In that context reliance can be placed upon the ruling of Hon’ble State Consumer Disputes Redressal Commission, Rajasthan, between Vimal Kumar Mundra and ors. Vs. Paradaya Memorial Hospital and ors. bearing case No11/04, decided on 5/8/2013 on which it is observed that the Hon’ble Supreme Court in number of cases has observed that doctors/ hospitals/ nursing homes should take the following precautions-
[a] Current practices, infrastructure, paramedical and other staff, hygienic and sterility should be observed strictly.
[b] No prescription should ordinarily be given without actual examination. The tendency to give prescription over the telephone except in an acute emergency, should be availed.
[c] A doctor should not merely go by version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary.
[d] A doctor should not experiment unless necessary and even then he should ordinarily get a written consent from the patient.
[e] An expert should be consulted in case of any doubt.
[f] Full record of diagnosis treatment etc. should be mentioned.”
In the present case, even though there was no ICU and ventilator facility available in the Opponent’s hospital, number of variety of operations were performed in the said hospital. Due to the unavailability of ICU and ventilator facility, Dadabhai was compelled to shift to another hospital – Yash Hospital, in serious condition, where also the ventilator facility was not available. So again he was compelled to shift to Ruby Hospital, and during that period, he died. When there is unavailability of ICU and ventilator, it is the duty of Opponent doctor to enquire about the availability of ventilator in Yash Hospital or to book the ventilator before shifting Dadabhai from his hospital. But Opponent never did so. And without making any required and essential arrangements, drag serious Dadabhai from one hospital to another. And unfortunately during the period, Dadabhai was died. After considering above all circumstances, Forum is of the view that, it was a clear case of medical negligence and deficiency in service, due to which complainant lost his young son. Learned Advocate for the Opponent has relied upon the following rulings-
1] AIR 2009 Supreme Court 2049
Civil Appeal No.3541 of 2002
Martin F. D’Souza vs. Mohd. Ishfaq
2] AIR 2010 Supreme Court 1050
Civil Appeal No.1385 of 2001
Kusum Sharma and Ors. Vs. Batra Hsopital
And Medical Research Centre and Ors.
As the facts and circumstances of the above rulings are totally different from the facts of the present dispute, these rulings are not helpful to adjudicate the dispute before the Forum.
In the light of the observations in the ruling upon which Forum relied, above mentioned reasoning and conclusions, Forum answers point No.1 in the affirmative.
[16] The complainant has also relied upon the certificate issued by Dr. Taware and his deposition. But after considering the facts on record regarding Dr. Taware, the Forum feel it not trustworthy. Hence, it is not taken into consideration in this proceeding.
[17] The complainant has prayed for Rs.19,00,000/- as a compensation.
Due to the negligent and deficient services provided by the Opponent doctor, complainant’s young son- 20 yrs. was died. He died not because of serious surgery or decease but due to a simple operation of “Appendicitis”. During the period of operation and shifting of Dadabhai from one hospital to another hospital, no doubt complainant suffered from great mental agony and definitely he will have to face mental agony remaining span of his whole life by losing the young son, due to the negligence of the Opponent doctor. The loss caused to the complainant is irreparable and cannot be fulfilled. Hence, considering the gross negligence and deficient services on the part of the Opponent doctor, great life time loss of complainant, age of Dadabhai, his life span, his earning certificate on record, every chances of his increase of income, dependents on him, Forum deem it proper to award a compensation of Rs.7,00,000/- to the complainant with the interest of 9% p.a. from the date of death of Dadabhai i.e. from 3/8/2007 till its realization along with Rs.10,000/- for the expenses of complaint application.
In the light of above discussion this Forum answer the points accordingly and pass following order –
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that Opponent has caused deficiency in service by showing medical negligence during the course of Appendix treatment to the deceased son of the complainant.
3. Opponent is directed to pay Rs.7,00,000/- [Rupees Seven lakhs] to the complainant towards compensation along with interest @ 9% p.a. from 3/8/2007 till its realization.
4. Opponent is directed to pay Rs.10,000/- to the complainants towards cost of complaint.
5. Both parties are directed to collect the sets which are provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 06/01/2014
