(Passed on 26.10.2015)
Per Mr B A Shaikh, Hon’ble Presiding Member
1. This appeal is preferred by the original complainant against the order dtd.30.09.2008 passed in consumer complaint No. 72/08, by District Consumer Forum, Wardha, by which, the complaint has been dismissed.
2. The case of the complainants / appellants as set out in the original complaint in brief is as under.
Minor complainant No.1 is the daughter of complainant No.2. The said complainant No.1 was born on 10.09.2006. The complainant No.1 was not sucking well and having high temperature. Therefore, she was taken to Dr. Sachin Pawade, who examined her and prescribed medicines after getting blood test report. The complainant No.2 took the complainant No.1 to the opposite party (for short O.P.) No.1 who is hospital. O.P. No.2 – Dr. Smt Chaturvedi examined complainant No.1 and started treatment. She injected some intravenous (IV) medicines to the complainant No.1. However, some swelling was noted on the hand of complainant No.1, where IV injection was given. Therefore, IV injection through right foot was given to the complainant No.1, but covering all the toes was very tight. Hence, swelling was developed on her right foot. Hence, again IV injection was given through her hand. Thereafter on 17.09.2006 the complainant was sucking well and having normal temperature and there were no convulsions. However, thereafter again swelling was formed on her right foot and no care was taken by the O.P.Nos.1 & 2 about that swelling. But only dressing was continued to her right foot till 16.10.2006. The discoloration was noticed over her right foot on 18.09.2006 and gangrene was confirmed over right foot due to carelessness and negligence on the part of O.P.No.2. The complainant No.1 was not shifted to surgery department immediately. The O.P.No.2 never informed the complainant No.2 about operation by way of amputation of right foot and operation was performed on her right foot on 16.10.2006 and more than half of the front right foot was amputed in that operation. The doctors of O.P.No.1 said that the amputation was necessary to save the remaining portion of the body and they admitted the guilt. The complainant No.2 paid the fees to the O.P.No.1. The discharge summary was given to the complainant No.2 by O.P.No.1. The complainant No.2 then issued legal notice on 29.01.2007 to O.P.Nos.1, 2 & 3 and claimed compensation from them. They gave false reply to that notice. Therefore, the complaint was filed before the Forum by the complainants seeking direction to the O.Ps to pay compensation of Rs.10.00 Lacs towards medical negligence resulting into permanent disablement of the complainant No.1 and further to pay compensation of Rs.5.00 Lacs towards physical & mental harassment and further compensation of Rs.2.00 Lacs towards Unfair Trade Practice and cost of Rs.20,000/-.
3. The said complaint was opposed by the O.Ps by filing their reply / written version. They denied medical negligence as alleged in the complaint. Their case in brief is that as per history of complainant No.1 given to them, she was not keeping good health and she was suffering from fever and receiving convulsions. It was explained to the complainant No.2 by the doctor who attended the complainant No.1 that reason for fever and convulsions was due to infection and therefore, the investigation and tests were required to be taken as stated in their reply. The consent for the same was obtained from the person who had accompanied with the complainant No.1. The complainant No.1 was under constant treatment of doctors of O.P.No.1. The required tests were also taken. Her ailment was diagnosed as “Sepsis with Meningitis with Hipo-calcemia.” Accordingly, the medicines were given to her. The splint was applied to limbs of complainant No.1 to immobilize her limb. So that intravenous (IV) line should not be slipped out of the vein. The splint was never applied tightly. The IV site was changed to right foot on 16.09.2006 when swelling was noted on the first IV site of the hand. The IV line in the foot was working properly from 19.09.2006 to 19.09.2006. The swelling on the foot was noted on 19.09.2006. It was noticed by the sister of the hospital on 19.09.2006 that IV line is not working and swelling appeared. Therefore, IV line from the right foot was immediately removed and routine dressing was done on the site from where IV line was removed. The interval between diagnosis of gangrene and performing surgery was a conscious wait period. It was in the interest of complainant No.1. It is an essential and necessary to wait whenever there is a suspected gangrene for the line of demarcation to appear. The line of demarcation helps to decide the level of amputation and helps the doctors to save the part of the limb, which is viable. Line of demarcation was not noticed in the child initially and therefore as per advice of surgeon and senior doctors, it was advised to wait till line of demarcation was formed. After the line of demarcation was formed, just a trans-metatarsal amputation was done and enough in respect of the child. It was just a distal part of foot with toes was removed. All the doctors attending the complainant No.1 acted with due diligence and care and they have done their best to save her maximum foot. On 12.10.2006 consent in writing was obtained from the complainant No.2 after giving explanation about the same operation and then only amputation was done as above. The line of treatment adopted by the doctors was an accepted norm according to medical science. It was unfortunate incident, wherein the complainant No.1 developed gangrene and her part of foot was required to be amputed. Therefore, it was prayed by O.P.Nos.1, 2 & 3 that the complaint may be dismissed.
4. O.P.No.4 - Insurance Company also filed a separate reply before the Forum and denied its liability.
5. The Forum below after hearing both the parties and considering evidence brought on record, passed impugned order on 30.09.2008 and thereby dismissed the complaint, holding that the complaint No.1 was developed gangrene because of Sepsis (septicemia) and not because of negligence on the part of the O.P. Nos.1, 2 & 3.
6. Feeling aggrieved by the said order, the complainants have preferred this appeal. We have heard learned advocates of the complainants / appellants and respondent No.4 - Insurance Company. None appeared for respondent Nos.1, 2 & 3 at the time of final hearing. However, we have considered Written Notes of Arguments of respondent Nos.1, 2 & 3 filed on record. We have also considered the copies of record of the complainant placed before us and Written Notes of Arguments filed by the complainants’ / appellants’ advocate and advocate of respondent No.4 - Insurance Company.
7. The learned advocate of the complainants / appellants has drawn our attention to the discharge summary issued by the respondent No.1 as filed on record. He reiterated the case of the complainant as set out in the complaint and as reproduced above in brief and submitted that the medical case papers produced on record and evidence brought on record proved the medical negligence on the part of respondent Nos.1, 2 & 3. According to him the discoloration of right foot was noticed on 18.09.2006 itself but gangrene was noticed on 20.09.2006 and operation was carried out on 16.10.2006 without taking consent from the complainant No.2 and it is proved negligence on the part of respondent Nos.2 & 3. He, thus, argued that it is not proved that there was bacterial infection or septicemia. Therefore, the Forum erred in dismissing the complaint. He, therefore, requested that the impugned order may be set aside and the complaint may be allowed.
8. On the other hand, the learned advocate of the respondent Nos. 1 to 4 in their respective Written Notes of Arguments, supported the impugned order and submitted that the appeal may be dismissed.
9. Learned advocate of the appellants has relied upon the following decision.
Yogesh Vs. Dr Pawan Kumar Gupta & Ors., (2014) CJ 635 (NC).
It is observed by the Hon’ble National Commission that gas-gangrene could have prevented but due to carelessness of Doctors, needful could not be done and therefore, their negligence inaction and passivity of their part which caused amputation of leg.
10. It is pertinent to note that there is no expert report to show that gangrene to the right foot of the complainant No.1 was developed due to any medical negligence on the part of the respondent Nos.1, 2 & 3. Medical papers produced on record and referred to in the impugned order also shows that the complainant No.1 was suffering from sepsis from 13.09.2005 to 14.10.2006. The discharge summary produced on record of the hospital of respondent No.1 very clearly shows that the complainant No.1 was suffering from sepsis during the aforesaid period. It is also seen from the said discharge summary that the complainant No.1 was given treatment for the said ailment. The Forum in the impugned order has properly discussed the spread of bacteria of sepsis in the body covering into gangrene and other diseases.
11. We also find that respondent Nos.1, 2 & 3 have rightly submitted that by waiting to have line of demarcation, the doctors have tried their level best to save maximum part of the foot from amputation. There is no medical evidence to hold that waiting by doctors to have line of demarcation was against the well established practice in the medical science in such a case. The Forum has properly considered all these material facts & circumstances in the impugned order.
12. We also find that the aforesaid decision relied upon by the learned advocate of the complainant / appellant is not applicable to the present case since in that case there was no evidence to prove that patient was given medicine for preventing gas-gangrene. Moreover, in that case there was faulty treatment of fracture in leg causing severe complications and ultimate amputation of leg. In the instant case, we find that there is no evidence to prove any such faulty treatment was given to the complainant No.1 by O.P.Nos. 1, 2 & 3 / respondent Nos.1, 2 & 3.
14. Thus, we find that the complainants / appellants have not proved medical negligence on the part of O.P. Nos.1, 2 & 3 and therefore, the Forum below has rightly dismissed the complaint. The appeal, therefore, deserves to be dismissed.
ORDER
- The appeal is dismissed.
- No order as to costs.
- Copy of the order be furnished to both parties free of cost.
