Per Hon’ble DR. S.K. Kakade, Presiding Member. 

1)    This appeal is filed by Government of Maharashtra through  Dy.Director Health Services and others against the legal heirs of

Sou.Shalu Homeshwar Fiske against the order passed by learned Additional District Consumer Commission Nagpur in Consumer Complaint No.CC/12/59, date of order 23/12/2016 in which the complaint was dismissed by the President while it was partly allowed by majority of both the Members of Additional District Consumer Commission Nagpur. Aggrieved by this impugned judgment the Government of Maharashtra original O.Ps. have approached this Commission in appeal.

2)      Brief facts of this appeal are as under.

          Deceased Sou Shalu Homeshwar Fiske was the wife of complainant No.1 and mother of minor complainant Nos.2 and 3 while the O.P. No.1 is Deputy Director of the State Health Services, O.P.No.2 is a Medical Superintendent, O.P.No.3 is a Medical Officer at Rural Hospital Katol, O.P.No.4 is a private Medical practitioner and O.P.No.5 is a Nurse attached to the Rural Hospital at Katol. On 01/04/2011 the deceased was operated upon for family planning operation and operation was done by O.P.No.4. The deceased was under post operative care of the O.P.Nos.1 to 5 in the hospital till 05/04/2011. On 05/04/2011 O.P.No.5 the nurse on duty injected the injection TAXIM on the right hand of the deceased, immediately thereafter she had feeling burning sensation with severe pain and swelling to her right hand and after sometime her middle and little finger  and thump of her right hand started turning bluish and skin of

middle finger was completely exposed.  Looking to her condition she was sent to Government Medical Hospital where she was treated. Further in around a week’s time her two middle fingers of right hand were amputated and plastic surgery was performed on 13/12/2011.  Thus she suffered from permanent disability of her right hand. Aggrieved by this out come the complainants filed complaint in Additional District Consumer Commission at Nagpur. Subsequently during the course of complaint proceedings she died. The legal heirs of deceased further continued to be the complainants. The O.Ps. defended the complaint by filing written statement and affidavit. There was difference of opinion by deciding this complaint among the President and two Members of the Additional District Consumer Commission of Nagpur. The President of the Additional District Consumer Commission dismissed the complaint after coming to the conclusion that the complainants failed to prove the medical negligence against the O.Ps. The other two learned members of the Additional District Consumer Commission allowed the complaint partly against all the O.Ps. and directed to pay the compensation jointly and severally.

3)     We heard this appeal filed against these decenting orders, perused the record. Learned advocate for the appellants after narrating the brief facts informed that the injection TAXIM was injected on the right hand of the deceased on 05/04/2011 the gangrene was noticed in index and middle fingers after sometime. Unfortunately subsequently the patient died. Coming back to the injection TAXIM that was injected to the patient, the learned advocate submitted that this was not the reaction of the injection TAXIM. He further added that in the entire complaint filed by the complainants alleging medical negligence no where medical negligence was mentioned. Further all due precautions were taken while injecting the injection TAXIM  and according to the medical record the  appellants have taken care of all necessary actions during the course after injecting TAXIM injection. Further there is no opinion by Medical Board regarding the alleged medical negligence of the appellant. Patient herself did not follow-up for more than seven months. Necessary investigations like colour Doppler test to find out the status of the blood flow in the blood vassals were already done. Further the respondents/original complainants have not filed any of the expert opinion and hence the judgment and order passed by the President of Additional District Consumer Commission Nagpur is just, correct and legal in which he has dismissed the complaint. But the judgment passed by other two Members is not correct in appreciation the medical record as well as the documents on record. Hence the learned advocate for appellant prayed for allowing the appeal to uphold the view of minority judgment which is given by the President of the Additional District Consumer Commission Nagpur and dismiss the majority view given by other two learned Members.

4)       The learned advocate for respondents who are the original complainants invited our attention to the fact that there was severe pain and swelling to her right hand and middle and little finger and thump of her right hand started turning bluish immediately after injection of TAXIM was given. The patient was referred to Government Hospital to treat the gangrene developed in the fingers of the right hand. Learned advocate for respondent invited our attention to the referral card ( page No.78 document No.2) which shows that the patient was immediately referred from Rural Hospital Katol to the Government Hospital. Further the report of colour Doppler test of right upper limb (document No.4 page No.80) in which all the arteries (vessels carrying blood) were found to be patent. This was the report of dated 05/04/2011. Referring to the short case record from Government Medical College (reference page No.89) learned advocate further submitted that the patient was given the relevant treatment after injection TAXIM was injected, hence he submitted that there was no negligence on the part of any of the appellants.

5)      We have gone through the record. On perusal of the medical case record of the patient Shalu Fiske aged about 23 years female from Rural Hospital Katol in which the patient was admitted on 01/04/2011 for Tuballigation. On 05/04/2011 the notes by the doctor show that after the injection TAXIM given to the patient immediately patient complained of severe pain and swelling to her right hand and middle and little finger and thumb of her right hand started turning bluish. Further there is note that the patient was referred to Government Medical College Nagpur. The same medical record shows that on 07/04/2011 the discoloration in little finger and middle finger was  noted by the doctor on duty with impression that dry gangrene of right index finger and middle finger was developed. Further there is another document i.e. discharge card (reference page No.104) from Department of Unit Surgery II in which the patient was admitted between 13/12/2011 to 17/01/2012 for the treatment of dry gangrene of distant phalynx of right index and middle finger which exposed both hence distal phalynx amputation on the patient was performed on 15/12/2011.

6)      We have perused the judgment and order passed by the President of the Additional District Consumer Commission and decenting judgment passed by two other Members. The learned President of Additional District Consumer Commission Nagpur arrived at the conclusion that there is no medical negligence and that the patient did not followed up with the doctor. As per the view taken in the judgment that it was not reaction of the injection TAXIM and hence there was no negligence. In this judgment certain rulings were cited by the author of the judgment. On perusal of decenting judgment and order both the learned Members came to the conclusion that it was true that after giving injection TAXIM immediately there was pain in right hand and discoloration of the fingers. Thus there is immediate effect of the injection TAXIM which was given. It was apparent that while giving this injection no proper care was taken and instead of giving this injection by intravenous route, the same was given in the right arm intra-muscular route. In view of the documents that the injection was given by wrong route of administration, the nurse on duty, the doctor on duty Mr.Hiware and Medical Superintendent  of the Rural Hospital Katol and finally the Deputy Directory of Maharashtra Health Services were made parties and found tobe liable for the amputation of fingers and sufferings by the patient. In our view the effect of injection TAXIM administered through wrong route was immediately seen that was recorded as well as admitted position. The observations made by the learned Members in the judgment and order (page No.28 of the judgment) that the doctor at Rural Hospital at Katol have recorded the side of arm of the patient of the left side instead of right side. In view of this negligent record-notes by the doctor it is apparent that the doctors in the Rural Hospital at Katol were negligent. In our view, the learned Members have rightly come to the conclusion that the injection TAXIM was injected through wrong route and the after effect of which was dry gangrene of the two fingers. We have observed that the majority judgment given by the learned Members have reasonably discussed and explained the deficiency in service and medical negligence by the appellants/original opposite parties. The learned Members allowed the complaint and fixed liability on the Deputy Director of Maharashtra Health Services, Medical Superintendent of Rural Hospital at Katol and the Nurse who was responsible for injecting injection TAXIM and exonerated O.P.Nos.3 and 4. Hence it is our opinion that the order passed by the learned Members of Additional District Consumer Commission Nagpur is just legal and proper, hence we uphold the judgment and order passed by the learned Members of Additional District Consumer Commission Nagpur which is majority judgment. In view of the discussions we pass the following order.           

//ORDER//

i.        The appeal filed by the appellants is hereby dismissed at the cost quantified to Rs.25,000/- to be paid by the appellants jointly and severally to respondents.   

ii.       The order passed by majority view by the learned Members i.e. Shri Nitin Gharade and Smt.Chandrika Bais of Additional District Consumer Commission Nagpur is hereby upheld with modification as appellant No.5 Nurse was responsible for injecting injection TAXIM should pay Rs.50,000/- without interest,  within two months from the receipt of copy of this order and remaining amount of Rs.4,50,000/- tobe paid by the appellant Nos.1 to 4 alongwith interest @ 9% p.a. from the date of filing of this complaint till its realisation, within two months from the receipt of copy of this order and failing which the said amount will carry interest at the rate of 12 % p.a. from the date of filing of this complaint till its realisation.

iii.      Copy of order be furnished to both the parties free of cost.