Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member
These appeals which arises out of one and the same order involves one and the same facts and common question of law and, are therefore, disposed of by this common order.
Mr.Tanaji Kisan Jadhav (original complainant; appellant in A/09/892 and respondent in sister appeal no.A/09/855; herein after referred as the ‘complainant Tanaji’) had got admitted his daughter Gauri aged about 16 years on the complaint of pain in Arya Hospital, Medha, which is run by Dr.Sunil Anandrao Dalavi (one of the appellants in A/09/855 and one of the respondents in A/09/892, original opponent no.1, herein after referred as ‘Arya Hospital’) on 01/08/2008. She was diagnosed for urgent surgical intervention for her appendix. To carry out said operation Dr.Yashwant Patil (herein after referred as ‘Dr.Patil’, original opponent no.3, one of the appellants in A/09/855 and one of the respondents in A/09/89s2) was summoned. Dr.Patil had also examined late Gauri earlier and advised her operation for appendix and also further advised her to get herself admitted for that purpose to the hospital. Her operation was carried out in the late afternoon at Arya Hospital by Dr.Patil and at that time Dr.Anuradha Warunjikar (original opponent no.2, one of the appellants in A/09/855 and one of the respondents in A/09/892, herein after referred as ‘Dr.Anuradha’) assisted the said operation as an Anesthetist. The operation was successfully carried out and, thereafter, Dr.Patil and Dr.Anuradha left Arya Hospital to return to their home town Satara. However, soon thereafter they received a message about the convulsion (epilepsy) suffered by late Gauri and, therefore, advising line of treatment over phone, by way of immediate measures they returned back to Arya Hospital and took charge of patient Gauri who was under post operative care. Considering the deteriorating condition of late Gauri, they advised late Gauri to shift to Sanjeevan Intensive Care Unit at Satara, where requisite facilities of critical care were available. Late Gauri was accordingly shifted in ambulance with proper nursing staff and doctor available to her in the journey. At Sanjeevan Hospital late Gauri ultimately succumbed to her sufferings on the next day morning at 11.00 a.m. Her post mortem was carried out and cause of death is identified as pulmonary oedema with alveolar hemorrhage.
It is alleged that Dr.Sunil Dalvi in whose care late Gauri was left for post operative care is not competent to handle the situation; management of the condition of late Gauri in that period was not properly done, nay, there was negligence on the part of Dr.Sunil Dalvi and Arya Hospital in the same; it is also alleged that Dr.Patil and Dr.Anuradha had left late Gauri after the operation without waiting for late Gauri to recover from anesthesia; and, thus, medical negligence vis-à-vis deficiency in service on that count is alleged against them i.e. Dr.Anuradha and Dr.Patil. Consumer complaint is accordingly filed on 16/02/2009.
Arya Hospital, Dr.Anuradha & Dr.Patil by their respective written versions categorically denied any medical negligence on their part in handling the post operative care of late Gauri. However, as per impugned order dated 26/05/2009 passed in consumer complaint no.70/09, Tanaji Kisan Jadhav v/s. Arya Hospital and others District Consumer Disputes Redressal Forum, Satara (‘forum’ in short), the forum uphold the contention of complainant Tanaji and directed the opponents i.e. Arya Hospital, Dr.Anuradha and Dr.Patil each to pay `1 lakh by way of compensation to the complainant in addition to `1000/- as cost. Feeling aggrieved thereby opponents Arya Hospital, Dr.Anuradha M. Warunjikar and Dr.Yashwant Patil preferred A/09/855 and complainant not satisfied with the compensation granted, filed appeal no.A/09/892.
We heard both the counsels at length and perused the record. From the entire statements made in the complaint, it could be seen that the complainant had no allegation and grievance about the operation for appendix carried out by Dr.Patil and for the services rendered by Dr.Anuradha during the operation as an anesthetist. Service deficiency is alleged in respect of post operative care and treatment. The case papers of the operation, which are produced on record are not in dispute. Both the parties rely on them. It could be seen that opponent Arya Hospital, Medha is a Poly Clinic run by Dr.Sunil Dalvi. Though he is a Homeopath, he is a qualified degree holder in the said faculty and so his wife, who also takes care as a resident doctor in the said hospital. It is not the case that they rendered any treatment to the deceased Gauri. For her complaint late Gauri referred herself to Dr.Patil, who advised immediate operation but two days thereafter were wasted and her father took her to the Doctor only when her condition worsened. They again contacted Dr.Patil and got admitted at Arya Hospital for the operation. The operation was carried out by Dr.Patil and post operative care instructions were also given by Dr.Patil. Thus, late Gauri was all the while under treatment of Dr.Patil and not under treatment of Dr.Sunil Dalvi and, therefore, question of Dr.Sunil Dalvi practicing allopathy or a pathy other than Homeopathy and, therefore, it is a case of per se negligence on part of Dr.Dalvi is a conclusion, arrived at by the forum is not only erroneous but is a departure from the facts of the case.
Dr.Sunil Dalvi along with other qualified staff of the Arya Hospital only followed the treatment given and prescribed as post operative treatment to Late Gauri and there is no negligence at all could be alleged in that respect. No such negligence is also established.
A grievance is made by the complainant is that Dr.Patil erred in leaving late Gauri in post operative care at the hands of Dr.Sunil Dalvi who is a Homeopath. Considering the fact that opponent Arya Hospital has fully trained and equipped staff to take proper post operative care, such grievance of the complainant is without any basis.
Other grievance made by the complainant is that after the condition of late Gauri become worsened and suddenly took turn around 6.24 p.m. after Dr.Patil and Dr.Anuradha left before they could return, golden hour was lost and, therefore, the appellants/opponents are guilty of medical negligence. This allegation is not substantiated by the complainant by any evidence, much less offering an expert opinion. His summarization as a layman or reading the circumstances on facts as layman is contradicted by the facts and circumstances as established from the case papers as well as from the affidavits of Dr.Patil and Dr.Anuradha to show that such grievance is not only baseless but without any foundation. It is revealed from the above referred evidence of opponents corroborated by the case papers that after late Gauri was properly recovered after operation and then she was taken out of the Operation Theatre and after she became stable; Dr.Patil and Dr.Anuradha gave necessary post operative instructions, prescribed the treatment, and then left Arya Hospital for their return journey to Satara. Hardly few minutes thereafter they received a phone call which informed them about the sudden developments in condition of late Gauri. They gave necessary instructions for care of late Gauri and then immediately rushed back to Arya Hospital. Case papers shows that on reaching to Arya Hospital around 6.25 p.m. i.e. within few minutes, condition of late Gauri showed changes. Dr.Patil himself took charge of late Gauri’s further treatment. Nothing could be shown that possible care as per the normal protocol was missed or neglected by Dr.Patil or even Dr.Anuradha. In fact, for the later treatment of late Gauri, she is not responsible.
Complainant Tanaji himself endorsed on the case papers around 7.20 p.m. before late Gauri was shifted to Sanjivan Intensive Care Hospital at Satara that after operation condition of late Gauri suddenly took turn. She became serious. Doctor did every effort to attend the condition of late Gauri and gave treatment and for which he had no complaint but late Gauri was required to be taken to Sanjeevan Hospital for further treatment. Around 8.00 p.m. late Gauri was shifted to Sanjeevan Hospital under proper care in an ambulance. Thus, it could be seen that the allegations now made of medical negligence on the part of opponents are without any basis. Lot of medical literature is referred but mere filing of literature is of no use unless relevancy is shown on the basis of established facts.
Impugned order witnesses moral judgement rather than legal assessment and judicious assessment of the facts which are established and, thus, the forum arrived at a wrong conclusion by its erroneous approach. We find ourselves unable to support the same.
For the reasons stated above, we hold accordingly and pass the following order:-
ORDER
Both Appeal nos.A/09/855 and A/09/892 are allowed.
Impugned order dated 26/05/2009 is set aside.
In the result, consumer complaint stands dismissed.
In the given circumstances both the parties to bear their own costs.
Appeal nos.A/09/855 & A/09/892 stands disposed of accordingly.
Copies of the order be furnished to the parties.
Pronounced dated 1st July, 2011.
