Common oral order in A/10/846 + A/10/878
Per – Hon’ble Mr. S. R. Khanozde, Presiding Judicial Member
These two appeals since refer to identical facts and involve common question of law, are disposed of by this common order.
[2] Appeal No.846 of 2010 is filed by Dr. Balabhai Nanavati Hospital while Appeal No.878 of 2010 is filed by Dr. M. G. Pillai. Both these appeals take an exception to an order dated 29/6/2010 passed by the Additional Mumbai Suburban Consumer Disputes Redressal Forum (hereinafter referred to as ‘the Forum’ for the sake of brevity) in Consumer Complaint No.248 of 2006, Smt. Asha Hargen Yadav Vs. Dr. Balabhai Nanavati Hospital and Another. It was a case of alleged deficiency in service vis-à-vis medical negligence on the part of the Appellant/original Opponent No.1, Dr. Balabhai Nanavati Hospital (hereinafter referred to as ‘the Hospital’ for the sake of brevity) and the Appellant/original Opponent No.2, Dr. M. G. Pillai (hereinafter referred to as ‘the Treating Doctor’ for the sake of brevity) in relation with the medical services rendered to Late Mr. Hargen Yadav who was admitted in the Hospital in the morning of 10/5/2006 with complaints of fainting and momentary blindness. He was suffering from high blood-pressure.
[3] The Forum upheld the complaint and directed both the Appellants/original Opponents fastening on them joint and several liability to pay to the Respondent/original Complainant, Smt. Asha Hargen Yadav (hereinafter referred to as ‘the Complainant’ for the sake of brevity) and amount of `25,000/- by way of compensation besides costs of `5,000/-. Being aggrieved thereby the Hospital preferred Appeal No.848 of 2010 and the Treating Doctor preferred Appeal No.878 of 2010.
[4] Undisputed facts are that Late Mr. Hargen Yadav (hereinafter referred to as ‘the patient’ for the sake of brevity) was brought to the Hospital in the morning of 10/5/2006 and was immediately referred to Dr. K. C. Shah of Neurology Department. Patient was fainting and was suffering from momentary blindness and his blood-pressure was on the higher side recording 200/80 and pulse rate 36. However, Dr. K. C. Shah found it to be a cardio problem and, therefore, the patient was referred to a cardiologist department where the Treating Doctor, Dr. M. G. Pillai examined the patient and looking to the serious condition of the patient advised the Complainant to get the patient admitted in the Intensive Cardiac Care Unit (ICCU). As per indoor case-papers late Hargen Yadav was diagnosed as under:-
“COD → Terminal Cardiorespiratory arrest due to ventricular fibrillation in a case of heart block coupled with hypoxic brain damage.”
[5] However, since the relatives of the patient failed to deposit the money and showed their willingness to pay the deposit later on and on their insistence late patient was admitted in the ward under the class – ‘Semi-Free’.
[6] It is the case of the Complainant that inspite of critical condition, her husband (the patient) was not admitted in the ICU and since she was not having sufficient funds, she was not guided by the Hospital and the Treating Doctor to approach a government hospital or any other charitable institution. She further alleged that signature of Late Mr. Hargen Yadav was obtained on the case-papers and wherein it is wrongly stated as follows:-
“All associated risk explained to patient and relatives as getting admitted in ward & not in ICU.”
[7] According to the Complainant, late patient ought not to have admitted in the general ward since her husband was suffering from complete block in the heart arteries. His condition was slowly deteriorating in the general ward and ultimately he went in coma and his brain and important body organs stopped responding from 10/5/2006 till the date of filing of the consumer complaint on 9/6/2006. Holding responsible the Hospital and the Treating Doctor for the same and alleging medical negligence on their part, a consumer complaint was filed and an amount of `1,44,000/- was claimed towards reimbursement of medical expenses besides an amount of `9,00,000/- by way of compensation towards mental agony, hardship and anxiety.
[8] The Forum, upholding the contention of the Complainant, partly allowed the consumer complaint and passed the impugned order referred earlier.
[9] Heard Adv. Sneha S. Dwivedi on behalf of the Complainant Smt. Asha Hargen Yadav, and Adv. Yogesh C. Naidu on behalf of the original Opponent No.1, Dr. Balabhai Nanavati Hospital and Adv. Shekhar B. Prabhavalkar on behalf of the Opponent No.2 Dr. M. G. Pillai. Perused the record including the original case-papers.
[10] Complainant relied upon her own affidavit and the case-papers of which the copies were also filed on the record and which emerge as undisputed documents except the endorsement under signatures of relatives and Late Hargen Yadav and to which reference is made earlier.
[11] On behalf of the Hospital an affidavit of Dr. Ashok B. Hatolkar, Medical Superintendent is relied upon while the Treating Doctor, Dr. M. G. Pillai supported his case by his own affidavit. Besides that the Hospital and the Treating Doctor relied upon an expert evidence of Dr. Darshan Arvindrai Jhala, who opined supporting the case of the Hospital and the Treating Doctor that no medical negligence in the case could be said to have been made out and the treatment received by the late Hargen Yadav was proper in the given set of circumstances.
[12] It could be seen that the relatives of the patient after the Treating Doctor, Dr. M. G. Pillai advised to admit the patient in the ICCU for treatment, preferred to get the patient admitted in a ‘Semi-Free’ Ward of the Hospital with a promise that they would pay the deposit later on. The patient was admitted accordingly without insisting for the initial payment as deposit. However, the Treating Doctor being aware of the risk involved in getting the patient admitted in a general ward instead of ICU, had taken care to inform the patient as well as his relatives of the risk involved and noted it in the case-papers which reads as under:-
“Patient needs to admit in ICU urgent basis. As patient is not affording admitting patient in General Ward. All associated risk explained to patient and relatives as getting admitted in ward & not in ICU.”
[13] Said noting was signed by the patient, Late Mr. Hargen Yadav and the relative present. Undertaking given by the patient’s son viz. Akhilesh Yadav shows that he preferred to get admit his father, Late Mr. Hargen Yadav in a ‘Semi-Free’ ward rather than ICU. Thus, it is against the advice of Treating Doctor and on the insistence of the patient and his relatives the patient was admitted in the ‘Semi-Free’ ward instead of ICU inspite of the risk involved was addressed to them. At that point of time relatives of the patient preferred not to shift the patient to a government hospital or the corporation hospital to even to any other charitable hospital where some free seats could be offered on availability. They were never prevented from doing so. Therefore, grievance tried to be made in the complaint that the Complainant was not informed about shifting her husband to a government hospital cannot be accepted and believed.
[14] As far as treatment given to the patient is concerned, it was as per standard protocol and in a best possible manner in the given circumstances. There is no grievance about it raised by the Complainant. It could be further seen that on noticing deteriorating condition of the patient on 26/5/2006, the patient was transferred to ICU on their own by the Hospital and even a temporary pace-maker was provided to him. However, the relatives of the patient were not further willing to incur expenses for the same even to spend for changing pace-maker wire, as appears from the endorsement made on the case-papers on 1/6/2006. Further, there are repeated endorsements on the case-papers that the relatives of the patient were not providing requisite medicines and, therefore, from its stock the Hospital was required to supply the medicines obviously without insisting for payment. Relatives were not attending the patient as required. Thus is the picture that is reflected from the case-papers and speaks in volume as to how the Hospital and the Treating Doctor were doing their best in the given circumstances but it is the relatives of the patient who perhaps had some different motives, infra.
[15] On the pretext of taking second opinion, copies of the case-papers were obtained by the relatives of the patient and instead of seeking second opinion they rushed to a lawyer and issued a notice through a lawyer on 29/5/2006 to the Hospital and the Treating Doctor. This perhaps reflects their state of mind and indicates their intention to exploit the situation to their advantage instead of diverting all their energies addressing treatment and safety of the patient Late Mr. Hargen Yadav who was admitted in the Hospital.
[16] Considering the above-referred material and even the expert opinion of Dr. Darshan Arvindrai Jhala, supra, we find that hardly any case is made out about deficiency in service vis-à-vis medical negligence on the part of the Hospital or the Treating Doctor. Impugned order is perhaps based on moral aspects rather than legal consideration. Under the circumstances, we hold accordingly and pass the following order:-
ORDER
Appeals bearing Nos.846 of 2010 and 878 of 2010 are allowed. Consequently, the impugned order dated 29th June, 2010 is hereby set aside. In the result, the consumer complaint stands dismissed.
Parties to bear their own costs.
After the period to file a revision is over, the original documents i.e. the case-papers may be returned to the hospital on retaining photocopies thereof.
Pronounced on 07th March, 2013
