Per :- Mr. Deshpande, President Place : BANDRA JUDGMENT The Complainant is the husband of Smt. Rani Anand (Since Deceased & hereinafter referred to as ‘the patient’). The Complainant’s wife – the patient, suffered a heart stroke on 22/1/2001 and was admitted to Bharatiya Arogya Nidhi Hospital, but on account of strike of the workers, the Complainant shifted the patient to the Opposite Party No.1 – Life Care ICCU; on 24/1/2001. The Opposite Party No.2 is the proprietor of the Opposite Party No.1 – ICCU. The Opposite Parties No.3 & 4 are one and the same person i.e. Dr. Mahesh Shah and he has been impleaded as the Opposite Party No.3, in his capacity as a doctor attached to the Opposite Party No.1 – ICCU; as also, he has been impleaded as the Opposite Party No.4, in his individual capacity, and therefore, hereinafter for the sake of brevity, he is referred to as ‘the Opposite Party No.3 – Doctor’ only. [2] It is the case of the Complainant that the infrastructure at the Opposite Party No.3 – ICCU; was bad and place was congested having no space to move and it was lacking proper facilities. The Complainant as described the Opposite Party No.1 – ICCU; as a place ‘worse than poultry farm’. According to the Complainant, no adequate nursing staff was appointed to attend the patients, as also, the nurses were not well-qualified to take care of the patients suffering from serious ailment like cardiac disease. [3] As regards negligence on the part of the doctors at the Opposite Party No.1 – ICCU; the Complainant has alleged that the resident doctor on duty at the Opposite Party No.1 – ICCU; was not qualified & experienced. The patient was taken to a C. T. Scan Centre at Santacruz in an ambulance while on ventilator on account of which, the patient suffered partial infarction of the brain and was paralyzed. [4] It is further alleged that the Opposite Parties did not give proper treatment to the patient as a result of which, the condition of the patient deteriorated. When the Complainant realized that the patient was about to collapse, the Complainant shifted the patient to Leelavati Hospital on 29/1/2001. In the meantime, the patient suffered from pneumonia and infection at the Opposite Party No.1 – ICCU. Thus, making allegations of not providing adequate medical facilities at the Opposite Party No.1 – ICCU; and making allegation of medical negligence on the part of the treating doctors, the Complainant has filed present consumer complaint and has claimed compensation in sum of Rs.3,00,000/-, besides reimbursement of medical expenses in sum of Rs.1,00,000/-. [5] The Opposite Parties No.1 & 2 filed their joint written version and explained that the Opposite Party No.1 is an ‘Intensive Cardiac Care Unit’ and not an ‘Intensive Care Unit’. It also explained facilities, which are available at the Opposite Party No.1 – ICCU; and denied that required facilities were not provided at the Opposite Party No.1 – ICCU; and thus, denied allegations in the complaint about lack of basic infrastructure. It also denied allegations in the complaint that the treating doctors were negligent in taking the patient outside at Santacruz for taking C. T. Scan and this further deteriorated the condition of the patient. It also denied allegations in the complaint that nursing staff as well as the doctors treating the patient were not medically trained and they were negligent in treating the patient. [6] The Opposite Party No.3 – Doctor; filed his separate written version and took stand that the patient was already suffering from diabetes, hypertension, ischemic heart disease and left ventricle function abnormalities. It was a high risk case. The condition of the patient was critical while the patient was admitted on 23/1/2001 at the Opposite Party No.1 – ICCU. The Opposite Party No.3 – Doctor; has then, narrated the steps taken towards giving treatment to the patient and has denied the allegations of negligence on his part or any other doctor. According to the Opposite Party No.3 – Doctor; the patient was shifted to Leelavati Hospital on 29/1/2001 and thereafter, the patient was shifted to Hinduja Hospital and other hospitals and on discharge, the patient stayed at home and ultimately died on 11/7/2002 i.e. after more than a period of one year from the date of her admission to the Opposite Party No.1 – ICCU. Thus, according to the Opposite Party No.3 – Doctor; death of the patient has no nexus with the treatment given to her at the Opposite Party No.1 – ICCU. [7] The Complainant filed his affidavit of rejoinder to the written versions of defence filed by the Opposite Parties and in the affidavit of rejoinder, the Complainant also maintained that the patient was shifted to the Opposite Party No.1 – ICCU; from Bharatiya Arogya Nidhi Hospital on the recommendations of the Opposite Party No.3 – Doctor; but the Opposite Party No.3 – Doctor; did not bother to explain to the Complainant that there were no adequate facilities at the Opposite Party No.1 – ICCU. The Complainant also reiterated that the patient suffered a paralytic stroke while at the Opposite Party No.1 – ICCU. [8] Parties to the complaint proceeding filed their respective affidavits of evidence and copies of relevant documents. The Complainant has produced on the record copies of discharge cards as well as copies of case-papers containing entries regarding treatment given to the patient during the period 23/1/2001 to 29/1/2001. The Opposite Parties filed their written notes of arguments. [9] We have gone through the pleadings, affidavits and documents as well as written notes of arguments filed by the parties. [10] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Parties are guilty of negligence & deficiency in service while giving treatment to the patient during the period 23/1/2001 to 29/1/2001? | NO | 2. | Whether the Complainant is entitled to recover compensation? | NO | 3. | What order? | The complaint stands dismissed. |
REASONS FOR FINDINGS [11] There is no dispute between the parties to the complaint proceeding as regards the fact that the patient was earlier treated at Bharatiya Arogya Nidhi Hospital and the patient was shifted to the Opposite Party No.1 – ICCU; on 23/1/2001. The Complainant himself has produced on the record a copy of Discharge Card issued by the Bharatiya Arogya Nidhi Hospital. Entries therein reveal that the patient was suffering from Diabetes Mellitus, Hypertension, Ischemic Heart Disease and Left Ventricle Failure. Entries in the Discharge Card further reveal that blood-pressure of the patient was 160/100. Entries in the discharge card further reveal that the patient was admitted at the Bharatiya Arogya Nidhi Hospital with a complaint of difficulty in breathing and the patient was put on a ventilator and during the course of treatment, the patient was breathing well. Entries in the discharge card further reveal that the patient became breathless on 23/1/2001 and the patient was put on a ventilator and thereafter, transferred to the Opposite Party No.1 – ICCU. Entries in the discharge card issued by the Opposite Party No.1 – ICCU; reveal that when the patient was admitted, she had difficulty in breathing and at Bharatiya Arogya Nidhi Hospital, patient landed on a ventilator. On admission to the Opposite Party No.1 – ICCU; the patient was transferred for ventilator management on ambu-bag. These entries precisely show that the patient was admitted with a ventilator and this belies statement on the part of the Complainant to the effect that the patient was hail & hearty when she was admitted at the Opposite Party No.1 – ICCU. [12] The Complainant’s principle grievance is that the infrastructure and facilities at the Opposite Party No.1 – ICCU; are poor and the place is so congested that it is ‘worse than poultry farm’. As against this, the Opposite Parties No.1 & 2, in their written version of defence, have explained that being an Intensive Cardiac Care Unit, the Opposite Party No.1 is fully geared up to tackle any kind of cardiac emergency. The Opposite Party No.1 – ICCU; is well-equipped with ECG Machines, ECG Monitors for continuous heart monitoring, Ventilators for assisted respiration, Defibrillators for reviving heart by DC current, Pulse Oxymeters to estimate pulse rate, blood pressure and oxygen saturation; 2D Echo machines to study the inside of the heart etc. Thus, it is denied that the Opposite Party No.1 – ICCU; has poor infrastructure & facilities. [13] Perhaps, the Complainant called the infrastructure at the Opposite Party No.1 – ICCU; ‘poor’ because the patient was taken out for C. T. Scan at Santacruz, in an ambulance, while the patient was on a ventilator. In this regard, the Opposite Party No.1 – ICCU; has explained that being an Intensive Cardiac Care Unit, treating the patients for cardiac problems, the Opposite Party No.1 – ICCU; does not possess a C. T. Scan machine or a MRI Machine, which are used for specialized radiological work. It is a common knowledge that C. T. Scan or MRI Scan is done in order to find out neurological problems. In the present case, material produced on the record by the Complainant shows that the patient was taken out to Santacruz for C. T. Scan on 24/1/2001 and the C. T. Scan report revealed large left tempero-parietal infarct. The Complainant’s grievance in this regard is that the patient was taken to Santacruz for a C. T. Scan, while the patient was on a ventilator, and therefore, the patient suffered this infarction. The Opposite Parties have denied that statement and have taken stand that the patient was taken at the C. T. Scan Centre in an ambulance with necessary care and the C. T. Scan examination was necessary as a part of the treatment. In paragraph (43) of the written version of defence filed by the Opposite Parties No.1 & 2, they have denied the allegations that the patient suffered infarction because she was taken outside and it was a negligent act on the part of the doctors. C. T. Scan report shows that infarction was found. It has come on the record through the entries in the discharge card that the condition of the patient was already critical when the patient was admitted to the Opposite Party No.1 – ICCU. The Complainant has not produced on the record any medical opinion or certificate to show that the patient suffered fresh infarction on account of taking the patient outside for a C.T. Scan. On the contrary, the patient was taken to Santacruz for a C. T. Scan in an ambulance, which was well-equipped with a ventilator. There was no C. T. Scan facility available at the Opposite Party No.1 – ICCU. Moreover, the patient remained at the Opposite Party No.1 – ICCU; for a period of five more days after she was taken outside for the C. T. Scan on 24/1/2001 and the Complainant shifted the patient from the Opposite Party No.1 – ICCU; on 29/1/2001. Had the Opposite Parties being negligent or reckless in taking the patient outside to Santacruz for a C. T. Scan then, the Complainant, in the normal course, would have immediately shifted the patient from the Opposite Party No.1 – ICCU; to another hospital on the very day or the next day. That did not happen. This shows that the Complainant had no grievance about taking the patient outside to Santacruz for a C. T. Scan on 24/1/2001. [14] As against this, while furnishing the details of the treatment given to the patient, the Opposite Parties, in their respective written versions, have taken a stand to the effect that when the patient was admitted to the Opposite Party No.1 – ICCU; her condition was critical and the patient was unconscious with a blood pressure 160/100. It was explained to the relations of the patient that it was a high risk case. On admission, the patient was immediately supported by a ventilator and I/v. Claforan (Antibiotic). Condition of the patient was closely monitored throughout the hospital stay. Entries in the case-papers bear out that from time to time patient’s pulse, blood-pressure, intake, output and temperature were recorded regularly. On 24/1/2001, when the patient was unconscious and on a ventilator, her blood pressured increased to 180/120 and neurological signs were seen for the first time, which required C. T. Scan. Dr. Ajay Vyas, who is a neurologist by profession, was requested to join the team of doctors at the Opposite Party No.1 – ICCU. According to the Opposite Parties, Dr. Ajay Vyas – Neurologist; confirmed the treatment that was going on. On 28/1/2001, a decision to go in for ‘Tracheotomy’ was taken. According to the Opposite Parties, it is an opening made in the wind-pipe from the front lower portion of the neck. This is done when endo-tracheal tube is expected to stay in the wind-pipe for a long time and done to effect better aspiration of bronchial secretions. Dr. Manish Jashanani, an E.N.T. surgeon by profession and Dr. Salil Bendre were requested to assist the Opposite Parties. Thus, according to the Opposite Parties, condition of the patient was closely monitored and what-ever was required, as per medical protocol, was done to prevent further deterioration as well as to improve the condition of the patient. [15] The Opposite Party No.3 – Doctor; in his affidavit of evidence, has deposed all these facts and has stated that medical protocol was followed and there was no lapse or negligence on the part of any of the doctor from amongst the team treating the patient. [16] It has come on the record that on 29/1/2001, the patient was shifted to Leelavati Hospital and the Discharge Card issued by the Leelavati Hospital is annexed by the Complainant to his affidavit of rejoinder. There also, it is recorded that the patient was admitted with a history of diabetes mellitus, hypertension, left cerebral infarct and pneumonia. It is seen from the record that the Complainant had made allegations of negligence even against the doctors at Leelavati Hospital and this is borne out from their letter dtd.19/6/2001, a copy of which is annexed to the affidavit of rejoinder filed by the Complainant. This shows that the Complainant is in the habit of making allegations against the doctors. [17] In the present case, barring the allegations in the complaint, the Complainant has not produced on the record any expert evidence or for that matter any particular piece of evidence to establish negligence on the part of the Opposite Parties. According to the Opposite Parties, the patient did not catch pneumonia at the Opposite Party No.1 – ICCU; but it was there while the patient had taken treatment at the Bharatiya Arogya Nidhi Hospital. In fact, while at the Opposite Party No.1 – ICCU; on 25/1/2001, the patient improved and was breathing without ventilator. On 28/1/2001, the patient’s oxygen saturation dropped and this required ‘Tracheotomy’, which is a standard treatment for such patients. According to the Opposite Parties, the Complainant insisted on shifting the patient to Leelavati Hospital and accordingly, the patient was discharged from the Opposite Party No.1 – ICCU. [18] In this context, it be noted that even on discharge from the Opposite Party No.1 – ICCU; on 29/1/2001 and on taking treatment at Leelavati Hospital, the patient was discharged. According to the Opposite Parties, thereafter, the patient had taken treatment at Hinduja Hospital and various other hospitals. In the written versions filed by the Opposite Parties, it is averred that the patient died on 11/7/2002 i.e. after lapse of a period of one and half year from the date of discharge from the Opposite Party No.1 – ICCU. It is possible that in the meantime, certain other adverse factors might have hit the patient resulting into making the condition of the patient critical, leading to her death. In view of time gap between discharge of the patient from the Opposite Party No.1 – ICCU; and death of the patient, it cannot be said by any stretch of imagination that the patient died because of alleged negligence on the part of the Opposite Parties. [19] As pointed out above, the Complainant has not produced on the record any expert opinion to substantiate his allegations, as against the Opposite Parties. It is cardinal principle in the sphere of medical negligence that burden of proof rests on the Complainant to establish negligence on the part of the Opposite Parties. Merely because death of patient had occurred, it cannot be inferred that the treating doctors were negligent. There is no material on the record to prove that the treatment given by the Opposite Parties to the patient was contrary to standard medical protocol. There is no material on the record to show that there was any other line of treatment available, which the Opposite Parties omitted to take that course of action. Thus, barring the allegations in the complaint, there is no material on the record to establish that the Opposite Parties failed to take any steps, which they were required to take in the course of giving treatment to the patient. Allegations made by the Complainant, being a person having no knowledge of medicine or medical practice, carry no weight. In this regard, reference can be usefully had to the decision of the Hon’ble Maharashtra State Consumer Disputes Redressal Commission in Ms. Swati Prakash Patil Vs. Dr. Kiran Rajaram Vanarase & Anr. ~ 2006-(2)-CPR-370; whereunder in paragraph (12) of the reported judgment it is observed as follows:- “While dealing with a case of medical negligence, it is to be borne in mind that medical negligence is a subject which requires to be assessed by the Commission or Forums on the basis of evidence adduced by the parties. Complainant who alleges medical negligence has to establish by adducing expert evidence in his favour to establish medical negligence on the part of the O. Ps., who is facing the complaint of medical negligence. Complainants are layman. Their own affidavit will not serve the purpose to establish case of medical negligence against doctors. The complainants are required to adduce evidence of expert professional from the medical field to establish that particular doctors while treating the patient had neglected to take due and reasonable care and as such there was deficiency of service on their part u/sec. 2(1)(g) of Consumer Protection Act, unless the case is such that medical negligence ipso facto is proved from the particular circumstances on record, which we call it as a principle of Res-ipsa-loquitur.” In view of the above, we hold that in the present case, the Complainant has failed to prove that the Opposite Parties were negligent in treating the patient during the period 23/1/2001 to 29/1/2001 and there was deficiency in service on their part. We, therefore, record our findings to the points raised above in the negative and proceed to pass the following order:- ORDER The complaint stands dismissed. No order as to costs. Parties shall be informed accordingly, by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | |
