Per Shri S.R. Khanzode, Hon’ble Judicial Member
Heard Learned Counsel Mr.Prashant Patil appearing for the complainant at length for admission.
2. It is the case of alleged deficiency in service on the part of opponents for medical negligence shown in treatment of Late Vijaykumar Shah, husband of complainant-Jagrutiben Shah. Opponent No.1 is Wockhardt Hospital presently known as ‘FortisHospital’, situated at Mulund, Mumbai. Opponent Nos.2to5 are the doctors attached with said hospital. Opponent Nos.6,7&8 are the doctors attached with one Jeevandeep Hospital at Vapi, Gujarat State while opponent No.8-Dr.Priti Sahota is a Consultant at opponent No.1-hospital.
3. At the outset, it may be mentioned that Late Vijaykumar Shah suffered head injury, neck injury and knee injury on 15/04/2007 around 5.00 p.m. due to falling of heavy sugar bag on his head. He was first treated at JeevanDeep Hospital at Vapi, Gujarat State till 21/04/2007 and thereafter, was shifted to opponent No.1-hospital and was admitted there on 21/04/2007 at 4.15 p.m. and was discharged on 17/11/2007. Thereafter, Late Vijaykumar was remained at his home and there is no evidence or material placed on record of any other treatment and so also there is no statement about this period except about the admission of Late Vijaykumar Shah at Haria LG Rotary Hospital at Vapi after about three years on 26/07/2010 where he breathed last on 28/07/2010 around 08.30 p.m.
4. As far as opponent No.9-Dr.Preeti Sahota, a consultant of opponent No.1-hospital is concerned, the complainant herself came with a case exonerating her and stating that she has no complaint against her and she is a formal party.
5. We invited attention of the Learned Counsel Mr.Patil firstly to the aspect regarding opponent Nos.6,7&8 who are attached to JeevandeepHospital at Vapi, GujaratState and amongst them, opponent No.6-Dr.Ilesh Shah and opponent No.7-Dr.Pranav A Shah are the treating doctors while opponent No.8-MrsUrvi Shah is attached to Pathological Laboratory of said hospital. In this respect, complaint as against them besides the aspect of failure to establish any medical negligence, no permission to prosecute the complaint as per provisions of Section 17(2)(b) of Consumer Protection Act, 1986 (‘the Act’ for brevity) is sought. There is no answer or explanation coming from Learned Counsel appearing for the complainant on this aspect. Thus, complaint as against opponent Nos.6,7&8 since they reside or carries on their business outside territorial jurisdiction of this Commission cannot be entertained.
6. Besides this, treatment at Jeevandeep Hospital at Vapi endorsed for a period 15/04/2007 to 21/04/2007 and opponent No.1-Wockhardt Hospital Ltd. at the hands of opponent No.2-Dr.Alok Sharma, opponent No.3-Dr.Shyam Mukhi, opponent No.4-Dr.Robert D’Costa and opponent No.5-Dr.Sanjay Shah for a period 21/04/2007 to 17/11/2007. Therefore, medical negligence vis-à-vis deficiency in service in respect of opponent Nos.1to8 could be alleged as occurred in between the period 15/04/2007 to 17/11/2007. The consumer complaint is, thus, filed beyond the period of two years therefrom i.e. on 23/12/2011 and as such is time-barred. There being no application for condonation of delay, such complaint, per se, cannot be entertained. For this purpose, ratio of the decision of the Apex Court in the case of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. , III (2009) CPJ 75 (SC) can be relied upon.
7. It is the grievance of the complainant that condition of Late Vijaykumar Shah during his hospitalization at opponent No.1 deteriorated and ultimately when he was discharged he was already in a vegetable condition. Therefore, it is inferred by the complainant that opponent Nos.1to5 are responsible for such condition of Late Vijaykumar Shah and it indicates medical negligence on their part. However, such inference on the basis of material placed on record perhaps cannot be, prima-facie, drawn.
8. The complainant tried to rely upon affidavit of Dr.Rajendra Bangal. However, his summarizations are based upon the information which he believed and parted to him by the complainant and which is to be accepted with caution and further on just reading the treatment papers and, as such, perhaps, cannot serve the purpose of an expert opinion, prima-facie, establishing the medical negligence in the treatment. He tried to refer to the level of Sodium on 21/04/2007. When we asked the Learned Counsel appearing for the complainant to point out the report showing such low level of Sodium and that the treating doctors at opponent No.1-hospital did not care about it, he failed to show any, much less any supporting material in the form of medical literature. Besides this, the available report on record dated 20/04/2007 shows Sodium level at 142 i.e. well within normal level i.e. 140 – 148 mEq/I. Therefore, reading of Dr. Rajendra Bangal to this effect cannot be believed. On the contrary, case papers of opponent No.1-Wokhardt Hospital showed that the treating doctors amongst them, opponent No.2-Dr.Alok Sharma is a Consultant Neurosurgeon and was also examined by one of the leading Neuro Physician Dr.Bharucha on 28/04/2007. Details of their examination, particularly, clinical note of 28/04/2007 of the hospital shows that metabolic parameters of Late Vijaykumar Shah were well observed by the doctors and they were aware of the situation.
9. Dr.Rajendra Bangal also tried to impress that injection “Mannitol” which was administered to Late Vijaykumar Shah in his initial treatment at JeevandeepHospital at Vapi was administered without proper monitoring. He also made comment that it was duty of treating doctors at opponent No.1-hospital after admission of Late Vijaykumar Shah on 21/04/2007 to take note of the fact that earlier treating doctors at Vapi had administered said injection ‘Mannitol’ and there was no monitoring whatsoever for Electrolyte Imbalance. How he drew such inference on the basis of material placed on record has not been shown to us. There is no supporting medical literature also. As earlier pointed out, it could be seen that doctors at opponent No.1-hospital were well aware of the situation and even they monitored the patient for Electrolyte Imbalance, supra.
10. Absolutely no material is placed on record to prima-facie infer that for the alleged vegetable condition of Late Vijaykumar Shah at the time of discharge from opponent No.1-hospital, it is a treatment received by Late Vijaykumar Shah at said hospital was responsible and that there was any medical negligence in the said treatment. Therefore, considering all these aspects and applying bolam test as well and further taking into consideration the cautionary warning given by the Apex Court in the matter of Martin F. D’Souza V/s. Mohd. Ishfaq, 2009 INDLAW 174 ; we find that, prima-facie, no case of medical negligence vis-à-vis any deficiency in service on the part of opponent Nos.1to8 is shown or established. Therefore, it is not a case fit for admission.
11. For the reasons state above, we hold accordingly and pass the following order :-
-: ORDER :-
1. Consumer complaint is not admitted and stands dismissed in limine.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 13th December 2012.
