Mumbai Grahak Panchayat vs. Dr. (Mrs.)Rashmi B. Fadnavis and others 1998 CCJ 766

National Consumer Disputes Redressal Commission, New Delhi.

Meena Pilankar, wife of Vinayak Pilankar, was examined by opposite party No. 1 on 24.1.1991 at Jeeven Vikas Kendra in Andheri, where the latter was attached as honorary gynaecologist. Opposite party No.2 is the husband of opposite party No. 1 and the opposite party No.3 is the anesthetist. Meena Pilankar was checked by opposite party No. 1 on complaint for excess discharge, excess bleeding and white discharge during her monthly period. Ultra sonography was done and the report of the ultra sonography was scanned. From 24 to 28.1.1991, Meena Pilankar was subjected to many tests, namely, X-ray, ECG, blood test, etc. Thereafter, on 5.2.1991, she was admitted to the nursing home of opposite party No.1 on the latter's suggestion and was operated upon on 6-2-19991. She died immediately after the operation. The compliant was, therefore, lodged before the Maharashtra State Commission by her husband alleging negligence in the treatment and service rendered by opposite party Nos. 1 and 2 and he claimed Rs. 9,57,355/- as total compensation. On the basis of material on record the State Commission held that opposite party Nos. 1 and 2 were guilty of medical negligence and that the death of Meena Pilankar was caused due to lack of ordinary care and skill which a medical practitioner should have exhibited under the circumstances while treating Meena Pilankar and directed opposite party Nos. 1 and 2 to pay jointly and severally Rs. 2,55,355/- to the complainant towards compensation and Rs. 5,000/- towards costs of the petition to the Mumbai Grahak Panchayat. The State Commission also went into the question whether there was negligence on the part of the opposite party No. 3, the anaesthetist. In this connection the Commission examined the Corner's report regarding the death of Meena Pilankar. The Additional Corner of Bombay had concluded that the final cause of death was shock due to anaesthesia (unnatural) based on the histopathological report dated 16-11-1991 and chemical report dated 9-7-1991. The report of chemical analyser was on the basis of examination of blood samples of Meena Pilankar. However, the results were inconclusive. The State Commission was unable to agree with the view of the Additional Corner of Bombay that death of Meena Pilankar was a result of shock due to anaesthesia (unnatural) because the report of the chemical analyser dated 9-7-1991 did not support the opinion of the Corner. According to the State Commission, the report of the chemical analyser showed the absence of anaesthetic gases in the blood of Meena Pilankar. The State Commission, therefore, concluded that there appeared to be no basis for the finding that the death of Meena Pilankar was as a result of shock due to anaesthesia. The State Commission further held that there was no privity of contract between the complainant and opposite party No. 3 as the services of opposite party No. 3 were hired for the complainant by the opposite party No. 1 and that opposite party No. 3 cannot be held liable for the payment of compensation even if it is proved that she acted negligently in her duty.

In First Appeal No. 468 of 1993 filed by the complainant, the main point taken is about the exoneration of the opposite party No. 3, the anaesthetist by the State Commission inter alia for want of privity of contract. Although in its appeal the point about inadequate compensation has also been raised, this was not pressed before us during the hearing.

On the question of liability of opposite party No.3 it is seen that the State Commission on detailed examination has not found basis or evidence for the alleged deficiency in the services of the anesthetist. The Commission held that, we do not find any reasons to disagree with this conclusion. However, the Commission continued we find it difficult to go with State Commission's observation that the anaesthetist cannot be held liable for the payment of compensation even it is proved that she acted negligently in her duty, since her services were hired by opposite party No. 1 for consideration and since there is no privity of contract between the complainant and opposite party No. 3. On the other hand, the Commission on held that even if the services of the anaesthetist were hired by opposite party No.1, then also the deceased happened to be the beneficiary of medical services of the anaesthetist and hence a 'consumer' and that services of the anesthetist are invariably paid for by the patients themselves, their charges being generally shown separately in the bill. Section 2(1) (d) of Consumer Protection Act defines 'consumer' as one who 'hires or avails of any services for a consideration'; this definition does not refer to any privity of contract for that purpose. Similarly, Section 2(1) (g) defines 'deficiency in service' as : "fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any services."

The words 'in pursuance of a contract or otherwise' in the Section make it amply clear that a privity of contract is not needed for a claim to be made under Consumer Protection Act, so long as there is hiring or availing of services for a consideration. Thus, the anesthetist who participated in the process of delivery of medical services to the beneficiary is as much liable as the main surgeon herself if her negligence had been established.

RECENT COPRA JUDGEMENTS

Devendra Kantilal Nayak & others vs. Dr. Kalyaniben Dhruv Shah & another 1998 CCJ 544

Gujarat State Consumer Disputes
Redressal Commission, Ahmedabad

This complaint is filed by Devendra Kantilal Nayak and his children against Dr. Kalyaniben Shah and New India Assurance Co. Ltd. for negligence and deficiency in medical service. For Rs.. 11,00,000/-, i.e., (eleven lakh) with appropriate interest. The New India Assurance Co. Ltd. was joined as co-respondent at a later stage as the said company has contracted to financially indemnify Dr. Kalyaniben Shah. The relevant facts are as follows:

One shobhnaben, aged about 35 years and residing at Vadaj, Ahmedabad, was the wife of Devendrabhai- the complainant and mother of co-complainant Nos. 2 and 3, the minors - a son and a daughter. Shobhnaben was a patient of Dr. Kalyaniben Shah dirung her last confinement which led to various complications and death due to negligence in medical management by Dr. Shah as alleged by complainant.

The said Shobhnaben was taken for the last time to Dr. Shah on 5.8.1993 around 3.30 in the afternoon for "delivery" as per advice and instructions of Dr. Shah. She underwent caesarean operation, delivered a baby girl but did not regain consciousness and ultimately died in early hours of 6.8.1993 at V.S. Hospital where she was shifted around 10 p.m. previous day evening in "very serious condition". Dr. Shah is M.D. in gynaecology and obstetrics and has her own private nursing home in New Vadaj area known as Pankit Hospital. The late Shobhnaben was registered with her as a patient for last some months and Shobhnaben was visiting Dr. Shah as and when instructed by Dr. Shah for management of her last pregnancy.

As per records Shobhnaben had gone to Dr. Shah on 3.8.1993 for routine check regarding her pregnancy and everything was reported to be "normal" and she was required to report on 10.8.1993 or earlier if need arose.

On 5.8.1993, Shobhnaben started labour pains and she was taken to Dr. Shah for management. Doctor examined Shobhnaben and admitted for Caesarean operation. Soon when husband specifically asked for blood, etc., he was conveyed everything is "normal" and blood will not be needed and that operation will be over in ½ an hour. The complainant thereafter went home to manage for money, etc. Meanwhile, Dr. Shah obtained consent of complainant's brother for operation on brother's wife. When complainant returned to hospital, patient Shobhnaben was already taken for operation.

At about 3.45 p.m. a baby girl was delivered by operation and was shown outside the operation theatre by ayah to complainants and relatives and were informed that all was well with mother and baby and patient will be shifted to her room in a short while.

Shobhnaben was not brought out of operation theatre will about 5 p.m. and only information that was passed to complainant and relatives was that everything was well and she will be brought "out" soon. At about 5.10 p.m. the complainant was requested to take blood sample to Karnavati Hospital/Laboratory for test and blood for transfusion. When the complainant failed to get blood from the said laboratory he called back to hospital on phone and was instructed to go to Green Cross Blood Bank in Paldi. As claimed by Dr. Shah she had not phoned Karnavati Blood Bank and the said blood bank was unaware about the blood transfusion request. Further they did not have unusual group blood in stock. The blood group of Shobhnaben was unusual (i.e., A negative group).

Complainant's father and brother had gone to Karnavati blood bank and had sent the complainant back to Dr. Shah's hospital and that they went for blood to Green Cross Laboratory. As soon as complainant reached Dr. Shah's hospital he was soon sent to Dipdhara Nursing Home to fetch the 'monitor' which he did. Meanwhile, a couple of bottles of blood also was arranged by the complainant's brother and father. This happened around 6.p.m.

All the while all the attendants were kept busy by asking for various medicines, blood, etc. and the attendants were busy getting the money and medicines. On repeated asking only reply that was given was that everything will be alright and don't worry. No one was allowed to see the patient.

As claimed, the opponent did not give any worthwhile information on patient and kept on asking for more and more blood. The request for blood was telecast and was also announced on AIR. The response was good and about 8 to 10 bottles of blood were managed and were being transfused. People also advised for removal uterus for control of bleeding and was conveyed to opponent who neither gave true picture of patient's condition nor acted on the said advice and the relatives were told by opponent that "you cannot understand anything and do as you are told".

When the complainant and his father and relatives showed their displeasure and anguish in a harsh way a few relatives were shown the patient in operation theatre one after another and they were aghast to see the patient and operation theatre's condition which were all blood soaked including the staff doctors in operation theatre. The doctors were scared and speechless and when repeatedly pressed said patient was serious and will have to be shifted to V.S. General Hospital and relatives were asked to arrange for ambulance. The relatives reprimanded the doctors and told them rather than wasting 5 hours you should have informed us in good time and we should have been informed immediately. The doctors remained silent.

Ambulance came around 10 p.m. and patient was shifted to V.S. General Hospital around that time and was accompanied by doctors. Patient was first taken to gynae department but was told to take the patient back to casualty department because patient was seriously bleeding and unconscious and that the operation was already done. Medico legal formality was done and patient was registered. Meanwhile, patient had died when police came for statement. Since complainants were unaware of facts and were all disturbed did not press the complaint against doctor then. Postmortem of patient was done, says complaint.

After cremation, etc., when inquired we came to know that patient had problems from word go and doctors kept on compounding their 'mistakes'. This was told to us by anaesthetist. Initially it was thought that excessive bleeding was the result of defect in coagulation mechanism of blood but same was ruled out subsequently by laboratory tests.

Complainants were informed by various persons including experts, that entire happening was because of lack of knowledge, care and improper handling of the case by opponent and outcome-death-could have been avoided by removal of uterus and other appropriate measures of care in operation and management. This was the duty of a qualified doctor in which the doctor had totally failed and patient died. All the reports pertaining to the patient from before the operation till the very end were in possession of opponents and complainants were never given the same or explained about them and this was done with ill-intention and motive. Post-mortem also notes the cause of death as negligent surgical procedure and its consequences.

The hospital also bears the board of sonography clinic and no such facility is available. The complainant also came to know of some incidents where the opponents were required to pay compensation to other patients for their negligence.

The complainants, therefore, submit that in the interest of justice and public at large since said doctor does negligent practice due legal actions be taken.

The complainants further state that the opponent has failed in her duties had has shown negligence in management of said Shobhnaben which ultimately led to her untimely death. Complainant, therefore, on various counts mentioned in his complaint asked for said compensation of Rs.. 11,00,000/-.

The opponent has submitted the written statement (Exh.8). The material facts therein are as under: Opponent accepts that patient was admitted on 5.8.1993 but refutes the claim that the patient was kept in the operation theatre for more than 5 hours, that the facts were suppressed or that the opponent made any blunder. The opponent does not accept the cause of death of Shobhnaben due to gross negligence during surgical treatment. Opponent refutes the charges of lack of reasonable care or standard skill during operation. Opponent also does not agree that complainant cannot be compensated by money. Opponent admits that patient Shobhnaben was under her treatment since last one year and the opponent knew her blood group.

Opponent states that she has not done her sonography nor discussed the result of same as being abnormal or discussed anything regarding terminating pregnancy.

Opponent on 3.8.1993 did not say that everything was 'normal' and that she should come back on 10.8.1993.

Opponent says that on 5.8.1993 at about 3 o'clock when she was brought to her she was serious. She had previous history of Caesarean operation and dead baby was delivered. It was also reported that she had delivered children 12 and 6 years before and child had died (not mentioned how delivered or died). Shobhnaben consulted the opponent on 18.2.1993 in ante-natal period. She was advised sonography which she underwent and report was seen. This was around 19.4.1993. Sonography had shown placenta previa grade III (three). The report and condition was discussed with patient and relatives. Seriousness of situation was explained and planned, Caesarean operation was advised.

It is further stated that blood banks were informed (No names or details about request given) before the operation. It is also stated that blood samples were taken and sent before operation. (Not mentioned when and where the samples were sent and with whom). It is stated that monitor was asked only as accessory and not as necessity by anaesthetist. Patient was transfused 8 bottles of blood and patient did not suffer because of want of blood.

It is stated that uterus removal was not necessary and complainant and opponent had no talk about the same. It is denied that there was profuse bleeding. What scene was described for operation theatre is not true.

It is admitted that police formalities at V.S. Hospital were done by the complainant. It is stated that bleeding had stopped but patient had gone in irreversible shock and general condition of the patient was not good. It is stated by opponent that post-mortem report is not correct and is mala fide. It is stated that death is not due to negligence of opponent and that operation was done well and whatever the complainant or post-mortem report states is not true.

The opponent has asked for second opinion on the post-mortem report and that is awaited. The opponent says she is not liable to pay any compensation and that Shobhnaben was not a healthy person (no details given). It is submitted that complainant has not paid any professional charges to opponent and that complainant has not spent Rs.. 25,000/- for blood, medicine, etc. Medicines were also prescribed by anaesthetist. All averments by complainants about suffering are denied and it is stated that the complainant is not entitled for compensation of Rs.. 11,00,000/- and complaint should be dismissed. Opponents subsequently requested for joining the insurance company as respondent (Exh.9) (which was granted by Commission.)

Opponent No.2 insurance company has filed the written statement denying charges and that no privity of contract existed between the complainants and opponent No.2. Therefore, complaint be dismissed. The opponent No.2 adopts the arguments of opponent No.1 and limits its liability to Rs.. 6,00.000/- only in case compensation is awarded (Copy of policy at page No. 66).
Dr. Patel was subsequently examined as witness wherein we have the following information:
-Dr. Patel confirmed the statement and his signature.
-Dr. Patel had made anaesthesia note which later on was handed over to Dr. Shah.
-Dr. Patel says that his notes are correct.
-Dr. Patel states that it is untrue that in collusion with patient's relative he had created case against Dr. Shah.
-Dr. Patel further states that he is unaware why another gynaecologist, Dr. Sandip Shah, was asked to remain present. Dr. Sanghvi came to assist him. I am competent to manage case independently. Dr. Patel has not mentioned the role played by Dr. Sanghvi in his note but he has mentioned about him in his sworn statement starting on page 99. He had examined the patient Shobhnaben pre-operatively and she had no bleeding per vagina. He was given to understand by Dr. Shah that patient is having placenta previa and abdominal pain and hence emergency surgery is indicated. He had not confirmed whether blood had arrived in hospital, but Dr. Shah had told him blood is available. Because police took his statement, he came to know that police case was filed against Dr. Shah. He had even heard about it before also. He could not say about surgical part of operation. He said that in case of bleeding p/v and placenta previa general anaesthesia is generally given but in case of Shobhnaben it was not necessary to give general anaesthesia. He has not erred by giving spinal anaesthesia to Shobhnaben and it is wrong to say that the condition of the patient deteriorated because of his mistake in anaesthesia and anaesthetic procedure. Dr. Kamal Jani was called when half of the operation was over. Dr. Patel says that it is not true to say that sufficient blood was available during surgery. It is true that blood transfusion was started during surgery. Dr. Patel states this is his first case of placenta previa with pain in abdomen in three such cases that he had conducted.

There is material difference in statements of Dr. Shah, opponent No.1 and Dr.Patel, anaesthetist. Dr. Shah has said patient was serious on arrival and blood pressure was low. Dr. Patel says exactly opposite. Patient was fit and well. Her pulse and blood pressure were normal. Dr. Shah says patient had bleeding per vagina but complainant and Dr. Patel, anaesthetist deny the same. Dr. Shah has produced two sets of case papers both xerox. No original copies are presented though complainant's representative has asked for the same. The advocate of opponent Dr. Shah has stated that they do not have any other documents than already submitted.

Opponent does not clarify as to how two different sets of case papers are supplied to the Commission and to the Investigating Committee and what happened to the original papers. Also it does not explain disparity in both papers.

Dr. Lilaben Trivedi was called as a witness because she was Chair person of the Committee appointed by Medical Council of Gujarat who also instituted inquiry in the present case; the complainant had also written to Gujarat Medical Council complaining against opponent. The committees was provided with case papers relating to said Shobhnaben, post-mortem reports and presumably certificates of blood banks addressed to president of Medical Council. Dr.Trivedi admitted knowing Dr. Jhala but said she and the committee had no knowledge about the report of Dr. Jhala (It is not clear as to why Dr. Jhala's report was sought and who sought). Essentially, Dr. Trivedi, apart from giving general information available, testified that committee's report was independent and unbiased but utterly failed to explain why and how so many paras of Dr. Jhala's report were incorporated in committee's report ditto to ditto. No change even in coma or full stop. The same was the case as far as final inference and last para was concerned. It is beyond all the possibilities of such occurrence and it is natural. To infer that committee prepared the report on basis of Dr. Jhalas's report and did not apply the mind or investigate as it was expected. Further, certificates of blodd banks give date and time of information with such precision after passing of many months. When in one case date of certificate in the certificate is changed after writing and another certificate does not bear the date of issue, it is impossible to believe that blood bank keeps records of telephonic information for so many months to the said precision but when comes to issuing certificate the date on which certificate is issued is either wrongly written as in one case or totally omitted as in another case.

The opponent in spite of request has failed to be present for cross-examination by complainant and, therefore, statements of opponent remain unproven and cannot be accepted as evidence. No independent, uninvolved (directly or indirectly) expert has been called to confirm the claims of opponent or refute the charges of complainant. While it may raise some doubt regarding the post-mortem report as far as writing the mode of death is concerned. "The cause of death is shock as a result of intra-abdominal hemorrhage following negligent surgical procedure and repair." The other findings and corroborative evidences are sufficient to say that patient died because of exsangination which in present case, with due diligence and advance precaution, could have been prevented.

Submissions of complainant and opponent in writing do not materially change the facts, situation or inferences. It, therefore, transpires that approach has been negligent in medical management of Shobhnaben which ultimately resulted in her death and, therefore the said opponent is liable to pay compensation to the complainant.

In assessing compensation, we may take into consideration the principles or basis on which compensation is assessed or computed in cases arising out of motor accidents. Deceased Shobhnaben was a housewife and according to the complainants, she was also earning income by doing some tailoring work. However, there is no satisfactory evidence to prove that the deceased was doing tailoring work. The value of services which the deceased was rendering to her family could be safely assessed at Rs. 1,500 per month or Rs. 18,000/- p.a. If 1/3rd of this value is deducted for the services which the deceased was rendering to herself, the value of the benefit of services which the complainants have lost could be assessed at Rs. 1,000/- p.m. or Rs. 12,000/- p.a. Having regard to the age of the deceased, it would be appropriate to apply multiplier of 15 to compute compensation payable to the complainants. If so worked out, the compensation payable to the complainants would come to Rs. 1,80,000/-. In addition to this amount, the complainants are also entitled to claim Rs. 20,000/- for loss of expectancy of life and Rs. 10,000/- for pain, shock and suffering of the deceased. It may be recalled that before the deceased died, she had suffered pain and shock due to bleeding, etc. The complainants have stated that they had to incur expenditure of Rs. 25,000/- for the medical treatment of the deceased. This expenditure is including the amount spent in buying medicines and blood bottles. There is no reason to disbelieve the statement made by the complainant. Thus, the total compensation payable to the complainants works out to Rs. 2,35,000/-/

Out of the three complainants, two are minors. Therefore the Commission directed that Rs. 70,000/- should be invested in fixed deposit with a nationalized bank or in Unit Trust of India in the name of each of the two minors. The amount will remain so invested for a period of 10 years in case of complainant No. 2 Siddharth and 15 years in case of complainant No.3 Swatiben. Complainant No. 1 shall, however, be entitled to withdraw interest payable or receivable on said investment for the welfare, maintenance and educate of two minor complainants. It shall, however, not be open to the complainants to raise any loan on the said investment or create charge over it to secure any loan or otherwise. Complainant No.1 shall be entitled to the balance of the amount.

RECENT COPRA JUDGEMENTS