Smt. Shanti Devi vs. Dr. C.K. Mittal & Another III (1998) CPJ 7

Haryana State Consumer Disputes Redressal Commission, Chandigarh

The complainant had approached District Consumer Forum with the grievance that when she visited the clinic of Dr. C.K. Mittal with pain in her chest, the doctor gave her an intravenous injection in her right wrist. As alleged, the injection was not properly given by the doctor and it had caused severe pain in her right hand as the blood had started oozing out of the vein where the injection had been given. She remained under the treatment of Dr. C.K. Mittal for about 48 hours and thereafter consulted one Dr. jatinder Kumar Gupta, a Surgeon of Ambala Cantt. and finally she was taken to the P.G.I. at Chandigarh on 26-10-1993. She remained in the P.G.I. for quite sometime and ultimately, since gangrene had developed in her right hand, the doctors at the P.G.I. advised amputation of the hand. Aggrieved against the aforesaid treatment, the complainant claimed a sum of Rs. 4,90,000/- by way of compensation against Dr. C.K. Mittal and the National Insurance Company Ltd. from whom Dr. C.K. Mittal had taken an indemnity policy for Rs. 5 lacs. In the written reply filed by Dr. C.K. Mittal, it was pleaded that when the complainant came to his clinic in the morning of 24-10-1993, she was in a precarious condition complaining of severe pain in her chest. Therefore, an intravenous injection of Fortwin and Phenargan was given to the patient with which the complainant went to sleep after a few minitues. It was further pleaded that all possible care was duly taken and the services of another Dr. Jitendar Kumar Gupta, a Surgical Specialist of Ambala Cantt., were also enlisted. It was further pleaded that the consultation with Dr. Jitendar Kumar Gupta was made for better treatment of the patient and that there was no negligence on his part in rendering medical service.

The complainant tendered in evidence her own affidavit alongwith the affidavit of her husband and also examined Dr. Augustine, Senior Resident General Surgeon in the P.G. In rebuttal, the opposite party Dr. C.K. Mittal also examined himself and Dr. Jitendar Kumar Gupta. After examining the matter in detail and the evidence led by the parties, the District Consumer Forum, Ambala, however, came to the conclusion that the complainant failed to establish any negligence or deficiency in rendering medical service on that part of Dr. C.K. Mittal. In fact, the evidence of Dr. Augustine, Senior Resident General Surgeon in the P.G.I., Chandigarh, has clinched the issue against the complainant who had examined her in support of her allegations. According to Dr. Augustine, it was not wrong at all to give Fortwin and Phenargan injection to a patient complaining of severe pain in the chest in order to sedate the patient and relieve him/her of pain. In view of this position, the learned District Consumer Forum dismissed the complaint.

In the appeal before us, the learned Counsel for the appellant has vehemently reiterated the submissions made on behalf of the complainant before the District Consumer Forum and has further contended, that as gangrene had developed and the hand of the complainant had to be amputated, it was obviously due to the negligence of Dr. C.K. Mittal, who had given the injection. On the other hand, the learned Counsel for the respondents have taken us through the record to plead, that there was no deficiency in service whatsoever in the treatment given by Dr. C.K. Mittal. After hearing the learned Counsel the Commission held we are of the considered view that the complainant has failed to establish any deficiency in service on the part of Dr. C.K. Mittal. Firstly, there is no evidence whatsoever on the record on the basis where of it could be inferred that there was either any negligence or deficiency in service in the matter of diagnosis, process of treatment or there was any departure from the traditional method of treatment in the case of the complainant. Rather, Dr. Augustine, a Senior Resident Doctor of the P.G.I., Chandigarh, has clearly stated that the treatment given by Dr. C.K. Mittal was the one generally being given by the doctors to patients complaining of similar pain. In view of the aforesaid position, we have no hesitation in holding that there is no legal infirmity in the order passed by the learned District Consumer Forum, which is detailed and well-reasoned one. Consequently, the appeal dismissed.

RECENT COPRA JUDGEMENTS

Dr. (Mrs..) Rashmi B. Fadnavis & Another vs. Mumbai Grahak Panchayat & Others III (1998) CPJ 21 (NC)

National Consumer Disputes Redressal Commission, New Delhi.

The present appeal earlier came up before this Commission for condonation of delay in filing the appeal. The delay was sought to be explained by the fact that the appellants had psought to be explained by the fact that the appellants had preferred a writ petition in the High Court on 17-9-1993 against the order of the State Commission. The High Court ordered them to prefer the appeal before the National Commission. The appellants requested us for the exclusion of the period between the date of writ petition and the date on which the said order was passed by the High Court from the period of Limitation in respect of the appeal before us. Since we were not satisfied with this explanation, the above appeal was dismissed barred by time. Against this order of dismissal, the appellants went in appeal before the Hon'ble Supreme Court who, after taking into account the facts and circumstances explained by the appellants paying costs of Rs. 5,000/- to the learned Counsel for the respondent No. 1 -petitioner within a period of two weeks from the date of their order and directed that this Commission would dispose of the matter on merits according to the law.

Accordingly, Appeal was taken up for hearing on 14-5-1998. Mrs.. Meena Pilankar, wife of Mr. VinayakPilankar was examined by opposite party No. 1 appellant No. 1 on 24-1-1991 Jeevan Vikas Kendra Hospital in Andheri, where the later was attached as Honorary Gynaecologist, for excess discharge, excess bleeding and white discharge during her monthly periods. Ultra sonography was done and the report of the ultra sonography was scanned. On the same day, blood was checked for hemoglobin percentage and blood sugar, and the results were 11.4 percent and 138 mg/dl respectively. On the next day D&C was done the report which was available on 2-2-1991 said "No evidence of granulosa or malignancy". On 28-1-1991, the following tests were carried out as suggested buy appellant No. 1 - namely (I) X-ray Chest PA view, (ii) ECG (iii) Blood Sugar F. pp, (iv) Blood VDRI, (v) SGOT, SGPT (vi) Serum Creatinine, (vii) Blood group. On 29-1-1991, Dr. Shekar Ambardekar (Cardiologist) was consulted alongwith a letter given by appellant No. 1 requesting him to be available during the operation for monitoring the patient. After checking the ECG, blood pressure, X-ray, pulse and the chest, Dr. Ambardekar certified that the patient is completely fir and normal. On 31-1-1991, Dr. Rashmi fadnavis again mer Dr. Ambardekar with a request for taking the X-ray in a different manner and carrying out the blood sugar test. These tests were carried out on 2-2-1991 and after they both showed normal, Dr. Ambaredkar recorded that "the patient is fit for surgery". Thereafter, on 5-2-1991, the patient was admitted in the Nursing Home of opposite party No. 1 -appellant No. 1, reported on the latter's suggestion and was operated upon on 6-2-1991. However, she died at the operation table itself. The complaint was, therefore, lodged before the Maharashtra State Commission by the patient's husband alleging negligence in the treatment and service rendered by appellants No.1 and 2 and respondent No. 3 and he claimed Rs. 9,57,355/- as total compensation.

The allegations of negligence on the part of the appellant No.1 - herein made in the complaint are:
(1) The shifting of the patient by opposite party No. 1 -appellant No.1 to her ill-equipped Nursing Home, Sukhada Maternity and Nursing Home - rom the well-equipped Jevan Vikas Kendra Hospital was with a view to earning hospital and treatment charges. (2) The patient was having a rare blood group which was not available with the opposite party Nos. 1&2 in their Nursing Home and the complainant was asked to arrange for blood. The Nursing Home did not also have the transfusion set.
(3) The diagnosis in the case was 'uterine fibromyometosis' and the operation could have started after blood and other pre-operational requirements were available to counter any eventuality. This was particularly necessary since the patient weighing 124 kgs. was medically a 'morbid obesity' patient and admittedly a person of potential risk factor having a rare blood group.
(4) The doctor's negligence had been further compounded by the prolonged duration of the operation for 7 hours.
(5) There was excessive blood loss caused to the patient during the operation. As blood was not immediately available, I.V. fluids and Haemaccel were used. Blood has inherent property of carrying oxygen. In case of blood loss, the blood pressure may be maintained by infusing I.V. fluids at faster rate; however, if the blood is not replaced, it can cause, definite hypoxia, which is difficult to estimate on the operation table. Such hypoxia did take place and that is why while being reversed, the BP of the patient could not be maintained.
(6) The Nursing Home had no arrangements for machine operated artificial respirator and adequately long needle was not available to inject the medicine intra-cardiac at the crucial stage to revive the patient.

In the backdrop of these facts, the Commission held that the appellants had not anticipated likely complications that might arise in a major surgery on an absence patient with a rare blood group. Notwithstanding the inconclusive position on the cause of death, there are obvious deficiencies in the service of the appellants which have contributed to the death of the patient on the operation table. When even according to the appellants, the duration of surgery will get determined only after opening the relevant parts and discovery of the pathology of the patient, they were clearly unprepared or an operation which went beyond the estimated time. The appellants failed to take even the minimum care by not keeping the blood in adequate quantity in the theater before they started the operation knowing that the patient was having a rate blood group. They failed to take normal care and diligence by not providing for am mechanically operated artificial respirator and an adequately long needle for an intercardiac injection knowing fully well that the patient was obese. While these are essential steps which should have been particularly essential in the instant case of patient of potential risk. That the appellants totally failed in these respects finally resulting in the death of the patient on the operation table itself establishes their negligence and deficiency of their service in the operation. We concur with the State Commission's reasoning and finding negligence and deficiency in service on the part of the appellants.

RECENT COPRA JUDGEMENTS

Dr. S.B. Jain and Another vs. Munni Devi 1999 CCJ 1063

Haryana State Consumer Disputes Redressal Commission, Chandigarh

The complainant had approached the learned District Consumer Forum with the grievance that she had contacted Dr. S.B. Jain for treatment of her right eye, which, according to the said doctor was to be opened upon for contract. The doctor conducted the necessary operation on 6-10-1992, but there was no relief and ultimately she lost vision of her right eye completely. Attributing negligence, carelessness and deficiency in medical service against dr. S.B. Jain, the complainant claimed a sum of Rs.85,000 with interest by way of compensation. In their reply, the opposite parties pleaded that when the complainant had approached Dr. S.B. Jain for the first time on 14-9-1992 she had been advised to under go the operation within next 2/3 days, otherwsie the complication could further develop resulting into permanent loss of vision and as the complainant had come after about three weeks, it was already too late and the operation could not bring the desired result. The learned District Consumer Forum, after examining the evidence produced by the parties came to the conclusion that the stand taken by Dr. S.B. Jain did not inspire confidence inasmuch as the complainant had been visiting his hospital right from the initial stage of the complications and if it was not a case fit for operation at all the doctor should not have conducted the same. The compliant was, therefore, allowed by granting the relief as aforesaid.

Learned Counsel for the appellants, Dr. S.B. Jain and the New India Assurance Co. Ltd. with which Dr. S.B. Jain was insured, have vehemently contended that there was no deficiency in service on the part of the appellant. Dr. S.B. Jain, as the complainant, Munni Devi, has vehemently pleaded that the complainant was an illiterate woman from a village and had approached the Jain Eye Hospital for the treatment of her right eye. It, in the opinion of the doctor it was not a fit case for operation, Dr. S.B. Jain should not have conducted the same and should have advised the patient accordingly. But the fact that he charged a sum of Rs.9,500 as operation charges and the patient was admitted to his hospital where she remained for a number of days and was discharged on 9-10-1992, was sufficient to prove that there was deficiency in rendering medical service on the part of the doctor. In fact, the learned Counsel pleads that even after the operation when the complainant was discharged on 9-10-1992, she had admittedly attended the hospital on October 12, October 16, October 17 and October 18, 1992, for dressing, etc.

After hearing the learned Counsel for the parties at length and having gone through the record, the Commission held that we are of the considered view that there is not legal infirmity in the detailed and well-reasoned order passed by the learned District Consumer Forum. The deficiency in service on the part of the appellant, Dr. S.B. Jain, in handling the case for conducting an eye operation certainly stands fully established from the admission of the doctor himself that it was not a case of operation at all but he conducted is on the asking of the complainant herself. The net result is, that the complainant who is an illiterate woman from a village has lost the vision of her right eye completely, though according to the doctor there was some vision still left in the eye even at the time of the operation and also immediately thereafter when the dressing was removed. In the aforesaid factual position proved on record, we do not find any merit in the appeals and the same are dismissed. the complainant-respondent, Munni Devi, shall also entitled to costs of these appeals which are assessed at Rs.1,000 in each case.

RECENT COPRA JUDGEMENTS

Praveenbhai Khubshandbhai Soni vs. Dr. Rajendra R. Shah 1999 CCJ 1323

Gujarat State Consumer Disputes Redressal Commission, Ahmedabad

Compalainant Praveenbhai Soni is the father of an infant Chintu (3 months) and he has claimed Rs. 5,00,000 plus as compensation from Dr. Rajendra Shah, for alleged negligence and deficiency in treating the said infant who died during the treatment in 30-9-1991 at 5.30 hrs. Complainant has also preferred criminal complaint against the opposite party Dr. Shah and this complaint was dismissed by Metropolitan Magistrate.

Praveenbhai K. Soni, the father or infant Chintu alleges that his infant son was taken to Dr. Shah's Hospital in Raipur on 27-9-1991 at about noon for symptoms of fever, respiratory difficulty, etc. Dr. Shah saw the patient at his hospital on 27-9-1991 in the afternoon and advised hospitalization. His diagnosis was bronchiolitis. Patient was admitted and treatment was executed by non-qualified compounder, oxygen was not properly given. On 29-9-1991 during night round Dr. Rajendra Shah noted that the patient had deteriorated further. Doctor saw patient advised treatment and left leaving child under the care of unqualified person. Though condition of child was serious and drugs that was used including lanoxin were capable of slowing pulse rate, etc. patient was not monitored. Though diagnosis of viral encephalitis was there, neurologist was not called are consulted. The child remained without proper care, treatment and without the help of neurologist and child died. Doctor Shah came only after the death of the child to issue death certificate. The complainant also alleges that now attempt was made to establish the diagnosis or cause of death. Child was admitted as a case of bronchiolitis and died as a presumed result of viral encephalitis, a condition for which doctor Shah is neither expert nor did he care to treat the child for encephalitis nor did he express his inability to treat the child.

Opposite party in his return statement states about his qualification, experience and his various attachments as Consulting Paediatrician and his availability at the different places and times of availability. Dr. Rajendra Shah also concurs that Dr. Rajendra Shah who is M.B.B.S., D. Ped., works as his Assistant and has his own nursing home. Dr. Rajendra Shah also states that he and Dr. Rajesh Shah see the patients six times a day. That his compunder Laxmanbhai is a qualified person to administer the directed treatment and that said Laxmanbhai is well experienced. Laxmanbhai's certificate of his qualification is produced as evidence. The said Laxmanbhai died last year. It is further claim that patient was seen often and necessary changes in treatment were made as reflected in case records. The oxygen cylinder and oxygen giving apparatus were proper and adequate. Patient's relatives were explained gravity of situation at the time of admission and subsequently also. That treatments given were scientific, adequate and correct. After diagnosis of encephalitis patient's condition was very serious and investigation were not possible. However, whatever investigation could be done safely were done. Dr. Rajendra Shah says he has given best possible treatment and child died in natural course of disease. He was never negligent and that complainant is not entitled to ask for any compensation.

It is undisputed that patient was admitted under personal care of Dr. Rajendra Shah on 27-9-1991 in the afternoon. Dr. Rajedra Shah saw patient and subsequently has per record, the Commission wondered whether it was advisable to leave such serious child under the care of Laxmanbhai who from records does not seem to be qualified to treat the patient -infant of such serious disease and in such serious condition. Dr. Shah has not correlated or explained bronchiolitis associating with viral encephalitis. Dr. Shah has not produced either literature or expert evidence to prove his defence of proper treatment or management. Dr. Shah has not disputed non-availability of monitor or lack of procedure of monitoring. Dr. Shah has not cared to explain how disease proses progressed, mode of death or for that matter to prove that child suffered from viral encephalitis. Dr. Shah does not say if bronchiolitis it self was sufficient to cause death of patient. Dr. Shah does not explain why he "left" hen as per his own statement the patient had deteriorated and was serious. He knew he had to leave the child under the care of Laxmanbhai. He does not say why he did not communicate or asked either directly or through his staff his assistant Dr. Rajesh Shah to take over the management of case. Dr. Rajesh Shah also does not say that he had or had been asked to see, monitor or treat the serious and critical child and the events of concurence from night the child deteriorated to the death remain unexplained.

Pursuing further we are of the opinion that there was deficiency in services offered to the said infant Chintu by Dr. Rajendra Shah. Dr. Rajendra Shah, therefore, is liable to pay compensation. The Commission held we have given considerations to the mordibity and morality in cases like that of infant. We have also given consideration to the average life expectancy in infancy and childhood under services provided by Dr. Rajendra Shah. In medical cases demarcating line between negligence and deficiency is very thin and arbitrary and looking to all available and evidences we feel deficiency in service would be more appropriate word to use rather than negligence. We feel compensation of Rs.1,00,000 with interest at the rate of 15% if the amount is not paid within one month will be just and appropriate. We also avoid the costs of Rs. 2,000 to the complainant.

RECENT COPRA JUDGEMENTS