Dashrathbhai Keshabhai Nai vs. Dr. Pravin C. Patel & Another III (1998) CPJ 30

Gujarat State Consumer Disputes Redressal Commission, Ahmedabad

Complainant states that he went to the said opponent Dr. Pravindbhai Patel at civil Hospital, Ahmedabad urology Department in May, 1991 for complaint of pain and swelling in left testicle. Patient was examined by Dr. Patel and wan left testicle. Patient was examined by Dr. Patel and was advised hospitalization and investigations. He underwent certain routine blood and urine examination and he also underwent special investigation of injection on penis and x-ray examination. He was later on advised to have some more investigations at private clinic in White House, Ahmedabad. He was accompanied for this investigation by Dr. Dilipbhai of Urology Department of Civil Hospital. An investigation including dopler studies were done and he was advised by said Dr. Dilipbhai to see Dr. Pravinbhai Patel with reports of investigations at this private Dhananjaya Hospital, Ellisbridge, Ahmedabad. He saw Dr. Patel at the said hospital on 24.5.1991 and was advised operation. Complainant underwent operation on his penis on 23.7.1991 at the Dhananjay Hospital. Following operation complainant's pain in left testicle did not subside and he developed impotence. Complainant further states that he was not impotent before and enjoyed sexual life with his wife normally . Complainant also states that he was never impotent before operation and he had never complained of impotence to Dr. Patel. Dr.Patel did not explain the significance of investigation or operation to the complainant. The complainant further states that he was advised second operation by Dr. Patel and he had lost faith in Dr. Patel as a result of problems he developed after operation. He, therefore, consulted other doctors including Dr. Mahesh Desai and that he was somewhat better now though his impotence persists. Complainant and his representative (Mr. Mehta) argued that Dr. Patel deliberately did not provide document as asked by them and this was done with purpose of avoiding responsibility. Complainant asked for reports and case papers of Civil Hospital, Urology Department of Dr. Patel and also case papers and register of Dr. Patel's private nursing home. Complainant also requested Civil Hospital, Ahmedabad to provide records which were not provided inspite of repeated requests.

The opponent Dr. Pravinbhai C. Patel states his qualifications, experience and expertise in the subject. Dr. Patel further states that the complainant complained of impotence and some pain in left testicle. His main complaint was impotence. For pain in testicle Dr. Patel prescribed medicines and reassured the patient. Dr. Patel also states that he explained the complainant fully regarding his condition, investigations and management including operation. Dr Patel also investigated for impotence by various investigations including x-rays, dopler studies etc. and confirmed his diagnosis of impotence. It was only thereafter that he again explained and operated the complainant (23.7.1991). At no stage Dr. Patel gave guarantee about the result of operation. However, he says his operation is successful and no problem persists (impotence or bending of penis etc.) as claimed by complainant. Dr. Patel also states that he has produced whatever papers are in his possession and he could not produce Civil Hospital papers as they were in the custody of Civil Hospital and he did not have control over it. Dr. Patel also says that he has medical indemnity insurance and should liability to compensate occurs he is to be indemnified by Insurance Company (New India Assurance Company Limited. Dr. Patel further argues that complainant has filed this complaint with intention to exhort money from him. That his treatment and management of case was perfect, scientific and outcome of his management is satisfactory. Dr. Patel denies that patient has any right of compensation as claimed. Dr. Patel and his learned Advocate also argue that complainant has not cared to produce evidence to substantiate his claim. He has not produced any expert evidence, nor he has produced witness or affidavit of his wife who would be the correct person to testify to the fact, if any, of alleged complaint. Though enough time and opportunities were given to the complainant, the complainant has failed totally to prove his complaint. The complaint therefore to dismissed and due cost be awarded to respondent.

On perusing evidence it is clear that all the notes, investigations and surgery were done for impotence. The complainant has not brought any evidence or witness of expert to prove his complaint. Complainant was treated by another Urological surgeon Dr. Mahesh Desai and requested to produce him as witness. The request was granted and complainant and his Advocate had taken responsibility of direct service of summons. Even after considerable time neither witness was represented nor his affidavit produced. Similarly, the documents of Civil Hospital are not produced, nor the complainant has taken action to see that same are produced. The note of Dr. Patel also mentions that patient saw him for erectile impotence and there is no reason to disbelieve him. As far as complainant's ability to cohabit is concerned, the complainant has not cared to produce evidence or affidavit of his wife who could have been the best person to testify to the said claim. Enough time and opportunity was given to produce the same evidence which the complainant has failed to do so.

In the backdrop of these facts, the Commission held that it is also an admitted fact that Dr. Patel is senior, qualified, experienced Urological Surgeon and it is impossible to believe that Dr. Patel took entirely different course of action instead of those required for complaints. Further, report of investigations also go on to prove that investigations were positively suggestive of patient suffering from impotence and, therefore, the course of action taken by opponent is proper and justified. In the result, complainant has failed to prove the complaint and complaint is dismissed, with no order as to costs.

RECENT COPRA JUDGEMENTS

Kirtilal Gelchand Sanghvi vs. Medical Superintendent, Chatrabhuj Hospital & Another III (1998) CPJ 45

Gujarat State Consumer Disputes Redressal Commission, Ahmedabad

This complaint is filed by Shri Kirtilal Gelchand Sanghvi for his deceased son for Rs.. 6,96,000/- plus 18% interest as compensation for alleged negligence and deficiency in medical treatment by respondent Chatrabhuj Hospital and others stated in complaint.

The complainant alleges that his son Rajesh was admitted to Chatrabhuj Hospital under Dr. Tibrewala on 16.11.1993 as per advice of his family doctor Dr. Sheth for management of "Infective hepatitis". Initially, he was treated by family doctor for fever, pain in abdomen, vomiting etc. When after three days patient did not respond the father was advised to go to above Hospital. The complainant alleges that he had given the treating doctor all possible information including the statement that his son was treated for "jaundice" by family doctor. The complainant also alleges that during the period of his son's illness there was an epidemic of jaundice in walled city of Ahmedabad and various newspapers had carried these news about the epidemic. The complainant alleges that inspite of above information and advice his son was treated as a case of "Poisonous Malaria" and doctor treating him at Chatrabhuj Hospital did not hear him. The complainant also alleges that his son's condition deteriorated and he died because of liver failure as a result of Malaria treatment in form of quinine given by injection routes. The complainant also alleged that Dr. Tibrewala did not attend his son as requested by resident doctors in emergency several times and this is born out by the case record of the said Hospital where it is noted that more than once. Dr. Tibrewala was informed on phone but did not attend as requested even by his Hospital staff. Complainant also alleges that in cases of jaundice malaria treatment causes irreparable damage to liver and causes death. The complainant also alleges that Hospital and Dr. Tibrewala did not establish the cause of death by post-mortem. Complainant further states that the diagnosis and treatment were started without any confirmation of report of blood or any other investigation. Complainant therefore says that his son of 17 years died as a result of negligence in diagnosis and treatment of his son and damage that he has sustained is to be compensated as stated in his complaint.

The complainant is not a qualified man. He comes from lower middle class, has lost his adult son -the only son, and his grievances are understandable. It seems he has failed to substantiate his claim because he did not get the help he was counting on from his learned Advocate. As mentioned earlier for reasons best known to complainant and his advocate, they have not utilized the ample opportunity given to them to prove their case.

Copy of the judgment to be sent to President, Gujarat Bar Council for perusal and he may wish to investigate the allegations of the complainant for the Member of Bar and may take appropriate measures.

RECENT COPRA JUDGEMENTS

Smt. Nirmala R. Parab & Another vs. Dr. Kalpana Desai & Others III (1998) CPJ 66

Maharashtra State Consumer Disputes Redressal Commission, Bombay

The complainant Shri Rajaram S. Parab is the father of Mrs. Ashwini Rane, and he filed this complaint on behalf of his daughter, who is like a living vegetable and is unable to understand anything around her.

The case of the complainant is that his daughter Mrs. Ashwini A. Rane was under medical treatment and care of opposite party No.1, Dr. Kalpana Desai from fifth month of her pregnancy since she had a previous history of thrice miscarriages in the seventh month of pregnancy and opposite party No.1 had put sutures on the womb of the patient and informed the complainant that sutures will be removed on 2nd May, 1990 and the approximate date of delivery would be 12th May, 1990.

On 23rd April, 1990, Mrs. Ashwini Rane was admitted to Clinic of opposite party No.2 in Matunga, with labour pains and was informed by opposite party No.1 that an immediate caesarian operation was necessary. Opposite party No.2, Dr. Janak V. Golwala was called in to attend by opposite party No.1 and at 1.00 p.m. Mrs. Rane delivered a baby boy. Within a span of half an hour, four doctors rushed into the operation theatre and after repeated enquiries with the nurses, the complainant was told that the patient may need to be admitted to another hospital where better equipment and facilities for emergency treatment were available as the blood pressure had suddenly fallen and so is the pulse. The patient was shifted accordingly to the Mata Laxmi Hospital in Sion in ICCU in unconscious state. After five days, complainant shifted his daughter to Lion Bappa Hospital on the advice of opposite party No.1 as he could not afford the high expenses. He had shifted the patient again after 18 days to the Lokmanya Tilak Hospital at Sion as the patient was still in coma. Eventually the doctors told him to shift the patient to his home with the hope that she might regain consciousness in the homely atmosphere. His daughter is a living vegetable in bed at house and is being treated still by Dr. Ramani, Dr. Yogesh Parikh and Dr. B.S. Podwal.

According to the complainant, the patient is reduced to this stage of brain death due to hypoxia of brain. As per the MRI done on 30th April, 1990, "Diffuse/swelling involving the grey matter in the high convexity region, probably due to hyposis with generalized narrowing of the verticles "suggesting cerebral oedema". It is his case that high spinal anaesthesia was administered against the suggested quantity of xylocain (Anaesthesia) being 8 cc., whereas opposite party No.2 administered 1.2 cc. Of xylocain, which is an admitted fact. Complainant argued that this excess dose of anaesthesia caused cardio accelerator fibres blocked and the sympathetic fibres at the thoracic level became immobilized resulting in only the vagal action of the heart. Due to his, the blood kept accumulating in the periphery which explains the blood pressure fall and hence the consequent cut of blood supply to the brain causing the patient to go into coma.

It is also the case that anaesthesia did not maintain airway which is mandatory whereas it was done with endotracheal tube. Oxygen and cardiac massage are a must and he was not sure if this place was equipped with in an emergency. He believed that only two soda bicarb ampules were administered to the patient, which are inadequate and he assumes that clinic did not have adequate quantity.

Complainant prayed for Rs.. 10,00,000/- as compensation from C.Ps and also for expenses from time to time for the recurring expenses for bringing up the child and exemplary damages to the daughter. He has attached the reports and the medical bills alongwith the complaint to substantiate his claim for damages. In response the Commission went on record by saying to start with, we do not agree with opposite party No.2 regarding the maintainability of this complaint on the basis of parents not having the locus standi and only the child of the patient is the legal heir could file this complaint. Parents are maintaining the upkeep of the patient who is helpless and remains as a vegetable in bed. Parents are required to spend for the medical treatment of the daughter and hence can claim the compensation.

Another contention of opposite party No.2 that the patient signed the consent form knowing risks are invoked in anaesthesia based surgeries and so cannot later claim any damages arising out of the event is not acceptable to us. Merely signing the consent form does not exclude doctors' responsibility if he is negligent, in carrying his duties. We do not accept these above contentions raised by opposite party No.2.

We have gone through the standard anaesthesia procedures and the common norms of post operative analgesia. Opposite party No. 2 kept constantly the level of anaesthesia just above the umbilicus i.e. between umbilicus and xiphisternum (T6-T12)by ascertaining with needle pricks. Patient was given spinal anaesthesia in sitting position and then later was made to lie down with a rest of a pillow under the head and a blanket under the back to give an angular posture. Since Cardio accelator fibres of heart are supplied by T1 & t2, the question of spinal anesthesia causing blockage of Cardio accelator fibre does not arise. Opposite party 2 was talking to the patient during operation and she asked about the child and this whole scenerio took more than fifteen minutes from the time anaesthesia was given. This also disproves the claim that adverse effect of anaesthesia as such reaction would have taken place within 10 minutes. Here hypoxia/cardiac arrest occurred after 26 minutes after giving anaesthesia, High Spinal anaesthesia causes 2 possibilities where patient starts vomiting and severe hypertension will be observed by the Surgeon or the maternal hypotension leading to reduced placental blood flow which will lead to foetal distress. In the present case, baby was normal, B.P. was normal, till 26 minutes after the anaesthesia was administered. It proves that spinal anaesthesia was not high but low which was required.

We have noted few observations from H.E. Tunstall's "Anaesthesia for obstetrics", that out of a sample of 37, anaesthetic deaths of 18 dies of hypoxic cardiac arrest and the cause of obscure. It is observed that pulmonary embolism is the leading cause of maternal deaths and in about 80-90% cases it occurs without any previous clinical manifestations of deep vein thrombosis. Although other major causes of maternal mortality have deceased, the disorder of amniotic fluid embolism still remains to be a problem. According to the next on Amnotic Fluid and Maternal Mortality/Morbidity, it is described as "Amniotic Fluid with its particulate matter enters the pulmonary circulation, causing respiratory distress, systemic hypotension, cardio vascular collapse, Convulsions and death in the majority of affected women. There are no warning sings or symptoms. There are no known therapeutic modalities other than support of the Cardiovascular respiratory system and symptomatic treatment of the bleeding". It continues to say "Hopefully, once the underlying mechanism of this condition is understood, specific therapy can be aimed at the causative insult. Meanwhile, it can be expected that this sudden catastrophic disorder will continue to be highly lethal, with maternal mortality rates i.e. 75% to 90% range.

We may also indicate that the patient was transferred from Mata Laxmi Hospital to Lion Bappa Hospital and at that time the case papers also indicate details of the treatment given to the patient at Matunga Clinic, Jyoti Hospital, where Ashwini was operated. Now these documents will clearly establish that the treatment as canvassed by the doctors was given to the patient. It cannot be stated that the details are inserted afterwards. The case papers were drawn up at the time of treatment and in view of this, we are unable to uphold the case of negligence against the doctors. We are also unable to understand as to why the husband did not make complaint and why the parents have come to the Redressal Forum.

Lastly we would generally observe that the patients have the tendence to blow out of proportion the grievance against the doctors. When the patient does not recover the patient presumes that doctors are responsible for his ill -health. They spare no opportunity to blame the reputation of the doctors. In this case, the father of Ashwini approached Medical Council, approached also the Press and the Video Media and has thus tried to injure the reputation of the doctors. We have indicated here before that the doctors gave the appropriate treatment at the appropriate time. It is unfortunate that Ashwini could not revive to normalcy but then that stage of health has to be attributed to the patient and not to the doctors. We therefore, censure the contention of the complainant, who has muddling the repudiation of both the doctors. However, without any more comments, we dismissed the complaint.

RECENT COPRA JUDGEMENTS