State Consumer Disputes Redressal Commission
Shividhya Koteeswaran vs Dr. Natasha Nanda (Radiologist) on 30 April, 2019
[A/15/1103]
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
FIRST APPEAL NO. A/15/1103
(Arisen out of order dtd.22/07/2015 in Complaint No.215 of 2011 of
Additional District Consumer Disputes Forum Redressal Mumbai Suburban,
Parel, Mumbai)
1. SRIVIDHYA KOTEESWARAN
A-201, Shiv Om Apartment,
Chandivali Farm Road,
Powai, Mumbai 400 072.
2.VIJAYALAXMI KOTEESWARAN,
A-201, Shiv Om Apartment,
Chandivali Farm Road,
Powai, Mumbai 400 072 ...........Appellants/
& ORS Org.Complainants
Versus
1. DR.NATASHA NANDA (RADIOLOGIST),
(Attached Dr.L.H. Hiranandani Hospital),
Hillside Avenue, Hiranandani Garden,
Powai, Mumbai 400 076.
2. DR.GURUNAM SURI, (GENERAL
PHYSICIAN),
(Attached Dr.L.H. Hiranandani Hospital),
Hillside Avenue, Hiranandani Garden,
Powai, Mumbai 400 076.
3. DR.L.H. HIRANANDANI HOSPITAL,
Hillside Avenue, Hiranandani Garden, ............Respondents/
Powai, Mumbai 400 076 Opponent(s)
BEFORE:
JUSTICE A.P.BHANGALE, PRESIDENT
Dr.S.K.KAKADE, MEMBER
1
[A/15/1103]
For the Advocate Smt.Geeta Handa Khanuja
Complainant(s):
For the
Opponent(s): Advocate Mr.Amit Karkhanis.
ORDER
Per Dr.S.K.Kakade, Hon'ble Member:
1. This is an appeal against the order of Additional District Consumer Disputes Redressal Forum, Mumbai Sub Urban District,Bandra;
dated 22nd July 2015, in Consumer Complaint no. CC/ 11/ 215. This is a case of alleged medical negligence and deficiency in service in patient treatment by doctors and a Tertiary Care Hospital. Original complainants, the appellants are two daughters of deceased patient Mrs.Saraswati Koteeswaran and the opposite parties are two doctors and the hospital.The learned District Forum dismissed the complaint by passing the impugned order and hence the original complainants preferred appeal against the order; which is filed at this commission.
2. The brief facts for deciding this appeal are as follows:
Complainants Ms.SriVidhya Koteeswaran and VijayaLakshmi Koteeswaran are the daughters of deceased Mrs.Saraswati Koteeswaran while opposite party no. 1 Dr. Natasha Nanda is Radiologist, opposite Party no. 2 is Dr.Gurnam Suri, General physician and opposite party no. 3 is Dr.L. H.Hiranandani Hospital located at Powai, Mumbai. Deceased Mrs.Saraswati, 73 years old female was admitted in opposite party no. 3 hospital on 2nd August 2005 with complaints of fever with rigors. She was diagnosed to have urinary tract infection and was treated by Dr.Naresh Shetty and Dr. Deepak Gupte who is urologist. The patient was admit in the hospital till 15th of August 2005. The CT scan of the patient was 2 [A/15/1103] done as per the advice of Dr.Gupte, revealed that she had Pyelonephritis for which she received treatment.
3. At the time of discharge from the hospital the patient was advised to get weekly urine routine test and fortnightly urine culture and sensitivity test. The same was continued on OPD basis while deceased Mrs.Saraswati was treated by the urologist Dr. Deepak Gupte. In the month of October 2005, the patient had vomiting of blood for which Dr.Gupte referred her to General Surgeon Dr.Arun Shetty. The patient was again admitted in OP no.3 hospital on 18th of November 2005 with the complaints of vomiting of blood and the physician, OP no. 2 treated her. During this second stay in the hospital, various investigations, abdominal sonography, CT scan of abdomen and pelvis and other relevant investigations were done. Since the patient was operated case of carcinoma breast, which was operated in 1996, she was also referred to cancer specialist. She being known case of diabetes mellitus received treatment from physician. She was also referred to various Specialists, nephrologist, urologist, General Surgeon and oncologist. The patient was shifted to ICU on 24th of November 2005 and was treated by Critical Care specialist till 27th of November. In spite of efforts from team of doctors, the patient didn't respond as there was multiple organ failure and died on 27th of November 2005. Alleging that the patient didn't receive proper treatment and due to wrong reports, there was medical negligence in diagnosing and treating the patient and hence the complainants filed complaint in Additional District Consumer Disputes Redressal Forum, Mumbai Suburban District, Bandra in 2008, CC/11/215, demanding the compensation of Rs. 19 lakh for loss of life due to deficiency in service and medical negligence. The 3 [A/15/1103] complainants also prayed that the amount of Rs. 38,000/- spent by them for treatment in the hospital to be refunded along with the interest at the rate of 15% from 27thof November 2005 till realisation, also demandedRs. 50, 000/- towards cost of the complaint.
4. The opposite parties opposed this complaint by filing written versions and raised objections. According to the opposite parties the patient was of Advanced age 73 years, having multiple medical problems like cancer of the breast operated in 1996, known case of diabetes mellitus being treated, who was investigated, diagnosed and properly treated by various Specialists indifferent medical disciplines. Hence there was no medical negligence or deficiency in service on the part of opposite parties, hence demanded dismissal of the complaint.
5. After considering pleadings, evidence on record and arguments learned Additional District Consumer Disputes Redressal Forum, Mumbai Suburban District, Bandra, Mumbai, pleased to dismiss the complaint recording the observations and comments about this complaint of medical negligence. Aggrieved by the order of Additional District Consumer Forum, the original complainants filed this appeal with the State Consumer Disputes Redressal Commission of Maharashtra and filed additional statement of claim along with the appeal memo with the demand ofRs. 25 lakh as the compensation for negligence and deficiency in the treatment, refund of the amount paid Rs. 38,000/- with the interest at the rate of 15% from 27th November 2005 claimingRs. 10, 200/-, total claim of Rs.25, 98, 200/-Twenty five lakh, ninety eight thousand two hundred only (page 323 of appeal compilation).
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6. Considering the submissions made before us, considering record and scope of the Appeal, following points arise for our determination and our findings thereon are noted against them for the reasons given below:
Sr.No. Point Findings 1. Whether the Appellant-complainant proves Yes
that there was deficiency in service / medical negligence by the opposite parties?
A. Whether patient received resistant
Yes
antibiotics?
B. Whether there was failure to diagnose
No
pyelonephritis?
C. Whether there was delay in diagnosing
and treating pyonephrosis that led to Yes
septicaemia and ultimately death?
2. Whether the learned District Consumer No
Disputes Redressal Forum's order is legal, just and reasonable?
3. Whether the Appellant complainant is entitled Yes for medical expenditure reimbursement and compensation?
4. What Order? As per the final order
7. We have reviewedthe concept and settled principles in deciding the negligence by highly skilled medical professionals.The concept of medical negligence is being dealt with settled principles of the law that govern it. Reasonable degree of care and skill means that the degree of care and competence that an "ordinary competent member 5 [A/15/1103] of the profession who professes to have those skills would exercise in the circumstance in question." The burden of proof is correspondingly greater on the person who alleges negligence against a doctor than a charge of negligence against the driver of motor car.
8. The Hon'ble Supreme Court in the landmark case of Jacob Mathew vs. State Of Punjab &Anr on 5 August, 2005 2005 (3) CPR 70 (SC)has held as follows:
"The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used."
9. In Kusum Sharma and Ors vs. Batra Hospital and Research Centre and Ors, the principles have been laid down as follows 6 [A/15/1103] "94. On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the 7 [A/15/1103] patient rather than a procedure involving lesser risk but higher chances of failure. Just because professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals."
10. By keeping above principles in mind, we analysed the grounds of appeal, facts, evidence on record, reasoning by District Consumer 8 [A/15/1103] Forum in the order and the law points raised by both the sides and reasons for the points considered as follows.
REASONS
11. As to POINT No.1 Medical Negligence/ Deficiency in Service It was submitted by learned advocate for the appellant complainant, Advocate Handa that in 2005 deceased patient Mrs.Saraswati was admitted for treatment of Pyelonephritis in opposite party no. 3 Hospital, from 2nd August 2005 to 15th August 2005 and 18thNovember 2005 to 27th November 2005. And also there was OPD (Out Door Patient) follow up by the patient for 94 days. It was contended by learned advocate that the patient received empirical antibiotic treatment and so received resistant antibiotics. Though deceased patient was clinically better after the first admission there were many deficiencies in the service by the doctors and hospital like without considering the history of patient resistant antibiotics were given, the abdominal sonography performed gave wrong report, during second admission nephrologist did not visit and examine the patient for 6 days, though hospital is NABH (National Accreditation Board for Hospitals under Quality Council of India) accredited there were no nursing notes maintained so poor documentation, the patient received wrong drug tablet Combiflam that should not have been given, hence there was no targeted treatment given to the patient. Learned advocate also mentioned that since the sonography of the abdomen did not diagnose pyelonephritis (instead reported hydronephrosis) and also antibiotics were not given as per culture and sensitivity; there was no targeted antibiotic therapy that lead to septicaemia and ultimately death of patient. All of this amounted to negligence and deficiency in service, it was contended by the learned advocate that the District Consumer Disputes Redressal Forum has wrongly come to the conclusion that there was no medical negligence.
9[A/15/1103]
12. The learned advocate for the appellant complainant submitted that, there are many grounds for the appeal based on the observations made in the impugned judgment, the contentions which learned District Forum did not consider. These are as follows,
1. Ground 1. Failure to diagnose cause of fever as pyelonephritis
2. Ground 2. Combiflam: The cause for blood vomiting
3. Ground 3. History of the patient not considered from previous case record
4. Ground 4. Conflicting diagnosis as cause for the death attributed to negligence
5. Ground 5.Observation of forum on renal test, abdominal sonography
6. Ground 6.Observation of forum that patient was taking treatment in hospital
7. Ground 7. Non placement of true facts on record
8. Ground 8. Learned forum did not accept Dr.Bapat's expert evidence
9. Ground 9. Learned forum's comments about patient's response to treatment
10. Ground 10. Learned forums' comments about treatment by expert doctors
11. Ground 11. Learned forums' holding that no specific allegations of negligence
12. Ground 12.Forums' comments about definition of negligence
13. Ground 13. Patient was treated for Pyelonephritis
14. Ground 14. Severe diabetes, Enhanced age, Previous Cancer disease
15. Ground 15.Gastroscopy and endoscopy for ascertaining the reason for blood vomiting
16. Ground 16. Anger against the respondents
17. Ground 17. Doctors are the ultimate persons to take the decision of giving treatment.
10[A/15/1103]
18. Ground 18. In Renal infection resistant drugs can be given to the patient As per the allegations and contentions of the learned advocate for the appellant-complainants, we have reviewed the documents and the judgement of learned District Consumer Forum and our observations are as follows.
13. This is treated complicated medical case in 2005. We have gone through all the medical record, submissions made by both the parties, expert opinions, medical literature and case laws on record. Our attention was invited to the discharge card of the patient after indoor treatment in opposite party no. 3 Hospital from 2nd August 2005 to 15thAugust 2005, given on page 515 of the appeal compilation. The diagnosis mentioned at discharge is, Diabetes mellitus with history of systolic hypertension plus bilateral pyelonephritis(R>L), plus chronic Cholelithiasis (Silent) plus dengue fever(suspected) plus chronic spondyloarthropathy. She was treated by team of doctors that included Dr.Naresh Shetty and was discharged in good condition with instructions to continue the treatment with Dr. Deepak Gupte, the Urologist. She was also advised to go through weekly urine routine test and fortnightly urine culture and sensitivity test, as contended by the complainant this pattern of treatment continued over a period of 3 months till October 2005. Ref. Page 116 para 3d of complaint. So this was an admitted fact that deceased patient clinically recovered from illness from the first admission in OP no. 3 hospital and as per advice, her urine Examination routine and culture and sensitivity test were regularly carried out, based on the reports she was treated in the hospital on OPD basis.
11[A/15/1103]
14. It was contended that deceased patient Mrs.Saraswati did not receive proper treatment during her admission as indoor patient from 18th November 2005 to 27thNovember 2005, there was a deficiency in service and medical negligence due to which she died on 27thNovember 2005. On perusal of indoor case record from page 20 onward till page 59, the 73 year old patient Mrs.Saraswati presented to the OP no. 3 Hospital with complaints of vomiting of blood and pain in the back from 4:30 a. m. in the morning on 18thNovember 2005. Investigations were advised and she was referred to Dr Gurnam Suri, on duty physician. Further patient was examined by medical RMO and Dr.Suri herself at 6.50 am. Her past history was noted as operated case of cancer breast, known case of diabetes mellitus and was admitted 4 months ago for acute/chronic pyelonephritis. Reports of previous investigations were reviewed and treatment started along with further investigations suggested. She was also referred to the nephrologist Dr.Anjali Bhosle, gastroenterologist Dr Bhooshan Pandit and oncologist (cancer Specialist) Dr.Gopal on the day of admission.
15. Learned advocate for appellant complainant contended that the patient was prescribed tablet combiflam for back pain on 25thOctober 2005 by Dr Arun Puri, who is General Surgeon. Page 497 of compilation. The Gastroenterologist Dr.BhushanPandit in his notes on 19thNovember 2005 mentions that Tab.Combiflam to be with hold. We find that this was considered by the Learned Judge of the District Consumer Forum.
16. Advocate for appellant complainant submitted that hon'ble judge of the District Consumer Forum has not considered that the opposite 12 [A/15/1103] parties have failed to consider previous history of the patient, due to which the patient was negligently treated and ultimately died. We find from the medical records, that many specialist doctors were involved in the treatment of the patient. The previous history of patient is noted by the treating doctors and very much found in the medical record, page 20 to 59 of compilation filed by opposite party.
17. It was contended by the learned advocate for appellant-complainant that there was conflicting diagnosis based on normal report of abdominal sonography done on 18th November 2005. She argued that due to variations in the reports of sonography done on two different days, there was no proper diagnosis regarding the conditions of the kidneys and hence there was negligence in treating the patient. Advocate for opposite parties opposed this contention and submitted that Hon'ble Judge of district forum has considered all the reports and the treatment.
18. Learned advocate for appellants (complainants), submitted that the learned district consumer forum below did not consider the expert opinion of Dr.Ravindra D Bapat, who is Gastroenterologist and in the list of the experts as per the order of Hon'ble state Commission in 2009. On perusal of the expert opinion it is found that the expert Dr. Ravi Bapat is Gastroenterologist and not Urologist or Nephrologist and hence his opinion cannot be considered as expert opinion. His opinion states that "there was error of diagnosis, investigations and judgement has resulted into patient progressing two septicaemia and regional and multiorgan failure". There are no Supporting citations from Medical literature to confirm and substantiate his opinion. Learned district forum has rightly recorded the findings.
13[A/15/1103]
19. Learned advocate for appellant complainant submitted that during the stay in the hospital from 18th November 2005 to 27thof November 2005, initially deceased patient received antibiotics that were resistant as per previous urine culture and sensitivity report. Injection Monocef was given to the patient on admission and continued for more than 5 days of the indoor treatment. Advocate for opposite parties invited or attention to the article submitted in relation with the sensitivity to the antibiotics. Contended that the antibiotic sensitivity testing is outside body (in vitro) while, the actual use of the antibiotic on the sensitivity testing will not give expected result. Page 81 of compilation submitted by opposite parties, the summary of the article states that, "it is concluded that relations between blood levels and minimal inhibitory concentrations of antibacterial drugs cannot always be applied as criteria of sensitivity". We also observed from the medical record that, on the second day of the admission, on 19th November two more antibiotics were added, injection metrogyl 100 ml intravenous 8 hourly and injection Ciplox 100 ml intravenous BD. The urine and blood was sent for culture and sensitivity only on 4th day, i.e. 21stof November. Advocate for opposite party submitted that as per the University of Pennsylvania Medical Centre guidelines for antibiotic initially broad spectrum antibiotics should be used and the same was done by opposite parties. The said guidelines are not found on record. We are of the opinion that, the patient received antibiotics for more than 5 days out of 9 days in hospital, to which patient was already resistant and culture and sensitivity of urine was not advised at the beginning of the treatment. Hence we answer the POINT no.1 A as AFFIRMATIVE.
14[A/15/1103]
20. Learned advocate the complainant submitted that hon'ble District Forum erred in not taking into consideration that the cause of fever was due to 'Pyelonephritis'. Learned advocate for the opposite party opposed this contention and submitted that, the patient presented with different clinical presentation, for vomiting of blood and back pain. Reviewed the medical records (pages 20 to 59 of compilation submitted by OP) of the patient, when the patient got admitted on 18th November 2005. From the history sheet of medical record, it is observed that all relevant history regarding patient's complicated medical condition is recorded and previous history of Pyelonephritis and successful treatment 4 months ago was mentioned. The relevant investigations for the presentation on the patient were advised. It was found that the doctors were aware of the previous history of patient's disease that the patient was the case of acute on chronic Pyelonephritis. Hence we answer the POINT no.1 B as NEGATIVE.
21. It was contended by advocate for appellant (complainant) that since on day 1, 18th November 2005, the report of first abdominal sonography given as a normal study, that may have misled the treating Consultants to believe that apparently renal system appears to be normal. Gastroenterologist Dr.Bhushan Pandit, pointed out in his examination on next day, 19th November 2005, that abdominal sonography should be repeated. Repeat abdominal sonography done by another radiologist gave different picture and reported as "enlarged right kidney with a hypoechoic lesion in the mid pole possibly abscess communicating with the pelvicalyceal system, right hydronephrosis and hydro generator calculus with no evidence of Pericholecystic fluid collection". After this report, no further 15 [A/15/1103] investigation was advised such as CT abdomen to confirm the presence of abscess. The team of treating consultants was later joined by, original Urologist Dr.Gupte on 21st November 2005. On 4th day of admission, the patient was subjected to endoscopic drainage of purse from kidney, the said operation was done in the evening. It was contended by advocate for opposite parties that the patient was quite old, 73 years, already diagnosed case of Cancer breast previously operated, known case of diabetes mellitus been treated and with known kidney Disease in the form of Pyelonephritis, the patient was of high risk and that the response to the treatment was expected to be less since the patient had reduced immunity because of various diseases. On perusal of various reports, mainly DIPA Renogram for knowing bilateral kidney function, on pages 521 and 522 of compilation dated 13th August 2005, report reads as, "both Kidneys weight of normal size, right kidney showed moderate hydronephrosis with mildly dilated upper to 3rd ureter with moderately reduced function, left kidney function was also moderately reduced". We are of the opinion that with the known previous history of kidney problems and other diseases the patient was having, the team of specialist and super specialist doctors must have been more careful in evaluating and treating the patient. Hence we answer the POINT no c.1 C as AFFIRMATIVE.
22. We have perused the following rulings referred to by both the parties and the medical literature submitted ; the exhaustive list of which is as follows, Case Laws by Complainant:
16[A/15/1103]
1. Aditya Jyot Eye Hospital Private Limited vs. Mr Sampath Kumar and others, Decided Appeal A/ 14/ 741 by MSCDRC, Mumbai on 7th August 2017,
2. N J Karnawat vs. Patel IshwarlalMangalal and othersRevision Petition no.2605 of 2012, decided by NCDRC on 7th October 2014.
3. Rajmahal Singh vs. Madhu GuptaOP no.207 of 2000, NCDRC decided on 8th May 2014
4. Sangita Reddy and others vs. KS Shastri and othersAppeal no.57 of 2008, NCDRC decided on 23rd February 2017
5. Kusum Sabharwal vs. Sangeeta Agarwal and othersRP 2058 of 2013, NCDRC, decided on 11th January 2018
6. HardwariLal vs. AK AgarwalAppeal no.68 of 2008, FA no.208 of 2009 and IA / 8357/ 2016, NCDRC, Decided on 25th May 2017.
7. Hemminger v. LeMay2014, IL App (3d) 120392, Last chance Doctrine is still alive in medical malpractice actions.
Case Laws by Opposite Parties
1. Master Vaibhav Vohra vs. Sunil Parekh and others2017 SCC Online NCDRC 1185
2. Girish Chandra Bhat and others vs. Sterling HospitalFA no.2491 of 2017 NCDRC, decided on 19th March 2018
3. Kusum Sharma vs. Batra Hospital and Medical Research Centre(2010) 3 Supreme Court Cases 480.
4. Jacob Mathew vs. State of Punjab and another(2005) 6 Supreme Court Cases 1.
17[A/15/1103]
5. Vinod Jain vs. SantokbaDurlabhji Memorial Hospital and othersSupreme Court of India, Civil Appeal no. 2024 of 2019 arising out of SLP © No.32721/2017) Medical literature by opposite party
1. Characteristics and factors influencing treatment outcome of renal and perinephric abscess- a 5 year experience at a tertiary teaching hospital in Taiwan: J MicrobiolImmunol Infect. 2008; 41: 342- 350
2. University of Pennsylvania Medical Centre Guidelines for Antibiotic use
3. Antibiotic sensitivity testing: Correlations between in vitro tests and in Vivo situations by L.A.Devriese and G.N Datta; Ann.Rech.Vet. 1981, 12(1), 41- 46
4. In vitro versus in Vivo culture sensitivities: An unchecked assumption? by Vinay Prasad MD, Nancy Ho MD, Southwest Journal of Pulmonology and Critical Care/ 2013/ volume 6, pages 125- 127
23. In view of the judgment submitted by the appellant complainant, Hemminger vs. LeMay, The lost chance doctrine is still alive. The learned advocate for appellant complainant invited our attention to this doctrine stated as (page 225 of compilation) "The doctrine is a viable theory, and that the plaintiff who claims injuries for a lost chance must prove that the alleged malpractice proximately caused as increased risk of harm, or lost chance of recovery, to a reasonable degree of medical certainty"
We accept this contention, that though the patient was old by age, suffering from many serious diseases like diabetes mellitus, cancer of breast and others that reduced immunity, the team of superspecialty doctors in a 18 [A/15/1103] hospital like OP no.3, no stone should be left unturned that to in right time. Hence we hold the opposite parties responsible for the acts of omission leading to deficiency in service and Medical Negligence, We answer overall POINT No.1 as AFFIRMATIVE.
24.As to POINT No.2 District Forum's Order, Observations and conclusions Learned District consumer forum considered all the facts, evidence placed before, expert opinions from both the sides, all Medical record, medical literature and case laws dealing with medical negligence. In our opinion, district forum has not considered the evidence from the actual medical records, speak about use of resistant antibiotics , delay in the diagnosis due to wrong sonography report, delay in diagnosis of pyonephrosis ( pus in Kidney) leading to delay in its drainage operation and the lost chance doctrine. Hence we set aside the judgement and order of district consumer forum and pass order as follows. We answer the POINT no 2 accordingly.
25.As to POINT No.3 Entitlement for compensation In view of the above discussions in Points no.1and 2, the Appellants- original complainants are entitled for just and reasonable compensation. Hence the answer to Point No.3 is AFFIRMATIVE as per quantum fixed by us as per final order. We think that on all accounts such as refund of paid amount, compensation for loss of life and mental agony, an aggregate amount of Rs.10 lakh is just and reasonable.
26.As to POINT No.4What order?
19[A/15/1103] In view of the answers to Points No. 1 to 4, the Appeal no.A/15/1103 is hereby partly allowed and hence we pass the following order.
ORDER
1. The Appeal is partly allowed with the litigation costs of Rs.25, 000/- to be paid by opposite parties to the appellant complainants.
2. Impugned judgment and order is set aside and complaint is allowed. The opposite parties are hereby declared negligent and deficient in service in diagnosis and treatment of the deceased.
3. The opposite parties are hereby directed to pay compensation towards loss of life and mental agony Rs.10,00,000/- (Rs.Ten Lakh only) to the appellants within 3 months from the date of this order. OP no.1 and 2 will pay Rs.1 Lakh each and the OP no.3, the hospital will pay Rs.8 Lakh, along with the interest @ 9 % per annum from the date of filing of complaint till realization. Failing the amount will carry the interest rate @ 12 % p.a.
4. Appeal is partly allowed accordingly.
5. Free certified copies of the order be furnished to the parties forthwith Pronounced Dated 30th April 2019.
[JUSTICE A.P.BHANGALE] President [DR.S.K.KAKADE] Member 20