State Consumer Disputes Redressal Commission
Shri Sunil Adhye vs Dr Shailesh Puntambekar & Ors on 2 August, 2011
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/10/57
1. SHRI SUNIL ADHYE
THROUGH MRS. YASHASHRI SUNIL ADHYE (W/O SUNIL ADHYE)
R/A 8, SWAYMSIDDHA SOCIETY, NEAR MORE
VIDDYALAY BUS STOP, PAUD
ROAD, PUNE - 411 038.
...........Complainant(s)
Versus
1. DR SHAILESH PUNTAMBEKAR
GALAXY LAPROSCOPY INSTITUTE, NEAR GARWARE COLLEGE,
25 A, KARVE ROAD,
PUNE - 411 004.
2. Galaxy Laparoscopy Institute
Near Garware College,
25, A, Karve
Road, Pune - 411 038.
3. Rajashree Godbole
Anaesthesist, Galaxy
Laparoscopy Institute, Near Garware College,
25, A, Karve
Road, Pune - 411 038.
4. Dr. Prachi Sathe
Consulting Physician and ICU Consultant Director,
Dept. of Critical Care Medicine, Ruby Hall Clinic, Sasson
Road, Pune - 411 001.
5. Ruby Hall Clinic
Thru Medical Director Sujata
Malik, Sasoon Road,
Pune - 411 001.
............Opp.Party(s)
BEFORE:
Hon'ble Mr.Justice S.B.Mhase PRESIDENT
Hon'ble Mr. S.R. Khanzode
Judicial Member
Hon'ble Mr. Narendra Kawde MEMBER
PRESENT:
SHREERAM SIRSAT , Advocate for the Complainant
Mr.Rahul Gandhi,
Advocate for the Opp. Party 1 &2
Mr.R.A.Thakurdesai, Advocate for Opp.Party
no.3, but absent
MR. DARA IRANI, Advocate for the Opp.
Party 3 & 4
ORDER
Per Mr.S.R.Khanzode, Honble Judicial Member This consumer complaint refers to deficiency in service on the part of opponents i.e. doctors and hospitals when the complainant Sunil had received treatment for surgical corrections for Hernia and the complications which arose during the operation.
2. It is a case of complainant Sunil (complaint is filed through his wife Yashashri) that he was enjoying a sound health on 25/09/2008. He had noticed a bulge on the right side of his abdomen and, therefore, on the following day he had consulted his family doctor, Dr.M.G.Paranjape. It was diagnosed that he was suffering from Hernia, which was required to be repaired surgically. Since the complainant was knowning to opponent no.1- Dr.Shailesh Puntambekar, who is Consultant Oncosurgeon & Laparoscopic Surgeon, consulted him and after coming to know that opponent no.1-Dr.Shailesh Puntambekar himself can operate upon the complainant, complainant gave his consent and got himself admitted at opponent no.2Galaxy Laparoscopy Institute on 01/10/2008. The surgery was planned for the same day. At the time of surgery, opponent no.3-Rajashree Godbole was an Anesthetist. Prior to the surgery, as a Physician, Fitness certificate for surgery was obtained from opponent no.4-Dr.Prachee Sathe, who is also a Director of Department of Critical Care Medicine at opponent no.5-Ruby Hall Clinic at Pune. After the complications which arose at the time of operation, for critical care, the complainant was shifted on the evening of 02/10/2008 to opponent no.5-Ruby Hall Clinic under the guidance of opponent no.4-Dr.Prachee Sathe and was under treatment at Ruby Hall Clinic during his stay there during the period 02/10/2008 to 27/11/2008 under the care of opponent no.4-Dr.Prachee Sathe. The complainant was at the ICCU unit of Ruby Hall Clinic during the period 02/10/2008 to 07/11/2008.
3. It is further stated on behalf of the complainant that on 01/10/2008, complainant was taken for the surgery to the Operation Theatre at 1.00 p.m. and his wife and other relatives including Dr.Madhuri Joshi, who is Mother-in-law of complainants brother were waiting in the visitors area. Around 02.45 p.m. wife of the complainant and Dr.Madhuri Joshi noticed some hastic activities amongst the doctors and hospital staff. They tried to get information but in vain.
Around 4.00 p.m. Dr.Geetanjali Agarwal who is one of the surgeons at opponent no.2 Institute told to the wife of the complainant, his mother and Dr.Madhuri Joshi that the complainant had a cardiac arrest on the operation table and, therefore, the operation was abandoned and she further assured them that there is no need for any anxiety. Around 6.00 p.m. opponent no.1-Dr.Shailesh Puntambekar further met complainants wife and other relatives and briefed them as to what had happened during the operation and also told them that as soon as he took an incision under the umbilicus, he discovered that there was no blood flow and, therefore, when he looked up to the Monitor, he saw that patient had cardiac arrest, and they immediately took the resuscitative steps. On the evening itself on that day Dr.Hiremath, who is renowned Cardiologist of Pune was summoned to examine the complainant and so also opponent no.4 Dr.Prachee Sathe. On 02/10/2008, condition of the complainant did not show any sign of improvement and in the evening he was shifted to Rubi Hall Clinic after informing the relatives. According to the complainants wife, though she wanted to shift complainant at nearby SahyadriSpecialityHospital, the complainant was shifted to opponent no.5-Ruby Hall Clinic and this way opponent no.4-Dr.Prachee Sathe has aided and abated in covering up the acts of opponent nos.1, 2 & 3. At the ICU of opponent no.5-Ruby Hall Clinic where the complainant was kept between 02/10/2008 to 07/11/2008, wife of the complainant further came to know that the complainant had suffered from Hypoxia of Brain due to cardiac arrest.
She alleged deficiency of service on part of opponent no.5-Ruby Hall Clinic since according to her, due to negligence on the part of the said Clinic, complainant was infected with bed sores. After discharge from opponent no.5-Ruby Hall Clinic on 27/11/2008, complainant has left as totally maimed, crippled, incapacitated organism in a vegetative state. Complainant had lost the memory and could not recognize anyone as well as could not focus his sight and did not seem to be with the surrounding. Complainant suffered lack of control on bowels and bladder (incontinence in respect of stools and urine), could not talk or follow what was said to him.
Under the circumstances, complainants Brother-in-law contacted opponent no.1 Dr.Shailesh Puntambekar for settlement in terms of monetary compensation but in vain and, therefore, ultimately, consumer complaint came to be filed. As far as Anesthetist Rajashree Godbole is concerned, according to the complainants wife, in a Fitness Certificate, opponent no.4-Dr.Prachee Sathe certified for general Anesthesia.
The Anesthetist chosen to give spinal anesthesia and, thus, exhibited her medical negligence.
Complainant developed bradycardia on the operation table was a result of such negligence of giving spinal anesthesia.
4. We heard Ld.counsel appearing for the complainant Advocate Shreeram Shirsat at length, also Ld.counsel appearing for opponent nos.1 & 2-Mr.Rahul Gandhi and Ld.counsel appearing for opponent nos.4 & 5 Mr.Dara Irani. Mr.R.A.Thakurdesai is representing opponent no.3 and opponent no.3 herself remained absent at the time of hearing on admission.
5. Facts as alleged and revealed from the material placed before us shows that all the doctors involved and named here are competent to discharge their respective functions.
These facts are also not in dispute. Similarly, it is not in dispute that opponent no.2-Institute and opponent no.5-Ruby Hall Clinic are well known institutions of medical treatment at Pune.
6. It is further revealed that after the anesthesia was administered and the complainant was under its influence, the surgeon, namely, opponent no.1-Dr. Shailesh Puntambekar has taken further steps for conducting Laparoscopy Hernia operation.
He had taken first incision under umbilicus and at that time noticing that there was no blood flow and patient had suffered bradycardia (too slow heart beats and presence of Arrhythmias), he immediately stopped operation at that time itself, as further revealed from the case papers, particularly, operation notes. Complainant Sunil had suffered cardiac arrest and further resuscitation steps were started. This particularly happened around 2.20 p.m. As per the case papers, complainant Sunil was revived but he was subjected to Hypotension and bradycardia, as a result of which he is in the present state of condition due to permanent damage caused to the brain.
7. The apex court in the matter of Martin F. DSouza v/s. Mohd. Ishfaq, I (2009) CPJ 32 (SC), referring to its earlier decision in the matter of Jacob Mathew (Dr.) v/s.State of Punjab and another., III (2005) CPJ 9(SC), quoted as under:
The practitioner must bring to his task 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 is what the law requires.
It is further observed by the apex court in the case of in-re Martin DSouza, supra, as under:
While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.
A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others v/s. State of Maharahstra & Others, AIR 1996 SC 2377, or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care....
Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ispa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse In para 52 of Jacob Mathews case the Supreme Court realizing that doctors have to be protected from frivolous complaints of medical negligence, has laid down certain rules in this connection:
(i) A private complaint should not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor..
8. In the instant case, full record of the diagnosis, treatment, etc. is maintained and the copies thereof are supplied on request to the complainants wife and which are also produced on record of this case. It is not a case of res ispa loquitur.
All the necessary facts are unfolded before the complainants wife, who is certainly assisted in evaluating the circumstances by the competent persons from the medical field for example, Dr.Madhuri Joshi to whom a reference is made earlier or even Dr.Rahul Kulkarni whose certificate dated 09/10/2009 is placed on record.
9. As observed by the Learned author Dr.Mahendra K.Joshi in his book a-z Medical Law 2000 (Focused on Consumer Cases), at page 369, Cardiac arrest during anesthesia is unpredictable and known to occur.
So cardiac arrest or bradycardia during the operation which the complainant had found cannot be said to be a mysterious circumstance or unexplained circumstance so as to involve doctrine of res ispa loquitur.
10. Further referring to another Ld.Authors Thomas E J Healy & Peter J Cohen from their book Wylie and Churchill-Davidsons -A Practice of Anaesthesia Sixth Edition at page 1461, which refers to the breach of duty of Anesthetist and Causation, reads as under:-
If an anaesthetist either has done something that should not have been done or fails to do something that should have been done, there is a breach of duty, and the anaesthetists conduct will have fallen below an acceptable standard of practice. The breach of duty is the exact act that was unreasonable or imprudent under the circumstances.
The fact that an injury occurred is not sufficient evidence for a breach of duty because this would imply a warranty or guarantee of a successful outcome. An honest mistake in diagnosis or treatment or an error in judgement will not form the basis for liability in the absence of additional affirmative evidence that the physicians conduct deviated from an acceptable standard of care.
The breach in the standard of care must be tied to the injury. The link between the breach and the injury is known as the proximate cause of the injury. Proximate cause is not identical with the medical cause of the injury. It is the event that sets in motion a chain of events which leads to the injury. There may be a series of events rather than a simple relation between the breach and the injury. The law, therefore, allows for one of two tests to confirm the link. The method used varies from state to state.
The first test is the but for test. If the injury would not have occurred but for the acts of the anaesthetist, the test is true and proximate cause is established. Under this doctrine, if there were other factors that might have led to the same injury, the test is false and no proximate cause is established.
The second test is the substantial factor test. Under this doctrine the act need not be the only possible cause of the injury. It must only be shown to have been a substantial factor in causing the injury. This test is less favourable to the medical defendant because recovery of damages is not prevented by the presence of other possible causes as it the case with the but for test.
11. Undoubtedly, it is a choice of the Anesthetist who acts on her own truthful response to ensure the patient in anesthesia during the course of surgery, whether it should be spinal or general or combination of both. Decision of Anesthetist as it alleged on behalf of the complainant that though opponent no.4 Dr.Prachee Sathe while issuing her fitness certificate for the surgery to the complainant has mentioned general anesthesia and not spinal anesthesia, the anesthetist administering spinal anesthesia is contrary to such advice and, therefore, opponent no.3 -Dr.Rajashree Godbole is guilty of medical negligence. We are afraid, such summarization, prima facie, cannot be made in absence of any expert opinion or a medical literature speaking in favour of it.
12. Opponent no.1- Dr.Shailesh Puntambekar, who is a Laparoscopy Surgeon actually had just started the operation but abandoned the same in the circumstances mentioned earlier. Therefore, there is no medical negligence on his part vis--vis deficiency of service of any kind that could be alleged and, in fact, no such deficiency of service is alleged within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986 (herein after referred as Act for brevity). There is absolutely no negligence or deficiency in service alleged in respect of opponent no.2- Institute.
13. As far as opponent no.4- Dr.Prachee Sathe is concerned, she was initially consulted before the operation to obtain necessary fitness certificate to undergo surgery for Hernia surgical repairs. She was again consulted when the complications arose at the time of operation and on the evening of 01/10/2008, Cardiologist Dr.Hiremath and Neurosurgeon -Dr.P.K.Sharma examined complainant Sunil at opponent no.2 -Institute. There is nothing could be seen from their respective notings in the case papers to show that either operating surgeon opponent no.1- Dr.Satish Puntambekar or Anesthetist opponent no.3- Dr.Rajashree Godbole, failed to show reasonable degree of skill and knowledge or failure on their part to exercise reasonable degree of care.
It also does not show anyway that opponent no.3 -Dr.Rajashree Godbole, Anesthetist failed to follow the requisite procedure or had followed firstly giving spinal anesthesia and then general anesthesia, which is contrary to the standard procedure and protocol or below an acceptable standard of practice. Thus, prima facie, applying the Bolams test, complainant failed to show any medical negligence vis--vis deficiency in service on the part of opponent no.1-Dr.Satish Puntambekar or his institute-
opponent no.2 and opponent no.3- Dr.Rajashree Godbole.
14. There is absolutely no material to show that there is any nursing negligence on the part of Ruby Hall Clinic either in their ICU unit or in the hospital. We may point out here that Ruby Hall Clinic is not a juridic person as such, but it is the hospital popularly known as Ruby Hall Clinic which is run by Grant Medical Foundation.
Mr.D.K.Irani appeared for opponent on record, namely, opponent no.5 Ruby Hall Clinic. When such anomaly was noticed, the Commission directed the complainant to take steps to correct the description of opponent no.5 as per order sheet dated 21/10/2010. Instead of doing that, as it appears, without making any application for amendment/correction the complainant straightway proceeded to incorporate the correction and describe opponent no.5 as Ruby Hall Clinic, Grant Medical Foundation through Chairman & Managing Trustee Dr.Grant. Thus, in fact Ruby Hall Clinic remained as party opponent no.5 though below it name of Grant Medical Foundation appears but such correction or interpolation in the title of the complaint since without any order from this Commission, is unauthorized and non-est in the eyes of law.
15. It is alleged that since the complainant had developed bed sores, no proper nursing care was taken at the ICU of Ruby Hall Clinic. Such and other allegations are mere summarization without any substance and prima- facie, complainant failed to establish any deficiency in service on the part of opponent no.5- Ruby Hall Clinic or its nursing staff during the period when the complainant was admitted there.
16. Same is the case in respect of opponent no.4-Dr.Prachee Sathe and prima facie, there is absolutely no material to infer medical negligence or any deficiency in service on her part.
17. For the reasons stated above, we find it is not a case in which the doctors and the hospitals named need to answer something for the charge of alleged medical negligence viz. deficiency in service within the meaning of the Act. We hold accordingly and pass the following order:-
ORDER Consumer complaint is not admitted and stands rejected accordingly.
In the given circumstances, both the parties to bear their own costs.
Copies of the order be furnished to the parties.
Pronounced on 02nd August, 2011.
[Hon'ble Mr.Justice S.B.Mhase] PRESIDENT [Hon'ble Mr. S.R. Khanzode] Judicial Member [Hon'ble Mr. Narendra Kawde] MEMBER Ms.