State Consumer Disputes Redressal Commission
Mr Balraj S Chandnani Since Deceased ... vs Dr Shashiraj Shetty & Ors on 27 August, 2019
CC/10/41 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/10/41
Mr.Balraj S. Chandnani,
[since deceased by his legal heirs]
1) Sunita a. Bajaj,
R/at : No.9, Lavelle Road, 1st Cross,
Bangalore 560 001.
2) Gitanjali R. Raheja
R/at : No.9, Manlkeswsari Road,
Kipauk, Chennai 600 010. ....Complainant/s.
Versus
1) Dr.Shashiraj Shetty of Mahatma
Gandhi Mission Hospital, C.B.D. (Belapur),
Navi Mumbai 410 614 also practicing at
Sukhda Hospital, F-31, Shantivan Society,
Sector 6, CBD Belapur, Navi Mumbai.
2) Dr.Sameer Chitnis of Mahatma
Gandhi Mission Hospital, C.B.D. (Belapur),
Navi Mumbai 410 614.
3) Mahatma Gandhi Mission Hospital,
C.B.D. (Belapur), Navi Mumbai 410 614. .... Opponent/s.
BEFORE: Mr.D.R.Shirasao, Presiding Judicial Member.
A.K.Zade, Member
PRESENT: Adv.Uday Warunjikar a/w. Adv.Baliram Kamble for the
complainants.
Adv.Sukruta Chimalkar for the opponent no.1 and 2.
Adv.Smita Gaidhani for the opponent no.3.
ORDER
Per Hon'ble Mr.D.R.Shirasao, Presiding Judicial Member:
[1] Complainant filed this consumer complaint for getting compensation on account of medical negligence given to him while giving medical treatment to him.
CC/10/41 2[2] Brief facts of the case are as under:-
Original complainant was having knee problem since four years from filing of this consumer complaint. However, he was living healthy life and his schedule was busy. He was also active in sports and vehicle driving. In the month of March 2017, original complainant developed weakness in both of his lower limbs and because of it his day to day movement slowed down. Hence, he contacted his Dr.Rashid Sorab Mehta, an Orthopedic Surgeon. He advised original complainant to undergo knee replacement operation. Said doctor referred original complainant to one Mr.Jimmy Lal Kaka, Neurologist of Bombay Hospital. However, opponent no.1 being friend of original complainant, he discussed the matter with opponent no.1 in the month of November 2007. Opponent no.1 had advised complainant to undergo knee replacement. He also advised original complainant that he can get it done at cheaper rate by getting best facilities by admitting in hospital of opponent no.3. Accordingly, opponent no.1 conducted operation in respect of knee replacement of original complainant on left knee in the hospital of opponent no.3 on 29/01/2008. Original complainant was discharged from hospital on 06/02/2008. Opponent no.1 had further advised to undergo the knee replacement of original complainant on right side leg also. As per advice given by the opponent no.1, original complainant got himself admitted in the hospital of opponent no.3 for that operation on 20/02/2008 and surgery of right knee replacement had taken place in respect of original complainant in that hospital on 21/02/2008.
[3] It is the contention of complainant that however after this second operation he was having pain and there was imbalance of state of mind. Original complainant was not in a position to control his ankles and they were just creping down from the date of operation till filing of complaint. He was not in a position to move his toes and other leg fingers and ankles. Original complainant had brought this fact to the notice of opponent no.1 when he was admitted in the CC/10/41 3 hospital. Opponent no.1 assured original complainant that nothing is to be worried and complainant will overcome the problem within a period of one week. Although complainant was having all these problems, opponent no.1 elected to discharge complainant from hospital on 08/03/2008. At that time, opponent no.1 had also not given MRI report dated 28/02/2008 to complainant. Opponent no.1 had given that report after about one month at the residence of complainant. Although opponent no.1 had given assurance that pain will subsidies within a month. Original complainant had no relief. Hence, he got himself admitted in Bombay Hospital on 24/03/2008. At that time, MRI report of original complainant was verified in that hospital and it was showing damage to spinal cord of complainant. At that time, parkinsons disease along with other diseases were also found in original complainant and he was advised to take physiotherapy and medication. Original complainant was discharged from Bombay Hospital on 03/04/2008. He once again got himself admitted in Sir Hurkisondas Nurrotumdas Hospital on 08/05/2008 for lack of understanding, sensitivity, bed sores and other ailments. He was further required to be admitted in Jaslok Hospital for 5 days for further investigation and urinal treatment as he was unable to control urine.
[4] It is the contention of complainant that when he was admitted in the hospital of opponent no.3 over dose of anesthesia was given by the opponent no.2. Because of which many of the complications had taken place in his body. It is the contention of complainant that because of all these ailments in his body, he was required to make expenditure for getting further medical treatment. He was also required to take services of ward boy at his residence. It is the contention of complainant that he also required to dispose off his office situated at Marin Drive in Mumbai. Because of all these facts, he suffered mental pain and agony. For all these reasons, complainant has claimed compensation of Rs.28,10,000/- from CC/10/41 4 opponents. During pendency of the complaint, original complainant died and his legal heirs are brought on record.
[5] Opponent no.2 contested the consumer complaint by filing his written version on record. He submitted that in respect of medical negligence caused while getting medical treatment to the complainant, complainant has not produced evidence of expert on record and the contention of complainant in that respect is not also supported by medical literature. He also submitted that amount of compensation claimed is also not properly quantified and no documentary evidence is placed on record to prove the same. He further submitted that he associated with opponent no.1, at the time of first left knee operation of complainant. As an anesthesiologist whatever procedure was followed at the time of operation, same was followed at the time of second operation. Hence, there cannot be problem to complainant because of procedure followed by opponent no.2 while giving anesthesia to him for second time. He further submitted that before giving anesthesia to complainant, he medically examined him and found him medically fit for operation. He further submitted that as per report of Bombay Hospital dated 25/03/2008, "there was complete resolution of posterior hematoma from D11 to L3 level as compared to the previous scan." Said report is not disclosing that there was damage to spinal cord of complainant while giving anesthesia to him. He submitted that anesthesia was given to complainant as per standard practice followed during such operation. However, the effect of anesthesia may remain on body after operation also and there can be heaviness or numbness of lower half of body for considerable period. He specifically denied that any complication had arisen in the body of complainant because of over dose given by him to complainant. It is his contention that since before operation, complainant was having Scoliosis of Lumber spine andn Dorsal Hard disc bulges of Lumbar inter vertebral discs most prominent at L2/L3 level and Parkinsonism. Spinal canal stenosis being absolute may have caused weakness and numbness in the lower extremities of CC/10/41 5 complainant. The dose given to complainant was the same in both operations. Hence, contention of complainant cannot be accepted that because of anesthesia, he has these problems. Hence, he submitted that there is no evidence on record that he has given any medical negligence while giving medical treatment to him. Hence, consumer complaint be dismissed.
[6] Opponent no.3 also contested consumer complaint by filing written version on record. They submitted that subsequently complainant had taken medical treatment in Bombay Hospital and Sir Hurkisondas Nurrotumdas Hospital. However he has not joined them as parties. Hence, complaint is bad for necessary parties. They submitted that for knee replacement surgery of right knee, complainant was admitted in their hospital on 20/02/2008. Operation was conducted on him on 21/02/2008 and he was discharged from hospital on 08/03/2008. Total bill of hospital was rs.1,37,128/-. Out of that amount, amount of Rs.86,872/- was paid by the insurance company and only balance was paid by complainant. No extra payment was made by complainant to the hospital. They further submitted that as complainant was admitted for knee replacement surgery, there cannot be injury to his spinal cord. They further submitted that complainant was suffering from parkinsons and he was having weakness in both lower limbs. He was having neurological problem. They further submitted that complainant has not alleged any deficiency in service on the part of the opponent no.3 hospital. He may not be satisfied with the operation. However, there is no evidence on record that opponent no.3 hospital had given any deficiency in service to complainant during the period for which complainant was admitted in their hospital. Hence, they submitted that consumer complaint be dismissed.
[7] In this case, complainant had filed consumer complaint along with delacy condonation application. Although opponent no.1 contested that application by filing his reply on record, after CC/10/41 6 admission of complaint he had not contested consumer complaint by filing written version and affidavit of evidence on record.
[8] Considering rival contentions of parties, evidence adduced by them on record and documents filed on record, following points arise for our determination and we have recorded our findings on them as follows for the reasons given below -
Sr.No Points Answer
.
1 Whether complainant is "Consumer" of Yes
opponents ?
2 Whether opponents have given medical Yes,
negligence to original complainant while against giving medical treatment to him ? opponent no.1 3 Whether complainants are entitled to get As per final compensation from opponents ? order.
4 What order? As per final order.
-: REASONS :-
POINT NO.I :- [CONSUMER] [6] In this case, it is admitted fact that original complainant was admitted in the hospital of opponent no.3 as per advice of opponent no.1 for knee replacement surgery. Opponent no.1 conducted knee replacement surgery on complainant in respect of both of his legs. It is the contention of complainant that after second operation he developed weakness in his both the limbs and because of which his movement was slowed down. For that purpose, he was required to take further treatment by admitting himself in other hospitals. At the time of knee replacement operation, opponent no.2 had given anesthesia to complainant. It is the contention of complainant that because of over-dose of anesthesia given to him, he developed numbness in his limbs. In this case, it is admitted fact that complainant had paid hospital bill of opponent no.3 where he was admitted for these operations. In view of the same, we are of the CC/10/41 7 opinion that complainant is consumer of the opponents and consumer complaint filed by him against opponent is tenable. Hence, we answer Point No.I in affirmative.
POINT NO.II :- [DEFICIENCY/NEGLIGENCE] [7] In this case, it is admitted fact that original complainant was a practicing advocate. He was doing all his work actively. However, as he developed weakness in both of his limbs, he had contacted his doctor Mr.Rashid Sorab Mehta. He had advised original complainant to undergo knee replacement surgery. Hence, original complainant discussed this matter with opponent no.1 in the month of Novemeber 2007 and opponent no.1 advised him to undergo this operation in hospital of opponent no.3. Opponent no.1 had promised complainant that it will be done in that hospital at cheaper rate by getting best facilities. Accordingly, complainant had undergone left knee surgery in that hospital on 29/01/2008. He was discharged from hospitalon 06/02/2008. At that time, he was not having problem from the operation.
[8] However, opponent no.1 again advised complainant to undergo second operation of knee replacement in respect of right leg to complainant. As per the advice of opponent no.1, original complainant admitted in the hospital of opponent no.3 on 20/02/2008 and necessary knee replacement surgery was conducted by opponent no.3 on complainant in that hospital in respect of his right knee on 21/02/2008.
[9] It is the contention of complainant that however after this second operation, he was having severe pain and he was having imbalance state of mind. He was not having control on ankles as a result they were just creping down. Complainant was not in a position to move his toes and other leg fingers and ankles. It is the contention of original complainant that he had informed this fact to opponent no.1 who conducted this operation. However, opponent no.1 advised him that he will overcome this problem within a month.CC/10/41 8
It is the contention of original complainant that although he was having these problems, opponent no.1 had given discharge from hospital on 08/03/2008. Although complainant was discharged from hospital, he did not get any relief within prescribed time. Hence, ultimately, he got himself admitted in Bombay Hospital on 24/03/2008. At that time, he showed his MRI report which was taken by opponent no.3 on 28/02/2008. It is the contention of complainant that after verifying that report, it was told to him that he is having injury to his spinal cord. Complainant was discharged from Bombay Hospital on 03/04/2008 by giving advice to take physiotherapy and medication for the same. Complainant was further admitted in the hospital of Sir Hurkisondas Nurrotumdas Hospital on 08/05/2008 as he developed bed sores. He was also admitted in Jaslok Hosital in the year 2009 for urinary problem and because of which his health was deteriorated. He also made expenditure for getting treatments for all these ailments. In this case, it is admitted fact that subsequently original complainant died on 24/08/2011.
[10] Learned advocate appearing for complainant submitted that opponents were required to take proper care of complainant after operation. As proper care of complainant was not taken and no proper treatment was given to complainant after operation, he developed all these problems and because of which his movement was restricted and because of which subsequently he died. He submitted that post operation care is not taken. Therefore, it is medical negligence on the part of the doctors given to complainant. He relied on judgment of the Hon'ble National Commission in First Appeal No.101/2016 dated 04/07/2019 in the matter of 1. Pankaj R. Toprani & 3 ors. Vs. 1. Bombay Hospital and Research & Medical & 2 ors.
In this ruling, it has been observed that it is the duty of medical officer to take care of the patient whenever patient is under the treatment of doctor. If there is any breach in duty resulting in causing injury or damage to the life of the patient, doctor is liable for CC/10/41 9 the same. In this case, patient had gone in coma after operation for about a period of 8 months. Hence, the Hon'ble National Commission considered that the hospital is liable to give compensation for the same.
[12] In this case, it is the contention of complainant that at the time of second operation, heavy dose of anesthesia was given to him and because of which he developed weakness in both limbs after operation and same could not be recovered. However, in this case, it is particular to note that complainant was admitted in hospital of opponent no.2 for knee replacement of both of his legs. First operation was conducted on his left knee on 29/01/2008. He was admitted for second surgery on 20/02/2008 for knee replacement of right leg and it was conducted on 21/02/2008. Both the operations had taken place in the hospital of opponent no.3 at the hands of opponent no.1. Both the times, anesthesia was given to complainant by opponent no.2. It is the contention of opponent no.2 that quantity of anesthesia and manner in which it was given in both surgeries was same. Complainant has not produced any documentary evidence to show that at the time of second operation, excess dose of anesthesia was given to him and because of which weakness was developed in both limbs. After second operation, MRI report of complainant was taken in the hospital of opponent no.3 on 28/02/2008. Complainant was subsequently admitted in Bombay Hospital on 24/03/2008 and was discharged from that hospital on 03/04/2008. At that time, MRI report was verified in Bombay Hospital. As per their report, hematoma which was developed from D11 to L3 from vertebral levels was completely resolved. Hence, it has become clear that at the time of anesthesia, hematoma was developed at D11 to L3 vertebral levels. It was appearing in CT scan report dated 28/02/2008 which was taken in the hospital of opponent no.3. However, at the time of giving discharge from hospital, no treatment was given to complainant in that respect. However, from report of Bombay Hospital, it appears that hematoma which was developed from D11 to L3 vertebral levels CC/10/41 10 was completely resolved. Hence, there is no evidence on record that hematoma continued further. On the contrary, there is evidence on record that the same was resolved. Moreover, there is no evidence on record that weakness in both the limbs developed because of hematoma. In this respect, it is particular to note that opponent no.2 filed evidence of expert witness on record. This report is given by Dr.Vrushali C. Ponde being Honorary Secretary of AORA India. The reports produced by opponent no.2 were kept before the Academy of Regional Anaesthesia. They had verified the same and on their behalf Dr.Ponde has given this affidavit. As per her affidavit, spontaneous bleeding on removal of catheter is possible. However, hematoma caused because of the same was completely subsidized. She further submitted that quantity of anesthesia and manner in which it was given was proper. Hence, in view of the opinion of expert witness, it is not appearing that weakness which complainant developed in both of his legs was due to excess dose of anesthesia given by opponent no.2 or hematoma was found at D11to L3 level of complainant. In view of the same, we are of the opinion that there is no evidence on record to show that whatever complications which were developed in the body of complainant after second operation was due to anesthesia given by opponent no.2 to complainant during operation. Complainant was discharged from hospital on 08/03/2008. The discharge report in that respect is produced on record. On perusal of the same, it is not appearing that any advice was given to complainant in that respect by the hospital. Hence, we are of the opinion that complainant has failed to prove that opponent no.2 has given any medical negligence to him while giving medical treatment.
[13] In this case, it is an admitted fact that for both the operations, complainant was admitted in the hospital of opponent no.3. After both the operations, complainant had taken valid discharge from the opponent no.3. It is not the contention of complainant that when he was admitted in hospital of opponent no.3, no proper care and treatment was given to him in the hospital. In CC/10/41 11 respect of medical negligence, he has not made any allegations against opponent no.3. In view of the same, we are of the opinion that complainant has also failed to prove any medical negligence against opponent no.3.
[14] In this case, it is an admitted fact that opponent no.1 had given advice to original complainant to undergo both of his knee replacement operation. Opponent no.1 had advised to undergo these operations in the hospital of opponent no.3. Both the operations were conducted by opponent no.1. At the time of giving advice to complainant, opponent no.1 had medically examined the complainant. He was knowing it well that he is suffering from parkinsons and spinal cord stenosis. Irrespective of that, opponent no.1 had given advice to complainant to undergo operations for both of his knees. In this case, it is particular to note that at the time of first operation on left knee, complainant had no problem. Hence, in that respect, he has not made any allegations in his complaint. However, when his second operation on right knee had taken place on 21/02/2008, after operation he was having pain and he was not in a position to move his legs and fingers and ankles. Complainant must have undergone both these operations with the hope that after operations, he will be in a position to move. It is an admitted fact that before operation, complainant was moving and he was doing all activities and he was practicing advocate. Whatever was the difficulty to complainant, he had informed the same to opponent no.1. However, opponent no.1 had simply advised him that complainant will overcome all these difficulties within one month. He had neither given any medical treatment to him nor advised medicines to him. On the contrary, complainant was having all these problems after opponent no.1 discharged him from hospital on 08/03/2008. In view of the ruling cited above, we are of the opinion that the conduct of operating doctor is to be seen actually at the time of operation and also in taking care of patient after operation. In this case, the operation conducted by opponent no.1 on the right knee of CC/10/41 12 complainant may be proper, but he had not taken proper care of complainant after operation. We are of the opinion that opponent no.1 should have given proper medical treatment and advised to complainant in respect of difficulty which had developed after operation. However, he had not advised the complainant in that respect nor he had given medical treatment in that respect to complainant. Also he was not ready to give MRI report to complainant dated 28/03/2008. We are of the opinion that from all these facts, it appears that as opponent no.1 had not taken proper post-operational care of complainant, he had given medical negligence to complainant while giving medical treatment to him. Hence, we answer Point No.II in affirmative against opponent no.1.
POINT NO.III :- [COMPENSATION] [15] It is the contention of complainant that as he did not receive proper post-operational treatment in the hospital of opponent no.3, he was required to admit himself in Bombay Hospital and Sir Hurkisondas Nurrotumdas Hospital. He was also required to make expenditure for the same. It is the contention of complainant that he was also required to make expenditure for daily medical treatment to be taken at his house and to make expenditure for physiotherapy treatment. Complainant has claimed different amounts for different expenses made by him on different counts. However, in this case, it is particular to note that complainant has not produced any documentary evidence in respect of expenditure. In this case, opponent no.3 admitted in their written version that their hospital charges were Rs.1,37,128/- out of which an amount of Rs.86,872/- was paid by the insurance company and rest was recovered from complainant. As complainant has failed to produce documentary evidence in respect of expenditure made by him, we are of the opinion that amount as claimed by the complainant for these expenses cannot be given to complainant. However, it has become clear that because of the medical negligence on the part of opponent no.1, complainant developed all these problems and ultimately, he was not CC/10/41 13 in a position to move and do his day to day affairs. In view of the same, we are of the opinion that for medical negligence given to complainant, lumsum amount of compensation of Rs.5,00,000/- can be awarded to complainant from opponent No.1 along with interest on that amount along with cost of litigation. Hence, we answer Point No.III accordingly and proceed to pass the following order.
ORDER (1) Consumer complaint is hereby partly allowed. (2) Opponent no.1 is hereby directed to pay amount of Rs.5,00,000/- [Rs.Five lacs only] to the legal heirs of the original complainant along with interest on that amount @9% p.a. from 28/03/2008 when complainant was discharged from hospital till realization of the amount by complainants (legal heirs).
(3) Opponent no.1 is hereby directed to pay costs of Rs.10,000/-
[Rs.Ten Thousand only] to complainants (legal heirs) for this litigation.
(4) Opponent no.1 to pay amount of costs within a period of one month from the date of this order otherwise he will have to pay further interest @9% p.a. from the date of passing this order till realization of the amount by complainants (legal heirs).
(5) Free certified copies of the order be furnished to the parties forthwith.
Pronounced on 27th August, 2019.
[D.R. Shirasao] Presiding Judicial Member [A.K.Zade] Member pg CC/10/41 14 STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA, MUMBAI CONSUMER COMPLAINT NO.CC/10/41 MR.BALRAJ S. CHANDNANI Vs. DR.SHASHIRAJ SHETTY AND ORS.
BEFORE:
Mr.D.R.Shirasao, Presiding Judicial Member Mr.A.K.Zade, Member Dated : 27th August, 2019 OPERATIVE ORDER (6) Consumer complaint is hereby partly allowed. (7) Opponent no.1 is hereby directed to pay amount of Rs.5,00,000/- [Rs.Five lacs only] to the legal heirs of the original complainant along with interest on that amount @9% p.a. from 28/03/2008 when complainant was discharged from hospital till realization of the amount by complainants (legal heirs).
(8) Opponent no.1 is hereby directed to pay costs of Rs.10,000/-
[Rs.Ten Thousand only] to complainants (legal heirs) for this litigation.
(9) Opponent no.1 to pay amount of costs within a period of one month from the date of this order otherwise he will have to pay further interest @9% p.a. from the date of passing this order till realization of the amount by complainants (legal heirs).
10) Free certified copies of the order be furnished to the parties forthwith.
[D.R.Shirasao]
Presiding Judicial Member
[A.K.Zade]
CC/10/41 15
Member
pg