State Consumer Disputes Redressal Commission
Mrs. Savita V. Shewale vs Dr. B.R.Boob & Ors. on 24 June, 2011
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint
Case No. CC/07/200
1. MRS. SAVITA V. SHEWALE
MUNICIPAL BLDG NO.1, R.NO.13, GHODAPDEV, BABU GENU
NAGAR, MUMBAI-33.
...........Complainant(s)
Versus
1. DR. B.R.BOOB
BABULNATH HOSPITAL,
15 SADGURU SADAN, BABULNATH RD,
MUMBAI-400007.
2. Dr.T.M.Jain
Babulnath Hospital 15
Sdguru Sadan Babulnath Road, Opp
Babulnath Temple
Mumbai 400 007
3. Babulnath
Hospital
15 Sadguru sadan Babulnath
Road Opp
Babulnath Temple
Mumbai 400 007
4. Dr.Manish Mavani Cosultant
Sir H.N.Hospital & Research Centre
Mumbai 400 004
............Opp.Party(s)
BEFORE:
Hon'ble Mr. P.N. Kashalkar PRESIDING MEMBER
Hon'ble Mrs. S.P.Lale Member
PRESENT:
MR. PRASHANT PATIL, Advocate for the Complainant
Mr.S.B.Prabhavalkar,
Advocate for the Opponent Nos.1&2.
ORDER
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member
1. This is a consumer complaint filed by Mrs.Savita Vijay Shewale, resident of Municipal Building No.1, Room No.13, 1st floor, Godapdeo, Babu Genu Nagar, Mumbai-400 033 against Dr.B.R. Boob, Consultant Anesthesiologist of Babulnath Hospital and also against Dr.T.M. Jain, Consultant Sergeon of Babulnath Hospital and also against Dr.Manish Mavani, Consultant attached to Sir H.N. Hospital & Research Centre, Mumbai alleging medical negligence on their part. According to the complainant she is widow of Late Vijay Shewale, who was aged 42 years and he was working as Engineer with JNPT. On 08/03/2005 her husband consulted opponent No.2, who diagnosed that patient was a case of Bilateral Inguinal Hernia and advised him to get admitted in Babulnath Hospital. Accordingly, her husband got admitted on 10/03/2005 in the morning in the Babulnath Hospital. Blanket Consent was taken for surgical operation and for administrating anesthesia on two forms, which are Exhibit-C & D. Opponent No.1 in presence and under supervision of opponent No.2 in the hospital of opponent No.3/hospital injected spinal anesthetic drug (Bupivacaine) without testing whether the patient was sensitive to the drug or not. Immediately, patient developed severe life threatening symptoms. Opponent No.3/Hospital did not have necessary infrastructure and opponent Nos.1&2 were not competent to handle the outcome of grossly negligent act. Therefore, they shifted the patient to Sir H.N. Hospital. Magnitude and effect of the negligence was so grave the patient died immediately after shifting him to Sir H.N. Hospital. This is clear from papers at Exhibit-I, J & K. According to the complainant since, death of her husband was unexpected, unnatural and sudden, police were informed. Police sent dead body to Postmortem at J.J. Hospital on 11/03/2005. Police recorded Inquest Panchanama on dead body. Postmortem was carried out on 11/03/2005. The Autopsy Surgeon reserved the opinion for seeing histopathological examination.
On 07/02/2006 the Autopsy Surgeon after perusal of the documents submitted by the Investigating Officer has finally opined that cause of death was Pulmonary Hemorrhage and issued death certificate Exhibit-O. According to the complainant her husband died because of negligence of the opponents in managing the case. The complainant had sent notices through Advocate Mr.Prashant Patil on 09/03/2007 to the opponents. They received the same, but opponents denied their act of negligence. According to the complainant, opponents are guilty of medical negligence.
They had not taken reasonable care and used their skill in giving treatment to the patient. They lacked skill in treating the patient and their negligence proved fatal to the life of the patient and therefore, their act of negligence caused mental agony and physical hardship to the complainant and members of the family. According to the complainant, patient was not properly evaluated prior to the surgery before administrating anesthesia. Opponent Nos.1&2 did not conduct pre-operative examination of the patient and did not make pre-operative assessment thereby they were guilty of medical negligence. Opponent No.1 was not at all in picture till the patient was shifted to Operation Theatre on 10/03/2005. He reached Hospital at 08.30 a.m. examined the patient in Operation Theatre and administered anesthesia. According to the complainant, patient was not examined and evaluated by opponent No.1 prior to the surgery and therefore, he had not followed pre-operative protocol resulting into death of the patient. Complainant also averred that opponent No.2-Dr.T.M. Jain did not perform skin test to determine sensitivity of the drug being administered.
The patient was intubated and general anesthesia given, when the patient was not prepared for general anesthesia. It was also alleged by the complainant that heart function was not properly monitored and managed. Opponent No.1 had exhibited sub-standard and negligent care and skill which could be compared to that of a quack. The complainant pleaded that Anesthesiologist who is considered as an Intensivist could not manage the critically ill patient. The complainant alleged that opponents were not competent to handle the situation. So, they shifted the patient to H.N. Hospital. The complainant averred that opponent Nos.1&2 were very negligent in their attitude and that increased the problem. Both were very incompetent to handle the case with their gross medical negligence which ultimately led to the death of her husband. The complainant alleged that the hospital/opponent No.3 did not have any protocol for any day-to-day functioning of the hospital. The complainant alleged that for better infrastructure available in H.N. Hospital for better management of the patient, late Vijay Shewale was shifted from Babulnath Hospital to H.N. Hospital. The complainant also alleged in her complaint that notes were written after the death of the patient. Hence, everything was cooked up and manipulated. The complainant also alleged that patient was not fit to shift since at the time of transfer his BP was 150/90 mmhg, Pulse was 172 per minute. When patient was taken to H.N. Hospital on 10/03/2005 condition of the patient as mentioned in the H.N. Hospital record BP was 80/52 mmhg, Pulse was 140 per minute, Pupils were dilated, Not reacting to light and he was declared dead at 0730 p.m. on the same day of the hospitalization which clearly indicated that the patients condition was not fit enough to transfer at the material time and doctors who accompanied with the patient in the ambulance did not take proper care during transit. The complainant also pleaded that the ambulance was not Cardiac Ambulance in which her husband was taken from Babulnath Hospital to H.N. Hospital. She alleged that opponent No.3/hospital did not follow mandatory protocols, like Informed Consent Form was not properly filled in, Nurses notes and change of duty record was not properly maintained and operation notes and anesthesia notes were not prepared. Pre-operative clinical evaluation was not done. Protocol of follow-up of the patient was not undertaken. She also alleged that by applying principle of res-ipsa-loquitur, opponent Nos.1&2 can be held negligent in performing surgery which led to the severe complication, wherein the patient lost his life. She has asserted that res-ipsa-loquitur be applied because negligence on the part of opponent Nos.1&2 being evident on the face of record. No expert evidence is needed to conclude negligence of opponents. Negligence had happened behind the closed doors of Operation Theatre when the patient was on operation table and opponents had controlled all the instrumentalities. The complainant therefore pleaded that the opponents be directed to pay to the complainant `40,000/- towards cost of hospital expenses, to direct opponents to pay to the complainant an amount of `2 Lakhs towards costs of this complaint, to direct opponents to pay to the complainant `2 Lakhs towards loss of consortium of the complainant, to direct opponents to pay to the complainant `5 Lakhs towards loss of enjoyment and amenities of life and loss of love and affection for the complainant and her two daughters. The complainant also claimed `1,44,000/- for one daughter and for another daughter `3,12,000/-. In all as per the statement of claim, complainant has claimed and prayed for an award of `53,56,000/- jointly and severally against the opponents.
2. Opponent No.1 filed his written version and pleaded that the complainant had made wild allegations in her complaint without substantiating the same on the basis of independent evidence. According to opponent No.1 after the matter was remitted by the National Commission, the complainant filed an affidavit dated 27/09/2010 of Dr.Ajay Vinod Patil. In his entire affidavit, he has not evaluated or commented upon the Postmortem Report dated 07/02/2006 and indirectly he has accepted the findings of forensic expert in the Postmortem report. He pleaded that as can be seen from the Postmortem report, cause of death mentioned therein is Pulmonary Haemorrhage and that report does not suggest any negligence of whatsoever on the part of opponent Nos.1&2, but still Dr.Ajay Patil has chosen to comment upon pre-operative procedure of anesthesia which is not his subject and that too he had commented without correctly reading the case papers on record. As such affidavit of Dr.Ajay Patil cannot be held as expert evidence on record. He pleaded that save and except the Postmortem Report, there was no material on record to suggest that there was any negligence on the part of opponent Nos.1&2 and pleaded that complainant is required to adduce elaborate evidence and he must file affidavit of forensic surgeon, who signed the Postmortem Report. He also pleaded that complainant had claimed compensation of `38,40,000/- on the strength of yearly salary of her deceased husband to be `1,92,000/- per annum and on the calculation that he would live for more than 20 years. He pleaded that multiplier of 20 years suggested by the complainant is not applicable besides complainant has also claimed `40,000/- towards hospital expenses. She is not substantiating the same on the strength of actual proof thereof. He also pleaded that compensation of `2 Lakhs towards cost; `2 Lakhs for loss of consortium for the complainant; `5 Lakhs towards loss of enjoyment and amenities of life, loss of love and affection for her and her two daughters, etc. is not based on well recognised principles of quantification of damages. He pleaded that content of Para 1to5 are generally correct except the complainants allegation that blanket consent was taken and proper consent was not taken by the concerned doctor. He had however admitted that skin test was not done. He pleaded that skin test was not necessary in the facts and circumstances of the case. He also admitted to be correct that spinal anesthetic drug was administered without test, but according to him, said test was not necessary as he explained in his affidavit dated 04/10/2010. He pleaded that spinal anesthesia was administered by him in presence of opponent No.2 in the hospital/opponent No.3 to the patient and as seen from the papers, he had performed pre-operative examination and after satisfying himself about fitness of the patient to undergo surgery, he declared him fit for said surgery. He also ascertained from the patient and his relatives whether the patient was allergic or sensitive to any drug, but neither patient nor his relatives had specifically informed about any drug allergy or sensitivity. He pleaded that patient was declared fit for surgery by following prescribed procedure and it was not healthy practice to undergo skin sensitivity test in respect of the drug viz. Bupivacine Local Anesthetic. He admitted that deceased developed symptoms. He admitted that the dead body of the deceased was sent for Postmortem and Postmortem was done on 11/03/2005. However, he denied specifically that the patient died due to gross negligence of opponents in managing the case. He pleaded that he was Visiting Consultant Anesthesiologist for Babulnath Hospital for last 25 years. On 09/03/2005 Dr.T.M. Jain informed him telephonically that he had fixed surgery of bilateral inguinal hernia of deceased Vijay Shewale on 10/03/2005 and requested him to attend the Babulnath Hospital at about 0830 a.m. on 10/03/2005. Accordingly, he reached said Hospital at 0830 a.m. on 10/03/2005, examined the patient in Operation Theatre and also verified various reports such as Blood Report, ECG Report, which patient had taken prior to 10/03/2005. He found those reports in order. Thereafter, he fully utilized the time to examine patient for physical well being, illness, any medication and did thorough systematic examination, noting the investigations during the span of 50 minutes. He checked the parameters such as temperature, blood pressure and only after confirming these facts, he found that the patient was fit to undergo surgery. He pleaded that as per anesthetic pre-operative protocol, he verified and examined all the anesthetic apparatus and drug monitoring system.
He had done pre-anesthetic check up at length and in detail all the investigations were noted. They were in normal limits. Vital parameters were also in normal limits and only after confirming these facts, final anesthesia was administered to the patient.
However, unfortunately, patient showed reaction after spinal anesthesia. To counter said reaction, necessary medication was given intravenously, proper treatment was started to combat to the manifestations of reaction. Since patient was not maintaining desired oxygen saturation, he was given general anesthesia and taken for controlled ventilation to achieve 100% oxygen saturation. During the management of the said patient, necessary intravenous fluids and emergency medicines were given, but since the patient was not showing desired signs of improvement, Senior Physician Dr. Mavani was called, who attended the hospital at about 1030 a.m. and thereafter, collective decision was taken by him, Dr.Mavani and Dr.T.M. Jain with consultation with the family members of the patient to transfer the patient to H.N. Hospital for more advance management. He accompanied the patient in Cardiac Ambulance, monitored the patient in transit. The patient was admitted in H.N. Hospital at about 12.15 p.m.. He remained in the said hospital to assist concerned doctors for 1 hours, but unfortunately, said patient died on the same day at H.N. Hospital. He pleaded that he had taken appropriate steps to monitor the said patient despite complications. He pleaded that the complainant had registered the case with Gamdevi Police Station and Police recorded his statement.
3. He pleaded that two consents were obtained from the deceased and his wife, one for surgical procedure and another for the anesthesia. The consents were obtained after explaining the inherent complications about the allergic reaction. He further pleaded that as can be seen from the cause of death mentioned in the Death Certificate, cause of death is Pulmonary Haemorrhage. He pleaded that pulmonary haemorrhage is result of known complication. He pleaded that as per the prevailing practice, sensitivity test for Bupivacaine was not carried out. The available medical literature on Bupivacaine suggests that specificity and sensitivity of skin test to local anesthetics are of questionable value. There is undoubtedly high percentage of false positive and false negative result to skin sensitivity test. Therefore, occurrence of allergic reactions to the Bupivacaine cannot be negated in totality. Rather it is important to identify the earliest symptom of such allergic reaction and to treat it properly. Therefore, he pleaded that he was not guilty of any medical negligence and as such complaint should be dismissed with costs.
4. Opponent No.2-Dr.T.M. Jain also took up the plea which opponent No.1 has raised in his written version and he further pleaded that the amount of compensation claimed by the complainant is virtually exorbitant and complaint based on baseless allegations is not supported by any evidence. He denied that blanket consent was obtained from the patient and his wife on the Consent Forms. He however admitted that spinal anesthesia was injected without any test done. He pleaded that according to Dr.Boob skin test was not necessary and Dr.Boob had also ascertained from relatives of the patient about whether patient was allergic or sensitive to any drug and since relatives had not stated about any such thing, he decided not to have skin test before administering anesthetic drug. He pleaded that he was Consulting Surgeon having qualification M.S.(General Surgeon).
He pleaded that at no point of time any of his patients had made allegation of medical negligence. He pleaded that Late Vijay Shewale, the patient and husband of the complainant was examined by him prior to operation on 02/03/2005. The patient was being operated for inguinal hernia which was a minor operation and which is required pre-operative check up in the form of general examination, blood pressure, pulse and blood investigation like CBC, blood sugar, HIV, Hbsg and ECG, etc. Therefore, he had advised Late Shewale to undertake those tests. The patient visited him at his Clinic on 08/03/2005 with all pre-operative check up reports.
All reports were normal.
Hence, he fixed operation on 10/03/2005 at 0830 a.m. Accordingly, the patient was admitted in the Babulnath Hospital on 10/03/2005. His informed consent was taken and thereafter, Dr.Boob and Dr.Bharat Shah examined the patient separately and found the patient to be fit to undergo surgery. Unfortunately, the patient showed reaction immediately after administering spinal anesthesia viz. itching sensation in buttocks and perineum and restlessness and wheezing type of respiration. To counter said reaction, necessary medication was given intravenously for which prompt and proper treatment was started to combat the manifestations of reaction. Since the patient was not maintaining desired oxygen saturation, he was given general anesthesia and taken for controlled ventilation to achieve 100% oxygen saturation. During the management of the said patient, necessary intravenous fluids and emergency medicines were given. Since the patient has not showing desired signs of improvement, Senior Physician Dr.Mavani was called, who came in the hospital at about 1030 a.m. Thereafter, with consultation with him, collective decision was taken to transfer the patient to H.N. Hospital for better management. He accompanied the patient in the Cardiac Ambulance and monitored the patient in the transit. The patient was admitted to H.N. Hospital at 1215 p.m. and in the said hospital he remained there for 1 hours to assist doctors in the said hospital, but unfortunately, the patient died on the same day in the said Hospital.
He pleaded that he had taken appropriate steps to monitor the patient despite said complications and did his level best to accompany the patient to H.N. Hospital. He pleaded that two informed consents were taken from the patient and his wife, one for surgical procedure and another for anesthesia. The patient and his wife were explained the complications and risk involved in the operation and in the anesthetic procedure allergic reaction and inherent complications are possible. He was also explained these things to the patient and the patient declared them that he had not having any allergic drug and then signed consent form. He pleaded that from the cause of death mentioned in the postmortem report, the cause of death was pulmonary haemorrhage which is rare but known complication. He therefore pleaded that allegations of medical negligence are baseless and in the absence of medical evidence to substantiate the allegations, the complaint deserves to be dismissed with costs.
5. Opponent Nos.3&4 have not contested the matter. The opponent No.3/Babunath Hospital is the Hospital in whose hospital Dr.Boob and Dr.T.M. Jain, opponent Nos.1&2 were to perform surgery on Vijay Shewale. There is no allegation of medical negligence on opponent No.3.
So, they were not required to contest the complaint. Opponent No.4/Dr.Manish Mavani was the consultant attached to Sir H.N. Hospital, Mumbai. The patient was taken in critical condition to Sir H.N. Hospital/opponent No.4 where opponent No.4-Dr.Mavani examined the patient, but patient died in Sir H.N. Hospital without any improvement in his condition.
The complainant has mentioned that opponent No.4.Dr.Mavani is a formal party. So, Dr.Mavani has not contested this complaint. Contest is confined to complainant on one hand and opponent Nos.1&2 on the other hand.
6. We herd submissions of Advocate Mr.Prashant Patil for the complainant and Mr.S.B. Prabhawalkar, Advocate for opponent Nos.1&2.
7. Admitted facts are that Vijay Shewale, husband of complainant was diagnosed as a case of bilateral inguinal hernia. He approached opponent Nos.1&2. Opponent No.2 was to perform surgery on 10/03/2005. He called Dr.B.R. Boob, Consultant Anesthesiologist in the morning of 10/03/2005 in Babulnath Hospital, where Vijay Shewale, husband of the complainant got admitted at 0830 a.m. The patient was taken to Operation Theatre, where Dr.Boob/opponent No.1 made some physical examination, saw the papers and decided to give spinal anesthetic injection and after injecting said drug, the patient developed some complications. He was rushed to Sir H.N. Hospital in critical condition, where he expired.
Allegation of medical negligence has been made by the complainant in her complaint.
8. In the course of arguments, it has been submitted by Advocate Mr.Prashant Patil that this was a case of res-ipsa-loquitur because after administering injection by opponent No.1/Dr.Boob in his spinal cord on 10/03/2005 at about 0830 a.m., patient had suffered adverse reaction. He was therefore taken to Sir H.N. Hospital, where he on the same day expired.
Autopsy was performed on following day at J.J. Hospital and Autopsy Surgeon opined that death was due to Pulmonary Haemorrhage. On he basis of this fact, Advocate Mr.Prashant Patil submitted before us that principle of res-ipsa-loquitur has to be invoked and applied to hold both doctors guilty of medical negligence. In fact at the outset, it is pertinent to note that the opponent No.2-Dr.T.M. Jain had not done anything. After patient came in the Operation Theatre, Dr.Boob had conducted physical examination the patient and seen the reports and had decided to give spinal anesthetic drug-Bupivacaine and thereafter, there was complication, patient health deteriorated and he was taken to Sir H.N. Hospital in Cardiac Ambulance, but despite life saving treatment given, the patient died in the H.N. Hospital on the same day. The patient was brought at H.N. Hospital on 10/03/2005 at about 0200 p.m. and at 0730 p.m. he was declared dead in Sir H.N. Hospital by treating doctor. At the time of the patient brought in H.N. Hospital, blood pressure of the patient was 80/52 mmHg. and Pulse was 140 per minute, Pupils were dilated. On the basis of these clinical readings, Advocate Mr.Prashant Patil submitted that this was a clear case of medical negligence and principle of res-ipsa-loquitur can be applied.
9. However, in our view, principle of res-ipsa-loquitur cannot be invoked or applied in the instant case for the simple reason that the complainant has adduced evidence of expert in terms of affidavit of Dr.Ajay Patil, M.S. in forensic medicine and opponents have also adduced affidavit evidence of Dr.B.R. Boob himself, Dr.T.M. Jain himself and also adduced two affidavit evidence of experts, one is Dr.Mahendra R. Kamdar and another is Dr.Bharati Dhondu Kondwilkar. What is pertinent to note is the fact that last two doctors are experts in anesthesia and it is the contention of the complainant that because of Dr.Boob had not evaluated the patient properly because he had not taken informed consents in proper perspective, the patient expired because of negligence of Dr.Boob in giving spinal anesthetic drug to the patient and because of administration of this injection, expert of complainant Dr.Ajay Patil asserted that the patient expired. Whereas, the experts of opponents ruled out possibility of any medical negligence on the part of opponents-Dr.Boob and Dr.Jain. When both the parties have adduced evidence of experts, we are of the considered view that the case cannot be decided by invoking principle of res-ipsa-loquitur. Principle of res-ipsa-loquitur can be invoked and applied in the case where there is no evidence adduced by both the parties.
But in view of facts and circumstances placed on record, this Commission feels that the case cannot be well decided by invoking principle of res-ipsa-loquitur in which case furnishing evidence of expert is not necessary or is impliedly dispensed with.
In this case, complainant preferred to adduce evidence of Dr.Ajay Patil, whereas opponents have also adduced two expert doctors. So, contention of Advocate Mr.Prashant Patil is turned down for invoking principle of res-ipsa-loquitur.
10. It was also contended by Advocate Mr.Patil for the complainant that informed consent was not obtained and the patient was administered drug without testing. Consent forms are at Exhibit-C&D. Exhibit-C is consent for surgical operation and other procedure. It is signed by patient Vijay Shewale and his wife. Both the signatures are in English. It is dated 10/03/2005. It is in English and both, the patient as well as witness must have read the consent form before putting their signatures. It is clearly mentioned in his consent form that - The doctor has explained the kind of procedure that would be followed. Doctor also explained the risk involved in the procedure and I understand those risks and am willing to undergo the procedure. This I consent to by my own free act and will. This is what mentioned in Exhibit-C obtained for surgical procedure and other procedures. Another Consent is at Exhibit-D. It is a consent form for anesthesia. It is also mentioned in this consent form that I understand that anesthesia involves additional risks and hazards but I request the use of anesthetics for relief and protection from pain during surgery. It is also mentioned that I understand that while most patients will not experience any problems or complications when undergoing anesthesia, the risk of such complications (including death), although rare, is always present. The risk increases in patients with pre-existing medical problems and in emergency cases. This is also signed by the patient as well as his wife on 10/03/2005. So, these two consent forms are clearly pointing out that informed consent of patient was taken along with his wife and since, both of them have put their signatures in English and the patient was an Engineer working in J.N.P.T., we have to presume that they had read the informed consent forms very meticulously and then they had put their signatures on the consent forms.
Thereafter, the patient was administered the injection as spinal anesthetic drug by Dr.Boob/opponent No.1.
In the circumstances, there is no merit in the contention of Advocate Mr.Patil for the complainant that the informed consent was not taken.
11. Secondly, it was contended that Dr.Boob had not examined the patient and simply after coming to Babulnath Hospital, in the Operation Theatre he immediately administered drug Bupivacaine to the patient without pre-evaluation of the patient being done.
However, this fact is strongly denied by opponent No.1/Dr.Boob in his own affidavit. In his affidavit Dr.Boob stated that after examining said patient he was declared fit for surgery by following standard prescribed protocol. He asserted that it was not healthy practice to conduct sensitivity test in respect of drug namely, Bupivacaine local anesthetic, because specificity and sensitivity of skin tests to this drug is of questionable value. In Para 9 he testified that on 10/03/2005 he reached Babulnath Hospital at 0830 a.m. examined said patient in the Operation Theatre also verified various reports which the patient had taken prior to 10/03/2005 he found that said reports were in order and thereafter, he fully utilized the time to examine the patient for physical well being, illness, any medication and thorough systematic examination. He also checked the patients parameters such as temperature, blood pressure and also took systematic examination and noted the findings on the case papers of the hospital. The pre-anesthetic check up was also done at length and all the investigations were noted which were also within normal limits and thereafter, he found that the patient was fit to undergo surgery. He also examined and verified the anesthetic apparatus, patient monitoring systems and drugs, etc. He had stated that pre-anesthetic check-up was done at length and thereafter only spinal anesthesia was administered to the patient.
This evidence of Dr.Boob was not subjected to any cross-examination and therefore, whatever Dr.Boob has stated in his affidavit has gone unchallenged. In the same affidavit Dr.Boob further stated that unfortunately the patient showed reaction immediately after spinal anesthesia i.e. itching sensation in buttocks and perineum and restlessness and wheezing type of respiration. To counter said reaction, necessary medication was given for which prompt and proper treatment was started to combat the situation. The treatment undertaken was in line with signs and symptoms exhibited by the patient i.e. antithistaminics, steroids, oxygenation and for further management of oxygenation by securing the airway.
Since the patient was not maintaining the desired oxygen saturation, he was given general anesthesia and taken for controlled ventilation to achieve 100% oxygen saturation. During the management of the said patient, necessary intravenous fluids and emergency medicines were also given and when the patient was not responding to the treatment, Senior Physician Dr.Mavani was called in the hospital at 1030 a.m. and thereafter, in consultation with Dr.Mavani, with Dr.Jain, they had decided with consultation with family members of the patient to transfer the patient to H.N. Hospital for better management. The patient was admitted in H.N. Hospital at about 1215 p.m. He was in the said hospital for 1 hours, but the patient died on the same day in the H.N. Hospital. The operation notes of Babulnath Hospital clearly showed that proper precautions were taken by Dr.Boob before he administered anesthetic injection. It is mentioned in the Babulnath Hospital papers at page-47. These papers clearly established that Dr.Boob had taken good amount of precaution before administering spinal anesthesia by giving injection. These papers were also seen by Dr.Ajay Patil, expert examined by the complainant.
Dr.Ajay Patil had sworn affidavit in support of the complaint. Dr.Ajay Patil appears to be running Expert Medicolegal Consultancy Services and he had given opinion sought by Mrs.Savita Vijay Shewale in the case of death of her husband on 10/03/2005. He had seen all the papers, three different discharge cards issued by Babulnath Hospital, death certificate, postmortem report, final cause of death certificate and surgical notes issued by Dr.T.M. Jain and he had opined that there was act of negligence in not performing pre-operative assessment, not performing the skin test to determine sensitivity to the drug being injected, not maintaining the medical records, not monitoring the condition of the patient during transfer and he also finds that principle of res-ipsa-loquitur could be applied. Dr.Ajay Patil in his affidavit supported his finding, but in his affidavit he mentioned that he was working as Associate Professor, Department of Frensic Medicine and Toxicology, Krishna Institute of Medical Sciences, Karad and involved in teaching the subject of forensic medicine to the students of M.B.B.S. He testified further in his affidavit that he had perused the documents submitted by Mrs.Savita Shewale and he also read the contents of said documents and he opined that the opponents were negligent in not performing pre-operative check-up of the patient which was very much necessary before any surgery and not assessing whether the patient was allergic to or sensitive to the drug which they were going to inject. The management of Babulnath Hospital was also vicariously responsible for the acts of negligence on the part of their medical and paramedical staff.
12. As against this affidavit of Dr.Ajay Patil, we had affidavit of Dr.Boob, whose testimony we made reference to in above paras and then, we have affidavits of two medical experts, they are Dr.Mahendra Kamdar, who is practicing as Anesthesiologist and worked at H.B.M.G. Hospital, Boriwali (West) as Honorary Anesthesiologist. He is M.D. in Anesthesiology. So, he is from the very same stream of anesthesiology for which medical negligence is alleged against Dr.Boob by the complainant. He testified his affidavit dated 04/02/2011 that they had gone through the record, they had gone through the papers and he has giving an honest opinion as an expert. He examined the main grievance of the complainant against Dr.Boob in terms of pre-operative Consent, pre-operative examination, pre-medication and Skin Sensitivity Test for injection Bupivacaine for giving spinal anesthesia. He testified further that on perusal of documents, he found that the consent of the patient and relative was taken well before giving anesthesia and this was a routine practice since the patient gets admitted on the day of surgery. He testified further that Hernia surgery is considered as a day-care surgery and patients for such surgery are admitted on the same day of surgery.
The Operative Surgeon evaluates and investigates the patient with reference to surgery and physical status of the patient and on confirmation of the surgery with the patient and relatives these findings were communicated to the assigned Anesthetist on the previous day of the surgery. On perusal of the documents, he found that Dr.Boob had done pre-examination of the patient and confirmed the findings of investigation and evaluation of the surgeon. The patient was found reasonably fit without any medical problems and as per the international guidelines, patient with ASA grade-I can be examined and evaluated on the day of operation or just before the operation. Since, in the instant case, patient was healthy, without any medical problems and normal reports of routine investigations, Dr.Boob was justified in evaluating and examining just prior to giving anesthesia, which he had done. He further testified that intravenous line was secured, I.V. fluids were started.
Pre-medication was given by Dr.Boob himself. He further testified that after checking the anesthesia equipments, availability of oxygen, emergency drugs, spinal anesthesia was given under aseptic precautions. He emphasized that nobody does skin sensitivity test for injection Bupivacaine.
In his practice of 35 years, he had done 20,000 spinal anesthesia, but he had never done a skin sensitivity test. He further went on to add that looking to the records, no lacunae during the treatment of spinal anesthesia. He felt that Dr.Boob displayed exemplary care during the treatment. He tried his best to maintain the vital parameters, oxygenation and in spite of their good care, the patient was not responding up to the mark, the surgical team immediately therefore decided to shift the patient to bigger institute where I.C.U. was available and Dr.Boob shifted the patient in cardiac ambulance and he accompanied the patient till the patient was taken to I.C.U. He therefore opined that with his wide experience in anesthesia practice, he can definitely say that in spite of taking all the precautions and care, complications do occur and this is beyond ones best efforts. However, he wanted to emphasize that there are certain things beyond anesthetist hands and he strongly felt that it would be unfair and unjustified to consider Dr.Boob negligent or responsible for the same. He also commented upon Dr.Ajay Patils opinion. He was surprised to find that Dr.Ajay Patil, who is qualified in Forensic Medicine and Toxicology has expressed his expert opinion for admission of case. According to him Dr.Ajay Patils testimony in the subject of anesthesia is biased, uninformed and cannot serve to clarify and explain technical concepts and to articulate professional standards of care. Such testimony is not honest, possibly misleading. Same is the opinion given by Dr.Bharati Kondwilkar. She is attached to Sir J.J. Group of Hospital. She has done M.D. in Anesthesia and she has been working as Professor & Head, Department of Anesthesia & Critical Care, Grant Medical College & Sir J.J. Group of Hospitals, Byculla, Mumbai. She had wide experience for about 30 years. She also testified in her affidavit that she had perused the papers and proceeding of the complaint No.200/2007 filed by complainant-Mrs.Shewale. She had carefully gone through the case papers and other medical reports annexed to the complaint and she also perused affidavit of Dr.Ajay Patil, who is an expert in Forensic Medicine and was working as Associate Professor, Department of Forensic Medicine & Toxicology, Krishna Institute of Medical Sciences, Karad and she asserted that Dr.Patil is qualified in and working as a specialist in Forensic Medicine & Toxicology.
As such, he cannot given opinion related to the field of anesthesia, as same is neither his speciality nor his expertise. She also testified that the opinion given by Dr.Ajay Patil about Dr.Boob being negligent is incorrect and unscientific. She asserted that it is not a prevalent practice in the government institutions as well as in the private set-ups, to conduct sensitivity tests for injection Bupivacaine, as it is controversial and of doubtful value in predicting the hypersensitivity reaction in the patient.
Moreover, it is medically well known that the patient may not have developed sensitivity reaction to the test dose of drug and who has thus being thought to be not sensitive to that drug, but still develop hypersensitivity reaction when injected with that drug later at any point of time. Under the circumstances, she firmly opined that observations made by Dr.Ajay Patil in his affidavit, is contrary to the practice on the subject matter. She opined that Dr.Boob did not fail to adhere to the standard practice of anesthesia by not having given the test of sensitivity dose of Bupivacaine in the instant case. Thus, expert evidence adduced by opponents is appearing to be more reliable and trustworthy than Dr.Ajay Patil, who is expert in the field of Forensic Medicine and he was not expert in the filed of anesthesia and therefore, his supporting affidavit in favour of complainant is of no help to the complainant. Therefore, we cannot place any reliance on that affidavit.
13. Since, two experts from the field of anesthesia has been examined by the opponents, their expert opinion carries much weight and relying on their opinion, it can be safely held that opponents were not guilty of medical negligence of any kind in the instant case. They had followed the standard protocol before administering Bupivacaine injection to the patient on the day of operation. They had taken necessary precautions and care before administering drug and though thereafter, drug gave rise to complication and reaction, not expected by both the doctors. They had taken further care and precautions in giving remedial treatment to the patient and ultimately, the patient was shifted with consultation of family members and Dr.Mavani of Sir H.N. Hospital, where he was later admitted for better management. However, in the I.C.U. of Sir H.N. Hospital, patient was expired. In the circumstances, we are of the view that there was no medical negligence of any kind on the part of opponent Nos.1&2 and for that matter on the part of opponent Nos.3&4 Dr.Mavani. We want to place reliance on the testimony of Dr.Boob, on the testimony of Dr.T.M. Jain, on the testimony of Dr.Kamdar and on the testimony of Dr.Kondwilkar and relying on those testimonies we hold that doctors/opponent Nos.1&2 cannot be guilty of medical negligence as alleged by the complainant. Complainant has not adduced proper evidence to point out clear-cut medical negligence on the part of opponents and therefore, we are finding that the complainant has not proved a charge of medical negligence against all the opponents. In the circumstances, we pass the following order :-
-: ORDER :-
1.
Consumer Complaint stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 24th June 2011.
[Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member dd