State Consumer Disputes Redressal Commission
Vijaysingh Mansingh Patil, vs Dr.Hemant Sharad Kelkar, on 30 January, 2011
1 F.A.No.:2296/2004
Date of filing :24.03.2005
Date of order :30.01.2011
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. : 2296 OF 2004
IN COMPLAINT CASE NO.:173 OF 2002
DISTRICT CONSUMER FORUM : JALGAON.
Vijaysingh Mansingh Patil,
R/o Anand Bunglow, Vivekanand Nagar,
Pachora, Tq.Pachora, Dist.Jalgaon. ...APPELLANT
(Org.Complainant)
VERSUS
Dr.Hemant Sharad Kelkar,
R/o 'Shri' Surgical Maternity Home and
Urology Endoscopy Clinic,
M.J.College Road, Jalgoan. ...RESPONDENT
(Org.Opponent)
CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs.Uma S.Bora, Hon`ble Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.P.R.Patil for appellant, Adv.Shri.P.A.Atre for respondent.
O R A L O R D E R Per Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
1. The present appeal is filed by original complainant against the judgment and order dated 20.05.2002 in complaint case No. 173/02 passed by District Consumer Forum, Jalgaon.
2. Appellant/Org.Complainant`s case before the Forum is that, he was suffering from Prostate Gland. On 7.11.2002 he visited the opponent who examined him and asked to perform sonography. Accordingly sonography report was submitted by the complainant. Opponent prescribed certain medicines, however there was no improvement. Complainant again visited the opponent who advised him that the prostate gland is enlarged by 2 ½ times and operation is 2 F.A.No.:2296/2004 necessary. On 19.12.2000, opponent performed operation on the complainant. On 21.12.2000 opponent tried to remove catheter which was inserted in the body of complainant. Opponent was not careful while removing catheter. He tried to remove catheter when balloon was enlarged containing water, as a result balloon burst inside the body of the complainant and one piece of the rubber remained in the body of complainant. Opponent inserted new catheter and again removed the same on 22.4.2000 passing of urine of the complainant was stopped. When this fact was reported to the opponent he asked the complainant to pass the urine in standing position. Complainant suffered severe pain when he attempted as per advice of the opponent. He was fallen on the ground and became unconscious. It is alleged that on 23.12.2000 opponent gave discharge to the complainant inspite of that trouble was not cured. On 3.1.2001 passing of urine of the complainant was completely stopped. Opponent after examination informed him that this is only due to blood clotting. Urine of the complainant was passed by using catheter. Opponent gave plastic unit for controlling urine on 31.1.2001 and he was advised for specific exercise. It is alleged that as a piece of rubber remained in the body of complainant, he was suffering from severe pain. Complainant had informed this fact to the opponent but he ignored the same. Opponent performed systoscopy negligently and did not notice piece of rubber blocked in the urinal track. It is alleged that urine used to pass some time fully and some times in blocked condition depending upon the position of piece of rubber. It is alleged that on 24.4.2004 opponent created new passage(sub-way) for urine wrongly by using dialator. It is alleged that on 30.5.2001 complainant visited Dr.Ajit Phadke, the Head of Urology Department in Bombay Hospital. On 31.5.2001 piece of rubber was removed from the body of complainant. Dr.Phadake informed complainant as the catheter was inserted so many times in the system therefore the system is enlarged and damaged. Complainant will have to spend remaining life in bath room and in the bed. The muscles controlling urinary track are no more 3 F.A.No.:2296/2004 functioning. Thereafter complainant had sent his son Dr.Yogendrasing Maurya(Patil) to Dr.Sanjay Kulkarni, Pune. After examination the documents Dr.Kulkarni opined that urinary track was no more functioning properly and operation will have to be performed and this will not guarantee for any recovery. Complainant sent notice dated 28.12.2001 to the opponent. On 12.5.2002, complainant visited Dr.Kulkarni who noticed that there is additional subway to the bladder. Dr.Kulkarni performed operation and informed muscles controlling urine have been damaged to the extent of 30%. Therefore artificial plant is necessary. Complainant spent about Rs.3 lakhs for the same. Thus complainant approached the Forum for compensation of Rs.9,00,000/-.
3. Present appellant appeared before the Forum and resisted the claim. Respondent denied the contention of the complainant in the complaint. Respondent denied that there was piece of rubber balloon in the body of the complainant. According to respondent he had performed systoscopy. He himself had inserted catheter on 4.01.2001 and 21.4.2001. According to him complainant did not come to him for removal of catheter though he was informed accordingly. It is alleged that complainant got removed catheter from somebody else as his son is doctor. He also contended that his son who is doctor never complained about treatment given by him to the complainant. He denied the contention that while removing catheter balloon containing water was burst in the body and one piece of the rubber was remained in the body of complainant. He also denied the contention that he accepted any fees for the treatment given by him to the complainant. According to him complainant`s son was his friend. He also contended that no document of the treating doctor has been brought on record by the complainant.
4. The Forum below after going through the papers and hearing the parties dismissed the complaint.
4 F.A.No.:2296/20045. Being aggrieved by the said judgment and order passed by the District Forum,Jalgaon, original complainant came in appeal.
6. Notices were issued to the appellant as well as respondent. Learned counsel Shri.P.R.Patil appeared on behalf of appellant whereas learned counsel Shri.P.A.Atre appeared on behalf of respondent. Learned counsel for the appellant filed written notes of argument. We heard learned counsel Shri.P.A..Atre for respondent and perused the papers. According to written notes of argument submitted by appellant Forum erred in holding that there was no document to show that Dr.Phadke removed the rubber particle from the body of appellant. According to appellant Forum did not consider the letter addressed to Dr.Phadke by the complainant himself. Appellant also mentioned that reply dated 1.10.2001 given by Dr.Phadke is not considered by the Forum. According to him there was ample evidence to show rubber particle was found inside the body of complainant. The Forum below did not consider report of Dr.Sanjay Kulkarni, Dr.Yende and letter of Dr.Phadke. Appellant further submitted that Forum below rejected the application filed by complainant for issuing summons to the expert and even then the Forum observed that complainant did not adduce evidence of expert. Appellant in that respect relied on judgment of Hon`ble Supreme Court in case 'Ramesh Chandra Agrawal -Vs- Regency Hospital and others' in Civil Appeal No.5991/02 decided on 11.09.2009. Appellant submitted that on this count matter is required to be remanded for giving opportunity to the appellant for bringing expert evidence.
7. On the other hand, learned counsel Shri.Atre submitted that application filed by complainant was to call the papers which were submitted by Civil Surgeon to the Medical Board in the criminal case alleged to be filed by complainant. He further submitted that application is rejected by the Forum with permission to the appellant 5 F.A.No.:2296/2004 to file affidavit of any expert. According to him appellant did not adduce any expert evidence or submitted literature in that respect. He fully supported the judgment and order passed by the Forum.
8. Before we discuss the merit of the case we find it necessary to detail as what does one understand by the term medical negligence.
9. In 'Dr.Laxman Balkrishna Joshi -Vs- Dr.Trimbak Bapu Goldbole & Anr.' reported in AIR 1969 SC 128. Hon`ble Apex Court held that, "The petitioner 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 judged in the light of the particular circumstances of each case is what the law requires".
10. In Achutrao Haribhau Khodwa & Ors -Vs- State of Maharashtra & Ors., reported in 1996(II) Supreme Court cases 634, Hon`ble Apex Court held that, "The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient but as long as doctors acts in a manner which is accepted to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffer a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence".
11. In Smt.Vinita Ashok -Vs- Laxmi Hospital & others, reported in 2001 AIR SCW 3881 the Hon`ble Apex Court held that " A doctor will not be guilty of the negligence if he has acted in accordance with 6 F.A.No.:2296/2004 practice accepted as proper by responsible body of medical men skilled in that particular art and if he has acted in accordance with such practise merely because there is a body of opinion that takes as contrary view will not make him liable for negligence. This is the standard of care required by the doctor".
12. In Jacab Mathew -Vs- State of Punjab reported in (2005)6 SCC 1, the Hon`ble Apex court observed that "a simple lack of care or error of judgment or an accident does not constitute negligence. Similarly, availability of better alternative course or method of treatment was available but not adopted or that doctor did not possess highest level of expertise or skills in that branch in which he practices does not constitute negligence. Thus, if there is breach or failure in taking that reasonable care in treatment of the patient as is expected by normal standards of practice it constitutes negligence".
13. It is apparent from the principle settled by Hon`ble Apex Court that complainant has to allege as to which action of the doctor was not as per accepted medical practice, what was required to be done and what was not required to be done and the same is to be proved by expert evidence or medical literature on the subject. Thus the burden to prove negligence of doctor is always on the person alleging the same. A professional may be held liable for negligence on one of the two findings, either he was not possessed the requisite skill which he professed to have possessed or he did not exercise with reasonable competence in the given case, the skill which he did possess.
14. In the instant case respondent is M.S.(General Surgeon) and MCH Urology and running 'Shri' Surgical Maternity Home and Urology Endoscopy Clinic alongwith his wife who is M.B.B.S. D.G.O. It is not the case of appellant that respondent is not qualified to treat the patient whom he agreed to treat. It is the contention of appellant that respondent/opponent tried to remove the catheter which was inserted 7 F.A.No.:2296/2004 in the body of complainant with deflating balloon which holds water. The balloon burst inside the body of appellant and one piece of rubber remained in the body of appellant. As a result, appellant had to undergo the severe pains and operations. Clinical notes of the opponent which are brought on record, indicate that sincere efforts were made by the opponent. Clinical notes is the mirror of reasonable care and skill exercised by the doctor in the treatment of the patient. It is most important evidence to show that opponent doctor has taken every care of patient. It is not the case of complainant that the procedure which was in fact adopted by the opponent was not acceptable to the medical science. According to respondent he had performed systoscopy on 4.1.2001 and he himself had put catheter on 4.1.2001 and 21.4.2001. Complainant did not come to him for removal of catheter and got removed the catheter from somebody else. It has also come on record that son of complainant is doctor by profession. There is also no evidence brought on record by the complainant to show that opponent tried to remove catheter negligently without removing water from the balloon, as a result balloon burst inside the body and one piece of rubber remained in the body of complainant. It is the case of complainant he visited Dr.Phadke Head of Urology Department, Bombay Hospital on 30.5.2001. Dr.Phadke performed operation on 31.5.2001 and removed the piece of rubber from the body of complainant. Dr.Phadke is alleged to have informed the complainant that catheter was put so many times in the system and thus the system is enlarged and damaged and the muscle controlling urinary track are no more functioning. Complainant did not bring on record any document of treating doctor to show that there was any such piece of rubber inside his body. Discharge card issued by Dr.Phadke even does not mention this fact. There is absolutely no evidence to show urinary track is damaged due to repeated insertion of catheter by the opponent. Complainant tried to rely on so called letter alleged to have been written by him to Dr.Phadke. Alleged letter written by complainant 8 F.A.No.:2296/2004 can not be the evidence for the removal of piece of rubber from his body. Discharge card of Dr.Phadke nowhere shows that piece of rubber was removed from the body of complainant. Even the letter dated 1.10.2001 alleged to be written by one Dr.Hema on the letterpad of Dr.Ajit Phadake nowhere mentions about removal of rubber piece from the body of complainant and negligent treatment by the opponent. The letter of complainant and alleged reply cannot be the documents to prove the negligence on the part of opponent. Alleged reply dated 1.10.2001 does not mention that incontinent urine flow and dribbling of urine was due to the negligence of respondent in the operation. Report of Dr.Yende which is brought on record does not support the contention of complainant in that respect. It does not indicate incontinent urine flow and dribbling of urine was due to negligence of respondent in the operation. Complainant cannot be allowed to build up his case by merely producing his own letter which is alleged to have been sent by him to Dr.Phadke.
15. Dr.Phadake, Dr.Kulkarni and Dr.Yende are the important witnesses to link and prove the allegations made by complainant. The evidence of none of them has been brought on record by the complainant. Complainant did not adduce any evidence in the shape of expert to prove that treatment given by opponent was wrong. Evidence does not show that respondent`s conduct fell below that of standard of reasonable competent practitioner in his field. Only because patient not favourably responded to the treatment given by him, doctor cannot be held liable for medical negligence. There is no expert evidence to prove the contrary. In this case respondent did his duty. Nothing has been shown at any stage to show that he did not do what ought to have been done or he did something which ought not to have done. There is no evidence to prove the basic tenet of medical negligence. Even the main allegation of find of rubber piece in the body of complainant is not proved. No evidence is led in this regard. No cross examination of opponent, no expert evidence in respect that 9 F.A.No.:2296/2004 the line of treatment adopted was not as per medical norms. Forum cannot constitute itself in to an expert body and contradict the statement of doctor unless there is something contrary on the record by way of expert opinion or medical literature on which reliance could be based. It is the contention of complainant that he visited Dr.Kulkarni on 12.5.2005. Dr.Kulkarni noticed that there is additional subway to the bladder. He performed operation and informed muscle controlling urine track have been damaged to the extent of 30% and therefore artificial splint was fixed. It was necessary for complainant to adduce evidence of treating doctor such as Dr.Phadke, Dr.Kulkarni and Dr.Yende. No evidence is adduced to show that due to negligence of opponent muscles controlling urinary track were damaged. No evidence is adduced to show that artificial splint was required to be fixed due to the negligence of respondent. The evidence of Dr.Phadke, Dr.Kulkarni and Dr.Yende was necessary. Only because artificial splint was required to be fixed, respondent can not be held liable unless it is proved that he did not treat him as per accepted medical procedure.
16. It is mentioned in the written notes of argument of the appellant that Forum rejected application for bringing expert evidence on record and at the same time, Forum observed that no expert evidence is brought on record which is contrary to the ratio laid down in 'Ramesh _Vs-Regency Hospital Ltd.' in Civil Appeal No.5991/02 decided by Hon`ble Supreme Court. Appellant alternatively requested for remanding matter to the Dist.Forum by permitting appellant to bring expert evidence, as the application to bring evidence has been illegally rejected by the Dist.Forum.
17. On the contrary learned counsel for respondent submitted that Forum did not prevent the appellant to file affidavit of expert. Though the application is rejected, Forum allowed the appellant to file affidavit of witnesses. There is no question to remand the matter.
10 F.A.No.:2296/200418. On perusal of the said application dated 19.3.2004, it reveals that appellant had mentioned in application that he filed complaint against opponent U/s 337, 338 of IPC at police station. He also alleged that Civil Surgeon did not examine him though police had given him memo for carrying his clinical examination. It is also alleged that Civil Surgeon informed the police to send the case to the Medical Board. Thus appellant requested to call Civil Surgeon with papers. On perusal of order passed by Forum it reveals that Forum allowed the appellant to file affidavits of experts for examination-in-chief or cross examination. Thus it is apparent from the order that Forum did not prevent appellant for filing affidavits of expert witnesses. In the said application complainant did not ask to allow him to examine Dr.Phadke, Dr.Kulkarni and Dr.Yende. Complainant had asked to produce the record of criminal case. The said application had been rejected by the Forum, Forum relying on Dr.J.J.Merchant -Vs- Shrinath Chaturvedi' III(2002)CPJ 8 (SC) rightly allowed the complainant to adduce evidence of experts witnesses by way of affidavits. Thus appellant was entitled to file affidavit of expert witness if he was willing to adduce their evidence. The ratio in Ramesh Shah`s case (Supra) is not helpful to the appellant as the facts in the said case differ from the facts in the instant case. In the said case Commission had ordered that the matter be referred to eminent doctor for opinion. Registrar of the Commission was ordered to forward the record of surgery submitted by complainant to Dr.A.K.Singh alongwith complaint. But same was not sent. Thus complainant was deprived from opportunity of obtaining opinion of expert. We have mentioned that in the instant case complainant had asked the police record. It was necessary for the complainant to adduce evidence of Dr.Phadke, Dr.Kulkarni and Dr.Yende who were alleged to have treated complainant and who were alleged to have supported allegations made by the complainant. Thus we are of the view that complainant had ample opportunity to adduce expert`s evidence even after rejection of 11 F.A.No.:2296/2004 application. We are not inclined to allow the prayer for remanding the matter to the Dist.Forum.
19. We have mentioned that appellant did not adduce the evidence of treating doctors who were alleged to have informed the complainant that while removing catheter, balloon containing water was burst inside the body of complainant and one piece of rubber remained in the body of complainant, due to which appellant had to undergo severe pains and operation. We have also mentioned that letter sent by appellant to Dr.Phadke cannot be read as evidence for the negligence on the part of opponent. We also mentioned that letter alleged to have been sent by Dr.Hema to complainant does not indicate that incontinent urine flow and dribbling of urine was due to the negligence of respondent in the operation. In the circumstances, we are of view that Forum has rightly considered all these aspects and rightly dismissed the complaint. We pass the following order.
O R D E R 1. Appeal is dismissed. 2. No order as to cost. 3. Pronounced and dictated in the open court.
4. Copies of the judgment be issued to both the parties.
K.B.Gawali, Mrs.Uma S.Bora S.G.Deshmukh Member Member Presiding Judicial Member. Mane