National Consumer Disputes Redressal
Smt. Kalpana Ben vs Dr. Kalposh V. Parikh & Anr. on 3 August, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO. 315 OF 2000
1.
1. Smt. Kalpana Ben
W/o Late Sh. Ashok Ji Bhai Chauhan
2.
2. Nikesh (minor child)
3.
3. Nishant (minor child)
All Residents of
Smashan Road, Harijan Vas
Godhra
District Panch Mahal
Gujarat
4.
Smt. Sakuntala Ben Chauhan
W/o Bhaiji Bhai Chauhan
Smashan Road, Harijan Vas
Godhra
District Panch Mahal
Gujarat
Complainants
Vs.
1. Dr. Kalpesh V. Parik
Consultants Proctologist
A/62, Shukla
Society
Ankleshwar
Mahadev Road
Godhara
Gujarat
2. Dr. Naresh
Bhai Gandhi
C/o Dr. Kalpesh
V. Parikh
Consultants
Proctologist
A/62, Shukla
Society
Ankleshwar
Mahadev Road
Godhara
Gujarat
. Opp.parties
BEFORE :
HON'BLE
MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON'BLE
MR. VINAY KUMAR, MEMBER
For
the Complainants : Dr. K.S. Chauhan, Advocate
For Mr. Ajit Kumar Ekka, Advocate
For
the Opp.parties : Mr.
Priank Adhyaru, Advocate
PPRONOUNCED ON _3rd August, 2012
O R D E R
JUSTICE J.M. MALIK
1. Hard is the task of justice where distress excites our mercy, yet demands redress. Adumbrated in brief, the facts of this complaint case are as below. Ashokji Bhai Choudhary died due to the gross negligence of Dr.Kapilsesh V. Parik, OP 1 and Dr.Naresh Bhai Gandhi, OP2. The present complaint has been filed by the wife, children and the mother of the deceased Ashokji Bhai Choudhary. The deceased was working as Deputy Superintendent in the Western Railways, Government of India . He was 33 years old at the time of his death. The deceased was suffering from piles. The deceased complained of pain, 15 days prior to his death. He came to his native land, Godhara, on account of Diwali festival. One, Manoj Bhai Chagan Bhai Chauhan recommended to him OP 1 for the treatment of piles as he used to do the operations under Kshar Shutra Therapy. He also apprised him of the fact that he himself had undergone such an operation which was successful.
2. The deceased approached the OP 1 on 05.11.1999 during the morning hours. The deceased was advised to undergo the operation of piles by Kshar Shutra Therapy. The deceased was operated upon at 3.00PM on the very same day. On the same day, OP 2, Dr. Naresh Gandhi gave anaesthesia during the treatment to the deceased and OP 1 operated the said deceased. The condition of the deceased worsened. The complainants were asked to look after the deceased. OPs did not attend the deceased. The complainants observed that the deceased was shivering. The condition of the deceased further deteriorated. The deceased was again taken to the operation theatre. OP 2 was not available. OP 1 consulted another Dr. Mukesh Bhai. In the meantime, the deceased died on the patients bed itself. It is alleged that the deceased died due to negligence of OP 1 & 2. No efforts were made to revive the deceased by doing the external cardiac massage till the patient was alive. It was further alleged by the Complainants that the OP 1 holds a Degree of B.A.M.S., K.R.C. (G.A.U) and without the help of an MD Surgeon, OP-1 cannot perform any surgery. A criminal case was registered, at about 10.15 PM and the occurrence of offence and the death took place at about 6-6.30PM on the same day. The Autopsy of the deceased was also conducted. Notices dated 26.04.1999 and 16.04.2000 were sent to the OPs, which were responded by OP
2. The complainants have claimed compensation in the sum of Rs.35.00 Lakhs, with interest @ 18% p.a. from the date of death till the day of realisation of the compensation amount.
3. OP 1 contested the present complaint. It was denied that the above said operation was conducted by OP 1. It was admitted that OP 1 treated the deceased for piles by Kshar Shutra Padhdhati, i.e. according to Ayurvedic Padhdhati, the word operation used by the complainants is in lose sense of the treatment. The word operation in Allopathy, does not explain that on completion of Kshar Shutra Therapy treatment, the deceased was normal and his condition was also normal. It is explained that, as a matter of fact, on immediate calling, Dr.Naresh Bhai Gandhi was not available and hence Dr. Mukesh Bhai was called. He was also an Anaesthetist and he came to see the deceased but there was failure of cardio respiratory system due to pulmonary odema. Consequently, the deceased died, as is apparent from the Post Mortem Report. The OP 1 is certified to do the job of Kshar Shutra Re-orientation Certificate, i.e. K.R.C. from the Institute of Post Graduate Teaching & Research, Gujarat Ayurvedic University, Jamnagar. OP 1 is legally performing Kshar Shutra Therapy as per Kshar Shutra Standard technique with full care and caution. The negligence on the part of the Doctor and the other allegations have been denied. It is also explained that as an additional safeguard, the services of the Anaesthetist were called for to avoid any pain to the patient. The process of Kshar Shutra treatment was undergoing, with the patients and the guardians consent. The replies to the Notices were sent to the OP 1. It is explained that after the death of the deceased, his relatives came, played mischief and damaged the hospital. Police complaint was also lodged. The Police arrested the OPs and ultimately they were released, on bail. The OPs received the 1st legal notice dated 26.11.1999 where a demand of Rs.20.00 lakhs as compensation was made. Thereafter, another legal notice dated 16.04.2000 wherein demand in the sum of Rs.35.00 Lakhs as compensation, along with interest @ 18% p.a. from the date of the death of the deceased, was received.
Due to harassment of the heirs of the deceased, OP 1 left Godhra and has now shifted to Ahmedabad where he is practicing there.
4. The OP 2 in his separate written statement enumerated the following defences. It is stated that the OP 2 is a qualified Doctor, holding Masters Degree in Medicine & Anaesthesia (MD-DA) and is a Consultant Anaesthesiologist and doing practice for the last 18 years. He denied that the deceased was operated upon by him. The OP 2 performed only giving anaesthesia as per the medical science with utmost care and caution. It was submitted that OP 1 Doctor had performed the operation of piles upon the patient. It is stated that in fact, the patient regained consciousness after the operation, which was conducted by OP 1. After examining the condition of the patient, and after the operation, OP 2 had carefully examined and noted Blood Pressure and general condition of the patient and everything was found to be normal. After the operation, the deceased was in consciousness and with the consultation of OP 1, OP2 left the Clinic of OP 1. Again, the final cause of death as reported in the Autopsy is Cardio-respiratory failure, due to pulmonary odema. Consequently, there is no negligence on the part of OP 2. It is further explained that the operation of piles on the deceased started at around 4.15 PM and lasted for about 30 minutes. Prior to the operation, all necessary medical checks with regard to the patient, such as, BP, Cardio respiratory assessment, etc., were noted by OP 2 and patient was found fit for operation. Around 5.00 PM, once the patient came out of anaesthesia and at about 5.10 PM, the deceased was moving his leg which clearly suggests that the patient was responding well and, therefore, there was no synosis. Negligence on the part of both the Doctors has been denied. Pendency of criminal case was admitted.
5. We have heard the learned counsel for the parties. Counsel for the complainants vehemently argued that the negligence on the part of the Ops is clearly discernible from the facts and circumstances detailed above, i.e. facts of this case speak for themselves. He contended that an Ayurvedic Doctor should not have conducted this operation.
Again Allopathic medicine was given without consulting Allopathic Doctor. OP 1 stated that it was not an operation but OP 2 admitted in clear terms that this was an operation. It was also argued that operation was not done properly and the patient died due to negligence of both the doctors. In support of his case, he has cited the following authorities. Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka, 2009 (6) SCC 1 to 39, Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee, 2009 (9) SCC 221 to 288, Kishore Lal Vs. Chairman Employees State Insurance Corporation, 2007 (4) SCC 579.
6. In all these authorities, negligence on the part of the concerned Doctors stood proved. The main question which falls for consideration is whether in the instant case, the Doctors concerned, were negligent? Without evidence to support you, you are on thin ice with this argument.
7. No argument must lead us astray. One must know what is the meaning of B.A.M.S. Counsel for the parties did not try to make it clear. However, the abbreviation connotes the following, Bachelor of Ayurveda, Medicine and Surgery (B.A.M.S.). Now, the question arises as to what is meant by it. It is a medical degree, conferred to those who have studied the integrated system of modern medicine and traditional ayurveda. The degree is of five and half years duration, including 1 year internship after passing 12th Science. Exams are held after every professional/ 18 months once or one and half year. The person having a BAMS degree can practice anywhere in India. The curriculum includes studying and teaching of modern anatomy, physiology, principles of medicine, preventive and social medicine, pharmacology, toxicology, forensic medicine, ENT, Ophthalmology, principles of surgery, etc. along with ayurvedic topics.
8. A BAMS graduate can practice modern medicine along with traditional ayurveda in India. Many people are unaware of this fact that BAMS doctors can practice modern / allopathic medicine. According to the privileges in the Drugs & Cosmetics Act 1945 Sec 2ee, States have right to allow BAMS doctors to use modern medicine, in the practice. [From Wikipedia, the free encyclopedia].
9. Now we advert to Kshar Shutra Technique in Ayurveda. The complaint is silent about it. The written statements also did not explain about it.
Ksharsutra technique is choice in most patients suffering from Fistula in ano. Though Kshar Sutra treatment is classical Ayurveda technique for operating almost all Ano Rectal Aliments like fissure, fistula, haemorrhoids, peri-anal abscess and various others.
The procedure consists of placing or ligating the concerned tissues with a specially medicated thread called the Kshar-sutra (Sutra i.e thread) The special thread used in this procedure is coated and recoated about 14-21 times with different herbal medicines and ash extracts (Kshar) of some herbs. It is used to ligate piles or is passed through the fistula as required. The medicines aid the cutting and healing process. Every seventh day the old sutra is replaced with a new Kshar sutra till there is a final cut through. It has been observed that the length of the tract reduces 1cm per week.
The technique has been scientifically developed and clinically evaluated. Indian council of Medicine and Research, the apex body of medical research in india has conducted clinical trials of kshar sutra therapy in the diseases FISTULA-IN-ANO, at four centers including AIIMS.
The results of this clinical trial have been officially released. It has been proved that ksharsutra is more effective and more suitable treatment as compare to surgery for treating fistula-in-ano. [From Wikipedia, the free encyclopedia].
10. It must be borne in mind that the Ops have been acquitted from the criminal case. In his written statement, OP 2 has quoted the statement made by Dr. Rameshchandra K. Chauhan who had conducted the Post Mortem Report. His statement was recorded before the criminal court wherein he made the following statement:-
The cause of death could not be known in Post-Mortem examination. The cause of death could be known after receiving and studying the analysis reports from laboratories and reports from the Medical College. So, I waited for the reports. On studying the reports, the cause of death of deceased was known and according to it, the cause of death was due to over-loaded fluids in the lungs, tissues cells and thereby gradually regressing the process of respiration and ultimately stopping respiration and as a result of which blood circulation was stopped and no oxygen reached the blood.
The while bluish colour on the body was due to lack of oxygenation to body.
In my opinion, as an expert Doctor, and on the basis of my study in medical, I say that there are different 13 reasons for collection of water in lung, cells, out of which there is no reason in respect of heart in existence in this case, except there may be reaction due to any substance on the earth, including reaction of any drug or if there is fluid transfusion in excess quantity in the blood vessel, or if the level of acid in the stomach is increased naturally, it may enter the lungs and thereby there may be collection of water in the cells, or in case of sudden stock due to heart attack also, the water may be collected excessively in the cells of lungs.
In the present case, there is more probability of hyper sensitivity response. In this case, we, the Panel Doctors prepared Post Mortem notes. I produce the original report in which I have signed and Panel Doctor Shrimali also signed which is produced at Ex.25. In which reliance was to be placed on the reports of analysis and histo-pathological reports. For knowing the cause of death, these reports are produced as a part of Post Mortem Report.
The drugs which are written in Ex.15 are all Alopathy. The stitches around the anus were similar to those which are taken after operation.
According to my opinion, there may be reaction by any substances (except sun rays). The schedule of all substance on the earth is not possible. Which substance may cause reaction to which person can be known only if that person is alive. I have not conducted analysis or investigation in Medical College and laboratories for this purpose.
It is not possible to get anticipatory information about the allergic manifestations for living person except some tests. There are lacs of substances on the earth. There are hardly 200 300 substances for which knowledge of reaction is available in the medical field. It is not possible to know when the level of acids will increase in stomach. It is a natural phenomenon. It is true that it is not under the control of any Doctor.
Under the above circumstances, no Doctor i.e. Opponent No. 1 and 2 can be held responsible for the death of Ashokkumar.
11. We have consulted the famous Book on Kshara Sutra Therapy in Fistula-in-ano And Other Ano-Rectal Disorders written by Dr. S.K.Sharma, Prof. K.R. Sharma & Prof. Kulwant Singh, published by Rashtriya Ayurved Vidyapeeth (National Academy of Ayurveda), An autonomous Body under the Ministry of Health & F.W., Government of India. At page 3 of the said Book, it mentions that The Kshara Sutra treatment of fistula-in-ano is now an accepted technique and has also found a place in the text books of colorectal surgery. Kshara Sutra has been described in all the ancient books of Ayurveda as caustic thread not only for the treatment of fistula-in-ano, but also for all those conditions which demand gradual excision of overgrown soft tissues. These conditions include piles, polyps, warts, pailae and also the non-healing chronic sinuses and ulcers where debridement is an essential factor to permit a healthy healing pattern.
12. In Jacob Mathew Vs. State of Punjab and Another, [(2005) 6 SCC 1], an authority under the Criminal Law as the Honble Judges were dealing with a case under Section 304-A IPC, it was held :
18.In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of 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.
The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable.
21. The degree of skill and care required by a medical practitioner is so stated in Halsburys Laws of England "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, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence.
To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
The above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence.
In the opinion of Lord Denning, as expressed in Hucks v. Cole, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
See also the observations made by the Apex court in Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and others 2010 (3) SCC 480.
13. In the instant case, it is, thus, clear that there is no evidence worth the name to reveal that both the doctors were negligent. The complainants have failed to establish that a mere preponderance of probability was there in this case. Although, degree of proof in criminal case is higher than in the civil case, yet there should be some proof. There is no proof regarding negligence on the part of both the doctors. Unfortunately, the patient was about 33 years only when he expired, but there appears to be no fault of the Doctors.
14. OP 1 submits that he is doing this practice for the last 18 years. No finger was raised that so far as the question of skill and efficiency was concerned, that was lacking in the above said doctors. Moreover, the deceased has himself chosen to get himself treated by the Ayurvedic treatment. He was not forced to do so. He came to the Ayurvedic Doctor of his own volition. Nobody can take cudgels with his own fate.
15. The whole gamut of all the facts and circumstances leans on the side of the OPs.
The complaint is, therefore, dismissed.
However, there shall be no order as to costs.
...
(J.M. MALIK, J.) PRESIDING MEMBER (VINAY KUMAR) MEMBER md/21