State Consumer Disputes Redressal Commission
Mr. Raja Alias Rajendra Rebello, vs 1. Dr. Madhav H. Waze, on 31 July, 2009
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI-GOA Present: Smt. Sandra Vaz e CorreiaPresiding Member Smt. Caroline Collasso, Member Appeal No. 85/2007 Mr. Raja alias Rajendra Rebello, Major, resident of House No.38, Velsao Salcete, Goa. Appellant (Original Complainant) v/s 1. Dr. Madhav H. Waze, C/o Sriram Clinic, Dr. Parabs Hospital, Taleigao, Panaji Goa. (Original Opposite Party No.1) 2. Assistant Divisional Manager, National Insurance Company, Panaji-Goa. Respondents. (Original Opposite Party No.2) For the AppellantShri S.Y. Thaly, Advocate and none present at the time of order. For the Respondent No.2 Shri U.R. Timble, Advocate and none present at the time of order Dated:31-07-2009 ORDER
[Per Smt. Caroline Collasso, Member]
1. This is an appeal filed against judgment and order dated 20-06-2007, passed by the District Forum North Goa, at Porvorim, in Complaint No.38 of 2000. The Appellant herein was the original Complainant and the present Respondent was the original Opposite Party before the District Forum and will be arraigned as such for matter of convenience.
2. It is the case of the Complainant that he started getting severe pains and was thus referred to the Opposite Party who is a specialist in the field of Urology, as it was suspected that he had stones in his kidney. The Opposite Party advised the Complainant to undergo Lithotripsy for removal of kidney stones from both the kidneys, as the Opposite Party had diagnosed formation of stones in both the kidneys. It is the case of the Complainant that it was the Opposite Party who had advised Lithotripsy and had failed to advise that the procedure of removal of kidney stones from both the kidneys should not be undertaken simultaneously. Complainant states that except for the pain, the Complainant was in perfect health and after Lithotripsy was done by the Opposite Party, he developed body temperature and was in severe pain. Complainant states that procedure carried out by the Opposite Party was deficient and therefore after he was discharged, he had to be re-admitted with extreme discomfort as the kidney stones sought to be removed by the Opposite Party were not eliminated. Complainant states that Opposite Party did not make provisions by way of stent for the flow of sludge that arose from the kidneys. Also, since the Opposite Party carried out Lithotripsy on both kidneys simultaneously, provisions had to be made for flow of sludge from the kidneys. Due to this retention of sludge in the kidneys, urea levels had increased and besides, all the stones from the kidneys were not removed. Complainant states that due to the negligence of the Opposite Party in taking proper care, he had to be moved on emergency basis to Leelavati Hospital and Jaslok Hospital and Research Centre at Mumbai for specialized treatment. The Complainant had to spend exorbitant sums of money for treatment and incidental expenses amounting to Rs.4,86,967.25.
The Complainant also had to pay Opposite Parties fees, hospital charges and medicines which were of no avail.
Due to this negligent treatment by Opposite Party, Complainant and his family members had to suffer tremendous agony and tension. The Complainant thus sent notice dated 04-05-1999 to the Opposite Party seeking damages and compensation. Although the Opposite Party received a notice, he neither replied nor paid the damages/compensation and thus the Complainant approached the District Forum praying for costs, damages and compensation.
3. Smt. Vita Rebello, also filed an affidavit in support of the Complainant. In her affidavit, she stated that she was with the Complainant when he was hospitalized in Esperanca Hospital at Miramar, Goa and operated upon by the Opposite Party. She stated that after the operation, the Complainant developed high fever and was facing unbearable pain and was continuously vomiting and in discomfort. She further states that the Complainant was shifted to Leelavati Hospital at Bombay and the doctors of Leelavati Hospital opined that the operation done in Goa was not proper and there were sizeable number of stones in the kidneys. She also states that the doctors at Leelavati Hospital advised to shift the Complainant to Jaslok where he was operated and stones removed from the kidneys. She states that even the doctors in Jaslok opined that the operation done by the Opposite Party was incomplete and improper as he had not made any provision for removal of broken stones from the kidneys, which had to be done by strents introduced in the kidneys to facilitate the flow of sludge.
She stated that she had to spend a lot of money traveling to Bombay and for taxis to travel from Andheri, Mumbai where they were staying to go to the hospital where the Complainant was being treated.
4. The Opposite Party raised preliminary objections on the grounds that the complaint is vague and uncertain as to the terms and conditions of the contract of hiring the services by the Opposite Party and thus the complaint was not tenable; that the Complainant had suppressed the fact that he had discontinued the treatment against medical advice of the Opposite Party at his own volition and risk half way and thereby committed breach of contract and, therefore, ceases to be a Complainant in terms of the Consumer Protection Act; that the Complainant had failed to prove the exact nature of the deficiency alleged against the Opposite Party; that the Complainant took back his consideration and himself committed breach of contract and thus the Complainant is estopped from filing the present complaint; that the Complainant did not reveal the nature of the treatment taken by him in Mumbai subsequent to discontinuation of treatment by him and on this count also, the complaint deserves to be dismissed.
5. On the aspect of his experience/specialization, Opposite Party stated that he was working in the field of Urology and Endourology for the past 10 years and was also Associate Professor in Urology in St. Georges Hospital at Bombay and worked as a District Civil Service Surgeon in Sindhudurg and Medical Superintendent at the Medical College at Miraj. Opposite Party further stated that he had conducted more than 1,600 procedures of Lithotripsy and equal number of Endourology procedures for stone related problems. The Opposite Party submitted that he had started for the first time such treatment procedures in South Konkan, Goa and Karwar and was instrumental in obtaining Urology equipment for the Sawantwadi College Hospital as he is sensitive to the sufferings of his patients.
6. With regard to the allegations and complaint, the Opposite Party stated that the Complainant was a case of chronic metabolic/stone former and he had these stones in both kidneys for a long time. When the Complainant met him, he had severe pain and also fever and had reported a history of repeated attacks of severe pain and fever in the past and had been undergoing treatment for his problem for a considerably long time at some other clinic and had brought his earlier reports/medical papers for inspection and consideration of the Opposite Party. The Opposite Party, however, also carried out investigations and detailed clinical examination to confirm the kidney ailment and immediately started treatment for relief from the paid suffered by the Complainant. Opposite Party states that after discussing in detail with the Complainant about the problem and the suggested treatment, and taking into account the typical problems and surrounding circumstances, Opposite Party decided to give Lithotripsy treatment which was most suitable and proper under the circumstances.
Opposite Party also made the Complainant aware that the treatment was needed to be continued for 2/3 months and had to be under the observation of the Opposite Party for obtaining optimal results.
7. Opposite Party submits that under medical science, the bilateral kidney Lithotripsy in patients having radiolusent kidney stones and at strategic positions of the kidney like that of the Complainant was not un-common and was advisable. Opposite Party states that this view was endorsed by authorities on the subject including the doctors who treated the Complainant at Bombay. The statement of the Complainant that the procedure of the removal of the kidney stones from both the kidneys should not have been undertaken simultaneously, was not supported in any standard books on urology and thus the statement of the Complainant in this regard was incorrect. The Opposite Party states that apart from the kidney problem, the Complainant also had symptoms of urinary infection, fever and history of hypertension when he first approached the Opposite Party. Opposite Party denied allegation of defective/deficient procedure by him as vague and malicious and without any material to support the same. Opposite Party states that the Complainant was acquainted with the nature, form and duration of the treatment which he was supposed to undergo from the Opposite Party.
Opposite Party denied that the stones in the kidney were not eliminated and that the Complainant developed any complications which could be attributed to the treatment given by him. Opposite Party states that the report of the Complainant relating to the kidney showed full illumination of the stones and the Complainant himself voluntarily and against medical advice of the Opposite Party, abruptly discontinued this treatment, took back his money and preferred to go to Bombay under pretext that he has close relatives and connections with doctors in Jaslok and Leelavati Hospitals.
Opposite Party also denied that they was any retention of sludge in the kidneys of the Complainant or that there was any increase in the urea levels as alleged due to the treatment given by him.
Opposite Party submitted that the Complainant was responding well to the treatment and there was no reason to discontinue the same and the complaint is an after thought to extract money from the Opposite Party.
8. Opposite Party finally denied that there was any deficiency in service rendered by him and stated that the Complainants claim for damages and compensation was false, frivolous and vexatious and, therefore the complaint should be dismissed with cost of Rs.10,000/- to be imposed on the Complainant as per provisions of section 26 of the Consumer Protection Act.
9. On perusal of documents, the District Forum dismissed the complaint on the ground that Opposite Party cannot be held to be negligent merely because his conclusion differs from other professionals.
10. Aggrieved by the order, the present appeal is filed inter alia on the grounds that the order was unjust, illegal, arbitrary and contrary to law; that District Forum had exercised jurisdiction illegally; that District Forum resorted to conjectures and surmises and failed to appreciate the allegations in the complaint and records filed; that the District Forum erred in observing that the procedure adopted by the Respondent No.1 was not wrong or unscientific; that District Forum erred in observing that the contract of treatment was broken by the Complainant by receiving back the money and this contract was unilaterally terminated by the Complainant; that Respondent No.1 has not established by cogent evidence that the option exercised by him was the safest and best option; that District Forum did not give an opportunity to the Appellant to produce expert witness nor directed Respondent to produce one. Appellant/Complainant prayed that appeal be allowed and order dated 20-06-2007 and interim order dated 30-01-2003 by District Forum be quashed and set aside.
11. We have perused the documents on record.
12. Affidavit in evidence was filed by the Complainant wherein he reiterated the allegations in the complaint and also annexed receipts and bills for the treatment in Leelavati and Jaslok Hospitals in Mumbai. Opposite Party also filed his affidavit in evidence wherein he added to his specialization, experience, by stating that he had carried out special research on D.J. Stenting after studying more than 167 patients/cases and submitted a thesis titled Double J. Stenting under local anesthesia in least non invasive ways to the Public Health Department, Government of Maharashtra, which was highly acclaimed by them. Opposite Party has also placed on record a letter from Dr. Anil Khandkar, M.S. FRCS, Honble Professor in Urology from the Grant Medical College, Mumbai, who commented on his study stating that it was a good study involving a fairly large number of patients with an age range from Pediatrics to Geriatrics group of patients and that because of less instrumentation, infection rate and other complication rate was considerably less. Opposite Party has also relied on an article titled Contemporary Clinical Practice of Shock Wave Lithotripsy: Revaluation of contra-indications by Stevan B. Streem, which has recommended shock wave Lithotripsy as an effective, safe and minimally invasive technology. So also an article was appended which mentions that there is no clinically apparent difference in the long term effect on renal functions for patients with bilateral renal calculi treated with Extra Corporal Shock Wave Lithotripsy in a simultaneous versus stage fashion. On record is also an article titled A bacteriological study on Urinary Calculi associated with infections, wherein it is stated that there are difficult problems in the management of urinary calculi associated with infections and that stones may function as a sanctuary for organisms and may protect these organisms.
In the specific case of the Complainant, the Opposite Party had stated that the Complainant had infection stones for a long time and, therefore, it had to be dealt with carefully since such stones can function as a sanctuary for organisms, which if bursts, can get loose in the patient causing Septicemia. The Opposite Party has also placed on record a letter dated 09-03-2000 addressed to him by Dr. Shailesh Raina Consultant, Urological Surgeon & Andrologist from the Jaslok Hospital, Mumbai, who has stated that in certain circumstances, specially with bilateral and hydronephrosis, we can tackle both kidneys simultaneously. Dr. Raina further stated that it was clear from the history of the patient that your treatment was proper. The Complainant further states that because of his super specialty qualifications and experience in the field of urology, he was posted by Bombay High Court to the post of Medical Superintendent of J.J. Group of Hospitals, as he was holding a degree of M.S. (General Surgery) from Bombay University and super specialty qualifications of M.CH.(Urology) from the same University.
13. On the factual aspects of the allegations in the complaint, Opposite Party stated that Complainant approached him on 15th or 16th May 1998 with pain in abdomen, vomiting and fever and had given a history of similar episodes in 1986, 1991 and has produced papers of Sanjivani Hospital, Vasco indicating that he was treated for chronic urinary stones around 8th May, 1998.
Opposite Party was also under treatment with ayurvedic medicines, i.e. Cystone and Buscopane tablets for more than a year before he approached the Opposite Party. The various tests conducted by Opposite Party confirmed Lucocytosis, i.e. presence of infection due to long standing bilateral urinary stones.
Opposite Party stated that he gave treatment to control his infection and pain and perform pre-lithotripsy condition on the Complainant. The Opposite Party also stated that various treatment choices were available for treating urinary stone diseases such as ESWL (Extra Corporal Shock Wave Lithotripsy) PCNL (Percutaneous Nephro Lithotomy), Ureterorenoscopy and ICSWL (Intra Corporeal Shockwave Lithotripsy) and lastly open operation which was associated with significant morbidity and mortality with chances of incomplete removal of stones, requiring longer stay in hospital, blood transfusion etc.
14. Opposite Party states that the Complainant informed him that he wanted fast treatment and to choose a treatment which would be without any operation/incision and blood transfusion with minimum pain and hospitalization. Opposite Party stated that after considering all the pros and cons of the Complainants ailment, he was of the opinion that the Lithotripsy method was most suitable being most modern, less painful requiring minimum anesthesia and hospitalization also with quick recovery and result allowing the patient to follow his regular pursuits in between Lithotripsy sessions. Opposite party states that he had pointed out to the Complainant that his ailment was of a long duration and must have harboured infection. Opposite Party also cautioned the Complainant that with Lithotripsy bursting of the said stones, there were chances of liberation of the bacteria which may further lead to exacerbation of pre existing infection despite all prevention measures including antibiotic treatment for which he may have to undergo hospitalization. Opposite Party also stated that he had explained to the Complainant that for his prior history of pre-existing infection, associated with chronic urinary stones, he would prefer the fragments to pass down by natural process as bilateral D.J. Stenting may lead to further complications of infection and that he would not do the same. Opposite Party also stated that Complainant was appraised by him that he had to attend periodic follow-up sittings subsequent to ESWL, to rule out possibility of residual stones which was the regular and normal process adopted in respect of all patients with similar complications.
Opposite Party stated that it was only after mutual discussion and considering all the pros and cons that the Complainant agreed to go for Lithotripsy treatment and was given the treatment predominantly on the right side and partially on the left side kidney accompanied by per-operative antibiotics, good hydration and blood pressure control. Opposite Party stated that the averments of the Complainant that the Lithotripsy treatment could not be carried out on both kidneys simultaneously, had no basis in standard books of medicine and that no authority on the topic have listed bilateral Lithotripsy treatment in the contra indicative list in treating stones.
Opposite Party further stated that there were in fact many authorities/papers in the field of urology advocating bilateral Lithotripsy. Opposite Party further added that his experience over the years was that bilateral Lithotripsy was more effective, safe and economic method to treat stones. Opposite Party further stated that stents/pipes are fixed not to flush out the powdered stones as stated by the Complainant, but to prevent Anuria i.e. stoppage of urinary flow as per medical science. Since the Complainant had no anuria, there was no necessity of insertion of stents in the case of the Complainant. Opposite Party further stated that authorities on the topic have cautioned using of stents which could lead to the complications of urosepsis and septicemia. Thus the Opposite Party stated that for the above reasons, insertion of stents would have been disastrous to the Complainant having a history of pre-operative infection, so also putting stents after insertion and removal of ureteric catheter would have exposed the Complainant to danger of immediate gram negative becteramia particularly in his case having mega long standing stones of infection and thus in the best interests of the Complainant, the Opposite Party did not put stents while treating the Complainant. Opposite Party further stated that record of Leelavati Hospital indicate that after insertion of bilateral D.J. Stents into the Complainant on 03-06-1998, Complainant suffered gram negative septicemic shock on 08-06-1998. Complainant showed improvement only after the stents were removed at Jaslok Hospital on 21-06-1998 and the culture report of the stents at Jaslok Hospital revealed abundant population of gram negative bacteria which were the indications that stents were instrumental for the serious septicemic complications in the Complainant. The hospital records were annexed to his affidavit. Opposite Party stated that his treatment showed desired results and many stone fragments passed through urine naturally. Opposite Party stated that after discharge of the Complainant, he again approached the Opposite Party on 22-05-1998, with complaints of pain and fever and he was admitted for observation and treatment to control the infection and further treatment of kidney stones was postponed. Opposite Party stated that Complainant was showing gradual improvement with diminishing pain, urine found sterile and controlled temperature and if the Complainant had continued his treatment for another few days, he would have been completely cured.
15. Mr. I.C. Lobo, Asst. Administration Officer of the Intervener Party, National Insurance Co. also filed an affidavit stating therein that the records produced from Leelavati & Jaslok Hospitals clearly proves that there was no fault or negligence of any nature on the part of the Opposite Party. Further that the Complainant had not disclosed that he was treated in other hospitals for the same disease and had thus suppressed material facts of the treatment undergone from 06-06-1998 to 08-06-1998 which clearly proves that the Complainant had approached the District Forum with unclean hands. He also stated that the ultra sound reports clearly prove the case of the Opposite Party that the treatment was properly conducted and denied that the treatment adopted by the Opposite Party was not correct or that there was any deficiency in the treatment as seen from the records.
16. It is well known that in the laid down tests for determining deficiency in service in cases of medical negligence, one had to consider whether there is failure to act in accordance with standard of a reasonable, competent medical practitioner and whether there was exercise of reasonable degree of care. In the instant case, we see that the line of treatment followed by the Opposite Party was as per the accepted practices in that particular field and not contradicted by any material on record or in the field of urology. Nothing proves a fact better than a record and the record is not challenged by the Complainant. We have to see whether the doctor concerned had the requisite qualifications and experience and did what would have been done by any other specialist in the field.
The Opposite Party has clearly stated that his field of specialization in urology and that he has conducted numerous operations specifically in Lithotripsy as was done in the present case. In the case of Jacob Mathew v/s State of Punjab and another, the Honble Apex Court held that so long as a doctor follows a practice acceptable to the medical profession, of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure. The standard to be applied for judging whether the person has been negligent or not would be that of an ordinary competent person, exercising ordinary skills in that profession. In the present case, we note that the Opposite Party is well qualified and has super specialty knowledge in urology, besides having conducted more than 2000 procedures of Lithotripsy and Endourology for stone related problems till date. This fact has not been challenged by the Complainant and on perusal of the certificates/documents on record, we have no reason to disbelieve his expertise. The Opposite Party selected a method of treatment which in his opinion, was in the best interest of the patient. There is nothing on record in terms of medical evidence to contradict that this treatment was faulty. In the light of the above, we hold that there has been no deficiency on the part of the Opposite Party with regard to the treatment carried out on the Complainant.
ORDER Appeal No.85/2007 filed by the Appellant is thus dismissed. No order as to costs.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member 31-07-2009 ORDER Appeal No.85/2007 filed by the Appellant is thus dismissed. No order as to costs.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member