National Consumer Disputes Redressal
Sanjay Kumar Verma vs Gangotri Nursing Home & Ors. on 12 May, 2011
OP 10/1998 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 26 OF 1999 Sanjay Kumar Verma S/o Late Shri K.K. Verma At. Naya Bazar West Road P.O. & P.S. Jugsalai Jamshedpur-831006 District East Singhbhum Bihar Complainant Versus 1. Gangotri Nursing Home 160, Dhalbhum Road Sakchi Jamshedpur. 2. Mr. Ashok Jhingon Partner Gangotri Nursing Home 160, Dhalbhum Road Sakchi Jamshedpur. 3. Tata Main Hospital (Intensive Care Unit) P.O. & P.S. Bistupur Jamshedpur - 831001 Opp. Parties BEFORE : HONBLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER HONBLE MR. S.K. NAIK, MEMBERS Appearance : For the Complainant : Mr. Abhijeet Sinha, Advocate For the Opp. Parties : NEMO Pronounced on : 12th May, 2011 O R D E R
PER S.K. NAIK, MEMBER Shri Sanjay Kumar Verma, the complainant in this Original Petition No.26 of 1999 had initially filed a complaint alleging medical negligence against the following opposite parties :
(1)Gangotri Nursing Home, Jamshedpur;(2)
Director, Gangotri Nursing Home, Jamshedpur; and (3) Tata Main Hospital (Intensive Care Unit), Jamshedpur The gist of his allegations in the complaint was that for an innocuous complaint of moderate pain and swelling in the left knee joint, the father of the complainant was diagnosed as a case of aspiration of left knee joint whereas it was a case of septic arthritis. On being approached with the problem, the Nursing Home authorities referred the deceased to Dr. S. Muhury, the Orthopedic Surgeon, who was a consultant of the Nursing Home on 13th of February, 1998. On the advice of Dr. Muhury the deceased was admitted into the Nursing Home on 17th of February, 1998 and was operated by Dr. Muhury on the same day. On being informed that the condition of the patient after the operation was good, he was discharged from the Nursing Home on the same day. Subsequently, however, the condition not only did not improve but started deteriorating. Therefore, the patient had to be again taken to Dr. Muhury, who diagnosed the problem to be that of gastritis and changed the lot of earlier medicines and assured him that the wound was healthy and should not cause any worry. The condition, however, even thereafter did not improve and the patient had to be readmitted on the 26th of February, 1998 where he reportedly suffered from a mild heart attack at about 2 Oclock in the afternoon while under the treatment of Dr. Muhury. Subsequently, the patient was referred to the Tata Main Hospital on the same day where he remained under their treatment until the 12th of March, 1998 when he finally expired.
The thrust of the complaint as could be gathered from the complaint and amended complaint which was subsequently filed are targeted against the negligence on the part of Dr. Muhury. A plain reading of the complaints do not allege any negligence on the part of opposite party no.3 i.e. Tata Main Hospital, where the patient remained from 27th of February to 12th o March, 1998, mostly in a state of coma and where the patient finally expired. Insofar as the opposite parties no. 1 and 2, the Nursing Home, are concerned, the allegations are not only vague but lack any material particulars with regard to the exact nature of deficiency on their part.
The prime allegations are, however, against Dr. S. Muhury, the operating orthopedic surgeon, who, however, was originally not impleaded as an opposite party.
A perusal of the record, however, reveals that an attempt was made to rope in Dr. Muhury as opposite party while filing an amendment to the complaint in the year 2000, on which no order of this Commission was passed. Years later on the 15th of May, 2009 the counsel for the complainant made an oral request for filing an application seeking impleadment of Dr. S. Muhury as an additional opposite party, for which permission of the Commission was granted and counsel was directed to file such an application within three weeks. When the matter came up again on the 7th of August, 2009 the counsel for reasons best known to him and the complainant, however, withdrew the request. These orders being relevant are reproduced as under :-
Order dated 15th of May, 2009 Sh. Sinha prays for some time for filing application seeking impleadment of Dr. S. Muhury as one of the opposite parties. Needful be done within 3 weeks.
List on 07.08.2009 for further proceedings.
Order dated 7th of August, 2009 Shri Sinha states that the complainant does not want to file application seeking impleadment of Dr. S. Muhury as an opposite party.
Notice be issued to Gangotri Nursing Home and its partner-Ashok Jinghon on the address given in the amended Memo of Parties at page 238, returnable on 7.10.2009.
Notice be also issued to opposite party No. 3 for this date.
In view of the complainant having consciously decided not to proceed against Dr. S. Muhury, who was the operating surgeon, we are left with no option but to examine the case of the complainant with relation to any negligence that may have been committed by the opposite parties no. 1 and 2, the nursing home and their staff, in the treatment of the deceased, father of the complainant, in the post-operative phase. This is so because the complainant has no grievance against the Tata Main Hospital, the opposite party no.3, where the deceased was taken for treatment only at the very last stage and remained in their ICU from 27th of February, 1998 to 12th of March, 1998, when he breathed his last. All through this period the deceased remained unconscious in the ICU of Tata Main Hospital.
Having perused the initial complaint and the amended complaint, we do not find any reference to any specific incident, in which the opposite party no.1 or opposite party no.2, nursing home, could be found to be wanting in the treatment or degree of care of the deceased, father of the complainant. All through the complaint, the charges are against Dr. S. Muhury. The only reference to opposite party no.1 in para 4 of the complaint only states that the deceased was admitted as per direction of the R.M.O. of opposite party no.1, who had referred the patient to Dr. S. Muhury, the Orthopedic Surgeon, as it was his specialization and only after the advice of Dr. Muhury the deceased was admitted into their nursing home for operation. All the allegations thereafter are targeted against Dr. Muhury. It has been alleged that he failed to exercise the ordinary skill of an orthopedic surgeon while examining the deceased and he having not performed any test with regard to the peripheral circulation and its adequacy regarding minor operation which is a necessary test and having failed to refer the fluid for further evaluation to ascertain the extent and nature of the underlying pathogenic process etc. has committed serious deficiency in rendering service. In fact summarizing his negligence, the complainant in para 11/C of his complaint states as under :
That Dr. Muhury failed to conduct the necessary following pre/post operative diagnostic tests viz
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ULTRA SOUND
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FINE NEEDLE ASPIRATION CYTOLOGY (F.N.A.C.)
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MEASUREMENT OF SYNOVIAL FLUID TOTAL HAEMOLYTIC COMPLEMENTS (CH-50)
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GRAM STAINED SMEAR
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SYNOVIAL BIOPSY
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SENSITIVITY & CULTURE TEST
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GAS LIQUID CHROMATOGRAPHY and
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ARTHROSCOPY, to distinguish the precise/confirmative diagnosis. As the synovial fluid aspirated on 17.02.98 could have been of different types owing to CYTOLOGICAL & BIOCHEMICAL CONTENTS WHICH ARE DIAGNOSTIC OF EACH TYPE.
To confirm the diagnosis and causative agent the abovementioned tests were mandatory. As none of the abovementioned tests were done; Such a radical departure from the normal method/protocol of orthopaedic was negligence per se.
During the course of argument, learned counsel for the complainant has contended that even though he does not wish to implead the operating surgeon Dr. Muhury as an opposite party, for the negligence committed by him the Nursing Home who had permitted him to be their consultant surgeon and their RMO having referred the patient to the said Dr. Muhury, the Nursing Home would be squarely liable for the negligence. In this respect, he has referred to the judgment of the Supreme Court in the case of Savita Garg (Smt.) Vs. Director, National Hearth Institute [(2004) 8 SCC 56], in which it has been held that Non-impleadment of treating doctor and nursing staff Held, not fatal to complaint.
We have carefully considered this contention of the learned counsel but we cannot agree with his submissions firstly because neither the complainant nor the learned counsel have disclosed as to why despite leveling serious allegations of negligence they do not intend to implead Dr. Muhury as an opposite party. Secondly, the judgment of the Supreme Court (supra) is clearly distinguishable, inasmuch as the facts of that case were not akin to the situation in this case. In that case, the complaint had been filed by the widow of the deceased against the National Hearth Institute but had not impleaded the operating doctor. It appears that the opposite party in that case had not raised any objection with regard to the non-impleadment of the operating doctor whereas in the case in hand, one of the opposite parties i.e. Tata Main Hospital, Jamshedpur has specifically raised the objection with regard to non-impleadment of the operating doctor. Even otherwise, non-disclosure of the reason as to why despite entirely blaming the operating surgeon for the death of the patient clouds the transparency expected of a complainant. The question of holding opposite parties no. 1 and 2 vicariously liable could arise only if the consultant surgeon, viz. Dr. Muhury, was held guilty of negligence either for incorrect diagnosis or treatment. Since in this case, the complainant himself does not want to pursue his allegations against the said Dr. Muhury, by no stretch, opposite parties no. 1 and 2 can be held guilty of negligence either as the service provider or vicariously, specially when there is no specific charge of any negligence by them.
Unfortunately, in this case for some unknown reason the complainant himself does not wish to proceed against the negligent doctor and, therefore, the Nursing Home cannot be held to be vicariously liable. Under the circumstances, there is hardly any need for us to discuss the treatment given by Dr. Muhury to the deceased and whether it was right or wrong, and the complaint, accordingly, is dismissed with no order as to costs.
Sd/-
( R. C. JAIN, J. ) PRESIDING MEMBER Sd/-
(S.K. NAIK) (MEMBER) Mukesh