State Consumer Disputes Redressal Commission
Saint Luke'S Hospital. vs Shri.Santosh Devidas Medhe. on 9 July, 2013
1 F.A.No.: 1221/2008
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI.
CIRCUIT BENCH AT AURANGABAD.
First Appeal No. A/1221/2008
(Arisen out of Order Dated 18/10/2008 in Case No. 213/2008 of District
Ahmednagar)
1. Saint Luke's Hospital.
Ward No.1,Shrirampur,Dist.Ahmednagar.
2. The Administrator,Saint Luke's Hospital.
Ward No.1,Shrirampur,Dist.Ahmednagar.
3. Dr.S.P.Rathod,Saint Luke's Hospital.
Ward No.1,Shrirampur,Dist.Ahmednagar. ...........Appellant(s)
Versus
1. Shri.Santosh Devidas Medhe.
R/o.Kale Chawl,Near Janta High School,Ward
No.7,Shrirampur,Dist.Ahmednagar. ...........Respondent(s)
BEFORE:
HON'ABLE MR. S.M.SHEMBOLE PRESIDING MEMBER
HON'ABLE MRS. UMA BORA MEMBER
HON'ABLE MR. K.B.GAWALI MEMBER
PRESENT: Prof.Mr.G.P.Shenoy, Advocate for the Appellants
Shri.U.M.Deshpande., Advocate for the Respondent
ORDER
Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. This appeal impugn the judgment and order dated 18.10.2008 passed by District Consumer Forum, Ahmednagar partly allowing consumer complaint No.213/2008 directing appellant/opponents jointly and severally pay to the complainant/respondent Rs.2,30,000/- towards medical expenses and Rs.70,000/- more towards expenses incurred by the relatives of complainant during his ailing period and Rs.5 lakhs towards compensation. They are also directed to pay to the complainant Rs.30,000/- more towards 2 F.A.No.: 1221/2008 compensation for causing him mental harassment and Rs.7,000/- towards cost of the proceedings.
2. Feeling aggrieved by that judgment and order opponents have preferred this appeal.
(For the sake of brevity appellant hereinafter referred as 'the opponents' and respondent as 'the complainant').
3. Brief facts giving rise to this appeal are that:
On 06.10.2006 complainant Santosh Medhe was feeling pains in his stomach. Therefore he went to opponent No.1 Saint Luke`s Hospital. Opponent No.3 Dr.Rathod who is serving in opponent No.1 hospital examined complainant and suspected to have acute appendicitis. Therefore referred him to Dr.Kawade, a private Radiologist and Sonologist for USG. On the same day in the noon at about 1.00 p.m. opponent No.3 Dr.Rathod received USG report and report was found to support the diagnosis of acute appendicitis with oedema around the base of appendix. Thereafter complainant/patient was admitted in opponent No.1 hospital and with the consent of complainant and his wife after necessary pre-operative investigations, performed surgery and removed the appendix. However, there was no relief. According to the complainant, after operation he was feeling more abdominal severe pains. The complainant was indoor patient in opponent No.1 hospital for the period from 6.10.2006 to 14.12.2006. As the complainant was feeling more severe pains and there was no improvement second operation was performed on 11.10.2006 by Dr.Masurkar. Even after second operation, there was no improvement and therefore again on 29.11.2006 Dr.Masurkar performed third operation on the complainant. But there was no improvement. Therefore on 14.12.2006 complainant was shifted to Seth Nandlal 3 F.A.No.: 1221/2008 Dhoot Hospital, Aurangabad where he was admitted as indoor patient till 18.1.2007. But there was no improvement. Thereafter he was shifted to Sion Hospital, Lokmanya Rugnalaya, Mumbai where forth operation was performed. Thereafter on 19.3.2007 complainant was discharged from Sion Hospital. Thus according to the complainant he was required to admit in different hospitals and was required to take medical treatment for more six months.
4. It is alleged by the complainant that opponent No.3 Dr.Rathod acted negligently while performing first operation on him and also giving him post-operative medical treatment and therefore complications were developed and there were severe pains in his stomach. It is also alleged that due to negligence on the part of Dr.Rathod and also wrong treatment infection was developed and due to infection there was leakage of faecal matter from the base of abdomen which was sutured after operation. It is also alleged that there was deficiency in service on the part of opponents. Opponent No.2 is an administrator of opponent No.1 Saint Luke`s Hospital and therefore according to the complainant all the opponents are jointly and severally committed medical negligence and therefore they all are liable to pay compensation and medical expenses. It is also alleged that consent of complainant was not obtained before performing second operation. Therefore there was deficiency in service on the part of opponents. It is also alleged that opponents committed deficiency in service refusing to supply medical case papers to the complainant. Therefore by notice dated 18.11.2007 the complainant claimed compensation. However, opponents by their reply denied the claim. Therefore the complainant filed consumer complaint alleging medical negligence as well as deficiency in service on the part of opponents and claimed medical expenses and compensation. He has claimed total amount of Rs.19,99,708/-.
4 F.A.No.: 1221/20085. Opponents by their written version resisted the complaint on the following among other ground:
i) They did not dispute that on 6.10.2006, complainant had been to the opponent No.1 hospital as he was feeling pain in stomach. It is not disputed that opponent No.3 Dr.Rathod examined the complainant and referred him to Dr.Kawade for USG and after obtaining USG report got admitted the complainant and advised for immediate surgery. During diagnosis acute appendicitis with oedema around the base of appendix was noticed. It is also not disputed that on the same day with the consent of the complainant, opponent No.3 Dr.Rathod performed operation and removed appendix. It is submitted that appendix was generally inflamed, friable and retrocecal in position. Infection was also spread over the adjoining cecum. Therefore the perforation in the cecum was sutured in two layers and area drained with corrugated rubber drain. Drain was kept to avoid collection of blood and infected material inside the abdomen.
ii) It is further admitted that there was some abdominal distension post-operative which is called as paralytic ileus and is due to sluggish and therefore there was no movement of the bowel. It is submitted that as the patient was complaining more pains he was referred to Dr.Masurkar on 11.10.2006. On the same day Dr.Masurkar examined the patient and advised for second surgery as there were sign of peritonitis i.e. diffuse abdominal tenderness, much abdominal distension, rapid pulse and respiration. It is submitted that Dr.Masurkar briefed the relative of patient and advised arrangement for blood transfusion. Thereafter he obtained consent of relatives of patient and did surgery. Opponent No.3 Dr.Rathod also assisted Dr.Masurkar. During surgery Dr.Masurkar found that sutured necrotic area over the cecum had given away and faecal matter was 5 F.A.No.: 1221/2008 freely leaking out into the abdominal cavity and also coming out through drain which was kept locally at the time of first operation.
The adjoining terminal ileum also revealed thickening. Therefore Dr.Masurkar excised the entire affected bowel. The continuity of the bowel was established by anastomosing the cut ends of ileum and ascending colon. Adhesiolysis was done between coils of the small bowel. Abdomen was drained with multiple corrugated rubber drains and the incision was closed. It is submitted that as there was much soilage of the abdominal cavity from faecal matter, the recovery of the patient was not expected to be smooth and chances of wound infection were high.
iii) Further it is submitted that there was bloody discharge with pus and faecal material coming out of the abdomen. The drainage was coming along the rubber drain which were kept in abdomen. Dr.Masurkar quite satisfied that the drains which he had kept were performing well etc. However, complainant was not recovering satisfactory, his wounds were bad and he was discharging faecal material through wound. His abdominal condition was also not setting down. He was passing stool normally but his abdomen was gradually distending. Therefore on 27.11.2006 Dr.Masurkar suspected intestinal obstruction and suggested another operation. It is submitted that Dr.Masurkar suggested the relatives of the patient to take patient to higher centre. However, relatives/complainant declined and on adequately briefing them they gave consent for third operation. On 29.11.2006 Dr.Masurkar performed third operation without giving any assurance but complainant falsely alleged that Dr.Masurkar and Dr.Dhumal who assisted him had assured that he would be comply cured after third operation.
iv) It is submitted that after third operation exploration of the abdomen revealed narrowing of the site of bowel anastomosis causing 6 F.A.No.: 1221/2008 intestinal obstruction. Therefore Dr.Masurkar had once again to excise some more bowel on either side of the earlier anastomosis and then established continuity of the bowel. It is denied that Dr.Masurkar had confessed to the complainant and his relatives that first and second operations were wrongly performed etc.
v) It is submitted that on 12.12.2006 when the complainant developed serious medical complications which was not directly related to the surgical problems and suddenly started bleeding from operative scars, drain sites and rectum, Dr.S.S.Patgaonkar (M.D.Medicine) was requested to see the patient and advise the opponents. Therefore Dr.Patgaonkar examined the patient and he diagnosed his condition as D.I.C.(Diseminated Intravascular Clotting) and suggested a line of treatment. But inspite of such treatment there was no improvement. Therefore complainant was referred to higher centre i.e. Seth Nandlal Dhoot Hospital, Aurangabad for further management. It is submitted that despite their efforts there was no improvement in the patient. It is submitted that opponent No.3 Dr.Rathod as well as Dr.Masurkar are well experienced and renowned doctors and they tried their level best giving treatment to the complainant. But the complainant has made false complaint . They have denied all other adverse averments made by the complainant and raised preliminary objection about maintainability of complaint. It is submitted that Dr.Masurkar is necessary party and as he is not made party to the complaint, the complaint is not maintainable for non-joinder of necessary party. It is submitted that complainant has made false complaint to extract money and further with intention to defame highly reputed hospital opponent No.1. On all these grounds it is submitted to dismiss the complaint .
6. On hearing both sides and considering evidence on record District Forum Ahmednagar held that opponent No.3 Dr.Rathod acted 7 F.A.No.: 1221/2008 negligently while performing operation of complainant on 6.10.2006 and also giving post operative treatment. District Forum also held that opponents committed deficiency in service. In keeping with these findings the Forum partly allowed the complaint and directed opponents No.1 to 3 jointly and severally pay to the complainant compensation as well as medical expenses as noted above.
7. Feeling aggrieved by that judgment and order opponents have preferred this appeal.
8. We heard Prof.Mr.Shenoy appearing for the appellant/opponents and Adv.Mr.U.M.Deshpande appearing for respondent/complainant at length. Perused the copy of impugned judgment and order, copies of written version, medical case papers and affidavit of Dr.Puntambekar and also evidence affidavit of the complainant. We have also perused the written notes of arguments submitted by Prof.Mr.Shenoy and Mr.U.M.Deshpande, learned counsel for complainant.
9. Almost all the facts except complainant`s allegations about negligence on the part of opponent No.3 Dr.Rathod and deficiency in service on the part of opponent Nos.1,2 & 3 are not disputed.
10. Before adverting the evidence on record, we would like to point it out here the settled law pertaining to medical negligence. In the case of Kusum Sharma -Vs- Batra Hospital and Medical Research Centre and others, I(2010) CPJ 29(SC)=2010(IV)MLJ 541, Hon`ble Apex Court considering its earlier landmark judgment in the case of Jacob Mathew -Vs- State of Punjab and another , 2005(3) CPR 70(SC) and on scrutiny of other leading cases on medical negligence both in our country and other countries specially United Kingdom following principles are culled out:
8 F.A.No.: 1221/2008I) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III) The medical professional is expected to bring 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.
IV) A medical practitioner would be liable only where his conduct fell below that of the standards of reasonably competent practitioner in his field.
V) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not 9 F.A.No.: 1221/2008 amount to negligence.
VII) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII) It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
IX) It is our bounden duty and obligation of the civil society to
ensure that the medical professionals are not
unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
11. Now let us proceed to consider the evidence on record and arguments advanced by learned counsel for both sides. Prof.Mr.Shenoy appearing for the appellant/opponent pointing out the 10 F.A.No.: 1221/2008 following points challenged the impugned judgment and order:
i) Medical negligence is proved by the complainant,
ii) No expert evidence is produced by the complainant,
iii) Expert`s opinion given by the opponents is not challenged.
Further Prof.Mr.Shenoy relying on the several decisions of Hon`ble Supreme Court as well as Hon`ble National Commission specifically landmark judgment of Apex Court in case of Jacob Mathew ( Supra) submitted that negligence is the breach of duty caused by omission to do something which reasonable man guided by those considerations which ordinarily regulate the conduct of the human affairs would do, or doing something which a prudent and reasonable man would not do. He has further submitted that in order to prove such negligence on the part of doctor onus lies on the complainant and in order to discharge initial burden complainant is required to adduce expert evidence and without expert`s evidence medical negligence cannot be proved. He has also relied on the judgment of Hon`ble Supreme Court in C.P.Shreekumar (Dr.) (M.S.Ortho) -Vs- Ramanujam 2009(7) Supreme Court Cases 130 and pointed out the observations of Hon`ble Apex Court which are made while delivering the judgment in case of Jacob Mathew ( Supra). In para 28 of case in C.P.Shivkumar ( Supra) the Hon`ble Apex Court observed that in Jacob Mathew case the Apex Court adopted test laid down in Bolam -Vs- Friern Hospital Management Committee (1957) I WLR 582, in which it has been observed as under.
"...where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The 11 F.A.No.: 1221/2008 test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-establsihed law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
12. Thus from the above observations of the Hon`ble Apex court it is settled law that the medical professionals are expected to bring reasonable degree, skill and knowledge and must exercise reasonable degree of care. The medical practitioner would be liable only when his conduct fell below that standard of reasonable competent practitioner in his field. As per the settled principles, negligence cannot be attributed to a doctors so long as perform their duties with reasonable skill and confidence. This settled position of law cannot be disputed and is also not disputed by Shri.U.M.Deshpande learned counsel for the respondent/complainant. Therefore in the present case a moot question which arises for determination is as to whether opponent No.3 Dr.Rathod performed his duty with reasonable skill and confidence while performing first operation dated 6.10.2006 on the complainant or whether his conduct fell below that of standard.
13. Prof.Mr.Shenoy by pointing out the qualification and experience of opponent No.3 Dr.Rathod vehemently argued that opponent No.3 Dr.Rathod is a highly reputed surgeon having more than 15-16 years experience attached to well reputed Saint Luke`s Hospital opponent No.1. It is submitted that opponent No.2 who is serving as administrator of opponent No.1 Saint Luke`s Hospital is also well reputed person and all the opponents are felicitated by the Government for their outstanding social work in the medical field etc. Opponents have also given long list of their educational qualification and experience. But considering the facts of this case and allegations made by complainant against opponent No.3 Dr.Rathod, it is 12 F.A.No.: 1221/2008 immaterial to consider undisputed qualification and experience of Dr.Rathod. Only material point which required to be considered is as to whether opponent No.3 Dr.Rathod acted negligently while performing operation on the complaint and thereafter post-operative treatment or not.
14. Prof.Mr.Shenoy submitted that when the onus to prove the negligence is on the complainant. It was necessary for the complainant to discharge the burden by producing expert evidence. But no such evidence is produced and thereby failed to discharge his initial burden. It is further submitted that as the complainant has failed to discharge his initial burden, opponents are not required to discharge any burden as no burden can be shifted on them. However, by way of abundant precaution opponents themselves have led expert evidence by filing affidavits of Dr.Puntambekar and Dr.Masurkar but the District Forum without considering all these facts and expert evidence erred in holding opponents as responsible for medical negligence by wrongly discarding expert evidence.
15. Per contra, Shri.U.M.Deshpande learned counsel for the complainant submitted that from the undisputed facts that after operation on 06.10.2006 complications were developed itself sufficient to discharge initial burden. According to him it is the case of res ipsa locator. It is further submitted that complainant could not obtain any expert evidence, as despite of his demand of medical case papers, the opponent No.1 failed to supply the case papers. It is also submitted that as appellant No.1 has avoided to supply him medical case papers, he was required to file application under Right to Information Act but by letter dated 27.2.2008 complainant was informed by the opponent that it is being charitable institution, provisions of Right to Information Act are not applicable and thereby denied to supply the medical case papers, though by its earlier letter dated 10.1.2008 he 13 F.A.No.: 1221/2008 was informed to send the charges for supplying the copy of medical case papers etc. These facts are not disputed by Prof.Mr.Shenoy but he has submitted that all the case papers were provided to the complainant but the complainant has filed false application. But we find no force in the submission of Prof.Mr.Shenoy because if entire medical case papers were provided to the complainant there would be no reason for complainant to claim such papers by sending application under Right to Information Act and further there could be no reason for the opponent to inform the complainant by letter dated 27.2.2008. Mr.Deshpande learned counsel for the complainant submitted that as per the rules of Indian Medical Council the medical practitioners are required to maintain the record for three years and on the request of patient, they should supply the same. He has also supported his contention by relying on the decision dated 28.4.2011 of Hon`ble National Commission in the case of Appollo Hospital -Vs- M.Sathyanarayan and others, revision petition No.2069/2010, in which it is observed by Hon`ble National Commission that as per Regulation No.1.31 of Indian Medical Council(Professional Conduct, Etquette and Ethics) Regulations,2002:
1.3.1 Every physician shall maintain medical recover pertaining to his/her indoor patient for the period of three years from the date of commencement of treatment in his proforma laid down by the Medical Council of India and attached as appendix 3.
Further as per Regulation No.1.3.2:
1.3.2 If any request is made for medical records either by patient/authorised attendant or legal authorities involved, the same may be duly acknowledged and document shall be issued within the period of 72 hours.14 F.A.No.: 1221/2008
16. In view of the undisputed facts that the opponents refused to supply the medical case papers to the complainant and the above observations of the Hon`ble National Commission, we have no hesitation to accept the arguments advanced by Shri.Deshpande learned counsel for the complainant.
17. However, Prof.Mr.Shenoy relying on the affidavit of Dr.Puntambekar submitted that all the medical case papers pertaining to the treatment given to the complainant were supplied to Dr.Puntambekar and on perusal of case papers Dr.Puntambekar submitted his opinion on 18.6.2008 to the effect that all the complications which occurred were due to the peculiar nature of the patient`s disorder and not due to negligence on the part of the opponents. Dr.Puntambekar has also filed his affidavit to that effect etc. But the same is denied by the complainant. It is submitted by Shri.Deshpande learned counsel for the complainant that opinion as well as affidavit of Dr.Puntambekar is not at all reliable as the same does not disclose which papers were supplied to him etc. Since the medical case papers were not provided to the complainant despite of his request giving application under Right to Information Act, it is difficult to accept affidavit of Dr.Puntambekar and also the contention of opponent that the entire case papers were supplied and perused by Dr.Puntambekar and his opinion is based on entire medical case papers pertaining to the treatment of complainant. Accordingly, the Forum has rightly held and drawn adverse inference holding that opponents have intentionally suppressed the medical case papers pertains to the post operative treatment if any given to the complainant. Therefore we have no hesitation to accept the arguments advanced by learned counsel for the complainant.
18. For the forgoing reasons, the contention of the appellants/opponents that complainant has failed to discharge his 15 F.A.No.: 1221/2008 initial burden to prove negligence on the part of opponents, cannot be accepted as undisputedly the complications were developed after initial operation dated 6.10.2006. The submission of Prof.Mr.Shenoy appearing for the opponents/appellants that complainant/patient came to the hospital on 6.10.2006 with infection and necrotising enteritis and not only appendix infection, cannot be accepted.
19. However, Prof.Mr.Shenoy tried to convince this Commission by pointing out from the diagram given by him with his notes of arguments that perforation which was from ileum was at the base of appendix was not noticed. According to him such perforation from ileum as well as perforation from intestinal part, cannot be noticed unless abdomen is opened. It is further submitted that as opponent No.3 Dr.Rathod noticed perforation over the cecum when the appendix was removed, he sutured cecum in two layers and area drained with corrugated rubber drain so as to avoid collection of blood and infected material inside the abdomen. But thereafter the sutures were become loose and perforation continued etc. and therefore faecal matter was spread in the abdomen cavity etc. and therefore there were severe pains.
20. It is further submitted that as the complainant was complaining severe pains, he was referred to Dr.Masurkar on 11.10.2006 for opinion. Dr.Masurkar who was earlier attached to the same opponent No.1 hospital examined the patient and advised for second surgery.
He himself did second surgery and opponent No.3 assisted him. That time Dr.Masurkar found sutured necrotic area over the cecum had given way and faecal matter was freely leaking out into the abdominal cavity and also was coming through the drain which was kept locally at the time of first operation. The adjoining terminal ileum also revealed thickening. Therefore Dr.Masurkar exercised the entire affected bowel. Then the continuity of the bowel was established by 16 F.A.No.: 1221/2008 anastomosing the cut ends of ileum and ascending colon, abdomen was drained with multiple corrugated drains and the incision was closed etc. The relatives of patient were shown the part of bowel excised during the second surgery. However, complainant/patient was not recovered satisfactory, in view of the bad abdominal problem as his wounds are bad and it was discharged pus and faecal matter through wound. Therefore on 3.11.2006 Dr.Masurkar thoroughly cleaned his wound under general anaesthesia but patient was not setting down. He was passing tools normally but his abdomen was gradually distending. Therefore on 27.11.2006 Dr.Masurkar suspected intestinal obstruction and suggested third operation and with the consent of the patient and his relative did third operation on 29.11.2006 and found exploration of the abdomen narrowing of the site of the bowel anastomosis causing intestinal obstruction. Therefore he had once again excised some more bowels on either side of the earlier anastomosis and then established continuity of the bowel. However, complainant was recovering from third operation but further on 12.12.2006 he developed serious complications, however the same was not directly related to his surgical problem. Complainant suddenly started bleeding from nose, operative scars, drain sites and rectum. Therefore Dr.Patgaonkar who is physician from opponent No.1 hospital examined the patient and diagnosed his condition as D.I.C.(Disseminated Intravascular Clotting) suggested a line of treatment. Multiple blood transfusions were also given. However, as patient did not show satisfactory recovery he was referred to Seth Nandlal Dhoot Hospital, Aurangabad. Thus according to Prof.Mr.Shenoy, every possible care and medical treatment was given to the complainant and there was no any negligence on the part of opponents etc.
21. True it is that Dr.Masurkar made every effort to provide medical treatment to the complainant by performing second and third 17 F.A.No.: 1221/2008 operation. But no explanation is given by opponent No.3 Dr.Rathod as to why he did not take care though perforation from ccecum was noticed after when he removed appendix by first surgery done by him on 6.10.2006. When he noticed the perforation from cecum, he should not have closed it by suturing with corrugated rubber drain. In our view when opponent No.3 Dr.Rathod noticed the perforation locally over the cecum and oedema around the base of appendix, it was not advisable to close the perforation by way of sutures. In fact as per the surgical notes prepared by Dr.Masurkar at the time of 2nd surgery it was found that pus and faecal matter was leaking out from the sutured area. We are therefore of the considered view that Dr.Rathod should have performed ceacatomy and ascending colectomy which was done during 2nd surgery by Dr.Masurakar and further immediately after removing the appendix, he should have made investigation and should have verified the reasons of perforation from cecum. But no explanation is given by opponents specifically by opponent No.3 Dr.Rathod as to why he did not make any investigation till referring patient to Dr.Masurkar on 11.10.2006.
22. Further though the patient was complaining severe pains continuously since after the first operation, opponents have not disclosed anywhere, the line of treatment if any adopted during the period from 6.10.2006 to 11.10.2006 though undisputedly complainant/patient was admitted in the opponent No.1 hospital. No affidavit to that effect is also filed by opponent No.3 Dr.Rathod. On the contrary as pointed out above the case papers pertaining to the treatment if any given to the patient during the period from 6.10.2006 to 10.11.2006 are not supplied to the complainant. Therefore in our view if proper care could have taken by opponent No.3 Dr.Rathod when he noticed perforation from cecum after removing the appendix no such further complications would have developed by collecting faecal matter in the abdomen cavity. When there was perforation and 18 F.A.No.: 1221/2008 faecal matter was found coming from cecum, Dr.Rathod would have made thorough investigation and would have prevented such further complications. But it is evident from the record that opponent No.3 Dr.Rathod neglected to perform his duty by giving proper post operative treatment to the complainant.
23. However, Prof.Mr.Shenoy relying on the observations of Hon`ble Apex Court in the case of Jacob Mathew( Supra) submitted that while dealing with the case of negligence by professionals such as lawyers, doctors, architects and others would perform the task with best of their knowledge and without giving any assurance of every succession to their client and when they perform their task with their special skills they cannot be held liable for negligence though they failed to get success etc. In short, according to him though opponents could not get success in recovering complainant/patient, they cannot be held liable for medical negligence. In the case of Jacob Mathew(Supra) the Hon`ble Apex Court observed that:
"19. 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 professionals of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and 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 19 F.A.No.: 1221/2008 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 o 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 -Vs- J.D.Williams and Co.Ltd., (2001) P.N.L.R. 233, CA Sedley L.J. 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.(Charles worth and Percy, ibid, para 8.03)"
24. But we find little force in the arguments advanced by Prof.Mr.Shenoy, because in the present case though according to opponent No.3, he is well experienced reputed doctor attached to the reputed hospital opponent No.1, from the evidence on record and above discussion it cannot be inferred that he made his every efforts using his special skill to cure the complainant/patient. As stated 20 F.A.No.: 1221/2008 earlier when according to opponents perforation from cecum was noticed though it was small, it was necessary for opponent No.3 Dr.Rathod to take further steps to make necessary investigation about such perforation so as to avoid further complication. But he did nothing except suturing with corrugated rubber drain. Though admittedly complainant was making complaint of severe pains continuously after operation no investigation appears to have been made by opponent No.3 Dr.Rathod. However, it is vehemently argued by Prof.Mr.Shenoy that perforation from ileum and also intestinal part was not related to infected appendix or removal of appendix. But the necrosis was already developed and it was noticed after opening the abdomen in Sion Hospital, Mumbai. But when undisputedly before admission patient was in a position to walk properly and he went to the hospital of Dr.Kawade for sonography by walk, it cannot be accepted that necrosis was already developed and it was not related to the surgery done by Dr.Rathod.
25. Mr.U.M.Deshpande, learned counsel for the complainant further contended that at the time of second operation consent of complainant was not obtained. According to him before surgery it is obligatory on the part of any doctor to explain the details about the operation to the patient and his relatives so as to obtain their consent etc. But no such consent was obtained at the time of second operation on the complaint. Pointing out from consent form, he has submitted that signature of the wife of the complainant was obtained on the same form at the time of first as well as second operation. According to him consent should have been obtained separately at each time. We find little force in this contention, because though the consent was obtained on the same form at several times, it cannot be accepted that no consent much less valid consent was obtained etc. However, Mr.Deshpande has also tried to support his contention relying on the Hon`ble Apex Court in the case of Sameera Kohli -Vs-
21 F.A.No.: 1221/2008Prabha Manchanda(Dr.) and another, 2008(5) Bom.C.R. 373 (SC) in which it is held that as doctor has to secure consent of the patient before commencing the treatment/surgery. He has to furnish adequate information to enable patient to make balance judgment as to whether he should submit to treatment i.e. to disclose the nature and procedure for treatment alternatives if available risk involved, adverse conclusion of refusal etc.
26. For the forgoing reasons it is evident that there was small perforation at the cecum which was found at the time of first operation of the complainant and it was developed after operation on 6.10.2006 by Dr.Rathod for lack of proper care and post-operative treatment only and therefore complainant/patient was required to undergo further operations which were done by Dr.Masurkar in the opponent No.1 hospital and also by the doctor at Sion hospital. Due to such complications complainant/patient was required to take treatment for more than six months and was required to incur huge expenses for his treatment. It is only because of negligence on the part of opponent No.3 Dr.Rathod and management of opponent No.1 hospital and therefore they are liable as their conduct fell below that of standard of reasonably competent practitioner in medical field. We are well aware that medical professionals are entitled to get protection but they are entitled such protection so long as they perform their duties, reasonable skills and competent and in the interest of patient. The interest and welfare of the patient have to be paramount for the medical profession as observed by Hon`ble Apex Court in case of Kusum Sharma -Vs- Batra Hospital ( Supra). Further as observed by Hon`ble Apex Court it is imperative that the doctor must be able to perform their professional duties with free mind.
27. For the forgoing reasons the District Consumer Forum Ahmednagar considering evidence on record and also conduct of the 22 F.A.No.: 1221/2008 opponents rightly held that opponent failed to perform their reasonable duty giving proper post operative treatment to the complainant. It is also rightly held that opponent No.3 acted negligently while performing first operation. Therefore we find no glaring error or infirmity in the impugned judgment and order hence no inference is warranted.
28. In the result, appeal is being devoid of any merit deserves to be dismissed. Hence we pass the following order.
O R D E R
1. Appeal is dismissed.
2. No order as to cost.
3. Copies of the judgment be issued to both the parties.
Pronounced on dt.09.07.2013 [HON'ABLE MR. S.M.SHEMBOLE] PRESIDING MEMBER [HON'ABLE MRS. UMA BORA] MEMBER [HON'ABLE MR. K.B.GAWALI] MEMBER Mane