State Consumer Disputes Redressal Commission
Smt. Nirupa Vivek Bongirwar vs State Of Maharashtra, on 6 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR 5th Floor, Administrative Building No. 1 Civil Lines, Nagpur-440 001 First Appeal No. A/07/77 (Arisen out of Order Dated 27/12/2006 in Case No. CC/06/87 of District Chandrapur) 1. Smt. Nirupa Vivek Bongirwar 2. Smt Sindhu Babur Bongirwar 3. Shreyas Vivek Bongirwar 4. Shravesh Vivek Bongirwar Applicant No.3 & 4 are minor and there Parent & applicant 1 & 2 give power of attorney to Shri Baburao Narayan Bongirwar All R/o Gajanan Mandir Road Chandrapur ...........Appellant(s) Versus 1. State of Maharashtra, Through Its Secretary Ministry of Health Through Its Secretary Ministry of Health Mantralay Mumbai 2. Dr A K Hajare Medical Officer General Hospital Chandrapur ...........Respondent(s) BEFORE: Hon'able Mr. B.A. Shaikh, Presiding Member Hon'ble Smt.Jayshree Yengal Member Hon'ble Mr.N. Arumugam Member PRESENT: Mr A.U.Kullarwar, Advocate for the Appellants S.B.Suryavanshi, Advocate for the Respondents JUDGMENT
(Passed on 06.09.2013) Per Mr B A Shaikh, Honble Presiding Member
1. This appeal is preferred against order dtd.27.12.2006 passed by District Forum, Chandrapur in CC/06/87 by which the complaint has been dismissed.
2. The case of the complainant as set out in the complaint in brief is that the deceased Vivek Bongirwar was the husband of complainant No.1, son of complainant No.2 and father of minor complainant Nos. 3 & 4. A snake bite the deceased Vivek on 28.06.2005 in presence and other persons at 10.15 p.m. to the middle toe of his right leg. Therefore, his family members applied ligature / tight knots to his leg and middle toe to prevent spreading of poison in his body. He was taken to General Hospital at Chandrapur immediately at 10.45 p.m. The opponent No.2 (for short Op.No.2) - Dr. A K Hajare was on duty in that hospital as Medical Officer. Shri Raju Mankar who had taken the deceased Vivek to that hospital, gave information to Op.No.2 that a snake bit to deceased Vivek. It was found that there was negligence on his part in giving treatment deceased Vivek. The details of said negligence are given in the complaint, which will be discussed in later course of this judgement. Due to negligence of Op.No.2, deceased died on 29.06.2005 at 12.05 a.m. The Opponent No.1 (for short Op.No.1) State of Maharashtra who is employee of Op.No.2 is also vicariously liable. Therefore, the complainants after service of notice to Op., claimed total compensation of Rs.7.50 Lacs with interest @ 12% p.a. and cost of complaint from both the Op.Nos.1 & 2.
3. The Op.Nos.1 & 2 filed their common Written Version and resisted the complaint. They admitted that deceased Vivek was admitted to General Hospital of Chandrapur and that he was expired on 29.06.2005 at 12.05 a.m. during his treatment in that hospital for snake bite. They have denied that Vivek died because of negligence on the part of Op.No.2. They have denied all the allegations of negligence made by the complainant in the complaint. They have also given in their written version the details of the treatment given to deceased Vivek in their hospital. They also submitted that the postmortem examination of the dead body of deceased Vivek was done and his viscera and the skin were preserved and sent for chemical analysis and test of said analysis revealed that there was no negligence on the part of Op.No.2 and the treatment given to deceased Vivek in that hospital is correct & proper. Thus, they submitted that they are not liable to pay compensation to the complainants and therefore, they prayed for dismissal of the complaint.
4. The Forum below after considering evidence brought on record and hearing both the parties, passed the impugned order and thereby dismissed the complaint. In the said order, he has given the details of ideal treatment required for the snake bite and the actual treatment given by the Op. Nos. 2 to deceased Vivek vis a vis the said ideal treatment. It observed on the basis of said details and the evidence brought on record that since from the admission of deceased Vivek to hospital till his death, he was given correct and proper medical treatment. But unfortunately, he died during that treatment. It is also observed in the impugned order that there is no expert opinion in support of the case of the complainant. Thus for these reasons it is held that the Op.Nos.1 & 2 cannot be held responsible.
5. The original complainants feeling aggrieved by that order, have preferred this appeal.
6. We have heard Advocates of both parties and perused the documents produced by them before us.
7. Following are the allegations made in the complaint about the negligence on the part of Op.No.2.
i.
Op.No.2 did not start treatment for half & hour.
ii.
Op.No.2 wrote on the case papers as unknown bite though he was informed that it is the case of unknown bite.
iii.
The Op.No.2 gave injection of local anesthesia which is not a treatment for snake bite iv.
The Op.No.2 removed the ligature, which caused spread of poison in other parts of the body of deceased Vivek.
v.
After removal of ligature, the deceased Vivek was feeling difficulty in breathing but Op.No.2 started treatment for unknown bite.
vi.
Calcium was not applied to the place of bite as a test for snake bite poison.
vii.
Without loosing time, anti-snake venom was not given by Op.No.2.
viii.
The treatment was given after it was too late.
ix.
Strong suction was not applied to deppest bite mark for suction of poison.
x.
Antiseptic cleanser was not applied to the entire area.
xi.
The leg on which there was snake bite was not kept elevated.
xii.
The required tests were not done immediately.
8. The learned Advocate of the appellants submitted that the Forum below did not consider properly the evidence brought on record and erred in dismissing the complaint. He invited our attention to the copy of medical case papers and the reports of chemical analysis produced on record and submitted that they are sufficient to prove death of deceased Vivek due to negligence on the part of Op.No.2 herein. He also submitted that the Forum below did not obtain report from expert. He thus submitted that the impugned order may be set aside and the complaint may be allowed. He relied upon observations made in the case of Pravatkumar Mukherjee Vs. Ruby General Hospital & Ors., II (2005) CPJ-35 (NC). In that case expert evidence, pointed out that the discontinuation of treatment hastened the death of patient, which itself was deficiency in service. It was also found in that case that there was serious negligence and laxity on the part of hospital by refusing admission and treat facility to a youth, who was almost in dying condition. Therefore, compensation of Rs.10.00 Lacs was awarded for mental pain & agony.
9. On the other hand the learned Advocate of the respondent supported the impugned order. He has also taken us through copies of medical case papers, reports of chemical analysis of viscera and skin of the deceased and his postmortem report, in support of his submission that they prove that requisite treatment was given by the respondent No.2 to the deceased Vivek. He thus, submitted that the appeal may be dismissed as no medical negligence is proved. In support of his submissions he relied upon observations made in the following cases:-
i. Farangi Lal Mutneja Vs. Shriguru Harikishan Saheb Eye Hospital, Sohana & Anr. IV(2006) CPJ 96, Union Territory CDRC, Chandigarh. It is observed in that case that since standard treatment protocol was followed and optimal procedures were carried out, negligence of Ops. is not substantiated and hence, the complaint is liable to be dismissed.
ii. Baburao Satappa Irrannanavar Vs. KLE Societys Hospital & Research Centre and Anr. - IV (2006) CPJ-71 (NC). It is observed that the post operative record established that the patient was examined at regular intervals. It is also observed that to prove negligence of doctor, complainant has to lead adequate evidence with supportive medical texts and as same was not done, medical negligence is not proved.
10. It is not disputed that the deceased Vivek was admitted to General Hospital of Chandrapur on 28.06.2005 at 10.15 a.m. and he died on 29.06.2005 at 12.05 a.m. during the treatment in that hospital.
The Xerox copies of medical case papers of that hospital are produced before us, which are not disputed. Their typed copies are also placed before us. They show that right from the admission of deceased Vivek to that hospital, till his death in that hospital, he was attended by the Doctors and the requisite medical treatment was also given by them to him. They prove that the saline called as Intra Venor Fluid (IVF), Anti-snake venom (for short ASV), injections namely Ampicilline, Tetanus Toxide (T.T.), Wymisone, Avil and Ranitidine and other injections and medicines and other treatments were given to the deceased Vivek, respectively to remove the poison of the snake, to prevent infection, tetanus, reaction of injection of anti-snake venom and to subside acidity and to save his life Physician namely Dr. Lade was also called and his medical assistance was taken.
11. The appellants have produced no medical evidence to show that the aforesaid treatment given to deceased Vivek is improper or it is not given at proper time and to prove that death Vivek was caused due to medical negligence on the part of respondent No.2. In the absence of any such expert opinion showing medical negligence on the part of the respondent No.2, we find that no inference can be drawn from the case papers and test reports produced before us that deceased died due to any medical negligence.
12. In our view, though the appellants in the complaint has alleged the aforesaid twelve types of medical negligence on the part of respondent No.2, they are not substantiated by any medical text or any medical evidence. The case papers show medical history as unknown bite, ? snake bite. As per the case of respondents, the said medical history means unknown bite and query about snake bite. The treatment was also given for snake bite as seen from the case papers. In postmortem report it is stated that no definite opinion can be given about cause of death and it is advised to send viscera for chemical analysis. The viscera and skin of deceased was sent for chemical analysis.
13. On receiving reports of said analysis, the doctor who conducted postmortem examination gave opinion as The postmortem findings are consistent with death due to snake bite. Mode of death Neurogenic shock. As per chemical analysis report no poison was detected in the viscera of the deceased. However, the chemical analysis test report of the skin of the deceased is to the effect that presence of snake venom using polyvalent anti-snake venom for is negative. Further explanation given about the said report is as follows, which is given in the letter dtd.19.09.2006 by Asstt. Chemical Analyser :-
In snake bite examination, the residual snake venom which remains after death is detected by using polyvalent anti-snake venom serum. The polyvalent anti-snake venom serum contains anti-venom against four different verities of poisonus snakes, namely, (i) Kobra, (ii) Krait, (iii) Russels Viper & (iv) Raw Scale Viper. Such anti-snake venom serum react with any of the above snakes venom and give a positive reaction.
There can be either of the following possibilities if we get negative findings :-
i.
No residual venom is present in the body of deceased as there is no bite due to poisonous snake out of the above four snakes, ii.
Poisonous snake bite, but samples were not collected preserved properly iii.
Poisonous snake bite, but residual snake venom is lesser than detectable limits iv.
The administration of anti-snake serum may neutralize the major quantity of snake venom in the body of the deceased, thereby leaving very less residual snake venom.
14. The aforesaid reports are not disputed by both sides. In our View, the aforesaid possibility No.iv supports the case of respondents herein. Therefore, we are not inclined to accept the case of appellant that the anti-snake venom was either not administered to the deceased Vivek or it was administered to him too late to save his life.
15. It is clear from the case papers and Chemical Analysis reports and medical texts produced on record that the respondent No.2 and his associate doctor had given treatment as per norms of medical standard and they followed optimal procedure at the time of giving treatment to deceased Vivek. Hence, the aforesaid decision relied upon by the learned Advocate of the appellant is not applicable to the present case. In our considered view, merely because deceased Vivek died in hospital during treatment, is not sufficient under above facts & circumstances to hold that he died due to negligence on the part of respondent No.2 herein.
16. Thus, we find that as the allegations made by the appellants in the complaint and reproduced above as regards medical negligence are not substantiated by them by cogent evidence, the Forum below committed no error in holding that the respondents are not liable to pay compensation to the appellants. There is no merit in this appeal and hence, it deserves to be dismissed.
ORDER i.
The appeal is dismissed.
ii.
No order as to cost.
iii.
Copy of this order be supplied to the parties.
[ B. A. SHAIKH ] PRESIDING MEMBER [ SMT.JAYSHREE YENGAL] MEMBER [ N. ARUMUGAM] MEMBER sj