State Consumer Disputes Redressal Commission
Jagadeesan Ranga Rajan (Alias Jr Rajan) vs Dr. Anant E. Bagul on 28 September, 2015
RBT/CC/49/2013 1/14
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. RBTCC/13/49
Jagadeesan Ranga Rajan (alias JR Rajan)
R/at House No.376-A, "Rehoboth"
Near New Millennium School,
Horamavu - Agra,
Bangalore - 560 043
Karnataka. ...........Complainant(s)
Versus
1. Dr.Anant E. Bagul
Chaitanya Hospital & Nursing Home
Rahi Sakha Apartments, Parvati,
Pune - Sinhagad Road,
Pune - 411 009.
2. Chaitanya Hospital & Nursing Home/
Chaitanya Vaidyakiya Seva Sanstha/
Chaitanya Orthopaedic Centre
Rahi Sakha Apartments, Parvati,
Pune - Sinhagad Road,
Pune - 411 009. ............Opp.Party(s)
BEFORE:
P. B. Joshi PRESIDING JUDICIAL MEMBER
K. B. Gawali MEMBER
For the Mr.Basil Menezes, Advocate for the
Complainant: complainant.
For the Opp. Mr.Uday Wavikar, Advocate for the
Party: opponents.
ORDER
Per Mr. P.B. Joshi - Hon'ble Presiding Judicial Member:
Complainant approached the opponents for Illizarov surgery. As per the complainant assurances were given by the opponent no.1 Dr.Anant Bagul and later by his assistant Dr.Prakash that the complainant would be able walk normally. The complainant agreed for a corrective surgery of his left leg which had been short of 1½ inch due to being affected with polio as a childhood. Since the opponent no.1 claimed to be a pioneer, the RBT/CC/49/2013 2/14 by opponent no.1 as well as believed that a pioneer and doctor would carry out his duties in conformity with ethical practice. The opponent no.1 advised the complainant a corrective surgery known as the 'Triple Fusion"
for the ankle and also simultaneously joint surgery (Illizarov) to lengthen his leg of 1 ½ inch. The opponent no.1 mentioned two surgeries and that would be done on the same day and would take about 1 ½ to 2 hours. The complainant was admitted in hospital of opponent no.2 on 10th November, 2005. He was operated on 12th November, 2005. He was lastly discharged on 11th January,2006. During this period the Complainant was discharged and admitted in opponent no.2's hospital. The complainant has contended that third surgery was done on 17th November, 2005, for a maximum possible stretch and removal of the ring fixator. There was infection. Cultural sensitivity test was done. The complainant has contended that on 7th January, 2006 he was administered general anesthesia for cleaning the wound and was 'Nil by mouth' (NBM). The drips were given only at night. The complainant was totally frustrated by this time. On 8th January, 2006 dressing was done. The opponent no.1 came for a visit later that day. The complainant requested opponent no.1 to remove the plaster and show him the wound. The opponent no.1 told that it was not possible as the plaster gave support to the bone that had been broken. On 9th January, 2006 neither a single doctor visited the complainant whole day nor dressing was done. On the following day, similar situation was there. The dressing was done after 11.00 p.m. in the night. The lack of care and callousness was intolerable and complainant informed the opponent no.2's staff that there was no special care. The complainant complained of a foul smell from the plaster several times, but no heed was given. In view of the negligent care at opponent no.2, on 11th January, 2006 the complainant told opponent no.1 early in the day that he wished to leave and that if he could be discharged at the earliest. The staff completed all the required tasks promptly on 11th January, 2006.RBT/CC/49/2013 3/14
medical prescription prepared. The complainant was discharged by 02.00 p.m. on 11th January, 2006. The complainant has contended that from 12th January, 2006 onwards he was cared for by Dr.Picha. On 21st January, 2006, when Dr. Picha came to dress the wound, she uncovered a cotton piece which covered the toe and she spotted a few eggs. She said it was not a good sign and there must be 'maggots' inside. She suggested that the complainant to go to opponent no.2. So complainant telephoned opponent no.2, but, neither the opponent no.1 nor his Assistant Dr.Prakash were available and so told that they were at camp in Bihar. At 06.00 p.m. complainant went to M/s.Yash Hospital and was attended to and checked by Dr.Hemant B. Agarwal who found that the situation to be very bad with the wound covering almost 2/3 of the tibia and multiple maggots on the feet. Dr.Agarwal recommended to go to Dr.Hardikar Hospital in Pune as it was an emergency. Then complainant rushed to Dr.Hardikar Hospital in Pune and was admitted at 11.35 p.m. on 21st January, 2006. Complainant was informed that gangrene was spread almost to the knee and that it was virtually impossible to go in for an amputation below the knee, for fear of further infection on the leg. The complainant states that something untoward happened during the surgery at opponent no.2 which caused the artery to be blocked or compromised the flow of blood, due to the spasm caused while attempting the required/desired stretch in the complainant's leg by opponent no.1. the infection caused due to pseudomonas bacteria was neither informed nor contained/cured at opponent no.2, which led to loss in blood circulation, lack of sensation, gangrene and maggots settling on the dead leg. The post operative treatment care was far from efficient and proper and has resulted in the loss of the complainant's limb. Complainant has contended that following the amputation at Dr.Hardikar's hospital and recuperation thereof, the complainant sent letter dated 1st March, 2006 to opponent no.1. IN reply to said letter opponent no.1 denied many of the facts. As per complainant, opponent no.1 made RBT/CC/49/2013 4/14
- the complainant had a pin tract infection from the ring fixator,
- that opponent's treatment was effective,
- that there was no 3rd surgery on 17th November, 2005
2. The complaint contended that the consent of surgery was not an informed one. The investigation, medical opinion following the amputation revealed the nature of pseudomonas bacteria. This bacteria resides at hospital premises and is deadly, if not treated with care. The complainant has contended that he was never informed about the true nature and type of infection he had and was only told that it was a minor pin-tract infection, which can be cured in a couple of days. The complainant was kept totally in the dark about the seriousness, source and nature of infection of pseudomonas bacteria. The culture and sensitivity report dated 31st December, 2006 was given to the complainant only upon discharge from opponent no.2 on 11th January, 2006. The complainant was not informed till 4th January, 2006 that the report from the Culture treatment had arrived; and even then presence of pseudomonas bacteria was not communicated. The complainant has contended that opponent no.1 and staff of opponent no.2 were negligent and incompetent in curing the infection and that Dr. Hardikar's statement in that e-mail dated 28th November, 2006 states that the pulsoximeter was not giving any signal regarding the arterial flow, whereas the Doppler Test confirmed absent blood flow. As per sound medical practice a Doppler test must have been done to ensure that there were no blockages in the veins/arteries, which was never done at opponent no.2. Strong antibiotics were administered all along without under taking a proper Doppler test to ensure that the medication was actually reaching the site of wound. The complainant has contended that cause of action arose at Pune when opponents rejected the claim in response to complainant's letter dated 1 st March, 2006, which RBT/CC/49/2013 5/14 opponents. Complainant filed consumer complaint with the prayer that the opponents be held guilty of deficiency in service, medical negligence and unfair trade practice. Opponents be directed to pay to the complainant a sum of Rs.10,32,923/- as amount already incurred towards treatment. The complainant prayed that opponents be directed to pay a sum of Rs.5,23,244/- as Post amputation care amounts already incurred. The complainant prayed that opponents be directed to pay the amount of Rs.49,11,833/- towards acquiring 2 C-legs, maintenance costs, ongoing physiotherapy charges and miscellaneous costs. Complainant prayed that opponents be directed to pay to the complainant Rs.5,00,000/- towards pain, shock, suffering, discomfort, inconvenience, frustration, mental agony and harassment suffered. Complainant prayed that the opponents be directed to pay interest on the said amount @12% per annum from the date of filing of the complaint till realization.
3. Opponents have filed written version and resisted the complaint. Opponents have not disputed that complainant approached the opponents and he was operated by opponent No.1 in opponent No.2-hospital. However, they denied there was any deficiency in service on the part of opponents. It is not disputed that operation was done on 12/11/2005 and he was lastly discharged on 11/01/2006. It is the contention of the opponents that during that period, the complainant took discharge for some period and again he was readmitted and complainant approached doctor who was not Orthopaedic Surgeon for dressing and other treatment during the period he was discharged and readmitted in opponent No.2-hospital. It was contended that because of that there was infection. Opponents have contended that proper treatment was given by the opponents. It is to be noted that at the time of discharge, condition of the complainant was good. After discharge, complainant has taken treatment such as dressing and medicines from the doctor who was not Orthopaedic Surgeon. Thereafter there was infection. Opponents have contended that opponents were not RBT/CC/49/2013 6/14 opponents and hence, prayed for dismissal of the complaint.
4. Considering the rival contentions of the parties, considering the record and keeping in view the scope of the complaint, following points arise for our determination and our findings thereon are noted for the reasons as below :-
Sr.No. Points Finding
1. Whether there is deficiency in service No
on the part of opponents?
Whether complainant is entitled for
2. compensation as claimed? If yes, to No
what extent?
3. What order? Complaint is dismissed
REASONS :-
5. Point No.1 :- In view of admitted fact as referred above, question is about whether there is sufficient material on record to accept the contention of the complainant that there was deficiency on the part of opponents-doctor and hospital. Before considering the facts of the case before us, we would like to refer observations of their Lordships of the Apex Court in the case of Martin F. D'Souza V/s. Mohd. Ishfaq, reported in II(2009) SLT 20, that "Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence." It was further observed that "Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good." It was further observed by their Lordships that the broad general principles of medical negligence have been laid down in the Supreme Court's judgment in the case of Jacob RBT/CC/49/2013 7/14 indicated briefly here :-
"The basic principle relating to medical negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 as follows :
"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 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-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." Bolam's test has been approved by the Supreme Court in Jacob Mathew's case."
6. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
7. There is a tendency to confuse a reasonable person with an error free person. An error of judgment may or may not be negligent. It depends on the nature of the error.
8. Keeping in view those observations of their Lordships of the Apex RBT/CC/49/2013 8/14 evidence of expert to hold doctor guilty of negligence. However, in other cases, there must be evidence of the expert to accept the contention of the complainant that there was medical negligence on the part of the doctor and that it was a deficiency on the part of the doctor. Here in the present case, it has come on record that operation was done on 12/11/2005 on complainant by opponent No.1 in the opponent No.2-hospital. Complainant was discharged lastly on 11/01/2006. During this period, complainant got discharged for some period and was again admitted in the hospital. At page-94 of complaint compilation, there is one document which shows that complainant was discharged from the hospital and was again readmitted and during that period, complainant approached Dr.Kajal Picha at Lonavala at night for taking injection and for other treatment. Then during the period 24/12/2005 to 06/01/2006 complainant approached Dr.Picha at Lonavala for dressing wound daily, cleaning wound. Then again during the period 04/01/2006 to 06/01/2006 complainant approached Dr.Picha for some intravenous injection. Said document also shows that after a discharge of the complainant from opponent No.2-hospital on 11/01/2006, complainant approached Dr.Picha during 12/01/2006 to 21/01/2006 for dressing wound, injection, etc. On 21/01/2006 Dr.Picha noticed eggs and maggots near toes and fingers of the complainant and then Dr.Picha referred the complainant to Orthopaedic Surgeon Dr.Agarwal. Thereafter, complainant went to Dr.Agarwal and then Hardikar Hospital where his leg was amputated.
9. Learned Advocate for the opponents has drawn our attention to case papers which are at page-75to93. On 02/12/2005 general condition of the complainant is shown as good. Treatment which was given was mentioned in the relevant column. General condition was also good on further dates as it clear from these case papers. Treatment which was given also mentioned in the relevant column. On 12/12/2005 a day on which complainant was again readmitted in the opponent No.2-hospital RBT/CC/49/2013 9/14 12/12/2005 that there was severe infection. It means when the complainant returned to opponent No.2-hospital after period of 09/12/2005 to 11/12/2005 his wound was seriously infected as noticed on 12/12/2005 when he was readmitted in the opponent No.2-hospital. We have already referred the document at page-94 i.e. the details written by Dr.Picha on her letterhead showing when complainant was approached her and during which period treatment was taken from her. Page-80 of complaint compilation, a case paper shows that on 09/12/2005 at 09.30 a.m. general condition of the complainant was good and on the same day, complainant was discharged and complainant approached Dr.Picha on 09/12/2005 at night and he was again readmitted in the opponent No.2-hospital on 12/12/2005. It means when he was discharged from opponent No.2- hospital on 09/12/2005 in the morning his general condition was good. However, when he was again readmitted on 12/12/2005 his wound was severely infected.
10. Learned Advocate for the complainant has submitted that opponent No.1 has not taken proper care and there was negligence on the part of opponent No.1 and also opponent No.2. Learned Advocate for the complainant has referred to page-74 of complaint compilation which is email from Dr.S. Pugalanthi Pandian. It is mentioned in the said email that Mr.J. Rajan after undergoing the limb lengthening procedure, probably had Ischaemia of the Limb. This is obvious from the symptoms. It is further mentioned that no investigation had been done to ascertain the Vascularity like Doppler Flow Study etc., as per the records available. It is mentioned that on 17/11/2005 a surgery was done. Details of that are not available as per record submitted. It was further mentioned that probably multiple debridments had been done over the limb because of Sepsis, which was fulminant. One of the reports confirms it as pseudonymous infection. This is usually a Hospital acquired nosocomial infection and very common in Ischeamic wounds. These three are RBT/CC/49/2013 10/14 amputation of the limb. Learned Advocate for the complainant is mainly relied on the said email for contending that there was negligence on the part of opponents as proper care was not taken.
11. Learned Advocate for the opponents has argued that email cannot be considered for the reason that it was on the basis of record which was sent by the complainant to Dr.Pandian . It was also argued by Advocate for the opponents that in the said email itself it is mentioned that infection which is referred in the email is common in ischeamic wounds. Learned Advocate for the opponents has argued that wound of the complainant was infected not because of any negligence on the part of opponents, but is because of the complainant himself as after taking discharge from time to time and before readmission in opponent No.2-hospital, complainant did not approach Orthopaedic Surgeon, but approached Dr.Picha, who was B.H.M.S. at Lonavala. Thus, complainant has taken treatment from unqualified doctor.
12. Learned Advocate for the complainant referred to page-62 of complaint compilation which is an email from Hardikar Hospital. It is mentioned in the said email which was addressed to complainant-J.Rajan that it was in reply to the email of complainant-J.Rajan and details were supplied to the complainant as under :-
"(1) The Doppler test was done to confirm the flow of blood which is more documented than Pulse-oxy-meter and which showed that there was no flow in the artery below the knee level. The Pulse-oxy- meter was not giving any signal regarding the arterial flow. (2) Central IV line was inserted via the Jugular veins since the veins in both upper extremities were too small for pushing the IV Fluids. This was done because the veins were thrombosed and it was essential.
(3) PPRP means Post Polio Residual Paralysis.
(4) There are no tests to verify whether the patient has any
RBT/CC/49/2013 11/14
1to2% of the patients do suffer from implant reaction. (5) Pin tract infection is usually local and can be treated by suitable antibiotics and it is known that in any external fixator application, Pin tract infections can occur. The organism may vary."
13. Learned Advocate for the complainant has also mainly relied on said email to contend that there was deficiency on the part of the opponents and there was medical negligence. Learned Advocate for the opponents has argued that from that email it cannot be said that there was deficiency on the part of the opponents. Learned Advocate for the opponents has argued that in said email itself it is mentioned that - "Pin tract infection is usually local and can be treated by suitable antibiotics and it is known that in any external fixator application, Pin tract infections can occur. The organism may vary." It was argued that even from this email and earlier email relied by the complainant, it is clear that infection can occur, organism may vary. Here it is clear that the complainant after taking intermittent discharge from opponent No.2-hospital approached unqualified doctor and resulting into infection and again approached to opponent Nos.1&2 with infected wound. We have already referred about intermittent discharge of complainant from opponent No.2-hospital and that he returned with infected wound.
14. Learned Advocate for the opponents has argued that proper treatment was given by the opponents to the complainant. Necessary antibiotics were administered and infection was properly treated by proper medicines. We have already referred above the case papers in which the treatment was mentioned and 'general condition of the patient was good' was also mentioned. Learned Advocate for the opponents has argued that only because there was infection, it cannot be said that doctor and the hospital are negligent and that there was deficiency on their part. It is RBT/CC/49/2013 12/14 treated the complainant with proper medicines. It was submitted that wound of the complainant was infected because of act of the complainant himself when he was intermittently discharged from opponent No.2- hospital and that infection was treated by the opponents. Learned Advocate for the opponents has submitted that when the complainant was lastly discharged from opponent No.2-hospital on 11/01/2006 general condition was fair. It was mentioned in the Discharge Card about diagnosis. It was specifically mentioned at the time of discharge that dressing daily. It was also written on the Discharge Card that medications as prescribed, regular alternate day dressing from nearby doctor under total aseptic precaution, regular exercise as prescribed by Physiotherapist and regular follow-up. It is also mentioned on the Discharge Card that in case of any swelling, severe pain or any other complaint, contact hospital immediately. It was also mentioned that contact doctor in case of any problem, medications daily as prescribed. Learned Advocate for the opponents has argued that from the said Discharge Card dated 11/01/2006 which is at page-111 of complaint compilation, it is clear that general condition of the patient was fair. Follow-up treatment was mentioned. It was further argued that after that day, complainant never gave feedback to the opponents. Learned Advocate for the opponent has argued that after discharge on 11/01/2006 complainant again approached Dr.Picha, B.H.M.S. doctor for dressing the wound and for injections for the period 12/01/2006 to 21/01/2006. It is on 21/01/2006 Dr.Picha notices some eggs and maggots near toes and fingers of the complainant and then Dr.Picha referred the complainant to Orthopaedic Surgeon Dr.Hemant Agarwal and thereafter, complainant approached Hardikar Hospital and his leg was required to be amputated.
15. Learned Advocate for the opponents has argued that when the complainant was last discharged from opponent No.2- hospital, condition of the complainant was fair and infection aggravated during period RBT/CC/49/2013 13/14 unqualified Dr.Picha. Thus, the opponents are not at all responsible for said condition of the patient on 21/01/2006 which resulted in amputation of the leg.
16. Learned Advocate for the opponents argued that there is absolutely no expert evidence led by the complainant to show that treatment which was given by the opponents to the complainant till he was discharged from opponent No.2-hospital was not proper. On the other hand, material on record in the form of case papers shows that proper medicines were given to the complainant when he was in the opponent No.2-hospital. It is also argued that wound of the complainant was infected when complainant took discharged intermittently and approached Dr.Picha and returned to opponent No.2-hospital with infected wound. But that infection was also properly treated by the opponents by giving necessary antibiotics as mentioned in the case papers and that is why when the complainant was lastly discharged on 11/01/2006 his condition was fair. Learned Advocate for the complainant has tried to argue that opponent No.1 has not taken proper tests and has not treated he complainant properly. However, we find that there is no material on record to support said arguments. On the other hand record shows that culture and sensitivity tests were also done when complainant was admitted in the opponent No.2-hospital and complainant was properly treated by opponents was mentioned in the case papers as referred above. There is no evidence especially of expert to show that the treatment given by opponents to complainant was not proper and correct. Likewise, there is no evidence to show that the treatment which was necessary was not given to the complainant. Thus, we find that there is no material on record to accept contention of the complainant that there was medical negligence on the part of opponent Nos.1&2 and there was deficiency in service on the part of opponent Nos.1&2. We have full sympathy with the complainant as he lost his left leg which was required to be amputated. However, in absence of material on record for holding RBT/CC/49/2013 14/14 deficiency in service and hence, we cannot say that there was deficiency in service on the part of opponent Nos.1&2 while treating the complainant. Hence, we answer Point No.1 in negative.
17. Point No.2 :- In view of answer of Point No.1 in negative, there is no question of granting any compensation to the complainant.
18. Point No.3 :- In view of answers of Point Nos.1&2, complaint deserves to be dismissed. Hence, we pass the following order :-
-: ORDER :-
1. Consumer complaint stands dismissed.
2. Parties to bear their own costs.
3. Upon retaining original set of complaint compilation, other sets of complaint compilation shall be returned to the complainant forthwith.
4. Copies of the order be furnished to the parties.
Pronounced Dated 30th September 2015.
[ P. B. Joshi ] PRESIDING JUDICIAL MEMBER [ K. B. Gawali ] MEMBER ep/dd.