State Consumer Disputes Redressal Commission
Babubhai R Divani vs Apollo Hospitals International Ltd on 31 May, 2023
DETAILS DD MM YYYY
Date of Judgment 31 05 2023
Date of Filing 08 12 2014
Duration. 23 5 8
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF GUJARAT
COURT -2
CONSUMER COMPLAINT NO. 252 OF 2014
COMPLAINANT: BABUBHAI R DIWANI
31/C, Shree Prakash Co. Op. Housing Society Ltd.,
Navyug School Road, Opp. Panchdev Mandir,
Naroda, Ahmedabad.
V/s
OPPONENTS: [1]. APOLLO HOSPITAL INTERNATIONAL LTD.
Plot No. 1/A, Bhat GIDC Estate,
Village Bhat, District: Gandhinagar.
[2]. Dr. UTPAL SUBODH SHAH
C/o. Apollo Hospital International Ltd.,
Plot No. 1/A, Bhat GIDC Estate,
Village Bhat, District: Gandhinagar.
[3]. THE NEW INDIA ASSURANCE CO. LTD
Regional Office, 5th Floor, Popular House,
Ashram Road, Ahmedabad.
[4]. RELIANCE GENERAL INSURANCE COMPANY LTD.
202-210, Second Floor, Mercantile House,
K G Marg, Connaught Place, New Delhi. 110001
[5]. ESIC (BAPUNAGAR)
General Hospital, Bapunagar,
Ahmedabad. Gujarat. 380024.
[6]. BHAGWATI PACKAGING
381/2, Opp. Saijpur Tower,
B/h. S K Shopping Centre,
Saijpurbogha, Ahmedabad.382345
CORAM: Hon'ble Mr. R N Mehta, Member
Rnm CC2522014 Page 1 of 18
Appearance: Mr. Piyush Jadugar, advocate for complainant Mr. Bhargav Pandya, advocate for Op. no.1 Mr. S P Sen, advocate for Op. No.2 Ms. N K Vora, Advocate for Op. no.3 Mr. V P Nanavaty, advocate for Op. No.4 Ms. R H Padhya, advocate for Op. no. 5 (Order by Hon'ble Mr. R N Mehta, Member) [1]. The complainant named herein above, has filed this complaint under the provision of Sec. 12 read with Section 17 of the Consumer Protection Act, 1986 (hereinafter referred as "The Act" or "Act") alleging therein deficiency in service on the part of the opponents while rendering treatment to complainant and claimed compensation of Rs. 42,00,000/- and also cost of Rs.2,00,000/- for this complaint.
[2]. It is case of the complainant that his son, Mr. Shivajibhai was registered member of Employee State Insurance Scheme (in short ESIS) and complainant being family member, beneficiary of the services rendered by the said ESIS. It is averred that ordinarily, members are given medical services at ESIS hospitals but in case where services cannot be rendered at the said hospital, with the prior approval, arrangements are being made to provide services at Private hospitals affiliated with ESI Scheme. In such a case, though all services are rendered to beneficiary, bills thereof are directly paid by the Scheme to hospital and members are not supposed to pay any expenses.
[3]. The complainant had heart ailment and approached Opponent no.5 hospital where he was given primary treatment and for further management, he was referred to Opponent no.1 hospital on 2/10/2013. The complainant was diagnosed having Coronary Artery Disease and was advised for surgery known as "Coronary Artery Bypass Grafting" (CABG) which was to be carried out at Opponent 1 hospital (hereinafter referred as "Apollo") by Opponent no 2, who is Cardiothoracic Surgeon. It is alleged that the "Apollo" had falsely raised bills and recovered from the complainant though it was specific arrangement for payment through ESIC to hospital. It is also alleged that the hospital and doctor failed in their duties to take preventive care for spread of infection after surgery and it resulted into sufferance to the complainant and therefore this complaint is filed for compensation. It is also alleged that Rnm CC2522014 Page 2 of 18 when complainant had taken estimate from U N Mehta hospital for CABG, it was around Rs.75000/- whereas Apollo has charged more i.e. Rs.1,17,000/- and though complainant had to pay additional expenses because bills were raised. It is alleged that it is duty of the opponent hospital and doctor to take adequate care and caution and they were duty bound to use surgical instruments free from bacteria but they failed in their duty and because of their negligence the complainant had to suffer. The complainant was hospitalised as indoor patient from 2/10/2013 to 11/10/2013 under care of opponent no.2 Surgeon. It was informed to the complainant that open heart surgery was carried out successfully and stitches thereof are in order. However, this was not true because there was continuous leakage causing bandage wet and watery discharges through stitches were observed. The complainant had complaint of shoulder pain, feeling cold, pain in bones and pus discharge. The complainant states it was intimated to doctor on duty repeatedly and in turn some pathological tests were carried out too.
[4]. The complainant also states that when the complainant asked to have second opinion from Dr. Nitin Jain, the Surgeon became angry and behaved rudely. When complainant apologised then only he changed the dressing and prescribed for culture report. It is alleged that despite having in hand, culture report, no proper treatment was carried out and not advised for medicines to prevent infection rather deliberately avoided to offer adequate care. It is alleged that because of this, complainant had to suffer from infection known as "Pseudomonas aeruginosa". According to complainant, even after report dt.9/11/2013 showing above result, no medicines were given to control such infection and thus knowingly ignored microbiological investigations. It is alleged that because of such attitude, wound did not healed, pus and watery discharge were observed continuously and therefore also requested for treatment through rehospitalisation but ignored. Being dissatisfied with the outdoor treatment, the complainant left with no option but to consult another Surgeon.
[5]. The complainant thereafter approached Anand Surgical Hospital at Saijpur where he was hospitalised as indoor patient on 11/11/2013 and Dr. Pranav Modi (Cardiologist), Dr. Manoj Sevkani (Infection Specialist) and Dr. Narendra Sanghvi (surgeon) had examined. After studying treatment papers it was informed to the complainant that there is infection which might have Rnm CC2522014 Page 3 of 18 taken place during surgery and now spread to the bones near chest and it may result in erosion requiring removal of infected sternum bone through another surgery. It is also further informed that if surgery is not done, it may cause severe problems in near future and therefore it is necessitated. The complainant thereafter undergone surgery and doctors have removed infected bones. The complainant‟s health conditions improved thereafter. The complainant states that he had to incur expenses of Rs. 7,00,000/- towards hospital expenses and Rs.3,00,000/- towards medicines. The complainant also claimed Rs.5,00,000/- towards loss of salary to his son during treatment period. Thus he was subjected to loss of Rs.15,00,000/- because of negligence on the part of the opponent no.1 and 2 and therefore claimed loss of Rs.10,00,000/- for mental agony, harassment and Rs.20,00,000/- towards permanent disability due to removal of bones.
[6]. When the notices were served upon to parties, Mr. Sen, Learned advocate, has filed appearance for opponent no. 1 & 2 and also moved applications to join their insurers as opponents being necessary parties. Similarly he also moved an application to join ESIC as party, however this Commission allowed application qua the insurers vide order dated 15/7/2015. Thereafter, on 31/8/2015, this Commission also allowed application to join ESIC as party and notices were issued.
(6.01). The opponent no.2, Dr. Utpal Shah (herein after referred as "Surgeon") had filed written statement (affidavit in reply) vide Exh.15 (page
235). The surgeon stated therein that he possesses degree of M.S., M. Ch., and having 25 years experience and have carried out as many as 10000 open heart surgeries. He had worked with reputed international institutes and at present working as Chief Cardiac Surgeon at opponent no.1 hospital. He has stated that he had treated complainant with utmost skill, care and caution and not negligent in any manner while rendering treatment to him. He has stated that after surgery, complainant had, on his own, inserted unsterile cotton gauze pieces in his chest wound contrary to surgical principles. He also stated that in the mid treatment, the complainant consulted another Dr. Nitin Jain, who had rendered some treatment and stated to have instructed to take stitches on wound without his knowledge. He further stated that when the stitches gave away and wound opened up discharging septic, complainant came back to him admitting that treatment Rnm CC2522014 Page 4 of 18 was taken without surgeon‟s knowledge and also gave in writing. Surgeon has produced copy of this writings on record along with written statement. The Surgeon further stated that even thereafter, he examined patient and advised for culture report, which was carried out but thereafter complainant never returned to him. Thus the complainant voluntarily chosen to decide what is necessary for him and what is not required! He also stated that even complainant himself has produced on record prescription dated 21/10/2013 which is at page 52 & 52A. According to him, this shows that complainant behaved contrary to medical advice and therefore only on this ground this complaint can be dismissed. He also stated that complainant was admitted in hospital on 2/10/2013, surgery was performed on 4/10/2013 and was discharged from hospital on 11/10/2013 in hemodynamic stable condition. Copy of discharge summary is also produced by the complainant at page 25 to 28. This report shows that he was given medicines for 10 days. On 16/10/2013, while dressing, it was noticed some discharge from 1/4th of sternotomy for which medication was given. Prescriptions are also on record. On second visit on 21/10/2013, superficial wound infection and watery discharge was observed with stable sternum. Wound swab Culture and sensitivity reports were advised. These reports were not shown to him. The complainant took treatment from another doctor without his knowledge. When complainant came to him on 30/10/2013, he saw that there were some stitches which were not taken by him then Surgeon asked complainant where he admitted that he has taken treatment from another doctor. Surgeon states that complainant admitted that when stitches gave away, he put unsterile gauze as his pain was increased. Thus infection that was superficial had worsened. The case papers produced by the complainant itself support all these facts. The complainant then requested to treat him and he being dutiful doctor prescribed medicines and advised for culture. The culture report dt. 9/11/2013 shows that infection did not increase. The complainant did not visited him thereafter and therefore do not know what had happened thereafter. He has categorically stated that during hospitalisation or during OPD there was no lapse on his part and no incident which can ever be said negligence on his part. He therefore disowned liability and requested for dismissal of complaint.
Rnm CC2522014 Page 5 of 18(6.02). The Complainant gave rejoinder and denied all facts. The complainant stated that "infection" was on set during surgery. He also raised doubts and stated that when the opponent Surgeon observed even superficial infection, he ought to have advised complainant for hospitalisation. He states that quantity of discharge was on higher side and even then surgeon did not take initiative to control the same which ultimately spread to bones. Regarding consulting another doctor, complainant states that Dr. Nitin Jain is also Cardiac Surgeon in the opponent hospital and said doctor had merely informed the complainant that continuous discharge led to spread of infection to bone. The complainant states that Dr. Utpal ought not to have objected when patient wants to have another opinion. It is also further alleged by the complainant that writings obtained by the opponent doctor from complainant was illegal and under threat of denial of treatment and therefore it cannot be used as admission on his part. It is also further stated that while giving discharge from the hospital, the opponent was informed about leakage however he explained that it will subside automatically once wound starts healing. During post operative treatment, the opponent Surgeon merely changed dressing and advised for culture report only on 21/10/2013 and 7/11/2013. The complainant states that because of heavy discharge from wound the complainant had to visit hospital even before the scheduled date of follow up treatment. The complainant averred that because of delayed advice for culture report, spread of infection become uncontrollable and in such circumstances, the complainant had to availed opinion of Dr. Nitin Jain. In short, according to the complainant, all these happened due to delayed treatment rendered by the opponent surgeon and complainant had to incur expenses for draining out puss to save further erosion to bones.
(6.03). The opponent no. 3, New India Assurance Co. Ltd had filed reply contending therein that complainant is not "consumer" since he had not hired any services of the insurance company. The insurer has adopted reply of the opponent surgeon and submitted that there was no negligence and company is not liable to pay any amount under the policy held by the Dr. Utpal Shah. The Opponent no.5 ESIC also filed reply contending therein that complainant is insured person under ESIC Act and therefore attended at Bapunagar hospital but when he was diagnosed with Acute Coronary Rnm CC2522014 Page 6 of 18 syndrome with double vessel disease, he was advised to have CABG which was not possible at Bapunagar hospital and therefore referred to Apollo hospital. The complainant was treated there and claimed bill of Rs.117000/- out of which Rs.99000/- has been paid over to opponent hospital as per arrangement. There was no negligence on its part. The opponent no.4, Reliance General Insurance Co. also filed reply (Exh:29) and contended that Reliance Medical Establishment liability Professional indemnity policy no. 1301342722000009 was issued in favour of opponent no. 1 hospital i.e. Apollo Hospital, for the period from 9/2/2014 to 8/2/2015 having retroactive date 9/2/2009 having LOI Rs.4 crore which includes IDP 18000 and ODP 115000 for 20 doctors and 6 nurses. It is submitted that at no point of time, insurance company was intimated about claim and therefore cannot be held liable for alleged medical negligence. It is further submitted that principle of indemnity would be applicable subject to terms and conditions of the policy and answering insurance company cannot be saddled with liability without adjudication of liability based on professional indemnity policy. The complainant does not have any right to claim directly from the opponent insurance company. It is also further contended that there is no covenant for payment of interest under the policy. The complainant has filed rejoinder qua the reply filed by both insurance company which is on record at Exh.31. It is further submitted that the both these companies are liable to indemnify the loss if insured is held guilty of negligence.
(6.04) The opponent no. 2 then also moved an application to join employer of the complainant‟s son as necessary party and who also has filed written statement (page 402) to the effect that complainant is beneficiary of ESIC scheme for which his son is paying consideration through him. The complainant and opponent no.2 have unnecessarily burdened the record by producing applications and rejoinders frequently. Both of them have also filed application to lead oral evidence through cross examinations. This Commission had granted both applications and directed them to remain personally present. Record shows that despite they both were present somehow cross examination could not be possible on that day. The complainant filed evidence affidavit which is nothing but reiteration of facts stated in complaint. The opponent no. 3 then moved an application to Rnm CC2522014 Page 7 of 18 amend written statement which was granted in view of policy details and amended reply is at page 387.
(6.05). This Commission passed order dated 17/5/2022 and directed as under:
"Now the matter is for further proceedings. The parties are hereby directed to file their evidence affidavit if not filed until date.
The evidence affidavit of the respective witnesses to be filed on or before 20/6/2022 with an advance copy to the otherside. On the next date the matter will be proceed further."
Despite above order, complainant filed pursis to declare closing of evidence from his side and submitted written submissions. The opponent no. 2 also filed closing pursis and submitted written submissions. The opponent no.1 also filed closing pursis on 27/9/2022 and submitted written submissions. Similarly opponent no.3 insurer also filed written submissions on record. Thus, there is no cross examination from either side and this complaint is now to be decided only on the pleadings and affidavits available on record [7]. (7.01). From the pleadings of rival parties it is clear that basic complaint of the complainant is regarding post-surgical treatment. It is case of the complainant that the opponent surgeon Dr. Utpal Shah did not care for infection that "set on" during surgery and it ultimately spread to sternum bone and complainant had to suffer lot and have to undergo debridement surgery which costs him additional expenses. The surgeon states that when the patient was under his control, at that point of time, he had superficial infection, but it worsened because patient himself had decided line of treatment and acted against the medical principles and which might have led to spread of infection and might have caused severe damage but he cannot be made liable for the same. In these rival set of submissions, it would be necessary to ascertain whether complainant had successfully proved that infection "set on" during surgery and it was not taken care of even during post-surgical treatment, it worsened the condition of the patient and led to another surgery as it canvassed by the complainant.
(7.02). Referring page 58 which is culture report dt. 21/10/2013, it is submitted by the complainant that report shows organism isolated is "Pseudomonas aeruginosa" makes it clear the type of infection that has taken place. This type of infection "sets on" during the surgery is known fact in medical science and its causation is mostly use of unsterile medical Rnm CC2522014 Page 8 of 18 instruments. It is also submitted that this culture report was carried out at the instruction of the opponent surgeon when he observed so called superficial wound infection. Page 52 is prescription written by the opponent surgeon and it is mentioned therein that patient had watery discharge. This proves that it was within the knowledge of the opponent surgeon that patient had "on set of infection" and therefore he ought to have taken care of. Page 55 of the compilation shows CBC reports of even date which shows WBC count 10860 which confirms mild growth of infection. Referring page no. 93 prescription dt. 30/12/2013, Mr. Jadugar submits that complainant was necessitated to undergo debridement of post CABG wound because of spread of infection. Page no. 100 is report of MSCT Scan of thorax wherein impression reads as under:
"The CT findings are suggestive of:
Erosion, sclerosis with periosteal reaction &areas of sequestrum formation involving medial end of both clavicles, (Lt>Rt), costal cartilages of both 1 st rib & lower anterior chest wall with associated soft tissues as described above suggests changes of osteomyelitis.
Post-operative changes involving anterior chest wall in midline.
No evidence of parenchymal infiltration or plural effusion."
This makes it clear that infection has led to osteomyelitis that is to say erosion had taken place. Mr. Jadugar submits that complainant had to consult Dr. Nitin Jain because quantity of discharge was more and page 61 shows Dr. Nitin Jain had referred for CT Scan which even Dr. Shah could have done it. Mr. Jadugar mainly relies upon culture reports dt.21/10/2013 and 7/11/2013 both show the organism of aforesaid types of infection. He then refer page 85 which shows that complainant had to take treatment due to growth of infection and had to undergo surgery on 16/11/2013 at Anand Surgical Hospital Pvt Ltd. The complainant was diagnosed as "Mediastinitis with unstable sternum post-CABG". The complainant has placed on record bills, prescriptions, reports cash-memo, receipts etc for expenses incurred in support of his claim. The complainant has on the basis of aforesaid evidences prayed for award of compensation claimed in the complaint petition.
(7.03). Mr. Sen, advocate for surgeon Dr. Shah submits that the surgeon has carried out surgery on 3/10/2013 and though he do not have any problem with regard to his basic heart ailment shows that surgery was done perfectly. According to him, the complainant has made allegations of Rnm CC2522014 Page 9 of 18 negligence on the basis of assumptions and particularly when complainant is non-medical man. The complainant has not produced any evidence of an expert to support his case of negligence. It is submitted that primary burden of proving case of negligence is on the complainant. He submitted that in every surgery, pain and infection are inherent risks and therefore when patient signs consent form, he should be ready to assume inherent risks of surgery. He also submitted that in the mid treatment, the complainant stopped following instructions of surgeon and acted contrary to medical science and therefore the opponent cannot be blamed for worsening of condition. It is not even case of the complainant that when the surgeon seen even superficial infection, he did not prescribed any medicines or did not confirmed it through culture report. The complainant himself has produced report which shows that doctor had examined him, advised for pathological tests and also prescribed medicines. Even otherwise also, every surgeon prescribes medicines in anticipation and irrespective of on-set of infection which has been done in this case. Thus the doctor has acted in line with established medical protocol. There is no piece of evidence by any of expert or subsequent treating doctor which suggest that the line of treatment selected by the Surgeon was wrong or either he omitted to do anything or committed an error in doing anything. According to Mr. Sen, the Surgeon is highly qualified and having enough experience to his credit therefore he is competent to treat the patient. He submitted that Surgeon has provided treatment to the complainant according to the well established standard of care and had never been negligent in the treatment of the complainant at any stage. On the contrary, he had acted in the best interest of the complainant. He also submitted that complainant is in good health, mobile and free from any symptoms related to heart ailment, itself, is sufficient to say that surgery of CABG is successful. He also further submitted that every Surgeon is supposed to take care of infection and in this case, intravenous antibiotic were administered a day prior to surgery, antiseptic skin preparation in ward prior to shifting of patient in theatre, intravenous antibiotic given during surgery, post surgery antibiotic therapy was given. Thus adequate care was given. The complainant was given discharge when he was found hemo-dynamically stable. During OPD visit when complainant had watery discharge, examination revealed that it was superficial wound infection and therefore sternum bone was also examined and found stable.
Rnm CC2522014 Page 10 of 18Immediately Surgeon advised for swab culture and sensitivity test, which is standard line of treatment. Dressing was applied afresh and continued with antibiotic therapy. When report showed moderate growth of infection, complainant was given advice to come on alternate days for dressing so that wound and clinical condition can be monitored. Even on that day, sternum was stable and there were no other symptoms like fever or toxaemia. Mr. Sen referred extract of a medical book edited by James Kirkin to submit that "merely because some small amount of pus has been observed at wound site does not mean mediastinitis should be assumed unless sternum has become unstable". Thus, he submitted that in this case, on that day there was no further requirement to do except antibiotic therapy which was already going on. Thereafter, complainant consulted another doctor and voluntarily he treated himself. The complainant again came to surgeon on 30/10/2013, during examination it was found that complainant had „inserted unsterile cotton‟ in his wound which caused serious contamination. Though the complainant was advised to undergo CT scan by Dr. Nitin Jain, he did not follow and therefore once again advised to do it. Despite instructions for follow up visit on alternate days, he visited after a week and it was found that his son had carried out dressing of wound! This time complainant was warned for not doing against medical ethics. Dressing was carried out with proper cleaning and prescribed antibiotics. Thereafter, when complainant visited it was found that growth of infection with "unstable sternum", for which he was advised for another surgery and second swab culture report was advised. The complainant obtained second culture report but did not return to Surgeon. Thus, Surgeon gave complete account of treatment rendered by him and there is no evidence of negligent attitude. Mr. Sen relied upon judgments of Hon‟ble Apex Court in the cases of Jacob Mathew (2005-3-CPR-70(sc)), Martin D'souza (2009-3-SCC-1) and Kusum Sharma (2010-3-SCC-480) and submitted that complainant failed to prove negligence. Hence, complaint should be dismissed.
(7.04). Mr. Bhargav Pandya appearing for the opponent hospital submitted that hospital has adopted version of the Surgeon and submitted that complainant was hospitalised on 2/10/2013, surgery was carried out at hospital and given discharge on 11/10/2013 and till then there was no complaint so far hospital services concerned. Expert doctor has rendered Rnm CC2522014 Page 11 of 18 treatment and he was discharged in healthy condition. He submitted that as Surgeon has observed, the complainant himself has inserted „unsterile cotton‟ in wound, obviously the hospital cannot be made liable for wrong doing on his part. According to him whenever it was found necessary, Surgeon had advised for culture and after report necessary treatment has been given. There is no expert opinion to establish that infection set on during surgery and that too when it is specifically alleged by the complainant that it is due to use of "unsterile medical instruments". He also submitted that though Dr. Utpal Shah was present before Commission for cross examination, he was not examined on oath. His reply is on affidavit and therefore his version remains uncontroverted. The complainant has to prove nexus with subsequent treatment at other hospital and none of those doctors have uttered a word that the line of treatment given by Dr. Utpal Shah was negligent in any manner. None of these doctors have been examined on record to prove their so called information to complainant. He also submitted that condition of patient prior to surgery and after surgery is require to be consider to ascertain whether he has been benefitted by the treatment or not. Infection is inherent risk in all surgery and therefore merely because infection has taken place it cannot be said doctor/hospital was negligent in rendering treatment. It is submitted that Dr. Shah has prescribed Linid 600, Ceftum 500mg on 21/10/2013 and these medicines are used to treat bacterial infections. Therefore it cannot be said that doctors has not taken adequate care of patient. It is also to be considered that even after finding of infection, treatment according to standard medical protocol has been followed or not. In the instant case, there is no evidence worth the name that doctor or hospital has not taken care of infection. He submitted that original treatment papers have been placed on record to show bonafide of the opponents. Pre surgery administration of antibiotic therapy suggests that adequate care has been taken by surgeon with reasonable foresight and therefore opponents cannot be saddled with liabilities as claimed by the complainant. He then prayed for dismissal of complaint since allegations made in complaint have not been substantiated by cogent evidence.
(7.05). Ms. N K Vora appearing for New India Assurance submitted that Dr. Shah is insured for total sum of Rs.75,00,000 under Professional Indemnity Policy but maximum liability for any one incident is Rnm CC2522014 Page 12 of 18 Rs.18,75,000/- in policy year. Dr. Shah was served with notice from this Commission but it was not intimated to the insurer therefore liability, if fixed on him, it is subject to terms and conditions of policy. Mr. Parikh for Reliance General Insurance submitted that liability is admitted subject to the terms and conditions of policy and reply is to be treated as written submission. Opponent no. 5 and 6 are formal parties.
[8]. From the record it is admitted position that complainant was operated at Apollo Hospital for CABG and he was given discharge from the hospital in stable hemodynamic condition. Page 28 is a document produced by complainant shows that Dr. Shah had prescribed medicines and also advised for follow up after ten days. Since this document is not in dispute, it is proved that condition of patient was stable on the date of discharge. It is also mentioned in this paper that Dr. Shah has prescribed Cap. Amoxycillin for seven days which is widely used for treating bacterial infection which also proves that prevention measures have been taken in due course to control infection in anticipation as it done in all surgical cases. It is not even complaint of complainant that he had any problem with regard to CABG surgery (except this infection) meaning thereby there is no fault or shortcoming with regard to surgical procedure. Page 49 is also a document produced by complainant which is prescription of Dr. Shah dated 16/10/2013 wherein it has been mentioned after clinical examination that wound was healthy and doctor has prescribed tablet to prevent infection. Page 52 shows note made by surgeon "superficial infection" and "watery discharge". In the said prescription Dr. Shah has also advised for "swab culture". This means as soon as evidence of infection seen that has been attended and treated promptly. On the very document advice for follow up instruction reads as "Thursday 24/10/2013 for dressing". Reverse side of this document shows that two medicines were prescribed for ten days, one of them is to treat infection and Surgeon asked to come for dressing on alternate days. Below that there is a note made by doctor that "stitches removed they were originally taken on instruction of Dr. Nitin Jain and taken by Wilson Parmar. The patient never contacted him nor sought his opinion". According to complainant, Dr. Jain is also having similar qualification and since discharge was more, consultation was made to have second opinion. Whatsoever may be the reason but fact established is that complainant had Rnm CC2522014 Page 13 of 18 consulted another medical man without informing to Dr. Shah. Secondly, it is not even case of complainant that Dr. Jain has taken stitches. It cannot be established from the above record that stitches were taken by Dr. Jain. If stitches were not taken by Dr. Shah or Dr. Jain then who did it? Presuming that Wilson Parmar did it than qualification of Wilson Parmar is not proved on record. In such circumstances, it cannot be said that action of the complainant is justified. Removal of stitches by Dr. Shah, who is in charge of treatment and expert in the field, categorically suggests that it was not necessitated. The complainant is under obligation to prove that instruction for stitches was given by competent man and it has been taken in a proper manner in line with standard medical practice. To discharge this burden the complainant ought to have examined Dr. Jain or Wilson Parmar. It is also required to be proved on record that stitches were necessary considering the then condition of patient. By consulting another doctor, complainant has voluntarily allowed third person to trace pass the medical jurisdiction of opponent surgeon and therefore Dr. Shah has legitimate right to disown the liability for further deterioration if any.
[9]. Page 58 is a swab culture report advised by Dr. Shah shows organism of bacteria and page 59 is invoice for medicines prescribed by Dr. Shah and purchased by the complainant. This proves that antibiotics have been given by Dr. Shah. Page 60 shows bill raised by hospital for consultation charge of Dr. Nitin Jain dated 28/10/2013. This gives little suspicion as to on which date Dr. Jain was consulted. Dr. Shah had made note on reverse of prescription dated 21/10/2013 though there is no date is mentioned when this note was made. If consultation of Dr. Jain is done on 28/10/2013 as it appears from invoice, a note cannot be made prior to it. Neither in complaint nor in any other pleadings, it is clearly mentioned that when Dr. Jain was consulted. It is not even case of complainant that Dr. Shah has manipulated any record at a later point of time. Therefore, complainant should prove it by other evidence that contents of note are not correct. The complainant has stated in rejoinder affidavit that infection was already observed before consultation to Dr. Jain but on which date consultation was made is not mentioned. Therefore, presumption can be made or benefit of doubt can be given to Dr. Shah that such notes must have been made subsequent to consultation with Dr. Jain but date is not mentioned therein. The Rnm CC2522014 Page 14 of 18 complainant has not uttered a word on this issue. Thus, copy of invoice proves it beyond doubt that Dr. Jain was consulted by complainant on 28/10/2013 may be without knowledge to Dr. Shah. Although there is no name mentioned in Page 61, an inference can be made that document must be a case paper prepared by Dr. Jain where he advised for CT Scan, because, neither Dr. Shah has referred this date in his reply for follow up nor any bill have been raised and produced for consulting fee of Dr. Shah for the said date. Surprisingly, in this document, there is no mention that instruction for stitches has been given by Dr. Jain. It assumes important because it is not disputed by the complainant anywhere in complaint that there were no stitches when Dr. Shah had examined him. It is in these circumstances, it would be necessary to know under whose instruction stitches were taken. More particularly when it is case of complainant that Dr. Jain has given mere opinion and not treatment. Page 67 is a copy of bill raised for culture report advised by Dr. Shah and report thereof is at page
68. Both these documents corroborate facts stated by surgeon in his reply. Page 70 is report of X-ray chest was carried out at Harsh Digital X-ray clinic on 11/11/2013 to compare it with previous report dated 21/10/2013 and observation read as under:
"Compared to previous study dated 21/10/2013, present study shows minimal ill-defined soft opacity in the left lower zone to favour minimal LRTI."
It also further observes that sternal wiring is seen consistent with post CABG status. This clearly proves that though the condition may have deteriorated after 21/10/2013 but it has not affected sternal wiring since it is shown as post CABG status. This is more important because on one hand the complainant claimed that on set of infection was from the operation theatre whereas the Dr. Shah has claimed that complainant himself had inserted cotton in the wound. Possibility of deterioration cannot be overlooked in case of insertion of unsterile cotton or because of unauthorised stitches. The complainant has not denied that he never inserted gauze or cotton in side wound. Though affidavit in rejoinder has been filed by complainant, it is not specifically denied therein. Thus, complainant is answerable to explain this voluntary act on his part. Prima facie, it seems that Dr. Shah‟s statements are more credible to believe rather than complainant who has not disclosed certain facts on record either deliberately or otherwise.
Rnm CC2522014 Page 15 of 18[10]. Now, it is certain and proved on record that as and when infection observed by Dr. Shah, after surgery, it has been taken care of. However, it is allegation of the complainant that infection was set on during surgery and most probably due to "use of unsterile medical surgical instruments". It is also not in dispute that during follow up treatment "discharge" was observed which was described as "superficial infection" by Dr. Shah, whereas complainant stated that Dr. Jain informed him to have spread up to bones. Burden lies upon the complainant to prove that "infection set on during surgery" and that too due to alleged "use of unsterile instruments" during surgery. If it is proved, hospital and surgeon both can be made liable. The complainant has not produced any evidence to substantiate his allegation against opponents. Merely because certain types of organism of bacteria have been found after surgery, it cannot be said definitely that it must have been "on set during surgery". No medical literatures have been produced on record to establish this fact. It was argued that once "on set of infection" and types of bacteria identified, burden shifts to the opponent to prove the source from where these bacteria entered. I cannot endorse such a submission because primary burden is on complainant to prove on record facts stated by him in complaint and then it shifts to opponent to disprove complainant‟s case. It is not in dispute that entire indoor hospitalisation record has been placed before this Commission. The complainant has not pointed out any document where he has complained for discharge during hospitalisation. Even if it is presumed for the sake of argument that on set of infection must have taken place during surgery, it would have been spread to a great extent and patient would not have remained silent till discharge from the hospital. It is not in disputes that before discharge, patient was examined thoroughly and there is no note or observation which suggests that any signs of infection have been observed on that day. It is in these circumstances, it can be believed that there were no signs of infection till discharge from hospital. Thus, infection must have been superficial when it was observed firstly on 21/10/2013. In absence of any other concrete and corroborative evidence it is difficult to hold that infection on set during surgery and the opponents were negligent.
In Indigo Airlines Vs Kalpana Rani Debbarma & ors (2020-9-SCC-424) the Hon‟ble Supreme Court held that the initial onus to substantiate the Rnm CC2522014 Page 16 of 18 factum of deficiency in service is committed by the opposite party was primarily on the complainant. The Apex Court held as under:
"In law, the burden of proof would shift on the appellants only after the respondents/ complainants had discharged their initial burden in establishing the factum of deficiency in service. The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side."
[11]. In Kusum Sharma vs Batra Hospital (2010-3-SCC-480) it was held that 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 patient have to be paramount for the medical professionals.
In AchutraoKhodwa vs State of Maharashtra (1996-2-SCC-634) the Hon‟ble Apex court observed as under:
"the skill of medical practitioner differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and a court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence".
A well-known case of Bolam vs Friern Hospital Management Committee (1957-1-WLR-582) observed as under:
"it is expected of a professional person that he should show a fair, reasonable, and competent degree of skill; it is not required that he should use the highest degree of skill."
Just because a person suffers a bad outcome from medical treatment, does not mean that they have an automatic right to sue for compensation. A medical error is only considered "negligent" if the healthcare practitioner has failed to take "reasonable care". The law does not require a doctor to act "perfectly", but rather, the law requires that a doctor take "reasonable care"
in treating and advising a patient.
In Malaykumar Ganguly Vs Dr. Sukumar Mukherjee (2009-3-CPJ-17(SC)) it has been held by the Hon‟ble Supreme Court as under:
"for establishing medical negligence or deficiency in service, the courts are guided by following factors, (i). No guarantee is given by any doctor or surgeon that patient would be cured, (ii). Doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill, (iii). Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence, (iv) failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence, (v) in a complicated case, the court would be slow in attributing negligence on the part of doctor, if he is performing his duties to the best of his ability.Rnm CC2522014 Page 17 of 18
Though, the complainant have suffered and subjected to incur huge financial loss, unless it is established on record that it is due to any negligence on the part of the opponents, no order can be passed to direct them to reimburse the same because Sec. 14 (1) (d) of the Consumer Protection Act provides for "compensation" to the Consumer for any loss or injury suffered "due to the negligence" of the opposite party. Since the complainant fails to prove that infection was on set during operation and there was any negligence on the part of the opponent "Surgeon" or "Apollo"
hospital as it canvassed, the complaint fails and I pass following order.
ORDER The complaint no. 252 of 2014 is hereby dismissed for want of sufficient evidence.
There shall be no order as to cost.
Pronounced on this 31st day of May 2023.
Mr. R N Mehta Member.
Rnm CC2522014 Page 18 of 18