National Consumer Disputes Redressal
Purushottam Pareek & Anr. vs Dr. Govind S. Dhavale & 2 Ors. on 17 March, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 82 OF 2015 1. PURUSHOTTAM PAREEK & ANR. 19/135, Pareek Colony Ichalkaranji Kolhapur, Maharashtra - 416 115 ...........Complainant(s) Versus 1. DR. GOVIND S. DHAVALE & 2 ORS. Yamuna Surgical And Maternity Hospital, 16/1442, Ichalkaranji Kolhapur, Maharashtra - 416115 2. Dr. Mithari Sharad Rajaram Yamuna Surgical And Maternity Hospital 16/1442, Ichalkaranji Kolhapur, Maharashtra - 416 115. 3. Yamuna Surgical And Maternity Hospital, 16/1442, Ichalkaranji, Kolhapur Maharashtra - 416 115 4. UNITED INDIA INSURANCE COMPANY LTD. 19.Dharampeth Extension
Shankar Nagar Square Nagpur-440010 ...........Opp.Party(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. BINOY KUMAR,MEMBER
For the Complainant : For the Opp.Party :
Dated : 17 Mar 2023 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For Complainants
:
Dr. M. C. Gupta, Advocate
For Opposite Parties
:
Mr. Umesh Mangave, Advocate
Dr. Govind Dhavale for OP No.1 & 3
Mr. K. G. Sharma, Advocate with
Dr. Mithari S. Rajaram for OP No.2
Pronounced on: 17th March 2023
ORDER
Dr. S. M. KANTIKAR, PRESIDING MEMBER
1. The present Complaint has been filed under section 21 of the Consumer Protection Act, 1986 (for short "the Act") by Mr. Purushottam Pareek and Mr. Om Prakash Pareek - the husband and son of the deceased patient (hereinafter referred to as the 'Complainants') against the Yamuna Surgical And Maternity Hospital (OP-3) and the treating doctors - Govind S. Dhavale (OP-1) and Dr. Mithari Sharad Rajaram (OP-2) seeking compensation amounting to Rs. 1,62,14,214/- for the act of medical negligence.
Facts of the Complaint:
2. Mrs. Rajudevi, the wife of Purushottam Pareek (Complainant No. 1), aged 49 years (since deceased, hereinafter referred to as, the 'patient') was suffering from a Gynaec problems, consulted OP-1 Dr. Govind S. Dhavale on 23.05.2014 at Yamuna Surgical & Maternity Hospital, Ichalkaranji (for short 'OP-3' - 'Yamuna Hospital'). It was alleged that OP-1 created fear in the mind of the patient and advised to get her immediate surgery for removal of uterus (hysterectomy). Lab investigations revealed Hb% was 8.4 g% (anaemic). On 25.05.2004, Dr. Mithari Sharad Rajaram - Anaesthetist (OP-2) carried out pre-anaesthetic check-up and listed as the Patient for abdominal hysterectomy. On 26.05.2014, the patient got admitted in Yamuna Hospital (OP-3) under care of OP-1. The OP-1 told as it was a routine surgery and there was no risk. It was alleged that on 27.05.2014 the OP-1 performed the surgery without taking informed consent for surgery and anaesthesia. He removed uterus and further, allegedly, removed appendix without any indication and without consent. The appendix was not sent for histopathology. The patient was brought out of the Operation Theatre (OT) in unconscious state. Thereafter, in the evening, she was referred to Nirmaya Hospital in the coma stage. It was diagnosed as a case of 'Hypoxia'. On the same day at 9 pm, the patient was discharged from Niramaya Hospital and admitted to Aster Aadhar Hospital, Kolhapur. She remained there till 19.06.2014 and shifted her to Kokilaben Hospital, Mumbai, where she during treatment breathed her last on 02.07.2014.
3. Being aggrieved, on 23.09.2014, the patient's husband filed a police complaint. The police referred the matter to Medical Board at CPR Hospital, Kolhapur, which gave opinion on 20.04.2015 that there was medical negligence, hence FIR was registered. The Complainants also filed another Complaint before Maharashtra Medical Council (MMC) at Mumbai. The Consumer Complaint was filed under Section 21 of the Consumer Protection Act, 1986 against the Opposite Parties before this Commission for alleged medical negligence and deficiency in service causing death of the patient. The Complainants prayed Rs. 1,62,14,214/- compensation from the Opposite Parties.
DEFENCE:
4. The Opposite Parties filed their respective Written Versions and denied the allegations of medical negligence.
5. Dr. Govind S. Dhavale (OP-1) & Yamuna Surgical and Maternity Hospital (OP-3) have filed their common written version and denied all the allegations of negligence during the treatment of patient. The preliminary objection that the Complainant is not a consumer, as no consideration paid to OPs - 1 & 3 and he did not deposit Rs. 10,000/- in the hospital. The Complaint is bad for non-joinder of the parties. Further, the Complainant has not made his daughters, who are legal heirs, as necessary party of the deceased. The Complainant has deliberately not filed all documents, pertaining to the surgical procedure done at OP-3 as well as at the other hospitals. He submitted that on 23.05.2014, patient came to his hospital with complaints of recurrent vaginal bleeding since past 6 months, with pain in abdomen and generalised weakness since about 4 months. On examination, her vitals were normal, B.P. -120/80 mm of Hg. The PV examination showed anteverted bulky uterus, tenderness in right fornix and right iliac fossa. The clinical diagnosis was dysfunctional uterine Bleeding (DUB) with chronic appendix. The patient was advised further laboratory tests and USG of total abdomen. The blood reports received on 25.05.2014 revealed anaemia - Hb - 8.4 g.% and USG showed Adenomyosis of uterus. For the correction of anaemia, the patient was prescribed Haematinic Syrup and Folic acid + Methyl Cobalmin tablets. On 26.05.2014 one unit of packed RBC (PRBC) was transfused and told that operation will be done on next day subject of availability of one another bottle of blood. On 27.05.2014 after second bottle of blood was brought by relatives. The OP-2, Anaesthetist examined the patient and recorded detailed history. Informed consent was taken with a special note on Consent Form explaining about risks arising from Bronchial Asthma during intraoperative and postoperatively. The consent Form was signed by patient and her husband.
6. The hysterectomy surgery was performed by OP-1 under spinal anaesthesia given by OP-2. Throughout intraoperative period the patient was conscious and talking with OP-2 and the OT assistant. The operation was started at about 09:30 a.m. and completed uneventfully at about 11:30 a.m. The patient's pulse, BP, SPO2 level, Urine output were monitored and found to be normal. There was no bleeding during surgery; therefore, the second unit of PRBC was advised to be transfused in the ward.
7. At the end of surgery while the OP-1 was taking last skin suture, the patient complained of difficulty in breathing. The OP-2 diagnosed that the patient developed bronchial spasm and all emergency steps were taken. However patient did not respond favourably despite all efforts and she developed hypoxia. She did not recover from bronchial spasm and subsequently, progressed into unconscious stage.
8. The OP-1 and 2 immediately informed the Complainant and her other relatives about the serious condition of the patient. Despite all efforts the patient was not responding, therefore for further management, it was decided to shift her immediately to Niramaya Hospital. The patient was shifted with endo-tracheal tube (ETT) and ventilated with Ambu bag. The specimens (uterus and appendix) were shown to the relatives, and handed over for pathological examination to the sample collecting boy of Niramaya Hospital. On the same day, the OPs came to know that the Complainants on their own had shifted the patient to Aster Aadhar Hospital, Kolhapur. Thereafter, on 20.06.2014 the patient was further shifted to Kokilaben Dhirubhai Ambani Hospital in Mumbai, but during treatment, she expired on 02.07.2014. The OP-1 further submitted that the death of patient was occurred after one month of hysterectomy. It was due to septic shock as the result of bronchial asthma(spasm), but not due to any negligence during surgery. The blood culture reports dated 30.05.2014 and 30.06.2014 showed Gram positive cocci - Klebsiella Pneumonaie. The infection was neither due to the Appendectomy nor due to hysterectomy. The appendix was removed by the standard procedure of ligating at the base of the appendix and stump was buried by purse string suture. The Death Certificate, issued by the Kokilaben Hospital, stated the cause of death as bronchial spasm due to asthma and thus, it was not alleged due to the surgery.
9. The OP No. 2- Dr. Sharad Rajaram Mithari has filed his written version and denied all the allegations. He submitted that the Complaint is bad for non-joinder of parties as the patient was treated in different hospitals which were not made party(ies). He was insured with United India Insurance Company Ltd. As advised by OP-1, the pre-anaesthetic check-up was done on 25.05.2014. At the time of Pre-anaesthetic check-up the patient gave history of occasional asthmatic attacks in past. The OP-2 duly explained about the risks during surgery, to the patient as well as her husband. However, at that time, she was not taking any treatment for asthma, therefore, she was not prescribed any bronchodilators or nebulization. The patient had no history of other major illnesses like Diabetes-Mellitus, Hypertension, T.B. etc. On examination, no abnormality detected in the respiratory and cardio-vascular system. The Hb% was 8.4 g%, therefore preoperatively on 26.05.2014, one unit of Packed RBCs was transfused and advised to keep one unit ready during operation.
10. The OPs further submitted that at the insistence of the patient and her relatives, it was decided to operate the patient on 27.05.2014. The OP-1 and OP-2 have explained the patient and her relatives about surgery and risk associated with bronchial asthma. Accordingly, the patient and her husband signed the informed consent. At the bottom of consent form, the OP-2 clearly (in handwriting) mentioned about risk of bronchial asthma. The patient was taken to OT at about 8.30 am on 27.05.2014. The I.V. line was started, the patient was put on the monitors, started pre-oxygenation and spinal anaesthesia was given. The patient was haemodynamically stable throughout operation. She was communicating well with OP-1 and OT staff. After hysterectomy, OP-1 noted the gross features of appendicitis, therefore, the patient was asked for appendectomy (removal of appendix), which she agreed. Therefore appendectomy was performed. However, at the end of closure of skin (11.30 am), the patient complained about difficulty in breathing and it was suspected due to broncho-spasm. Immediately asthmatic management was started. The OP-2 intubated the patient, started oxygen supply but the patient developed cardiac arrest. The AMBU Bag became stony hard feeling. The OP-2 revived the patient and for some time patient was stable but again she developed bronchospasm. SpO2 % started to dropping, therefore, the patient was shifted to ICU of Niramaya Hospital with ETT in situ on AMBU bag ventilation for further management.
11. The United India Insurance Company Ltd (OP-4) filed its written version and denied all the allegations. Insurance Co. admitted issuance of professional indemnity insurance to the OP-2.
ARGUMENTS:
12. On behalf of the Complainants:
The learned Counsel for the Complainants reiterated their evidence. He further submitted that the patient had complaints of mild vaginal bleeding, thus there was no emergency and surgery ought to have postponed till her Hb% improved and hypoxia would not have occurred. The patient was operated in haste, to make quick money. The OP-1 was a General Surgeon, he was not qualified to do hysterectomy, but he should have referred the patient to the Gynaecologist. The removal of normal appendix not disclosed, but it came to notice after the admission of patient to Nirmaya Hospital. The Complainants, in their support, filed an opinion of medical Committee CPR Kolhapur, also two separate opinions from Dr. G. S. Vats and Dr. Vijay Kumar Kadam. The learned Counsel for the Complainants relied upon few judgements of this Commission and of the Hon'ble Supreme Court.
13. Arguments on behalf of OPs-1 & 3:
The learned Counsel for the Opposite Party No. 1 & 3 reiterated their evidence. He further argued that the three opinions filed in support of complainants are not admissible which were obtained behind back and without opportunity of being heard given to OPs-doctor or hospital. The opinions could not be used as conclusive of proof; may be used prima facie as to initiate civil or criminal proceeding against doctor/hospital. The learned Counsel submitted that opinions of Dr. Vats and Dr. Kadam were on the basis of record and prescriptions without taking in account the histopathology report. The appendix was sent for HPE and OP-1 had placed the report on record. Dr. Vats has not considered the HB report of Aster Aadhar Hospital, as Hb was 11.6 g% on 27.05.2014. There will be expected to rise 1 gm% Hb approximately after transfusion of each unit of PRBC. The opinions of Dr. Vats and Dr. Kadam were only to favour the Complainants and the competency of experienced OP-1 was wrongly judged. The learned Counsel argued that the Committee of CPR made erroneous observation on the Anaesthetist as he has deviated the standard principles. It is pertinent to note that on 26.05.2014, one unit of blood was transfused to the patient and on verifying the same, the Anaesthetist administered anaesthesia. The learned Counsel further argued that general surgeon is competent to perform hysterectomy, as it was stated in one of the article published by Dr. M. C. Gupta who was former Professor in Medical College and the Counsel for Complainants in this case.
14. Arguments on behalf of OP-2:
The learned Counsel for the OP-2 reiterated its evidence. He submitted that the prescription slip dated 23.05.2014 of OP-1 provisionally suspected adenomyosis and chronic appendicitis. At the time of hysterectomy, the OP-1 surgeon found it appendicitis (inflamed appendix) therefore appendectomy was performed after seeking patient's oral consent. The Counsel reiterated their evidence.
FINDINGS AND REASONS:
We have perused the entire medical record and few standard text books on surgery and gynecology.
15. Admittedly, the patient's Hb% was 8.4 g, in our view it was not contraindication for the hysterectomy surgery. It is evident that one unit of PRBC was transfused on 26.05.2014 a day prior to surgery, which would increase Hb% to 1 to 1.5 g. Therefore, in our view, the hypoxia was not due to anemia, in fact transfusion of PRBC has raised the Hb%.
16. The next question is that whether OP-1 was competent to perform Hysterectomy. The abdominal hysterectomy is the easiest method, enabling the general surgeon to access and remove the uterus while leaving the cervix and other supporting structures safely in place. The record revealed that, the OP-1 was practicing since 1978 as a surgeon having experience of 3 decades. He had performed number of hysterectomies successfully. It was the first unfortunate incidence wherein patient suffered unexpected accidental severe bronchospasm during surgery under spinal anesthesia leading to hypoxia. The pre-anesthetic check-up was proper and there were no symptoms of asthma or the patient was on any anti-asthmatic drugs. The hysterectomy and appendectomy was uneventful.
17. It is known from the Shaw's textbook of Gynecology (14th Ed.) and literature that among the most widely-adopted surgical practices hysterectomies are second only to caesarean deliveries. The choice of specialist for the surgery depends entirely on the nature and seriousness of the underlying problem and the area of surgical expertise the problem requires. Therefore, in our view both general surgeons and gynaecologists are equally competent and comfortable doing hysterectomies, but the best choice is a surgeon who combines knowledge, experience, and expertise in effectively tackling the core of patient's problem and the treatment that ensures the most favourable outcome for the patient.
18. The clinical history of the patient that she was suffering from PV bleeding for 2 to 3 months. She was diagnosed it as a case of dysfunctional uterine bleeding (DUB) + chronic appendicitis by the OP-1 after examination and relevant investigations. The USG revealed a benign condition adenomyosis of uterus. Therefore surgery was advised. One unit of PRBC was transfused to increase Hb%. The OP-2 has done pre-anaesthetic check-up and took an informed consent with a special note on consent form about the risks of bronchial asthma during surgery. The surgery was uneventful, no bleeding during surgery and it was not hasty decision to perform hysterectomy. We do not find negligence or failure of duty of care from OP-1 and 2.
19. The patient was operated by OP-1 in his Yamuna Surgical and Maternity Hospital and remained there from 23.05.2014 to 27.05.2014. Thereafter, due to complications the patient shifted and treated in three different hospitals namely Niramaya Hospital at Ichalkaraji, Astar Aadhar Hospital at Kolhapur and Kokilaben Hospital at Mumbai. However, the Complainants have no grievance against the other hospitals and not impleaded them as necessary parties.
20. The letter of MMC dated 09.10.2019 titled as "Notice of Charges" charged OP1 and 3 under the Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002, and held OP-1 and 3 for professional misconduct. The MMC charged that they have failed to maintain the dignity of the profession; failed to maintain good medical practice; failed to treat the sick patient; neglected and improperly treated the patient; and, failed to observe obligations towards the sick and failed to obtain the consent. The findings of MMC are not acceptable because the informed consent was taken and OP-1 & 2 have treated the patient as per the reasonable standard of practice.
EXPERT OPINION:
21. The expert Dr. Sathyanarayana R. Vaddin, a consultant Anaesthesiologist from Ichalkaranji relied upon the guidelines of American Society of Anaesthesiologist opined that the Hb% 8.4 g% was sufficient to go for the surgery. The OPs administered haematinics and PRBC transfusion. The haemoglobin was raised up to 10 g%. Therefore, the oxygen saturation to the vital organs was maintained. He also opined that the brain oxygen delivery can be maintained even at low level of Hb % (3.5 to 4 gm %). The death was not due tissue hypoxia, but it was due to intractable bronchospasm.
22. We have perused another opinion of expert Dr. Dilip Joshi, the Consultant in Internal Medicine having experience of more than 35 years. According to him, on 23.05.2014 patient consulted OP-1 and she had no major illness. She had past history of bronchial asthma, but presently she was healthy and not on any treatment. Her Hb% was 8.4 gm% and other investigations were normal. On 25.05.2014, pre-anaesthetic check-up was done by the OP-2 Dr. Sharad Mithari and posted the patient for hysterectomy on 27.05.2014. The patient also received one unit of packed RBCs on 26.05.2014; which was expected to increase Hb% 1.5 g more i.e. up to 10gm% prior to surgery. Thus, 10 g% was not low to cause of hypoxia.
23. In support of the Complainant, three opinions were filed of Dr. G. S. Vats, Dr. Vijay Kumar Kadam and the Medical Committee of CPR, Kolhapur. It is pertinent to note that one opinion from the Committee of CPR was taken before filing the Complaint, without hearing the OP-1 and OP-2. This Consumer Commission did not seek opinion from Dr. G. S. Vats and Dr. Vijay Kumar Kadam, but the Complainant himself sought opinions on the basis of available medical record. We do not agree with the opinion of the Medical Committee, CPR, Kolhapur who opined that due blood loss and anaemia there was deprivation of oxygen in brain. However, as per OT notes, no actual blood loss occurred during surgery. The hypoxia was due to an unexpected intractable bronchospasm at the end of surgery.
24. We have perused the opinion of Dr. Vats and Dr. Vijay Kumar Kadam. It is not clear from their opinion that whether they have checked complete medical record. Their comments on hypoxia caused due to low Hb% and appendectomy are not acceptable. It is evident that OPs took corrective steps to increase Hb% by transfusing PRBC and also started haematinics. The appendix specimen was sent for HPE study, but experts observed it wrongly. The opinion comprises 'if and buts' which does not convincingly constitute medical negligence. Moreover, the verbatim of both opinions are same. The opinions bear neither letterer head not any affidavit, therefore both the opinions are not conclusive, but appear to be biased.
25. The OPs on their behalf filed two expert opinions on affidavit namely Sathyanarayana Vaddin Senior Anaesthesiologist and Dr. Dilip Joshi, the Sr. Physician opined that there was no negligence and the OPs treated the patient as per reasonable standards. Both have opined after thoroughly going to into the case record. According to them the Hb 8.4 g% was adequate and it was not contraindication for hysterectomy surgery. The hypoxia was not due to anaemia, but it was due to intractable bronchospasm.
26. It is evident that under spinal anaesthesia the entire operation was uneventful. The patient was hemodynamically stable. However, at the end of skin closure the patient complained difficulty in breathing due to severe bronchospasm. The complication like hypoxia was due to unexpected bronchospasm. The OP-2 initiated immediate steps. The patient developed cardiac arrest, immediately the CPR was done and the patient revived. Again got attack of spasm and O2 level started dropping, therefore OP-1 and 2 shifted the patient with ETT in situ with Ambu bag ventilation to Nirmaya hospital. The decision to shift the patient to Niramaya hospital was correct. There the patient was kept on ventilator and within half an hour patient started responding to painful stimulus and few verbal commands.
27. To bring successful claim (complaint) in medical negligence case the victim or victim's family bringing the action must prove the four D's against the erring doctor/hospital. The 4 D's of medical negligence stand for 'Duty', 'Deviation', 'Direct Cause' and 'Damages'.
Duty: The first requirement that a victim of medical negligence must prove is that there must have been a Doctor-Patient (D-P) relationship established and that the doctor/hospital owed the patient a duty of care. Once the D-P relationship is established, the doctor must exercise the degree of care that a reasonably careful doctor would use to avoid harm or injury to his or her patients.
Deviation (Breach in the duty of care):
If the victim establishes the first D, the next element that the victim must prove is that the physician deviated from the expected standard of care.
Direct Cause (Causa Casusens):
With proper evidence, the victim must show that the provider's deviation from the standard was the direct cause of the victim's injuries.
Damages:
After meeting the first two D's, the victim will then have to prove by a preponderance of the evidence that the doctor's deviation caused damages to the victim. At this stage, the victim will need to put forth evidence of medical records that show the improper procedures that were undertaken by physician or prescription records.
28. In the instant case, the complainant established the D-P relationship, thus the duty of the doctor; however he failed to prove the breach of duty of care from the treating doctors (OP-2 & 3). In the instant case the decision of OP-1 to perform hysterectomy was justified as the patient was suffering from off and on abdominal pain, PV bleeding for 2 to 3 months. From USG it was diagnosed as Ademomyosis and OP-1 had also suspected Chronic appendicitis. The patient was insisting upon the operation to get rid of her complaints. She was around 50 years and the OP-1 had performed two caesarean operations of the family members of the patient which appears to be good doctor patient relationship.
29. It is evident from the OT notes that, at the end of surgery, while taking last skin sutures, the patient complained of difficulty in breathing, which was immediately diagnosed as attack of bronchial asthma due to bronchial spasm. Immediately, oxygen was started. However, the bronchospasm did not recover and the patient developed hypoxia and became unconsciousness. The condition of patient was informed to the patient's husband and relatives. Therefore, for further management patient was shifted to Niramay Hospital with endotracheal tube and was ventilated with AMBU bag. On 27.05.2014, the Complainants on their own shifted the patient to Aster Adhar Hospital at Kolhapur, wherein he remained till 19.06.2014 and then shifted to Kokilaben Ambani Hospital at Mumbai on 20.06.2014. There she remained under treatment till 02.07.2014 and expired. She died due to sceptic shock because of klebsiella pneumonie infection. The death certificate stated the cause of death as 'due to the bronchial asthma and not due to any surgical complications'. Therefore, the complainant failed to prove any deviation (breach) in the duty of care from the OP-1 and 2.
30. We would like to rely upon few judgments of the Hon'ble Supreme Court which laid down the law what constitutes medical negligence. In Jacob Mathew's case[1], it was held as under:
"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
31. In another case, Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors.[2], the Hon'ble Supreme Court held in paragraphs 32 and 34 of judgment as below:
32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[3], this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:
"37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia."
34. Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others[4] held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence.
32. We have to consider the circumstances, the place and availability of the specialist or consultant in that area during the prevailing time. It should be borne in mind that the type of medical service offered, the practitioner's expertise, training, and experience, and even the location where the treatment took place may all be taken into account while determining the acceptable level of standard care. In the instant case the OP-1 was practicing as a Surgeon in a Taluka place Ichalkaranji, having experience of more than three decades. He had performed number of surgeries including hysterectomies also. Similarly the OP-2 was experienced and practicing as anaesthetist in that area.
33. Based on the discussion above and respectfully following the precedents laid down by the Hon'ble Supreme Court, we find no dereliction in duty of care from the Surgeon and the Anaesthetist. Thus, medical negligence cannot be attributed to the Opposite Parties.
The Consumer Complaint is dismissed. However, there shall be no order as to costs.
[1] (2005) SSC (Crl) 1369 [2] 2021 SCC OnLine SC 1149 [3] (2009) 7 SCC 130 [4] (2021) SCC Online SC 673 ...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... BINOY KUMAR MEMBER