State Consumer Disputes Redressal Commission
Smt. Sarita Sachidanand Nevge And ... vs Mahatma Gandhi Memorial Hospital on 19 March, 2013
Daily Order
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/98/110
1. Smt. Sarita Sachidanand
Nevge
2. Smt. Savitri Keshav
Nevge (Since deleted vide order
dated 8/6/2011)
3. Mrs. Mrunmnyee Mahendra Parab
(Maiden name Kum. Anita
Sachidanand Nevge)
4. Shri Rahul Sachidanand
Nevge,
All residing at:-
481/190, Vinayak Vasudeo Chawl,
N. M. Joshi Marg,
Mumbai-400 011
...........Complainant(s)
Versus
Mahatma
Gandhi Memorial
Hospital
Through its Medical Superintendent,
Dr. S. S. Rao Marg, Parel,
Mumbai -400 012.
............Opp.Party(s)
BEFORE:
HON'BLE Mr.Justice S.B.Mhase PRESIDENT
HON'BLE MR. Narendra Kawde MEMBER
HON'BLE MR. S.B.Sawarkar MEMBER
PRESENT:
Adv. Subodh Gokahle for the Complainants
Adv. Vishal V. Birajdar for the Opponent
ORDER
Per - Hon'ble Mr. S. B. Sawarkar,
Member This consumer complaint is filed by the Complainant, Smt. Sarita Sachidanand Nevge alongwith her mother-in-law, Smt. Savitri Keshav Nevge and her two children, namely - Kumari Anita Sachidanand Nevge and Kumar Rahul Sachidanand Nevge alleging medical negligence against the Mahatma Gandhi Memorial Hospital at Parel, Mumbai. Thereafter, Complainant, Smt. Sarita Sachidanand Nevge's mother-in-law, Smt. Savitri Keshav Nevge died and her name was deleted from the array of the Complainants vide an order dated 8/6/2011.
[2] It is the case of the Complainant that her husband Mr. Sachidanand Keshav Nevge (hereinafter referred to as the 'deceased patient' for the sake of brevity) was working with the Mazgaon Dock Ltd., on a monthly salary of `4,000/- per month. He was a member of E.S.I.S. He was admitted to the Mahatma Gandhi Memorial Hospital at Parel, Mumbai on 16/5/1997. He was found to be suffering with acute disc prolapse with 'Cauda equina syndrome'. The treating doctors decided to operate the patient on 4/6/1997. Accordingly, patient was operated upon on 4/6/1997 for spine ailment and he was kept admitted in the Hospital from 4/6/1997 till 11/6/1997. Patient died in the Hospital on 12/6/1997 at 06:15 hours in the morning.
[3] It is alleged by the Complainant that when the deceased patient was admitted in the hospital, post-operation, he was not monitored properly by the doctors and the attending para-medical attendants from 4/6/1997. Patient's blood pressure was not monitored/recorded during the period 5/6/1997 to 7/6/1997. Attending doctor did not check the patient on 10/6/1997 and 11/6/1997.
[4] On 11/6/1997, the attending relative Mr. Shankar Gangaram Nevge, reported to the nurse on duty in the night at 12 O'clock, that the patient was not feeling well, but no action was taken upon the Complainant and the patient was not treated in the night.
[5] In the morning at 05:15 a.m. when the patient's relative tried to wake up the patient, there was no response. He reported the same to the attending nurses, but, no treatment was given to the patient. Doctor came at 06:15 a.m. in morning and declared the patient to be dead. Reason for the death of the patient was recorded as myocardial infarction (heart attack) when the patient was operated for the ailment concerned with the spine. Post-mortem was carried out which opined cause of death to be 'Myocardial Infarction with fatty liver in an operated case for cord decompression'.
[6] Complainant filed this consumer complaint on the basis of opinion given by Mr. Yogesh Kamdar, Secretary ACASH (Association for Consumers' Action on Safety and Health), a NGO supporting consumers, attributing medical negligence on the part of the treating doctors and nurses of the Hospital for failing to properly and carefully monitor the patient during the post-operative period when the patient was admitted in the Hospital and prayed compensation of `5,88,000/- being death compensation from the Opponent.
[7] Complainant supported her contention based on the copies of medical charts maintained by the Hospital in respect of the deceased patient when he was admitted to the Hospital till his death by an opinion submitted by ACASH and an affidavit of an expert, namely - Dr. Naresh Madanlal Khanna.
[8] Opponent opposed the claim of the Complainant on following grounds:-
(i) Complainant has not properly filed the complaint as the claim was filed for an amount of `5,88,000/-. Due to amendment to the Consumer Protection Act, 1986 in the year 2002 the pecuniary jurisdiction of the State Commission, happens to be `20,00,000/- and above and hence, the State Commission may direct the Complainant to withdraw the complaint from the State Commission and file the same before an appropriate District Forum.
(ii) ESIS under which the Mahatma Gandhi Memorial Hospital functions is a trust made up of representatives of Employees State Insurance Corporation, Government of Maharashtra and Mill Owners at Mumbai and the said trust has not been impleaded in the present complaint.
(iii) Medical negligence is alleged against the doctors and nurses of the Hospital whose appointments, superintendence and administration is not in the hands of the Opponent.
They are appointed by the Government of Maharashtra. Also they are not impleaded and as they are not getting chance of being heard, the case suffers from misjoinder and needs to be dismissed.
[9] Opponent admitted that the patient had come to the Hospital with a complaint of severe pain and significant weakness in both lower limbs. He was diagnosed with acute disc prolapse with 'Cauda equina syndrome'. The patient was properly checked for hematological investigations, E.C.G., X-ray of L-S Spine and M.R.I. The patient was found, not to have any hematological abnormalities. MRI study showed congenital bony canal narrowing of the spinal canal from the L-1 to L-5 levels and significant postero-central and left postero-lateral disc herniations with significantly compressed the thecal sac and compromised it.
[10] The patient, therefore, required operation and hence, was operated on 4/6/1997 under general anesthesia. Laminectomy with discetomy with cord decompression T-12 to L-4 was done.
The patient stood the operation well. Post-operatively the patient improved significantly. The patient was under
the treatment of unit in-charge Dr. N. V. Gajjar and was kept in the ward under proper medical supervision.
[11] The patient never complained of chest pain, breathlessness, about pain radiating to left arm, profuse sweating, anginal pain or any other symptom to suggest that the patient was having myocardial ischemia or myocardial infarction. Opponent denied that the relatives of the patient or the patient himself ever complained to the nurses about patient not feeling well. It was only on 12/6/1997 at 05:30 a.m. when the relative of the patient informed to the nurse on duty that the patient could not be woken up. The nurse immediately sent a call to the resident doctor. Without delay the resident doctor rushed to see the patient and started cardio-pulmonary resuscitative measures. However, the patient did not respond and was declared dead at 06:15 a.m. on 12/6/1997. The Opponent denied that the patient was not properly monitored after the operation when the patient remained in the Hospital. It is also denied that the patient was not seen by the doctors on various dates and regularly so as to observe his recovery and health conditions.
[12] The Opponent contended that myocardial infarction has no tell-tale signs which would suggest that the patient may suffer with myocardial infarction. It can also develop suddenly and could be fatal.
It is a known fact that deaths due to myocardial infarction can also occur during sleep. It is contended that in one-half of the patients with myocardial infarction there are no identifiable provoking factors or prodromal symptoms and the patient may not complain of these symptoms to the doctor.
[13] It is also submitted by the Opponent that case-papers of the deceased patient got missing from the Hospital and could not be traced back again and hence, they had lodged a police complaint on 22/2/2000 and requested the police to search the documents.
[14] Heard at length Adv. Subodh Gokhale on behalf of the Complainants and Adv. Vishal V. Birajdar on behalf of the Opponent. Perused the papers of the deceased patient maintained by the Hospital and submitted by the Complainant from the time of admission of the patient to the Hospital till his death. We have also perused the affidavit of Dr. Naresh Madanlal Khanna, filed by the Complainant and an affidavit of Dr. Nitin V. Gajjar, filed by the Opponent.
[15] From the papers of the operation and post-operative period maintained by the Hospital, it could be very well seen that the patient had undergone surgery but was not monitored carefully thereafter when he was admitted in the Hospital. We find that before the operation the patient was examined for his body condition, heart condition and blood-grouping.
Everything was done in which the patient was found to be normal except for the spine ailment. Patient was, therefore, found to be fit for surgery and was administered general anesthesia. Surgery was done and thereafter, the patient was shifted to a ward for post-operative treatment. From 4/6/1997 to 11/6/1997 we find the daily entries of the medicines given to the patient like, Voveron and Annatex - 1 gm.
There is a mention to the effect that the patient's general condition was fair. Patient's pulse and blood-pressure entries appear to be recorded intermittently. However, those entries appear to be mostly routine in nature and we do not find that proper monitoring and thorough check-up was made every day to assess the patient's mobility and vital parameters. It comes to the notice from the affidavit of an expert viz.
Dr. Naresh Madanlal Khanna that the patient was operated and lying in bed all the time and no attempt was made to ambulate the patient till his death. This may have resulted in stagnation of blood in the legs and lungs resulting into thrombus formation which results in cardiac failure.
The expert opined that most often thrombus eventually lodges in vessel, obstructing the flow of blood and causing an infarction. This is a serious vascular post-operative complication in this case since the cause of death is myocardial infarction. It was pointed out that after the operation, the patient was routinely monitored and may have had symptoms and signs of an impending heart-attack that were not noted by the nurses and doctors. It also suggests that on 11/6/1997 when the relative of the patient complained that the patient was not feeling well probably, pre-monitory symptoms developing in the patient might have been ignored.
Thus, in the early morning when the patient was tried to be woken up he did not respond and it resulted in his death though the attending doctors and nurses tried to resuscitate the patient with all their accumanship. From the record that has been led before us it appears that the patient was quite normal in the age of 42 years, who came to the Hospital with a complaint of spine ailment and he would not have just suddenly died of myocardial infarction and would certainly show some signs which appear to have been missed during the post-operative care which establishes medical negligence on the part of the attending doctors and nurses. Thus, the Opponent No.1 Hospital is vicariously liable for the same. A useful reference on the point can be made to a decision of the Apex Court in the case of Smt. Savita Garg Vs. The Director, National Heart Institute ~ (1996-2005) Supreme Court and National Commission on Consumer Law Cases at page 849.
[16] Opponent's contention that Trust was not made a party is irrelevant as Hospital run by Trust has treated the patient and the said Hospital is impleaded as opposite party. By carrying out correction to the cause title with permission of the State Commission, Opponent Doctors and Nurses have been deleted as parties.
Therefore, issue of giving an opportunity to them of being heard does not arise.
[17] Complainant was a member by regularly paying subscription of the Opponent Hospital for availing medical services. Opponent Hospital, thus is covered under the provisions of Section-2(1)(o) of the Consumer Protection Act, 1986 as the 'service provider' establishing relationship of 'consumer' and 'service provider' between the parties. Therefore, these contention raised by the Opponent are not sustainable in law.
[18] We find that deceased was a member of ESIS and was making regular subscription towards his membership. He was an employee of Mazgaon Dock Ltd. He was drawing a salary of `5,380/- per month. In his death the Complainant No.1 Smt. Sarita Sachidanand Nevge, the Complainant No.3 Mr. Mrunmnyee Mahendra Parab nee Kumari Anita Sachidanand Nevge and Complainant No.4 Kumar Rahul Sachidanand Nevge have certainly lost a bread-winner of the family. The Complainant has impleaded the Hospital with which the patient was admitted and where he died. Present complaint was filed in the year 1997 and has been pending for last so many years. Since the claim was for over `5,00,000/-, the Commission had a pecuniary jurisdiction when the complaint was filed.
[19] In view of the aforesaid observations, we come to the conclusion that Complainants have made out substantive case of negligence against the Opponent Hospital.
[20] We also find that the Complainant No.3 Mr. Mrunmnyee Mahendra Parab nee Kumari Anita Sachidanand Nevge is a married daughter of the deceased patient whereas the Complainant No.4 Kumar Rahul Sachidanand Nevge is now a young person of about 25 years of age. Under these circumstances, the Complainant No.1 needs to be compensated and find that compensation of `5,00,000/- would be just and reasonable.
Thus, for the reasons as recorded above, we pass the following order:-
ORDER The complaint is partly allowed.
[2] The Opponent is hereby directed to pay to the Complainants, an amount of `5,00,000/- by way of compensation for the death of Mr. Sachidanand Keshav Nevge which resulted on account of deficiency in service on the part of the Hospital in not providing post-operative care and management of the patient. In addition to this, the Opponent shall also pay interest on the said amount @ 9% p.a. as from the date of death of the patient i.e. 12th June, 1997. All these amounts are to be paid by the Opponent to the Complainants within a period of sixty days from today (since the order is passed in presence of both the parties) and failing which, the Opponent shall also be liable to pay penal interest @ 3% p.a., on the entire amounts as from 12th June, 1997 till realization of the amounts by the Complainants.
[3] Opponent to bear his own costs and shall pay costs of `25,000/- to the Complainants.
Pronounced on 19th March, 2013 [HON'BLE Mr.Justice S.B.Mhase] PRESIDENT [HON'BLE MR.
Narendra Kawde] MEMBER [HON'BLE MR.
S.B.Sawarkar] MEMBER kvs