State Consumer Disputes Redressal Commission
Mr. Santosh Dhoke vs Dr. Rajendra Borkar on 9 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR Complaint Case No. CC/04/17 1. MR. SANTOSH DHOKE MAHADEO PURA, WARD NO. 9, NEAR NAGMANDIR, WARDHA ...........Complainant(s) Versus 1. DR. RAJENDRA BORKAR BALHARI SHISHU HOSPITAL & PRENATAL RESEARCH CENTRE, DEVI ASHTABHUJA CHOWK, DHANTOLI, WARDHA ............Opp.Party(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Complainant: Advocate Mr.Sachin Deshpande. For the Opp. Party: Advocate Mr.M.R.Joharapurkar. Dated : 09 Aug 2017 Final Order / Judgement Per Shri B.A.Shaikh, Hon'ble Presiding Member. 1.
This complaint is filed under section 17 of the Consumer Protection Act, 1986.
2. The case of the complainant as set out by him in the said complaint in brief is as under.
a) The opposite party (for short O.P.) is a doctor by profession and he is also Pediatrician and he runs hospital at Wardha in the name and style as "Balhari Shishu Hospital & Prenatal Research Centre". Minor Sumedh Dhoke alias Madhur alias Shubham ( whose name is not given in complaint but given in various documents filed on record), aged about 14 months was suffering from fever on 11/03/2003. He is the son of the complainant. Therefore the complainant took him to the hospital of O.P. on 11/03/2003 for treatment. The complainant as per advice of O.P. got the blood and urine test done of his minor son Sumedh. The O.P. after examining the said test report, prescribed medicines namely (1) Lariago Syrup, (2) Paracetamol Syrup, (3) I.V.fluids saline and (4) Monosef Injection. Complainant purchased the medicines from the near by chemist and obtained bill. Though medicines were given to minor Sumedh. However his temperature was not reduced.
b) Therefore on next date i.e. on 12/03/2003 the complainant took his minor son Sumedh again to the hospital of O.P. At that time the O.P. advised the complainant to do WIDAL test. Accordingly the said test was carried out at Sahayog Pathology Center. The O.P. after examining the test report advised the complainant to admit minor Sumedh in his hospital for treatment.
( c) The O.P. then prescribed other medicines namely (1) Cefraitxone 1000 mg, (2) Disposable syringe 5 cc, (3) Vasofix 22 number and (4) Normetrrogye Syrup (Latrine). The complainant purchased the same and obtained the bills. The said medicines were also given to the minor Sumedh Dhoke in the hospital of O.P. on 12/03/2003.
(d) However after few hours, minor Sumedh Dhoke had a chill and his both hands and legs became lame. The said condition was brought to the notice of the O.P. by the complainant. The O.P. did not show any reaction and without advising for C.T.Scan or M.R.I. asked the complainant to take minor son Sumedh to home and discharged Sumedh on 13/03/2003.
(e) The O.P. asked the complainant to bring minor Sumedh for check-up and treatment every day, though the complainant was not willing to take minor Sumedh to his home and he wanted that he be treated in the hospital.
(f) The O.P. did not issue discharge card on 13/03/2003 and told the complainant that he will issue the same after the whole treatment is over. Therefore the complainant took his son Sumedh to the house and continued the treatment of the O.P. for six more months with all hopes. The O.P. gave prescription from time to time and complainant purchased the medicines as per those prescriptions from the chemist and obtained the bills.
(g) The O.P. had given false hopes to the complainant that his minor son Sumedh will be cured if he continues taking treatment. However inspite of continuing the treatment there was no improvement in the physical condition of minor Sumedh.
(f) Minor Sumedh was born on 04/01/2002 as a normal child having weight 2.7 kgs. in the hospital of Dr.Deshmukh at Akola and he was also given proper vaccination and the certificate about the same is also obtained. Sumedh was progressing as per his age and he had no physical impairment or any complaints relating the same. Dr.K.V.Bhise also issued certificate that Sumedh was borne normal and showing healthy progress.
(g) However, when he was aged about 14 months and taken to the hospital of O.P. for treatment as above, the O.P. without recommending for Malaria Test he had prescribed treatment for Malaria to Sumedh, causing adverse reaction to him, making his both hands and legs lame.
(h) The O.P. issued the discharge card after six months by manipulating all the records and recording false entries in it. Despite of taking treatment for six months from the O.P., the physical condition of Sumedh was not improved. But due to his critical condition he had fallen down in the house causing many injuries to him. The complainant ran from pillar to post for the treatment of his minor son Sumedh. Finally he took his minor son to Dr.Dharmadhikari who is the Ayurvedic Doctor and started his treatment. Although his fever has been in control, there is no improvement in his physical condition. Because of the negligence on the part of O.P. while giving treatment, minor Sumedh has become disabled. The O.P. ruined the future of Sumedh. The life of complainant and his family members and that of Sumedh has become miserable.
(i) Therefore this consumer complaint is filed against the O.P. claiming from him compensation of Rs.50,00,000/- for the disability and mental agony, trauma and social stigma attached to his son's entire life and further claiming Rs.5,00,000/- from the O.P. towards cost of treatment and care in future of his son Sumedh and further claiming Rs.50,000/- towards litigation cost.
3) The O.P. appeared before this Commission and initially filed his written version/reply on 21/03/2004. Thereafter, in view of the subsequent development during the pendency of the complaint, the O.P. with the permission of this Commission amended the said reply and made additional submission in para Nos.9-A to 9-C of the said reply. The case of the O.P. as set out by him in his reply/written version in brief is as under.
(a) It is admitted that the O.P. is a well qualified Doctor by profession and he runs a hospital in the name and style as "Balhari Shishu Hospital & Prenatal Research Centre" at Wardha and that the complainant had brought his minor son Sumedh aged about 14 months to the said hospital of O.P. on 12/03/2003 for treatment. However it is the case of the O.P. in brief that minor Sumedh developed convulsion i.e. fits at home which is recorded in the indoor case papers. He was admitted with rectal temperature 103 degree F and never had high fever during hospital stay. The indoor case papers are prepared showing the temperature chart. Moreover affidavits of eye witness, ward attendant and Nurses are also filed about the same. Therefore after admission of Sumedh on 12/03/2003 in the hospital of O.P., appropriate treatment was immediately started. Small sample of blood of one ml. and urine of sample of Sumedh were collected and sent through the complainant for examination to Dr.Jayant Makrande, M.D. However the complainant instead of taking the same to the Dr.Makrande, he took the same to Dr.Rajesh Ingale who was not qualified Pathelogist. The O.P. had not asked the Widal test report as it comes positive only after eight days of fever and not within one day of fever. However the Rajesh Ingale prepared a fake Widal test report and he also prepared the fake blood sugar report. The O.P. had asked for CVC and urine routing examination but he got the report about blood group, Widal test report and blood sugar report were not asked for and not necessary. The said report received by the O.P. is also filed alongwith the reply.
(b) The O.P. had prescribed Syrup Lariago 10ml by oral route, Syrup Paracetamol 5ml, Injection Monocef was given 500mg BD. The complainant obtained the prescription chit from the O.P. on the false pretext that he wanted the names of medicines given on 12/03/2003 and 13/03/2003 during admission. No name of the patient and date are mentioned on the said chit due to that reason. The complainant also obtained fake medical store bill by trick and threatening to the employee of the medical stores, to support his vicious design. The affidavit of the said medical store keeper is filed to that effect. As the minor Sumedh was suffering from 103 degrees F temperature, a proper treatment was given to him by the O.P. Minor Sumedh never became serious in the hospital. He was taken home by the complainant against the advic and the affidavit of eye witness of the staff is also filed.
( c ) Sumedh was having preexisting delayed milestones alongwith spastic weakness of limbs already known to his parents. He was admitted in the hospital of O.P. on 12/03/2003 as an emergency case after he had convulsions at home. The O.P. had advised for EEG to further probe the reason for the convulsions at home and to investigate pre-existing and known fact of delay in milestones and spastic weakness by ordering CAT of brain. On 12/03/2003 Sumedh had developed loose motions for which Normetrogly was prescribed alongwith oral rehydration solution Relyte to treat and prevent dehydration on 13/03/2003.
(d) Vovaran Emugel was given for pain at the site of injection. Syrup Nootropil in proper doses was given for preexisting disease of delay in milestones and spastic weakness.
(e) Sumedh was under treatment of Dr.Nitin Chandak, Neurologist and Dr.Vilhekar in last week of May, 2003. Dr.Nitin Chandak had advised CAT and MRI of brain and the same was done on 27/05/2003.
(f) The discharge card was given immediately on 13/03/2003 to the complainant. Sumedh was never brought for follow up immediately within a fortnight as his condition was static and apparently normal. However he was again brought on 10/04/2003 for cough, cold and fever and therefore CE folac, Tixylix and Cofamol medicines were prescribed in proper doses by oral route.
(g) Then Sumedh was brought for general weakness on 09/05/2003 for which Cecon drops, Calcirol granules and Syrup Sovical/Calcimax were prescribed and Combiflam was prescribed apart from injections of Vitamin A and Vitamin D.
(e) The complainant was never bothered about neurological weakness of limbs while taking treatment with O.P. He was also taking the treatment for the same from Dr.Vilhekar and depended only for common illnesses which was treated by O.P.
(f) Actually the neurological disease does not have any specific treatment and as the complainant specifically sought opinion of delayed milestones and spastic weakness. So O.P. accepted and approved the diagnosis of Dr.Vilhekar and his prior bottle of Nootropil was over. So again O.P. prescribed the same Syrup by oral route in appropriate doses and continued Vovaran Emugel.
(g) The complainant again brought minor Sumedh to O.P. on 19/06/2003 for delayed milestones and spastic weakness. His previous bottle of Nootropil and Sovical was over. Again same was prescribed by O.P.
(h) The O.P. also noted the dignosis written by Dr.Vilhekar, senior Pediatrician as "Infantile Spastic Hemiplegia" and advised physiotherapy. The O.P. gave a note to Ajay Wane for physiotherapy for delayed milestones and spastic weakness in a case of infantile spastic hemiplegia. The O.P. did not call minor Sumedh for treating delayed milestones and spastic weakness because there was no specific treatment for the same. The O.P. attended the minor Sumedh for cough, cold, anemia and general weakness and vitamin deficiencies and treated him as and when required for the same with appropriate treatment and the same was cured.
(i) The complainant was seeking opinion and treatment of Dr.Vilhekar, Senior Pediatrician regarding delayed milestones and spastic weakness and they are also taking treatment from Dr.Nitin Chandak, Neurologist from Nagpur, who is the relative of the complainant. The O.P. is not aware about nature of prenatal and intranatal condition of Sumedh as the postnatal card is not attached with the complaint. However the outdoor case papers of the hospital of Dr.Urmila Deshmukh of Akola shows that the mother of Sumedh had premature rupture of membrane (PROM) for more than 24 hours. Therefore it can be said that minor Sumedh had infection in neonatal period. Moreover the child's specialist had prescribed injection Mikacin 100mg for three days to treat the infection. Dr.K.V.Bhise of Wardha was looking after Sumedh up to the age of one year. Dr.Bhise did not attend the delivery and therefore he can not issue certificate about the condition of Sumedh at the time of his birth.
(j) It is denied that both hands and legs of Sumedh became lame due to Syrup Lariago given by the O.P. The disability of Sumedh is a delayed milestones and spastic weakness of limbs. The complainant had taken the discharge card on 13/03/2003 and affidavit of Mr.Waghmare is filed about the same. He had taken discharge of his son against the medical advice.
(k) The preexisting disability is due to brain disease and not due to treatment given by O.P. There can be many causes of preexisting damages. There is no proximity of cause as delayed milestones and spastic weakness preexisted to admission of Sumedh in the hospital of O.P.
(l) The O.P. is a well qualified doctor and the alleged disability suffered by the minor Sumedh was preexisted and from birth and not because of alleged medical negligence on the part of O.P. The Minor Sumedh developed the diseased due to inherent brain disease process going in the brain and not related to medicines given by the O.P. The affidavits of expert doctors namely S.K.Tiwari, Dr.Hemant Morke, Dr.Daga, Dr.Wagh and Dr.Pawde are filed on record about the same. The M.R.I. of the brain of Sumedh obtained from Ruby Hall Clinic Pune also shows delayed myelination. Moreover Dr.Sachin Pawade after taking history of Sumedh also dignosed that it is a case of Neuro Degenerative Disorder, Metabolic ? Congenital Infection. Moreover Dr.Sunil Bandishti had examined Sumidh and gave opinion that this might be some congenital metabolic problem. Moreover the hospital note of Dr.Mrs.G.Shashikala who is a Neurologist also opined that causes perinatal etiology or prenatal. The summary of Kasturba Hospital of Sevagram, Wardha also shows that Sumedh suffered from Spastic Quadriparesis with mental retardation with neuron regression and diagnosed case of Neuro Degenerative Disease ? Leigh's Disease with Severe Nutritional Anemia with Hypoprotenemia with Grade III Wasting (Waterlows) and Grade II PEM Under evaluation (DOR).
(m) The aforesaid report and documents are filed by the complainant himself. The Leigh's Disease is regarding suffering from some congenital, metabolic, severe neurological degenerative disorder. The said disease is present since birth and become obvious any time in early childhood. The said disease is genetically predisposed and it is not related to any treatment modality.
(n) Thus the O.P. denied that he provided deficient service and he is guilty of medical negligence and due to his medical negligence minor Sumedh suffered from the disability stated in the complaint. Therefore O.P. requested that the complaint may be dismissed with cost of Rs.10,000/-.
4) The complainant filed re-joinder to the complaint after the reply was filed by the O.P. The complainant denied in the re-joinder. the aforesaid case of O.P. set out in the reply.
5) The complainant alongwith the complaint filed copies of following documents. Prescription lists, various reports of investigations and tests, medical bills. He produced certificates of Dr.Bhise, Dr.Urmil, Dr.Kanchan, Dr.Anup Kothari and receipts issued about payment of money to Rajesh Ingle (DMLT), case papers of the hospital of Dr.Pawde and other hospitals. He also produced affidavit of Rajesh Ingle and the photographs of minor Sumedh Dhoke. He (complainant) also produced blood and urine reports as obtained during treatment from O.P. Copies of birth and vaccinations reports of Sumedh, copy of report of Dr.Bhise and copy of discharge card of the hospital of O.P. Copies of the news paper cutting in which the news is published about the condition of minor Sumedh. He filed his affidavit and the report given by Dr.Ketan Chaturvedi of Wockhard Hospital on 08/08/2016. He also produced copy of the report dated 23/07/2016 given by Lal Pathelogical Laboratory.
6) The learned Advocate of complainant had also moved an application on 02/09/2015 for referring the minor Madhur to Medical Board for examination. This Commission after hearing advocates of both parties on that application passed order on 10/12/2015 and thereby allowed that application by specking order dated 10/12/2015. This Commission directed that minor Madhur and his brother, be referred to Medical Board to be constituted by Government Medical College and Hospital, Nagpur for examination. This Commission also directed that the copies of the complaint, written version of O.P. and medical papers filed by both parties be also sent to the said Medical Board for the report.
7) The Medical Board was duly constituted and after examination of minor Sumedh and considering all medical papers and documents submitted the report to this Commission, which is also taken on record on 11/02/2016.
8) The questionary with the permission of this Commission was furnished to Dr.Ketan Chaturvedi of Wockhard Hospital who had issued prescription list with diagnosis on 08/08/2016. He gave reply to the same on 17/02/2017 which is also taken on record.
9) The O.P. on the other hand, filed his own affidavit. He also filed copies of documents and affidavit as referred to by him in his aforesaid reply and specified above. He also produced scientific data on Nootropil and booklet on Malaria Guidelines and text book referrance on Cerebral Palsy and causes of Convulsions in Childhood. He also filed medical literature about causes of Paraplegia and causes of Mental Retardation. He also filed case laws.
10) The learned advocates of both parties also filed their respective written notes of arguments.
11) We have also heard the arguments of learned advocates of both parties and perused the complaint, reply of O.P., affidavits and all the documents filed on record by both parties. We have also perused the medical opinion given by medical experts as called for by this Commission.
12) The learned advocate of the complainant submitted that he has filed written notes of argument in detail and the same may be considered as his oral arguments. The learned advocate of the complainant in his written notes of arguments reiterated the aforesaid case of complainant in brief and his further submission in brief is as under.
(i) The O.P. at the time of discharing minor Sumedh on 13/03/2003, should have taken proper precaution and should have seen that he is mentally and physically fit for discharge. However he did not refer Sumedh to some other hospital or he should have consulted the senior doctor of other hospital for further treatment. As he did not do so, it proves negligence on his part.
(ii) The complainant believing the words of O.P. after discharge continued his treatment from 13/03/2003 to 19/06/2013. However, because of medicines and injections given by O.P., the minor Sumedh suffered mental and physical disorder. The same was not informed to the complainant by the O.P.
(iii) The complainant then took his minor son to Sevagram Hospital where he was advised to take the M.R.I. at Nagpur. After conducting the M.R.I. test at Pune on 29/07/2003, the report was received. It can be gathered from that report that there is delay for conducting further investigation. Had any such advice given by the O.P. to conduct M.R.I. then the present condition of minor could have been normal.
(iv) The doctor of Wockhardt Hospital gave opinion on examination of the minor Sumedh. Moreover the Government Medical College and Hospital, Nagpur through its doctors gave opinion on 08/10/2016 stating that " Acute fobrile illness seizure", which is not associated with the matter of the complaint. Therefore the said opinion can not be taken in to consideration. The said report is vague and it does not show whether the hospitalization of minor Sumedh on 13/03/2003 resulted in to the disease.
(v) The photographs of minor Sumedh produced on record prior to date 13/03/2003 show that the condition of minor was normal till 13/03/2003. The O.P. has purposefully not cross examined the complainant, though complainant filed his affidavit and therefore the said affidavit can be relied on. The burden lies on the O.P. to prove that there was no medical negligence on his part during treatment and he has not discharged the said burden by adducing cogent evidence. The hospital of the O.P. was not well equipped for treating the patient at relevant time, it leads to medical negligence. Therefore the deficiency in service and unfair trade practice on the part of O.P. is proved and complainant is thus entitled to compensation of Rs.50,00,000/- for causing disability, medical agony and trauma to the minor son of the complainant.
13) On the other hand, the learned advocate of the O.P. during the course of his argument reiterated the defence of O.P. as set out in the reply of the O.P. and reproduced the brief above. In addition to same, his submission in brief is as under.
(i) A child can be normal at the time of birth, but disease manifestations can be started after some days, months or years of birth of the child.
(ii) The tests reports produced on record and the medicines prescribed by the O.P. do not make out any case as claimed by the complainant. The complainant failed to prove by producing standard journal, text book or expert opinion regarding the medicines or injections which the O.P. has given that the same caused the hands and legs of minor Sumedh becoming limp.
(iii) It is not possible by any stretch of imagination and it has no scientific footing that syrup Lariago can cause any such disability to any minor as alleged in the complaint. The burden lies on the complainant to prove negligence, except in a case of res ipsa loquitur, to prove by expert evidence that the O.P. rendered medical negligence. But the said burden is not discharged by him. On the application of the complainant, his son was referred to Medical Board constituted by Government Medical College and Hospital, which on due examination of the minor and the case papers submitted the report, which supports the case of O.P.
(iv) Dr.Ketan Choudhary in reply to the questionnaire denied the case of the complainant.
(v) The O.P. is well qualified medical doctor and he had taken high degree precaution while treating the minor Sumedh and no negligence and mistake was occurred from him resulting in to any damage to minor Sumedh. The minor Sumedh developed the disease due to inherent brain disease process going in his brain and it is not related to medicines given by the O.P.
14) The learned advocate of O.P. has relied on the decisions in the following cases.
a) Yoginder Beri......V/s.....Grover Eye and E.N.T. Hospital and others, decided by Union Territory Consumer Disutes Redressal Commission, Chandigarh.
b) V.Chandrasekar......V/s.....Malar Hospitals Ltd., decided by Tamilnadu Consumer Disutes Redressal Commission, Chennai.
c) Dr.N.T.Subrahmanyam and others......V/s.....Dr.B.Krishna Rao and others, decided by Hon'ble National Commission.
Therefore the learned advocate of the O.P. submitted that as there is no merits in this complaint, it may be dismissed with costs.
15) At the out set it is worthy to note that on the application of learned advocate of the complainant, the minor Sumedh alongwith medical case papers was referred to the Medical Board, constituted by the Government Medical College and Hospital. The said board was comprising of six expert doctors including the Neurologist. The said experts committee submitted the report through the medical supernatant of the Government Medical College and Hospital, Nagpur alongwith the letter dated 10/02/2016 to this Commission. The said report is very specific and in detail. The said committee/board after due examination of the minor Sumedh and medical case papers concluded that minor son of the complainant was suffering from "Genetic Neurodegenerative Disorder of white matter/basal ganglia of the brain". The said exerts also opined that the treatment given by the O.P./doctor to the minor son of the complainant has got no relation with the aforesaid disorder. Moreover the disease namely "Acute febrile illness with febrile seizure", has no connection with the treatment given to the minor son of the complainant by the O.P.
16) Thus, from the said report of the experts, it is proved that the minor son of the complainant has got Genetic Neurodegenerative Disorder of the brain and it has got no connection with the medical treatment given by the O.P. to the said minor son of the complainant. There is no reason to disbelieve the said report of the experts. Thus on the basis of said report of experts, we find that no medical negligence can be attributed to the O.P.
17) Dr.Ketan Chaturvedi had issued the prescription chit with dignosis after examination of the minor Sumedh on 08/08/2016. He in reply to the interrogatory submitted to him by advocate of O.P. has not supported the case of complainant in any way. Moreover the aforesaid prescription of Dr.Ketan Chauturvedi is of no help to the complainant to prove that due to the medicines prescribed by the O.P., his son suffered from disability as alleged in the complaint.
18) All most all the case papers, prescription chits and the medical bills, investigation reports and affidavits filed by the complainant do not prove that because of medical treatment given by the O.P. to the minor son of the complainant, he suffered the disability and he became disabled. Moreover no medical literature is produced by the complainant in support of his case that, because of medicines prescribed by the O.P. and given to his minor son, such type of disability can be occurred in minor child.
19) We also find that this is not a case of res ipsa loquitur that is the thing speaks for itself. In our view, initial burden lies on the complainant to prove medical negligence on the part of O.P. in the present case. The said burden is not discharged by complainant by adducing cogent evidence. On the contrary the evidence produced and documents filed on record discussed above and the report of expert doctors prove that there is no medical negligence on the part of O.P. and the treatment provided by him to the minor son of the complainant is correct and proper and that due to his treatment the minor son of the complainant has not suffered from disability.
20) The medical literature produced by the O.P. alongwith pursis dated 02/08/2017 shows that the symptoms of Leigh's disease, is typically begins within a year of child's birth and lead to death within a span of several years, though the symptoms can appear any time between the ages of three months and two years or very rarely in adolescence or adulthood. Moreover the characteristic symptoms of Leigh's disease are at least partially caused by bilateral, focal lesions in the brain stem, basal ganglia, cerebellum, and other regions of the brain. The lesions take on different forms, including areas of demyelination, spongiosis, gliosis, necrosis, and capillary proliferation. It also shows that that the lactic acidosis sometimes is associated with Leigh syndrome. It also shows that Leigh disease is an extremely rare disorder.
21) Thus we find that the aforesaid medical literature, which is not disputed also support the aforesaid case of O.P. It can be said that there was no medical negligence on the part of the O.P. in treating the minor son of the complainant, when Leigh's disease is regarding suffering from some congenital, metabolic, severe neurological degenerative disorder.
22) We find no substance in the aforesaid submission of the learned advocate of the complainant. On the contrary we find substance in the aforesaid submission of the learned advocate of the O.P. Hence for forgoing reasons we hold that the complainant failed to prove that the O.P. rendered deficient service or he is guilty of medical negligence and that due to his medical negligence the complainant's son suffered permanent disability, which is alleged in the complaint. In the result the complaint deserves to be dismissed.
// ORDER // The complaint is dismissed.
No order as to cost.
Copy of the order be furnished to both parties free of cost.
[HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER