State Consumer Disputes Redressal Commission
Mr. Gopal Puranchand Agrawal vs Nova Speciality Surgery & Ors on 17 March, 2017
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[CC/13/295]
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
CONSUMER COMPLAINT NO.CC/13/295
1. Mr.Gopal Puranchand Agrawal
Flat No.11, Building No.B-9-2
Doodh Sagar CHSL,
Ciba Road, Near Goregaon
Check Naka, Goregaon (E),
Mumbai 65. Complainant(s)
Versus
1. Nova Speciality Surgery
Through its Chairman and
CEO Mr. Suresh Soni
Having address at-
Famous Cine Labs
156, Pt. M.M.Malviya Road,
Tardeo, Mumbai 400034.
2. Dr. Ramen Goel
Head of Bariatric Surgery
At -Nova Specialty Surgery
Having address at-
Famous Cine Labs
156, Pt. M.M.Malviya Road,
Tardeo, Mumbai 400034.
3. The Bhatia Hospital
Through its present Trustees/
Administrators
Having address at-
Tardeo Road,
Mumbai 400007.
4. Dr. Purvi Chhabalani
Visiting Consultant Doctor
At-The Bhatia Hospital
Tardeo Road,
Mumbai 400007.
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[CC/13/295]
5. Dr.Pankaj Dhawan
Consultant GI Endoscopist
At- The Bhatia Hospital
Tardeo Road,
Mumbai 400007. Opposite Party(s)
BEFORE: Hon'ble Mr. Justice A.P.Bhangale, President
Hon'ble Mr.D.R.Shirasao, Judicial Member
PRESENT:
For the Advocate Shri. Manish Rajani
Complainant:
For the
Opposite Party(s): 1] Advocate Shri. Tejas H. Bhatt for Opposite Party
No.1
2] Advocate Shri. Amit Karkhanis for
Kaylegal & Associates LLP for Opposite Party No.2
3] None present for Opposite Party No.3.
4] Advocate Smt. Kalpana Trivedi for Opposite Party
No.4.
5] Advocate Shri. Bimal Bhabhda for Opposite Party
No.5 for M/s. Apte & Co.
JUDGMENT
(Delivered on 17/March/2017)
Per Hon'ble Mr. D.R.Shirasao, Judicial Member
Complainant has filed this complaint against the Opposite Parties for getting refund of the amount of Rs.3,25,000/- given by him to the Opposite Party Nos. 1 and 2 on account of surgery conducted on his father and claimed refund of Rs.6,00,000/- towards additional medical expenses incurred on account of deficient medical services given to his father and claimed amount of Rs.75,00,000/- towards damages and losses suffered by him on account of mental agony and trauma due to death of his father, from opposite parties jointly and severally. Brief facts of the case are as under- 3
[CC/13/295] [1] Complainant submitted that his father Mr. Puranchand Agrawal approached to the opposite party no.2 on or about 14-15/9/2012 for taking advice relating to obesity and weight loss at Opposite Party no.1's clinic at Tardeo where Opposite Party No.2 was consulting doctor. Complainant submitted that on examining Mr.Puranchand Agrawal, Opposite Party No.2 recommended Mr.Puranchand Agrawal to undertake a surgery for Sleeve Gastrectomy and assured him that after the surgery he will loose weight. Opposite Party Nos.1 and 2 also assured Mr.Puranchand Agrawal that there are no side effects or risks to the said surgery and he will be back to normal routine within 2-3 days from the date of surgery. Complainant submitted that Opposite Party No.2 also asked his father to undertake certain medical tests before the surgery in order to ascertain whether his father is fit to be operated upon. Complainant submitted that as per Opposite Party No.2's prescription his father undertook all prescribed test at Gokuldham Medical Centre at Goregaon ( E), Mumbai and submitted test reports to Opposite Party Nos.1 and 2. Complainant submitted that on examining the test reports Opposite Party No.2 was satisfied that father of complainant is fit to undergo surgery for Sleeve Gastrectomy and asked him to get admitted at Opposite Party No.1's clinic on 24/9/2012 for a prescribed surgery on 26/9/2012. Complainant submitted that on 26/9/2012, Opposite Party No.2 had performed surgery for Sleeve Gastrectomy on his father in Opposite Party No.1's Hospital. Complainant submitted that for that purpose Opposite Party No.1 had charged amount of Rs.3,25,000/- from his father 4 [CC/13/295] and he had paid the same to the Opposite Party No.1. Complainant submitted that on 26/09/2012 his father had problem of breathlessness. Complainant submitted that he had made complaint about the same to the Opposite Party Nos.1 and 2. However, they had not taken cognizance of the same. Complainant submitted that on 29/9/2012 at about 5 p.m. his father complained of unbearable breathlessness. Complainant submitted that despite claiming to be a multispecialty medical centre providing medical treatment for various ailments, Opposite Party No.2 in order to avoid any controversy about a failure of surgery by Opposite party No.2 at Opposite Party No.1's clinic advised him and his father to shift to the Opposite Party No.3 i.e. Bhatia General Hospital and to take treatment from Opposite Party No.4 Dr.Purvi Chhablani stating that he required to be treated in that hospital having more experienced doctors and medical facilities. Complainant submitted that accordingly on 29/9/2012 he had shifted his father at Opposite party No.3 with complaint of breathlessness and therefore Opposite Party No.3 started treating his father for Pneumonia and Type 1 Respiratory Failure as per opposite party No.4's provisional diagnosis. Complainant submitted that on the basis of provisional diagnosis Opposite Party Nos.3 and 4 treated his father for pneumonia. Complainant submitted that on 10/10/2012, Opposite party No.4 informed that his father is fit to be discharged from the hospital of Opposite Party No.3. Complainant submitted that during the follow up with Opposite Party No.2 at Opposite Party No.1 clinic on 19/10/2012 his father complained of breathlessness and 5 [CC/13/295] nausea and he was therefore advised to undertake certain medical tests. On examining medical reports opposite Party No.2 advised Mr.Puranchand Agrawal to again get admitted with Opposite Party No.3 under supervision and treatment of Opposite Party No.4 and therefore Mr.Puranchand Agrawal got admitted at the hospital of Opposite Party No.3 on the same day. Complainant submitted that as per advice of Opposite Party No.4 some tests of his father were carried out in the Opposite Party No.3's diagnostic centre. Complainant submitted that in the course of medical investigations, it was found that there was accumulation of fluid in abdomen and also in the lungs of his father, which in medical terms is called 'Pleural Effusion". Complainant submitted that the said fluid was removed by the Opposite Party No.4 from abdomen of his father by way of "CT guided pigtail catheterization" and the fluid from lungs was removed by treatment called "tapping". Complainant submitted that his father was told by Opposite Party No.4 that one of the reasons for his illness is Pleural Effusion. Complainant submitted that despite several requests made by him and his father, Opposite Party No.2 and 4 refused to give any reason as to why his father was suffering from Pleural Effusion and avoided the request by giving lame excuses. Complainant submitted that prior to the surgery his father never suffered from pleural Effusion and it had arisen only after the surgery for Sleeve Gastrectomy which was performed at the hands of Opposite Party No.2 and out of their irresponsibility of not having adequate medical facilities. Complainant submitted that his father was then given 6 [CC/13/295] various treatments at the hospital of Opposite party No.3 under the supervision of Opposite party No.4. Complainant submitted that being unable to diagnose the correct reason for collection of fluid in the lungs of his father, Opposite party No.4 also suspected that his father is suffering from Tuberculosis. Complainant submitted that on a mere suspicion of him suffering from Tuberculosis, Opposite Party No.4 prescribed and gave heavy dosage of medicines/steroids for Tuberculosis to his father. Complainant submitted that as per the advice of Opposite party No.4 his father underwent various tests including CT Scans, sonography, endoscopy, X-rays, blood tests, test of fluids etc. and based on the reports Opposite Party Nos.2 and 4 also informed him and his father that the main reason for the illness of his father was accumulation of fluid in his lungs i.e. Pleural Effusion, but despite several requests Opposite Party Nos.2 and 4 had not given any reason for pleural Effusion. Complainant submitted that Opposite Party Nos. 2 and 4 were constantly discussing the line of treatments to be given to his father and always kept on giving different treatments to his father as they were unable to diagnose correct reason for the illness and sufferings of his father and therefore gave him different treatments on a trial and error basis. Complainant submitted that Opposite Party Nos.2 and 4 failed to provide appropriate post operative treatment to his father despite knowing that there was an infection due to the leakage from the operated portion that had caused Pleural Effusion and instead gave heavy dosage of medicines for Tuberculosis. Complainant submitted that Opposite Party 7 [CC/13/295] Nos. 2 and 4 also did not take appropriate steps to stop the leakage which caused infection and ultimately to Pleural Effusion due to which his father suffered redundant pain and sufferings and ultimately led to his death. Complainant submitted that on showing the endoscopy video to some other reputed doctors, complainant was told that there was a leakage in/from the operated portion but was not reported by the Opposite Party No.5 in his report. Complainant submitted that there are enormous discrepancies between the Endoscopy video and the report submitted by the Opposite Party No.5 on the basis of endoscopy. Complainant submitted that his father through his Advocate had given notice dt.3/1/2013 to all the Opposite Parties and complained of medical negligence and deficiency in service and had sought refund of Rs.3,25,000/- from Opposite Party Nos. 1 and 2 as the Sleeve Gastrectomy surgery was not performed as per promised standards. Additionally, his father had demanded from Opposite Party Nos. 1 to 5, jointly and severally, a sum of Rs.6,00,000/- as refund of additional medical expenses incurred due to the negligence and deficiency in service and further claimed sum of Rs.70 lakh as damages on account of redundant physical sufferings, mental agony suffered by him. But Opposite Parties failed to comply with the notice. Complainant submitted that on 24/1/2013 his father died due to the illness suffered by him due to negligent medical treatment and deficient services given by opposite parties. Hence, he has filed present complaint for getting compensation for that purposes jointly and severally from opposite parties.
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[CC/13/295] [2] Opposite Party No.1 contested complaint by filing written version on record at page 624. They submitted that this Opposite Party is a short stay multi-speciality surgical centre and is a pioneer in the field of short stay surgery. It has never claimed to be a full-fledged hospital, but has always declared itself to be a short stay surgical centre. They submitted that Tardeo Centre at Mumbai has been operational since December 2011 and since then performed more than 2100 surgeries with zero fatalities. There were transfer of three cases to other hospitals purely for observation and all have recovered. The Tardeo Centre has Pathological labs, radiology services, ultrasound, echo, ECG and TMT, C-Arms (routine, special, DSA) Pharmacy, heath check-ups, procedure room, out patient departments, physiotherapy etc. They submitted that they have very good post operational surgical ward with all beds covered by monitors. Post operative ward also consists of ventilator support and is covered by qualified doctors with experience in intensive care round the clock. They submitted that before surgery was conducted on the father of complainant necessary consent forms namely General Consent for Admission, Medical and physical history, operative consent, consent for anaesthesia, consent for bariatric surgery, which have been signed not only by the father of complainant but also by the complainant were obtained. They submitted that complainant and his father had signed the said consent forms on 26/9/2012well before three days of operation. They submitted that the father of complainant had multiple pre-surgery health issues including pulmonary 9 [CC/13/295] oedema, sleep apnea, breathlessness, swelling over feet, asthma, liver disease, hypertension etc. He was having bilateral wheezing in lungs and paedal oedema and was on anti-hypertensive medication for two years and seroflow inhaler for two years as mentioned in history form at the time of admission on 25/9/2012. They submitted that considering high risk, Dr.Hari Chablani was also called as standby intensivist during surgery. They submitted that as per patient's record, it is clear that the complainant's father's surgery was scheduled for 25/9/2012 and could not be carried out as he was having pulmonary oedema. They submitted that complainant and his family chose to get the said operation done at the hospital of opposite party No.1 since they were satisfied with the surgical facilities present in the hospital. They submitted that operation conducted on the father of complainant was successful and no irregularity was committed while conducting surgery. They submitted that after surgery for the first time problem was noticed by RMO of their hospital on 28/9/2012 at 9.30 a.m. that patient was breathless and has crepts in both lungs indicating pulmonary oedema or pneumonia. At that time soft abdomen and bowel sounds were present. They submitted that Dr.Hari Chablani, who saw the patient in his notes has mentioned that chest x-ray shows pulmonary oedema ++ and he started patient on nebulisation, breathing exercises, Inj. Lasix to dry up lungs. The patient responded to the treatment and Dr.Chablani noted that crepts reduced and heart rate settled. Patient's respiratory condition improved but he had weakness. They submitted that Opposite Party No.2 in 10 [CC/13/295] his notes on 29/2/2012 at 3 p.m. mentioned that patient has no surgical problem but considering his fragile cardio pulmonary status, find it preferable to shift him to a hospital with ICU facility. But it was the opinion of complainant that his father be observed for another day, hence patient was continued on oral fluids. They submitted that patient was reviewed by Dr.Hari Chabalani again at 6.30 p.m. and found him to have scattered crepts in lungs and drowsiness. He discussed with Dr.Goel and decision was taken to shift him to a tertiary care hospital. They submitted that father of complainant had pre-op lung condition which flared up after surgery and though was medically managed but was transferred for extended medical care. They submitted that father of complainant was discharged from Opposite Party No.1 hospital in the evening of 29/9/2012. They submitted that further medical treatment of father of complainant had taken place in Bhatia Hospital under the supervision of Opposite Party Nos.4 and 5. They submitted that complainant has concealed the fact that his father was lastly sifted to Saifee Hospital where he was fully recovered and was discharged from that hospital on 20/11/2012. Complainant has also concealed the fact that thereafter his father had gone to his home town at Jaipur, Rajasthan where he died on 24/1/2013. They submitted that father of complainant was lastly treated before his death at Saifee Hospital. However, Saifee Hospital or Dr.Lakdawala who had given medical treatment to the father of complainant, have not been made party to the present proceeding. They submitted that the certificate given by 11 [CC/13/295] Dr.Lakdawala is given after about one year from the date of death of father of complainant in the month of Oct. 2013. He had not filed his evidence in support of his certificate. He had not medically examined father of complainant at the time of his death. There is no report on record in respect of death of father of complainant. Hence, they submitted that it cannot be considered that death of father of complainant had taken place due to the wrong medical treatment given to him in the hospital of opposite party No.1. Hence, they submitted that complaint filed against Opposite Party No.1 be dismissed.
[3] Opposite party No.2 has filed his written version on record and the same is at page 725. He admitted that the complainant had contacted him on 24/9/2012 for bariatric surgery of his father. He submitted that at that time he had medically examined father of complainant and advised pre operative investigations to him. He submitted that accordingly father of complainant had undergone all those investigations and produced reports about the same before him and considering the same he found him fit to undergo surgical procedure. He submitted that the father of complainant had multiple pre surgery health issues including pulmonary oedema, sleep apnoea, exertional breathlessness, swelling over feet, asthma, liver disease, hypertension etc. as mentioned by patient's family members in consultation requisition form. Patient was having bilateral wheezing in lungs and paedal oedema and was on anti hypertensive medication for two years and seroflow inhaler for two years as mentioned in the history form at the time of 12 [CC/13/295] admission on 25/9/2012. Considering high risk Dr.Hari Chablani was also called as standby intensivist during surgery done on 26/9/2012. He submitted that before operation physical fitness was obtained and in that opinion physician has confirmed the fact that the lungs of patient were not in good shape with haziness in both lungs, had high heart rate 104/mt, swelling in both feet. He submitted that surgery was conducted after health condition of father of complainant was stabilized. He submitted that from 28/9/2012 father of complainant had problem of breathlessness and in that respect medical treatment was given to him and thereafter his condition had become stable. His respiratory condition had become stable. He submitted that considering fragile cardio-pulmonary status, father of complainant was in need of prolong medical treatment which could not have been given in the hospital of opposite party No.1. He submitted that hence complainant was advised to take his father to Bhatia Hospital - Opposite Party No.3 for further treatment of his father. He submitted that father of complainant was admitted twice in Bhatia Hospital between 29/2/2012 to 10/10/2012 and 19/10/2012 to 8/11/2012 for medical treatment. He submitted that the surgery conducted on the father of complainant was without any irregularity and there was no fault in conducting the same. There was no leak from the operational part. He submitted that when father of complainant was taking medical treatment in Bhatia Hospital it was revealed that he has Tuberculosis. In that respect treatment was given to him in that hospital. He submitted that however when father of complainant was shifted to Saifee 13 [CC/13/295] Hospital this treatment was abruptly discontinued. He submitted that father of complainant was under his care and treatment only for 4 days and he remained under the treatment of Opposite party No.3 for 30 days and in Saifee Hospital for 12 days. He submitted that during this period although repeated examinations of father of complainant had done no one has opined any surgical complication and submitted that there was negligence on the part of Opposite Party No.2 who had conducted surgery on the father of complainant. Hence, he submitted that the contention of complainant cannot be accepted that there was negligence on the part of Opposite Party No.2 who performed surgical operation of the father of complainant. He submitted that the opinion given by Dr.Lakdawala is not on affidavit and hence it cannot form part of evidence and hence cannot be taken into consideration. For all these reasons he submitted that the complaint filed by the complainant against opposite partyNo.2 be dismissed. [4] Opposite Party No.3 filed their written version on record and the same is at page 895. They submitted that the father of complainant was admitted in their hospital through Opposite Party No.4 and since then he was under the treatment of opposite party No.4 and 5 who were the honorary consultant in their hospital. They submitted that the complainant has not made any allegation against the Opposite Party No.3- Hospital regarding their administrative negligence or failure to provide basic infrastructure to the father of complainant. Hence, they submitted that if at all there is any negligence caused in the treatment of father of complainant 14 [CC/13/295] at the hands of opposite party nos. 2 and 4 for that opposite party no.3 cannot be held responsible. They submitted that father of complainant had given treatment in their hospital and his heath was improved. He was validly discharged from their hospital. Subsequently, as father of complainant had developed some problem he was again admitted in their hospital and at that time also proper medical treatment was given to him. They also submitted that lastly father of complainant was admitted in Saifee hospital and was under supervision of Dr.Lakdawala. In that hospital also his health was recovered and he was validly discharged from that hospital. They submitted that thereafter father of complainant had gone to his native place at Jaipur, Rajasthan and died there on 24/1/2013. Hence, they submitted that there was no negligence in giving medical treatment to father of complainant in their hospital and their hospital cannot be held responsible for the death of father of complainant. Hence, they submitted that complaint filed by the complainant against them be dismissed.
[5] Opposite Party No.4 has also filed her written version on record and the same is at page 1189. She submitted that she is a Consultant physician attached to Bhatia hospital and Saifee Hospital. Father of complainant was operated by opposite party No.2 at the hospital of opposite party No.1 for Sleeve Gastrectomy on 26/9/2012. Opposite party No.2 had sent father of complainant to the hospital of opposite party No.3 on 29/9/2012 and since then he was under the observation of opposite party No.4. She submitted that when father of complainant was admitted in Bhatia 15 [CC/13/295] Hospital he had complaint of breathlessness. She had carried out all necessary investigations such as x-ray, sonography, CT Scan and blood test to find the actual cause of breathlessness. She had also consulted Chest Physician Dr.Sujit Rajan and Cardiologist Dr.Bhadresh Shah. The CT Scan report revealed passive collapse consolidation with small pleural effusion with sub diaphragmatic collection. Dr.Sujit Rajan confirmed the same. Accordingly the patient was treated with antibiotics and other supportive treatment. She had also advised spirometry alongwith deep breathing exercise for which the patient was not co-operative. She was continuously involved in the management of the patient. Father of complainant was readmitted on 19/10/2012 under her care at the hospital of opposite party No.3 and was referred to the opposite party No.4 by opposite party No.2 with complaint of breathlessness. X-ray revealed left side consolidation with pleural effusion. Father of complainant was immediately put on IV antibiotics and the reference was sent to the Chest Physician - Dr.Sujit Rajan. The effusion was tapped and was sent for investigation. CT abdomen pelvis, CT Chest, X-ray Gastro Graffin test was done to rule out leak. Investigations revealed no leak of contrast. Case was referred to renowned Gastro Entrologist Dr.Abha Nagral and Gastro Intestinal Surgeon Dr.Nilesh. Barium test also did not reveal any leak. Upper GI Endoscopy was done by the opposite party No.5 Dr.Pankaj Dhawan on 3/11/2012 which did not reveal the leak. Father of complainant was shifted to Saifee Hospital on 8/11/2012 under the care of opposite party No.4 where expert 16 [CC/13/295] opinion was sought from Bariatric Surgeon - Dr. M. Lakdawala and Chest Physician Dr. Rajesh Sharma. Necessary investigations were carried out and again none revealed any leak. Same line of conservative treatment was continued and the deceased was discharged on 20/11/2012. He died on 24/1/2013 at his native place Jaipur, Rajasthan. Opposite Party No.4 has submitted that when father of complainant was discharged from Saifee Hospital he was fully recovered and he had no surgical and problem of medical treatment hence she submitted that contention of the complainant cannot be accepted that his father died due to wrong medical treatment given to him by the opposite party No.4. Hence, she submitted that complaint filed by the complainant against her be dismissed. [6] Opposite Party No.5 has also filed written version on record at page 1198. He submitted that he is Gastroenterologist, the Consultant in Bhatia Hospital at Tardeo Road, Mumbai. He submitted that father of complainant was admitted in Bhatia Hospital. He performed GI Endoscopy after taking valid consent of the father of complainant and his relatives. The Endoscopy was done with a standard video upper GI Endoscope. The procedure was done by him in the radiology department so that he could perform a contrast study and document the same. The pre-procedure, local xylcaine spray was instilled in oral cavity and endoscopy was done with anaesthesiologist stand by for tracking any problem during Endoscopy procedure. Before the Endoscopy was done all multi para monitors were attached and supplemental oxydenas given via nasal prongs. On upper GI 17 [CC/13/295] Endoscopy, he found a diverticulum at the proximal margin of the sleeve. The position of the father of complainant was turned to see for any contrast leak. However, leak could be seen during the upper GI Endoscopy. The endoscopy was recorded in a CD for documentation, copy of which was handed over to the father of complainant. He submitted that the report of endoscopy given by him was very clear and there was no ambiguity in it. He submitted that he had no concern about the medical treatment given to the father of complainant. Hence he submitted that the allegation of complainant cannot be accepted that he had given wrong report of endoscopy of his father and because of which wrong medical treatment was given to his father. Hence, he submitted the complaint filed by complainant against him be dismissed.
[7] Complainant has filed affidavit of evidence on record which is at page 1212. He has also relied on the documents of Hospitals - Opposite party Nos. 1 and 3. Complainant has filed the same on record as per Exh.A to I and they are present on record from page 32 to 542. Complainant has also filed and relied on the opinion given by the expert Dr. M. Lakdawala and the same is produced on record at page 545 to 546.
[8] Opposite Party No.1 has filed affidavit of evidence of Dr. Shamin Khan who was their Regional Director, and the same is at page 1235. Opposite Party No.2 has filed his affidavit of evidence on record at page 1254. He has also relied on the affidavit of Mr. Sunil Gupta - RMO of Opposite party No.1 and the same is filed on record at page 1293. He has 18 [CC/13/295] also relied on affidavit of another RMO of Opposite Party No. 1 Dr. Annapurna Chiluka and the same is present on record at page 1295. He has also relied on the affidavit of Dr, Ram Halbe, Anaesthesiologist of Opposite Party No.1 and filed the same on record at page 1297. He has also filed and relied on expert opinion of Dr. Sanjay Borude who is practicing as Bariatric Surgeon at Jaslok Hospital and in the Hospital of Opposite Party No.1 and the same is produced on record at page 1300. Opposite Party No.3 has filed affidavit of evidence of Mr. Rajesh Menezs. The same is produced on record at page 1366. Opposite Party No.4 has filed her affidavit of evidence on record and the same is at page 1375. Opposite Party No.5 has filed his affidavit of evidence on record and the same is at page 1382. [9] Complainant has filed affidavit of Dr.Hari Chabalani on record which is at page 1400. Opposite Party No.1 has further filed affidavit of evidence of Mr.K.V.Tejasvi- Legal Manager of Opposite Party No.1. They have also filed counter affidavit of Dr.Hari Chabalani on record which is at page 1410. Opposite Party No.2 has filed his additional affidavit of evidence on record at page 1416 and he has relied on affidavit of Dr.Nitin Salian and Dr. Rajesh Dave and Dr. Ram Halbe and filed their affidavits on record which are at page 1421, 1423 and 1425. Opposite Party No.3 has also filed counter affidavit of Mr.Rajesh Menezes which is at page 1427. [10] Complainant has submitted his written notes of argument at page 1433. Opposite Party Nos. 1,2,3,4 and 5 have filed their written notes of argument on record which are at page 1463, 1483, 1496, 1507 and 1514. 19
[CC/13/295] [11] Considering the rival contentions of both the parties following points arise for our determination. We recorded our findings on them for the reasons given below:-
Sr.No. POINTS FINDINGS
1 Whether complainant proves that In the affirmative
complainant and his father were consumers
of Opposite Party Nos. 1 to 5?
2 Whether complainant proves that Opposite In the negative
Party Nos. 1 to 5 had given deficient
services to him and his father ?
3 Whether complainant is entitled to get No.
compensation as prayed for?
4 From whom and to what extent? Does not arise.
5 What order? As per final order
Reasons-
As to the Point No.1-
[12] It is the contention of complainant that his father
Mr.Puranchand Agrawal had approached Opposite Party No.2 on or about 14-15/9/2012 for taking advice relating to obesity and weight loss at Opposite Party no.1's clinic at Tardeo where Opposite Party No.2 was consulting doctor. It is the contention of Complainant that on examining Mr.Puranchand Agrawal, Opposite Party No.2 recommended 20 [CC/13/295] Mr.Puranchand Agrawal to undertake a surgery for Sleeve Gastrectomy and assured him that after the surgery he will lose weight. It is the contention of Complainant that Opposite Party Nos.1 and 2 also assured Mr.Puranchand Agrawal that there are no side effects or risks to the said surgery and that he will be back to normal routine within 2-3 days from the date of surgery. It is the contention of Complainant that hence his father had undergone bariatric surgery at the hands of Opposite Party No.2 in the Hospital of Opposite Party No.1. It is the contention of Complainant that for that purpose his father was admitted in the hospital of opposite party No.1 on 24/9/2012and surgery was conducted on him on 26/9/2012. It is the contention of Complainant that Opposite Party No.1 had charged an amount of Rs.3,25,000/- towards surgery and hospitalization charges and he had paid the same to the Opposite Party No.1. It is the contention of Complainant that however in the evening of 29/9/2012 there was severe breathlessness to his father and hence Opposite Party No.2 had taken decision to shift his father to the hospital of Opposite Party No.3 for further medical assistance. It is the contention of Complainant that accordingly his father was shifted to the hospital of Opposite Party No.3 in the evening of 29/9/2012 and since then he was under the treatment of Opposite Party No.4. It is the contention of Complainant that his father was admitted in the Hospital of Opposite Party No.3 as per the advice of Opposite Party No.4. Opposite Party No.5 had conducted endoscopy on his father and submitted report about the same. It is the contention of Complainant that however the report given by the 21 [CC/13/295] opposite party No.5 was wrong and because of which no proper medical treatment was given to his father. It is the contention of Complainant that because of wrong medical treatment given to his father, he was ultimately required to take his father to Saifee Hospital, Charni Road, Mumbai. It is the contention of Complainant that after discharge from Saifee Hospital, his father died at his native place in Rajasthan. Hence, it is the contention of Complainant that death of his father had taken place because of wrong medical treatment given to him by Opposite Party Nos. 2,4 and 5 in the Hospital of Opposite Party Nos. 1 and 3. We are of the opinion that as the father of complainant was admitted in the hospital of opposite party No.1 and surgery was conducted on him in that hospital by the Opposite party No.2 and subsequently father of complainant was admitted in the hospital of opposite party No.3 and at that time he was under the medical treatment of Opposite party Nos. 4 and 5, complainant and his father were consumers of Opposite Party Nos.1 to 5. Hence, we answer point No.1 in the affirmative. As to the Point No.2- [13] Complainant has alleged that Opposite Party No.2 had not properly conducted surgery on his father and no proper post operative care of his father was taken and hence he developed problem of breathlessness. He also alleged that there was no ICU in the Hospital of Opposite Party No.1 where operation was conducted by the Opposite party No.2 on his father and hence his father was required to be shifted to Bhatia Hospital. It is the allegation of complainant that as his father was shifted to Bhatia 22 [CC/13/295] Hospital he was under the medical treatment and supervision of Opposite Party Nos.4 and 5. It is his allegation that they had wrongly diagnosed that his father is suffering from Tuberculosis and had given wrong medical treatment to him. Hence, he submitted that the problem of his father of breathlessness could not be subsidised and ultimately he was required to be shifted to Saifee Hospital. After taking medical treatment from that Hospital he was discharged from that Hospital. Thus, complainant has alleged negligence in giving medical treatment to his father against all the Opposite Parties. Under such circumstances, we are of the opinion that the incidents in respect of father of complainant that had taken place should be considered chronologically in the case.
[14] On perusal of record it has become clear that on or about 14- 15/9/2012 father of complainant had contacted Opposite Party No.2 in the Hospital of Opposite Party No.1 for the problem of his obesity and for weight loss. Opposite Party No.2 recommended Mr.Puranchand Agrawal to undertake a surgery for Sleeve Gastrectomy and assured him that after the surgery he will lose weight. Opposite Party Nos.1 and 2 also assured Mr.Puranchand Agrawal that there are no side effects or risks to the said surgery and that he will be back to normal routine within 2-3 days from the date of surgery. Hence, father of complainant was ready to undergo that surgery. Opposite Party No.2 had advised some medical tests to the father of complainant to undergo the same. Accordingly father of complainant had undergone those medical tests in Gokuldham Medical Centre at Goregaon 23 [CC/13/295] (E), Mumbai and submitted test reports to Opposite Party Nos.1 and 2. On examining the test reports Opposite Party No.2 was satisfied that father of complainant is fit to undergo surgery for Sleeve Gastrectomy and asked him to get admitted at Opposite Party No.1's clinic on 24/9/2012. On perusal of record it appears that however the physical condition of father of complainant was not stable and hence he remained admitted in that hospital till 26/9/2012. On 26/9/2012 when the health of complainant's father had become stable he was operated for Gastrectomy by the Opposite Party No.2 in the Hospital of Opposite Party No.1. After surgery father of complainant remained admitted in that Hospital till 29/9/2012. In the evening of 29/9/2012 he developed serious problem of breathlessness and hence Opposite Party No.2 after making consultation with other doctors had taken decision that father of complainant require continuous medical assistance. However, it was not possible to give such prolong medical assistance in the Hospital of Opposite Party No.1. Hence Opposite Party No.2 had advised complainant to take his father and admit him in the Hospital of Opposite Party No.3. Accordingly complainant had shown readiness and had shifted his father to the Hospital of Opposite party No.3 on 29/9/2012. Since then father of complainant was under supervision of Opposite Party Nos. 4 and 5. On perusal of documents it appears that they had detected Pleural Effusion in the chest of father of complainant and it was their opinion that as father of complainant had such problem since before surgery it may have developed after surgery and it may be due to Tuberculosis. Hence, accordingly 24 [CC/13/295] Opposite Party No.4 had given treatment to the father of complainant. She had also taken report of endoscopy of father of complainant from Opposite party No.5. On perusal of papers it appears that the health of father of complainant had become stable and the same was improved. Hence, he was discharged from the Hospital of Opposite Party No.3 on 10/10/2012. It appears that however father of complainant had again developed problem of breathlessness and as per the advice of Opposite Party No.2 he was again admitted in Bhatia Hospital on 19/10/2012. At that time again he was under
the medical treatment of Opposite Party Nos. 4 and 5. On perusal of documents it appears that as Opposite Party No.4 was also attached to the Saifee Hospital she had taken decision to shift father of complainant to Saifee Hospital for the problem of breathlessness. Accordingly father of complainant was shifted to Saifee Hospital on 8/11/2012. At that time he was under the medical treatment of Dr.Lakdawala, consulting surgeon of that Hospital. On perusal of papers it appears that Dr.Lakdawala had given opinion that father of complainant is not suffering from Tuberculosis and he had stopped that treatment and continued treatment of antibiotics on him. It appears that health of father of complainant was improved and he was discharged from Saifee Hospital on 20/11/2012. It appears that thereafter father of complainant had gone to his native place Jaipur, Rajasthan and died there on 24/1/2013. In respect of death of father of complainant, complainant has only filed death certificate of his father on record. However, he has not filed any document on record to show the cause of 25 [CC/13/295] death of his father. Admittedly post mortem was not conducted on the dead body of the father of complainant. Complainant has alleged that because of the wrong medical treatment given to his father he had died. It is the allegation of the complainant that the operation conducted on the father of complainant by the Opposite Party No.2 was not accurate and because of which Pleural Effusion in his chest was developed. It is the allegation of the complainant that although Pleural Effusion was due to the mistake that had taken place while conducting surgery, his father was given wrong medical treatment of Tuberculosis in Bhatia Hospital. Hence, complainant had alleged negligence of medical treatment against all opposite parties. [15] Opposite Party Nos. 1 and 3 are the Hospitals. Opposite Party No.2 is Consulting Surgeon of Opposite party No.1. In respect of conducting surgery for Sleeve Gastrectomy on the father of complainant, he had taken advice of Opposite party No.2. As per his advice complainant had undergone surgery in the hospital of opposite party No.1. It is the allegation of complainant that there was no ICU for giving prolonged medical treatment to his father. Hence his father was required to be shifted to Bhatia Hospital. However, for that purpose he had made allegations against Opposite Party No.2 and not against Opposite party No.1. It is his contention that although Opposite Party No.2 was knowing this fact he had conducted surgery on his father in that hospital. Hence, he has alleged that there was no sufficient medical facility in the hospital of opposite party No.1. However, contention of the complainant in that respect cannot be 26 [CC/13/295] accepted. On perusal of record it has become clear that the hospital of opposite party No.1 is a short stay Multi speciality surgical centre. It is well equipped for conducting all surgeries and particularly surgery of Gastrectomy. It appears that many of surgeries were successfully carried out in that hospital. There are all other medical facilities available in that hospital, which are required for conducting operation. There is also ICU for surgical purpose in that hospital. It appears that after conducting surgery on father of complainant he developed problem of breathlessness and for that purpose he required to undergo continuous medical treatment for considerable period. As hospital of opposite party No.1 is surgical unit there was no such facility in that hospital for undergoing continuous medical treatment on any particular patient. Under such circumstances, opposite party No.2 had decided to shift father of complainant from the hospital of opposite party No.1 to hospital of opposite party No.3. Complainant has not alleged any specific allegation against the management of opposite party No.1. He has not made such allegations against the management of opposite party No.3 also. On the contrary it is the allegation of complainant that opposite party No.2 had not properly conducted surgery on his father and opposite party Nos.4 and 5 had not given proper medical treatment to his father. Hence, he has alleged negligence of medical services against opposite party Nos.2,4 and 5. Under such circumstances we are of the opinion that no medical negligence can be attributed against opposite party 27 [CC/13/295] Nos.1 and 3 for giving improper medical treatment to the father of complainant.
[16] When father of complainant was admitted in the Hospital of Opposite Party No.3 he was under the treatment of Opposite Party No.4. However, when he was admitted in that Hospital Opposite Party No.5 had conducted his endoscopy and submitted his report on 3/11/2012. It is the contention of complainant that the report given by the Opposite Party No.5 in respect of endoscopy of his father is not correct. Although there was leakage from the operational part of his father he had deliberately concealed this fact while giving report. Hence, he also alleged medical negligence in that respect against Opposite Party No.5. On perusal of documents it has become clear that Opposite Party No.5 had conducted endoscopy on the father of complainant and he had submitted his report to the Opposite Party No.4. From documents filed on record it is admitted fact that Opposite Party No.5 had not given any medical treatment to the father of complainant. Complainant has also not alleged that Opposite Party No.5 had given any wrong treatment to his father. On the contrary, he is alleging that report of endoscopy given by the Opposite Party No.5 was wrong and he had not mentioned about the leak from the operational part of his father in his report. The report of endoscopy conducted by the Opposite Party No.5 on the father of complainant is at page 497. In his report he has specifically mentioned that no fistulous opening was seen and there was no leakage from the operational part of the father of complainant. He had also prepared 28 [CC/13/295] CD of endoscopy done by him on the father of complainant. It is the contention of complainant that he had shown this CD to other doctors and they have given opinion that report given by the Opposite Party No.5 is not proper. However, for that purpose he has only relied on the certificate given by Dr. Lakdawala. The same is produced on record at page 545. On perusal of this certificate it appears that the GI Endoscopy conducted on the father of complainant showed a fundic pouch with suspicious area that appears to be like fistulous opening. However, he confirmed that there was no leakage from contrast. The Ld. Advocate appearing for the opposite parties have mainly contested the case in respect of certificate issued by Dr. Lakdawala. It is their contention that this certificate issued after about one year by Dr. Lakdawala is not supported by any affidavit and he is not produced before Commission for cross examination. It is also their contention that the certificate of other doctors produced on record by them is contrary to the certificate given by Dr. Lakdawala. Hence, they submitted that certificate issued by Dr. Lakdawala cannot be considered. [17] It is true that certificate issued by Dr. Lakdawala of Saifee Hospital is not supported by affidavit. Moreover he is not produced before this Commission for cross examination. Hence, we are of the opinion that the certificate given by Dr. Lakdawala is simply the opinion. It cannot have authentic value unless the same is supported by affidavit and he is produced for cross examination. However, we are of the opinion that if the certificate issued by Dr. Lakdawala is also considered then also he has not 29 [CC/13/295] seen any leakage from the operational part of father of complainant. Hence, contention of complainant cannot be accepted that although there was leak from the operational part of his father and the same was seen in GI Endoscopy of his father, Opposite Party No.5 has suppressed the same and given wrong report about the same. We have already observed that Opposite Party No.5 had only conducted GI Endoscopy on the father of complainant. He had prepared CD of the same and he had given report and CD to the Opposite Party No.4 and to the complainant. He had not given any medical treatment to the father of complainant. Under such circumstances, we are not finding that the report given by the Opposite Party No.5 in respect of GI Endoscopy of father of complainant was false. There is no evidence on record that he had given any such false report deliberately. Under such circumstances, we are of the opinion that no negligence can be attributed against the Opposite Party No.5 while conducing GI Endoscopy on the father of complainant and submitting report about the same.
[18] Allegations made by the complainant against Opposite Party No.2 are two fold. First it is the contention of the complainant that the Opposite Party No.2 had insisted the complainant and his father for conducting operation of the father of complainant in the hospital of Opposite Party No.1 although there was no adequate medical facility available in that hospital. However, contention of the complainant in that respect cannot be accepted. Admittedly, the hospital of Opposite Party No.1 30 [CC/13/295] is self contained surgical unit for conducting various operations in that hospital. All necessary facilities which are required for conducting the operations are available in that hospital including the I.C.U. required for surgical operations. Opposite Party No.2 was attached to that hospital. Hence, it appears probable that he had advised the complainant and his father for conducting operation on the father of complainant in that hospital. Hence, contention of complainant cannot be accepted that the Opposite Party No.2 had intentionally insisted the complainant and his father for conducting operation in the hospital of Opposite Party No.1. After conducting operation on the father of complainant, father of complainant developed problem of breathlessness and for that purpose he required to undergo continuous medical treatment. Admittedly, Opposite Party No2 cannot have knowledge that after surgery father of complainant will have to face this problem. For this problem father of complainant was required to undergo continuous medical treatment. However, such facility was not available in the hospital of opposite Party No.1. However, Opposite Party No.2 had taken care of father of complainant and advised complainant to shift his father to the Hospital of Opposite Party No.3 where he can have continuous medical treatment on his father. Complainant and his father accepted the same and complainant had shifted his father to the hospital of Opposite Party No.3. For the problem faced by the father of complainant a continuous medical treatment was given in the hospital of opposite party No.3 for considerable period and because of which the health of father of 31 [CC/13/295] complainant had recovered and he was discharged from the hospital. Under such circumstances, we are of the opinion that contention of the complainant cannot be accepted that the Opposite Party No.2 had insisted the complainant and his father to undergo the operation in the hospital of opposite party No.1 although there were no adequate medical facility in that hospital.
[19] Another contention of complainant against the Opposite Party No.2 is that the operation conducted by him was not proper and there was leakage from the operational part of his father which developed Pleural Effusion. For that purpose he has relied on the certificate given by Dr.Lakdawal of Saifee Hospital. On perusal of documents filed on record it has become clear that the Opposite Party No.5 had conducted Endoscopy on the father of complainant and he had given his report. When father of complainant was admitted in Saifee Hospital, Dr. Lakdawala had also verified the CD of endoscopy and other medical papers of father of complainant. From the report of Opposite Party No.5 in respect of endoscopy conducted on the father of complainant it has become clear that there was no leakage from the operational part of father of complainant. However, he has mentioned in his certificate that suspicious area that appeared to be like a fistulous opening, however there was no leak of contrast. He has also not mentioned in his certificate that there was any opening at the operational part of father of complainant. Under such circumstances, we are of the opinion that the allegations of complainant 32 [CC/13/295] cannot be accepted that as there was leakage from the operational part of his father, his father had developed pleural effusion. Hence, we are of the opinion that it is not appearing that while conducting surgery on the father of complainant any mistake had taken place at the hands of Opposite Party No.2 and he had showed any negligence towards father of complainant while giving medical treatment to him till when he was admitted in the hospital of Opposite Party No.1 under his supervision. [20] Complainant has made allegations against Opposite Party No.4 that when his father was admitted in the hospital of Opposite Party No3 his father was under the medical treatment for Opposite Party No.4 and at that time she had given wrong medical treatment to his father for Tuberculosis. For that purpose also complainant had mainly relied on the certificate given by Dr. Lakdawala attached to the Saifee Hospital. In this case it is admitted fact that after conducting operation on the father of complainant he developed breathlessness on 29/9/2012. Hence, father of complainant was shifted to the hospital of Opposite Party No.3 as for that purpose he required to undergo continuous medical treatment. At that time he was under the supervision of Opposite Party No.4. She had given medical treatment to the father of complainant for Tuberculosis and health of father of complainant had recovered and ultimately he was discharged from the Hospital of Opposite PartyNo.3 on 10/10/2012. Under such circumstances, we are of the opinion that contention of complainant cannot be accepted that Opposite Party No.4 had given wrong medical treatment to his father when he was 33 [CC/13/295] admitted in the Hospital of Opposite Party No.3. On the contrary it appears that because of medical treatment given by the Opposite Party No.4 to the father of complainant his health had recovered and ultimately he was discharged from that hospital.
[21] It appears that after few days father of complainant had again developed problem of breathlessness and as per the advice of Opposite Party No.2 he was again admitted in the hospital of Opposite Party No.3 on 19/10/2012. At that time the Opposite Party No.4 was attached to the hospital of Opposite Party No.3 and she was also attached to the Saifee Hospital, Charni Road, Mumbai. At that time for better medical treatment to the father of complainant she had advised the complainant to shift his father to Saifee Hospital and accordingly father of complainant was shifted to that hospital on 8/11/2012 under the medical treatment of Dr. Lakdawala attached to that hospital. Complainant has placed much reliance on the certificate given by Dr. Lakdawala. However, as per this certificate it appears that when father of complainant was shifted to his hospital and he had medically examined him at that time he had not found symptom of Tuberculosis in father of complainant. Hence, he had stopped medicines given for that purpose and given another medical treatment to the father of complainant. Ultimately, because of that health of father of complainant had recovered and he was discharged from Saifee Hospital on 20/1/2012. From the certificate of Dr. Lakdawala it appears that when he had medically examined father of complainant at that time he had not seen symptom of 34 [CC/13/295] Tuberculosis in father of complainant. However, that does not mean that when father of complainant was admitted in the hospital of opposite Party No.3 he had no symptom of Tuberculosis and hence treatment given to the father of complainant in that hospital was wrong. On the contrary, there is evidence on record that the Opposite Party No.4 had given medical treatment to the father of complainant in the hospital of Opposite Party No.3 for Tuberculosis and because of which the health of father of complainant was recovered and because of which he was discharged from that hospital. From the certificate of Dr. Lakdawala it cannot be ascertained that the medical treatment given by the Opposite Party No.4 to the father of complainant was wrong.
[22] Complainant has mainly made allegation against the Opposite Party No.2 that there was Pleural Effusion to his father because of the operation conducted on him by the Opposite Party No.2. Again for that purpose he relied on the certificate given by Dr. Lakdawala. While giving certificate Dr. Lakdawala has observed that preoperative chest x-ray of father of complainant was normal and sudden onset of pleural effusion after a surgery within the period of two days was extremely unlikely to be of tuberculosis origin but rather as a direct result of surgery. However, Dr.Lakdawala has not stated anything in his certificate that some wrong had taken place while conducting surgery on the father of complainant and hence there was outbreak of Tuberculosis in the health of father of complainant. From the documents filed on record it has become clear that 35 [CC/13/295] prior to the operation also father of complainant had such problem. Although father of complainant was admitted in the hospital of Opposite Party No.1 on 24/09/2012 his health was not stable and hence operation could not be conducted immediately on him. However, after giving medical treatment to him when health of complainant's father had become stable thereafter the Opposite Party No.2 operated father of complainant on 26/9/2012. Under such circumstances, it cannot be accepted that prior to the operation there were no problems to the father of complainant. At the most it appears that as he had under gone operation on 26/9/2012 the pre-existed problems in the health of father of complainant had grown up and for that purpose he was required to undergo continuous medical treatment. Opposite Party No.2 had given the same to the father of complainant by shifting him to the hospital of opposite Party No.3. In that hospital he was under the supervision of Opposite Party No.4 and because of medical treatment given to the father of complainant by the Opposite Party No.4 he was ultimately discharged from that hospital. Under such circumstances, we are of the opinion that the contention of the complainant cannot be accepted that there was pleural effusion in the father of complainant as Opposite Party No.2 had not conduced operation properly on his father. In this case it is admitted fact that the father of complainant was discharged from Saifee Hospital on 20/11/2012. Thereafter, he had gone to his native place at Jaipur, Rajasthan. Subsequently, his death had taken place at that place on 24/1/2013. In respect of death of father of complainant, complainant has 36 [CC/13/295] only produced his death certificate on record. Admittedly in that Death Certificate no reason of death of father of complainant has been given. Admittedly, no post-mortem was conducted on the dead body of father of complainant to ascertain the reason of his death. Under such circumstances, we are of the opinion that when father of complainant was validly discharged from Saifee Hospital on 20/11/2012 he was cured and subsequently he died at his native place on 24/1/2013 and as there is no cause of death of father of complainant, it cannot be considered that because of the wrong medical treatment given by the Opposite Party Nos. 1 to 5 to the father of complainant, his death had taken place. Under such circumstances, we are of the opinion that complainant has failed to bring sufficient evidence on record to show that the Opposite Party Nos. 1 to 5 were jointly negligent in giving medical treatment to his father and because of which death of his father had taken place. Hence, we are of the opinion that complainant has failed to prove deficiency in service either to his father or to him from Opposite Party Nos. 1 to 5. Hence, on that ground complainant will not be entitled to claim compensation from Opposite Party Nos. 1 to 5. Under such circumstances, we are of the opinion that complaint filed by the complainant deserves to be dismissed. Hence, we answer point Nos.2 in negative and under such circumstances point no.3 does not survive. Hence we proceed to pass the following order:-37
[CC/13/295] ORDER 1] Complaint is hereby dismissed.
2] Parties to bear their own costs.
3] One set of complaint compilation be retained and rest be
returned to the complainant.
Certified copy of this order be supplied to both the parties free of cost.
Pronounced on 17th March, 2017.
[ JUSTICE A.P.BHANGALE] PRESIDENT [D.R.SHIRASAO] JUDICIAL MEMBER rsc