State Consumer Disputes Redressal Commission
Smt.Rekha Wd/O Vijay Kamble vs Dr.M.M.Agrawal, R/O Sushrut Hospital on 4 February, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
MUMBAI
( NAGPUR CIRCUIT BENCH)
Complaint Case No.56/1996 Filed On : 1996
Order on : 04.02.2010
1) Smt.Rekha
Wd/o Vijay Kamble : Complainants. R/o 11, Bajoriya Nagar, Yavatmal.
2) Ku.Sayali D/o
Vijay Kamble
3) Ku.Mayuri D/o
Vijay Kamble
Complainants
No.2 & 3 being minor
Through
their Guardian Mother,
Complainant No.1 Smt.Rekha Vijay Kamble.
4) Citizens Forum, Nagpur Branch
Yavatmal Branch, through convenor
Yavatmal Branch, Prof.Praveen Bhoyar
R/o State Bank Colony Bajoriya Nagar,
Yavatmal 445
001.
- VERSUS-
1)Dr.M.M.Agrawal, R/o Sushrut Hospital
: Opposite Parties
Mainde Chowk, Tilak
Ward,
Yavatmal-445001.
2) Dr.Krishnarao
Deo, R/o Near Vanijya
Mahavidyalaya,
Yavatmal-445001.
Coram : 1) Shri B.G.Patil, Judicial Member 2) Smt.
S.G. Nagarale, Member
PRESENT: Adv.B.G.Kulkarni for Complainant.
Adv.S.Sharma for Opposite Parties.
PER SHRI B.G. PATIL, HONBLE JUDICIAL
MEMBER
ORDER
(Passed on 04. 02.2010)
1) The wife and minor children of the deceased have filed the present complaint, u/s 12 of the Consumer Protection Act, claiming compensation of Rs.19 lacs from the respondent No.1 and 2, on the ground that, because of the gross negligence exhibited by the respondent No.1 and 2 in operating the deceased Vijay Kamble, he expired on the operation table.
2) It is the contention of the complainants that, deceased Vijay Kamble was Executive Engineer in PWD and he was hardly 33 years of age at the time of his death. He was hale and healthy and was not suffering from any disease much less the severe disease like Hyper Tension or Heart disease.
3) As he was feeling stomach pain, he alongwith his friend Yogesh Lakhani visited the hospital of opposite party No.1 on first and 2nd Oct.1994 and the opposite party No.1 after examining and receiving the medical fees of Rs.50/- on each day, has given medicines. As the abdomenal pain did not subside, the deceased alongwith his friend visited the hospital of opposite party No.1 on 3/10/1994. The deceased was hale and healthy and he visited hospital of opposite party No.1 with his friend on motor bike and he was driving the motor bike. After examining the opposite party No.1, has advised him to take sonography and X-ray. The opposite party No.1 without conducting the relevant preliminary investigations has taken decision in haste to operate the deceased. The opposite party No,1 was careless in taking the decision to operate the deceased without carrying out necessary investigation before operation.
4) It is further contention of the complainants that, though the opposite party No.2 was not qualified to act as Anesthesia. The opposite party No.1 has taken assistance of opposite party No.2. Because of negligence on part of opposite party No.2 in giving excess anesthesia, the disease has lost his life. There were no proper facilities available in the hospital of opposite party No.1 to attend to the complications if any arised during the course of operation. Because of the negligence on the part of the opposite party No.1 and 2, in operation of the diseased, the disease died on the operation table. Hence the complainants have claimed compensation of Rs.19 lacs from opposite party No.1 and 2.
5) That, the opposite party No.1 and 2 by their detailed reply have denied all the contentions of complainants. They have denied that, the death of disease Vijay Kamble was on account of negligence in performing operation. They have also specifically denied that, without carrying out preliminary investigations, the diseased was taken in the operation theater. They have further denied that, opposite party No.2 was not competent and qualified to act as anesthetist in operating the deceased. It is their specific contention that, all the necessary investigations were carried out before taking the deceased in operation theater. The deceased and his relatives were given to understand the implications of the operation and they were also given choice to take the patient to another hospital for operation. When the relatives of the deceased and deceased himself has given consent for operation, the deceased was taken in the operation theater. They have further submitted that, the operation theater was fully equipped to operate the deceased. They further contended that, they have taken all due care and caution which was required for operating the deceased.
6) In the sonography of abdomen and pelvis, collapsed urinary bladder and evidence of intestinal obstruction was seen. To confirm this, X-ray was taken of the abdomen and pelvis in a standing position and the X-ray report was confirmed bowel obstruction. So, considering the bowel obstruction, it was informed to the deceased and his relatives, that, the deceased has to undergo the surgery of intestinal obstruction. Preliminary blood investigation was also done before taking the deceased in Operation Theater. They have taken all necessary investigations required to confirm the diagnosis and all necessary precautions were taken before surgery.
7) As the deceased was hale and healthy and there was no previous history of any heart disease, the investigations in respect of heart disease was not carried out. The opposite party No.2 was qualified anesthetist and he worked as anesthesia in Government Hospital for so many years and he has also worked as anesthetist in number of operation including the heart operation of the patients.
8) After taking consent of the deceased and near relatives, the deceased was taken in the operation theater and after all necessary formalities to prepare the patient for operation, the deceased was taken on operation table. After taking the deceased on operation table, he was again examined by the opposite party No.2, anesthetist, who prepared injection and other material for anesthesia and made the patient unconscious. The abdomen of the Vijay Kamble was opened by opposite party No.1 to start the operation. The opposite party No.1 is qualified surgeon who has under taken number of surgeries of various kinds successfully. The abdomen opened by right pare median incision. Peritioneal cavity opened and intenstines were distended. Bowel were collecting in right side of abdomen. On separating the adhesions of bowel loops appendix was found to be inflamed, congested and burst and encircled by collapsed loops of intestine. Appendexotomy was performed. Drain kept Haemostatic achieved and started closing the abdomen by suturing the partionium. It is further contended that, the operation was performed successfully and there was no haemorrebage. At the time of stitching the peritoneum and last bite of peritoneal stitch, the cardiac arrest occurred to Vijay Kamble and so operation was stopped and reviva process started. Even intra cardia reviving injection was given. Seeing the cardiac arrest, the Physician and Cardiologist were immediately called. Within few minutes of the call, the Physician and Cardiologist visited the operation theater. Within few minutes heart of the deceased was started beating and pulses felt. B.P. was recordable as 80/60. In view of the revivals of the heart beating, stitching of abdomenel wall was again resumed. However, unfortunately the 2nd cardiac arrest occurred. Dr.T.C.Rathod, Cardiologist started taking E.C.G. However, the heart was not responding to resuscitative measures. Heart was stopped and Vijay Kamble expired. E.G.C. showed recent inferior wall myocardial infarction. The opposite parties and all attending doctors, physicians and cardiologist trid their level best to save life of Vijay Kamble. The death of Vijay Kamble was not on account of any negligence on their part in performing operation. The operation was successful and at the time of stitching peritoneum Vijay Kamble suffered heart attack. They have denied all other allegations of the complainant.
9) It is their contention that, the Government has started course of D.M.P. to meet the shortage of doctors. The opposite party No.2 has successfully completed the Diploma of Medical and Health assistant course at Robertson Medical School, Nagpur in the year 1953. The Government has change the name of diploma in Medical Practice. The opposite party No.2 has Registered under Maharashtra Medical Counsel Act 1965. As there was shortage of qualified person in the branch of Anaesthesia, the Government of Maharashtra has deputed opposite party No.2 for training Anesthetist at Medical College and Hospital in Nagpur in the year 1966. He has completed his training in anesthesia by learning most of the training. He has conducted anesthesia satisfactory in all types of case in General Surgery, Orthopedices, Ear, Nose and Throat and Gynechology during this period. After completing the training, the opposite party No.2 served as Anaesthesist in Government Hospital. He is a life member of Indian Anaesthesist. He has given Anaesthesia in major surgery cases and he has given anaesthecia in more than 20,000 major operation including Cardiac and thoratic surgery. The opposite party No.2 is best practicing expert in anaesthecia. There was no negligence on the part of opposite party No.2 while giving anaesthecia to Vijay Kamble at the time of operation.
10) The opposite parties have submitted that, they were not negligent in carrying out the operation and their approach was not casual while operating the decease Vijay Kamble. Deceased Vijay Kamble died because of myocardial infarction which can occur in the patient without any previous episode. They further submitted that, they are not responsible for the death of Vijay Kamble. They have prayed for dismissal of the complaint.
11) The complaint was decided on 14/07/1999 by this Commission. The order was challenged before the Honble National Commission. The order passed by the Honble National Commission was challenged in the Honble Supreme Court and Honble Supreme Court by its order remanded the matter for fresh enquiry with direction to obtain the expert opinion and give opportunity to parties for evidence.
12) On remand, the Medical Board was constituted and the relevant papers alongwith points of reference given by the parties were sent to the Medical Collage, Nagpur for expert opinion. The Medical Board has forwarded its opinion which is a part of record.
13) Heard Mr.B.G.Kulkarni learned counsel for complainants and Mr.S.S.Sharma for opposite party No.1. It is reported that, the opposite party No.2 died during the pendancy of case.
14) Complainant in support of their complaint have filed affidavit of the complainant No.1. Opposite parties in support of their reply have filed affidavit of Dr.Pramod Mundara, Dr.Vijay Kawalkar, Dr.Harshvardhan Vora, Dr.Surendra Mundara, Dr.Krushnarao Kothare and Dr.Tulsiram Rathod. The opposite parties have also filed expert opinion given by Dr.Jaspal Arneja from Arneja Heart Institute and Dr.Pramod Mundara from Wockhadt Hospital. The opposite parties have also filed literature inrespect of emergency surgery principal and practice of Medicine.
15) It is on record that, when the matter was pending before the Honble National Commission, the concern police of Yeotmal, as a part of their investigation, had obtained the medical opinion of the Medical Board of Government Medical Collage, Yeotmal. The said report of Medical Board of Yeotmal, Government Medical Collage is also made part of the record.
16) After hearing the learned counsel for complainants and opposite parties at length, we have carefully examined the medical opinion given by the various doctors on affidavit, the report given by Medical Board, Government Medical Collage, Yeotmal and the experts opinion i.e. Medical Board of Government Medical Collage, Nagpur.
17) It is specific contention of the complainants that, the death of Vijay Kamble was on account of gross negligence on the part of opposite parties at the time of operation. The opposite parties have specifically denied this allegations and they have come with the specific case that, they have taken all due care which was required to operate Vijay Kamble and it is only after successful operation, at the time of stitching of abdomen Vijay Kamble suffered cardiac attack. The learned counsel for complainant has rightly argued that, the burden is on opposite parties to show that there was no negligence on their part while performing the operation and they have taken due care and caution which was reasonably excepted from surgeon and anesthetist. To discharge the burden, opposite parties mainly relies on the expert opinion given by the Medical Board, Government Medical Collage, Yeotmal and Medical Board of Government Medical Collage, Nagpur and the opinion given by the expert doctors by their certificate and affidavit.
18) Mr.B.G.Kulkarni learned counsel for complainant has argued that, there is no material to show that necessary preliminary investigation were made before taking Vijay Kamble in operation theater. On perusal of the record such as notes of operation and the reply filed by the opposite parties, we find no substance in the submission of Mr.Kulkarni, because it is contended by the opposite parties in reply that, sonography was taken. X-ray was taken and other necessary examinations were carried out before taking decision to operate Vijay Kamble. These facts are also present in the report of Medical Board, Yeotmal and operation notes.
19) The expert report i.e. report of Medical Board, Government Medical Collage, Yeotmal is reproduce herein for proper appreciation of experts opinion.
As per record page No.14, the patient Mr. Vijay N. Kamble had a following complaints-
Vomating.
Retension of vring.
Distension of Abdomen He has gone to the Hospital. Where he was examined by Dr.M.M.Agrwal. He found the following signes.
* Pulsa
- 140 per minute.
* B.P. - 130/80 mm of Hgi.
* CVS - Nothing abnormal detecting.
* Abdomen was distended intestinal sound was present.
* Musle garding present.
* X-ray abdomen was done on 3.10.94 it shows the entestinal obstruction.
* Sonography was done on 3.10.94 it shows the beggel obstruction.
Therefore from obove finding Dr.M.M.Agrwal has given the following treatment.
Soop water enemia.
Nil arally.
I.V.fluids.
Anti biodic.
The above treatment was given to the patient as conservative line of treatment mentioned in the casepaper.Inspite of this treatment, patient has not responded. Hence Dr.M.M.Agrwal has advised surgery. The nature of the surgery was informed by Dr.M.M.Agrwal to Shri Lakhani and also you want to get him operated at Nagpur, you can take to Nagpur. Inspite of instruction the pt. was ready to get operated in the Hospital of M.M.Agrawal. Blood grouping and cross matching 3.10.94 urin examination was also done on 3.10.94 the record was attached.
Dr.M.M.Agrwal, surgeon, Dr.Deo anaesthatic took the patient in operation theater on 3.10.94 at 6.30 p.m. The operation was performed. He has found the intestine distended, appendix inflamed congested. He found there was evidence and intenstinal obstruction due to making of appendix. Then he has started closing the abdomen by suchring, while suchring the paritoniam, patient went in cardiacarrest. As soon as the patient has gone in to cardiacarrest, Dr.M.M.Agrwal and Dr.Deo, anaesthatis has started the treatment for cardiacarrest. But the patient could not come from the cardiacarrest, the nature of the treatment was mentioned in the case paper.
Then Dr.M.M.Agrawal, Dr.Deo called the physician. Physician attended the patient at 8.30 p.m. and started treatment for the cardiacarrest. Side by side he has taken the E.C.G. also showed as per his knowledge inferior wall myocardial infarction the treatment was given by the physician, the patient was expired on 3.10.94 at 8.35 p.m. The post martum was done in the General Hospital by Dr.A.D.Dubewar. The P.M.report sugest the patient death was due to shock and the shock secoudary to appendectomy. As per the record submitted.
(a) You have asked about the Xray of abdomen and ultra sonography. Sonography and Xray abdomen showed intestine bowel obstruction.
(b) Inflamed congested appendix can complain the distension of abdomen and vomiting.
In this circumstances the patient had to rush to the Hospital.
(c) Patient had retension of urine, in urine presence of pus cell. It indicates the patient was suffering from urinary treat infraction.
You have asked, it was an major operation. When the patient was operated in the operation theater it means there should be well equipped operation theater of Dr.M.M.Agrwal.
(a) From record the treatment of patient was found correct.
(b) Dr.Deo, he has taken training as a anesthetis in 1966 at Govt.Medical Collage, Nagpur for 3 months. As per the certificate attached. His work was found satisfied. He get the registration Number Maharashtra Medical Council, Bombay in 1973, certificate is also attached.
Conclusion :
1) From the above observation it concludes that V.N.Kamble had intestinal obstruction. Hence the patient was operated by Dr.M.M.Agrwal.
2) The conservative line of treatment was given by Dr.M.M.Agrwal.
Inspite of conservative line of treatment, the patient did not response o the treatment. Then only Dr.M.M.Agrwal has taken the decision for the operation. The nature of the operation was explained by Dr.M.M.Agrwal to Shri. Lakhani. They were ready to get operated in Dr.M.M.Agrwal Hospital.
3) Dr.M.M.Agrwal was performed the operation under while the anesthesia while doing the operation the patient condition was normal. As per record by closing the abdomen abdomen and sucharing the pertenium. The patient developed cardiac arrest.
4) Dr.M.M.Agrwal and Dr.Deo , anaesthetis tried their level best to survive. But the patient cold not come up from the cardiac arrest.
5) Even though Dr.M.M.Agrwal , has called the physician. Also he has tried his level best again cardiac arrest of the patient could not come up cardiac arrest and died on 3.10.94 at 8.35 p.m. Inspite of all the methods adopted by Dr.M.M.Agrawal, Dr.Deo and physician, patient could not come up and died, because of cardiac arrest. The cause of the cardia arrest must be shock.Post.
Post Martum was done Gen.hospital, yavatmal. They have given the probable cause of death was shock secondary to appendectomy.
Still, in my opinion the cause of shock can not be explain.
20) The above expert opinion will support the contention of opposite parties that, reasonable care was taken at the time of operation of Vijay Kamble.
21) The report of Medical Board pointed that, necessary investigation were carried out by opposite parties before taking decision to operate Vijay Kamble. The expert opinion i.e.report of Medical Board, Government Medical Collage Yeotmal is not obtained by the opposite parties, but the said report was obtained by the Police authority during the course of investigation. We have carefully perused the report of Medical Board, Government Medical Collage Yeotmal. In the said report it is no where mentioned that, because of negligence on the part of opposite parties in operating Vijay Kamble the death has occured.
22) Secondly, the expert report i.e. the report submitted by the Medical Board, Government Medical Collage Nagpur, also support the stand of the opposite parties that, the death of Vijay Kamble was not on account of any negligence on the part of opposite parties at the time of operation. The report of Medical Board, Government Medical Collage Nagpur is reproduce herein below, which is self explainatory.
The meeting was held in the department of Forensic Medicine, GMC Nagpur on 16th & 23rd June 2009 at 12.30 p.m. under the Chairmanship of Dr.P.G.Dixit, Professor & Head of PMT, GMC Nagpur. Following members were present for this meeting.
1) Dr.P.G.Dixit
----- Chairman.
2) Dr.Bansod
----- Member.
3) Dr.Mehta
----- Member.
4) Dr.Waghaye
---- Member.
5) Dr.Gupta ---- Member.
Dr.Dixit appraised members regarding the case Dr.Waghaye and Dr.Gupta new members of the committee were shown details of the case paper. Dr.Dixit informed regarding the letter received from counsel of complainant and accused. The questioner sent by State Forum were shown all the members.
Patient attended on Shushrut Hospital Yavatmal on 1.10.1994 at 9 p.m. Accordingly Dr.Agrawal examined the patient and given treatment. Dr.advised Sonography and urine examination with some blood test. Accordingly blood tests i.e.blood urea sans serum creatine, Hb, TLC, Blood group, urine examination and Ultra sonography was done on 3.10.1994.
Opinion was taken on the basis of questioner forwarded by State Forum.
i) Questioner from counsel of complainant :
Q.A.) Whether a person with DMP status can be claimed to be qualified and compentent anesthetic to act as anesthesic for the operation in question ?
Answer :
In the year 1994 (year of operation in this case) the persons with DMP qualification having training and with due certification in anesthesia were working as anaethesist in Private as well as in Govt.Hospitals as is documented in the record. In this case the anaethesist was having 20 years of experience of giving of anesthesia with almost anaethesist. 20000 cases of various surgeries including heart surgeries in which he was anaethesist. (Page No.182-183). Hence he was competent for routine surgery like intestinal obstruction.
Q.B ) Was the estimate of the opponent No.1 Doctor, that the operation was for the problem of intestinal obstruction and the operation was a routine operation anticipating no complication justified estimate ?
Answer : Yes, the operation of intestine obstruction is a routine operation without any anticipation of complication. However, any surgery whether minor or major may be associated with risk of life threatening complications. In this case informed consent, informing complication which may arise out of surgeries/anesthesia was taken which was signed by the patient and his relative. (Page No.232) Q.C ) Was the operation theater of opposite party No.1 without facility of intubation. Ventilator could be treated to be a well equipped theater to undertake the risk of operation in question which was major operation according to opposite doctor No.1.
Answer : In this case the anesthesia was given only after intubation meaning thereby the facility of intubation was available in the operation theater. As far as availability of ventilator in the operation theater is concerned, it is not mandatory to have a ventilator in a operation theater in presence of Anaesthesia Machine.
Q.D) What is the ambit of term Shock which is stated to be the cause of death of the patient in the Postmortem report ?
Answer : In medical terminology Shock is a state of acute systemic circulatory failure associated with under perfusion of tissues, which is incompatable with life if untreated and persisting for more than short time.
Q.E) The expert opinion of the Dean of the College is on record which he has opined that the exact cause of shock could not be ascertained. In the present case what are those probable causes of the Shockto the patient ?
Answer : It is agreed that the exact cause of Shock could not be ascertained. However, in present case probable causes could be septisemic shock, endotoxic shock or cardiogenic shock.
Q.F ) : Is the justification of the opposite party No.1 doctor and other expert namely physician and cardiologist had attended the patient after 30 minutes satisfactory to establish emergency treatment which was required by the patient ?
Answer : The surgeon and anaethesist are competent enough to treat the complications arising out of routine operations as the case in this event. Extra help of physician and cardiologist has been taken in this case for taking extra care for effective management of the emergency.
Q.G) : Was the anesthetist with DMP status competent to manage the patient when he had gone in he critical stage of Shock ?
Answer : Already answered in Question No.(A) above.
Q.H) : Was it not necessary to administer Atropine a vital life saving drug ? was it advisable to administer injections scotom, a servere muscle relaxant ?
Answer : It is not always necessary to administer atropine as a life saving drug. Injection adrenalin is a drug of choice is cardiac arrest which was administered in this case to this patient and also the heart was revived. The injection scoline, short acting muscle relaxant, is necessary for intubation and has been given before intubation in this case.
Q.I) : Was it not mandatory to provide artificial respiration immediately after it was noticed to be case of shock ?
Answer : Yes.
Q.J ) Was it not the case of anesthetic shock, a condition of servere hypetension where BP was not measurable, finally culminated to be the case of Myocardial infarction ?
Answer : No, there is no such term as Anesthetic Shock Questions put forth by counsel for Dr.M.M.Agrawal:
1) Is it a right kind of treatment and management in such type of case i.e. before 15 years at a place like Yavatmal ?
Answer :
After going through the record, treatment and management in such type of case at a place like Yavatmal 15 years back appears to be reasonably adequate.
2) Whether any medical negligence on the part of surgeon is proved beyond any doubt, if it is so, kindly provide us ground on which medical negligence as alleged could be proved ?
Answer :
No.
3) Whether Dr.Agrawal has done all things which was expected to be done 15 years before at Yavatmal ?
Answer :
Yes.
Signatures :- 1) Dr.P.G.Dixit ----- Chairman.
2) Dr.Bansod ----- Member.
3) Dr.Mehta ----- Member.
4) Dr.Waghaye ---- Member.
5) Dr.Gupta ---- Member.
23) While obtaining this expert opinion, this commission has forwarded points for reference as submitted by the complainant and the opposite party No.1 to the expert. We have carefully examined the expert opinion of Medical Board, Government Medical College, Nagpur. The question No.1 and its answer in the report of medical board makes it clear that, the opposite party No.2 was competent at the time of operation of Vijay Kamble to act as anesthetist. The experts have given opinion that, the opposite party No.2 was competent for routen surgery like intenstinal obstraction. In the year 1994 he was possessing DMP qualification. Main objection of the complainant that, as the opposite party No.2 was not qualified to work as a anesthetist in operating the decease, the opposite parties were negligent in operating deceased, has no force, in view of the opinion expressed by the medical expert.
While answering the questions put forth by counsel for opposite party No.1, the medical experts have opined that, there was no medical negligence on the part of opposite party No.1 in operating Vijay Kamble. So, on going through the experts opinion, we have no hesitation to come to the conclusion that, opposite parties were not negligent in operating Vijay Kamble.
24) In addition to these two experts opinion from the Government Medical Colleges Yeotmal and Nagpur, there are other opinions on record given by the experts to the effect that, the death of Vijay Kamble was on account of acute inferior wall myocardial infarction with brodi cardia.
Dr.J.A. Arneja who is cardiologist attached to Arneja Heart Institute has given this opinion. Dr.Pramod Mundara who is also the cardiologist attached to Wockhardt Hospital, Nagpur also opined that, ECG shows changes suggestive of acute inferror wall lmyocardial infarction complicated by bradycardia. Dr.Pramod Mundara has filed his affidavit. Other doctors namely Dr.Vijay Kawalkar, Dr.Harshvardhan Vora, Dr.Surendra Mundara, Dr.Krushnarao Kothare and Dr.Tulsiram Rathod by filing respective affidavits have supported the stand taken by the opposite parties in their reply. All these doctors have stated in their affidavit that, the opposite parties have taken due care and caution as required in the operation of Vijay Kamble. They have further stated that, occurrence of cardiac infarction is an independent episode and not concerned with the surgery of abdomen which lead to sudden death of Vijay Kamble.
25) So, from the two opinions given by the expert i.e. Medical Board, Government Medical College and Hospital, Yeotmal and Medical Board, Government Medical College and Hospital, Nagpur coupled with the opinion given by the expert and affidavit filed by some of the doctors goes to prove that, the opposite parties were not negligent in operating Vijay Kamble. The death of Vijay Kamble was not on account of gross negligence on the part of opposite parties.
26) The complainant has not filed a single document either the certificate or affidavit of any expert to rebut the evidence adduced by the opposite parties. When the opposite parties have adduced evidence by way of affidavit of doctors and by way of experts opinion, it was expected from the complainant to adduce some evidence to rebut the medical evidence adduced by the opposite parties.
27) Their Lordship of Honble Supreme Court, in recent ruling reported in 2009 DGLS (soft) 194 have observed that, the court and Consumer Foras are not experts in medical science, and must not substitute their own views over that of Specilised experts. In view of these observations by the Honble Supreme Court, it is not open for this Commission to substitute its own opinion and view over the medical opinion given by the experts in the report given by Medical Board of Government Medical College Yeotmal and Nagpur.
28) We find no merit in the arguments of Mr.B.G.kulkarni that, the Consumer Forum can independently assess the correctness of opinion given by the expert in the medical report. Opinion expressed by the medical experts in the medical report of Government Medical College Nagpur, is sufficient to hold that the opposite parties are not negligent in operating Vijay Kamble and the death of Vijay Kamble was not on account of negligence on the part of opposite parties.
29) It has came on record that, at the time of stitching when Vijay Kamble received first cardiac attack, the opposite parties have immediately called physician and cardiologist and they have taken every effort of revival. It is not denied by the complainant that physician and cardiologist were called. The complainant has not filed any record to show that, there was no adequate medical facilities available in the operation theater of opposite parties when Vijay Kamble was taken for operation.
30) The learned counsel for complainants has cited following rulings
a) II 1996(CPJ) 1 S.C.
b) I (2008) CPJ 1 NC
c) II (2000) CPJ 384.
d) IV (2007) CPJ 131 NC
e) IV (2007 CPJ CPJ 489
f) II (1999) CPJ 43 NC.
We have carefully gone through the rulings relied by the learned counsel for complainants. The rulings reported in II (1999) CPJ 43 NC is not applicable to the present facts of the case because, it has been brought on record that diagnostic procedure in pre operative stage was followed by the opposite parties. It is on record that, before taking the decision to operate Vijay Kamble, Sonography, X-ray, blood test etc. were done. So the said rulings are not applicable to the fact of the present case.
31) The second ruling IV (2007 CPJ 489 is also not applicable to the facts of the present case in view of the medical opinion given by the experts in medical science. It has not been observed by the medical experts that, post operative care was not properly taken. So, the said ruling is also not applicable.
32) The ruling IV (2007) CPJ 180 is also not applicable to the present case because the opposite parties have immediately called the physician and cardiologist and their assistance was taken .In the present case, opposite parties have explained cause of death. Other rulings are not applicable to the facts of present case, in view of the expert opinion. The opposite party No.2 was competent to assist as anesthetic in the surgery of Vijay Kamble.
33) From the medical reports of Medical Boards, Government Medical College and Hospitals, Nagpur and Yeotmal, it becomes crystal clear that, the death of Vijay Kamble was not on account of negligence on the part of opposite parties. As the complainants have failed to establish that, on account of gross negligence on the part of opposite parties, Vijay Kamble has died, the complainants are not entitled to claim compensation from the opposite parties. We pass the following order.
ORDER
1) The complaint is dismissed.
2) Parties to bear their own cost.
3) Copies be supplied to the parties.
(Smt. S.G. Nagarale) ( B.G.Patil) Member Judicial Member