State Consumer Disputes Redressal Commission
Mr.R.M. Deshpande, Husband Of Late Mrs. ... vs Dr. Jayant T. Gokhale, on 3 February, 2015
BEFORE THE HON'BLE STATE
CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/00/169
MR.R.M.
DESHPANDE, HUSBAND OF LATE
MRS.
RASHMI DESHPANDE,
A-4,
Shanti Sagar Apartment, Nehru
Road,
Dombivali
East, Maharashtra.
...........Complainant(s)
Versus
DR.
JAYANT T. GOKHALE,
An
Orthopaedic Surgeon,
Gokhale
Orthopedic Hospital,
B-2,
Kasturi Plaza, Manpada Road,
Dombivali East, Maharashtra.
............Opp.Party(s)
BEFORE:
HON'BLE
MR. P.B. Joshi PRESIDING MEMBER
HON'BLE
MR. Narendra Kawde MEMBER
PRESENT:
Advocate Mr.Rushabh Sheth i/b
M/s.M.S. Bodhanwalla & Co. for the Complainant
Advocate Mr.Shirish Deshpande for the Opponent.
ORDER
Per Honble Mr.Narendra Kawde Member:
(1)Complainant is a husband of the deceased Mrs.Rashmi Deshpande (hereinafter referred to as patient). This consumer complaint has been filed alleging medical negligence against the opponent Doctor leading to death of the complainants wife viz. Mrs.Rashmi Deshpande.
Complainants case in brief is that with the problem of back ache the deceased patient approached the opponent doctor and availed the treatment on O.P.D. basis. Initially the deceased patient was diagnosed with Prolapsed Intervertebral Disc (PID). The deceased patient admitted to the opponents hospital on 10th January, 2000. Though the opponent started the treatment, the condition of the deceased patient was deteriorating. One Dr.V.G. Bhat, Physician, under instructions from the Opponent examined the deceased patient and prescribed certain medicines such as non-steroidal anti inflammatory drugs which immediately induced her met with severe and painful response. As a result of administration of those medicines resulted to cause erosive gastritis being the very symptoms as suffered by her.(2)
Patient experienced drastic physical reaction to the drugs administered which had been wrongly and negligently prescribed without proper supervision by the opponent. Health of the Complainants wife started deteriorating with restlessness, breathing problems and consequent weakness. Though in such a panic condition complainant frequently and frantically tried to call the opponent for immediately attending to his wife for administering proper drugs and to take necessary care to arrest her further decline in health, opponent deliberately failed and neglected not only to check the patient but also failed and neglected even to depute necessary qualified medical personnel, after clinically checking the patient. The Complainant has narrated that, on the afternoon of the fateful day of admission i.e. on 10th January, 2000 the patient remained unattended by the opponent or any qualified medical personnel to diagnose her declining health.
Several unqualified nurses were absolutely behaved in a very barbaric fashion and there was no one to control the behavior of the nurses. The unqualified nurses were monitoring blood pressure of the patient and the complainant was left in darkness about the deteriorating health by giving proper intimation. Had there been qualifying Doctor to diagnose the reasons for repeated deterioration of health of the patient, the line of treatment could have been different and perhaps would have been instrumental to save life of the patient. Ultimately the complainants wife died on the same day i.e. on 10th January, 2000. Complainant filed this consumer complaint claiming compensation of Rs.15,30,000/- with costs of litigation.(3)
The opponent contested the contentions and claim of the complainant by filing written version. It is averred that the Complainants wife viz. Smt.Deshpande was admitted to the opponents hospital on 10th January, 2000 at about 12.30 noon with the complaint of back pain and inability to stand. Patient was admitted to the hospital for rest, pelvic traction, injectable analgestic and physiotherapy, which is standard initial treatment for PID without any neurological deficit. On admission, the general condition of the patient was fair, the vital parameters including B.P. were also normal. Complainant was informed about the health of the patient and also advised to undergo MRI scan if necessitated in case the patient did not respond to the conservative line of the treatment after a period of 2-3 days.
The patient had history of omitting, one day before the admission. Therefore, to maintain adequate hydration, 2-3 pints of i.v. fluids were administered.
Patient was under OPD treatment of the opponent on 7th, 8th and 9th January, 2000. As a routine practice prior to likelihood of patient being taken up for surgery, assessment of fitness of the patient was required to be ascertained. Therefore, Dr.V.G. Bhat, M.D. Physician and Cardiologist, reviewed the patients physical condition. After carrying out E.C.G. and clinical examination Dr. Bhat did not find any major medical abnormality. Haematological test report was carried out. Considering the patients previous history of anxiety and omitting injection Phenegran i.m. (intra muscular) was administered.
Patient was quite normal with normal food, coffee in the afternoon and also some sleep. Patient was also given some physiotherapy exercise like SWD/interferential therapy for the back pain and leg pain. The opponent did everything to the best of his ability and capacity to make the patient comfortable. The opponent immediately rushed to examine the patient, giving up the OPD work on personal intimation through theatre assistant about restlessness of the patient. Patient was slightly restless and B.P. recorded was 90 mm of systolic. Patient was talking normally and was in proper senses.
Immediately initial treatment like IV fluids, nasal oxygen was started. However, gradually B.P. was falling down, the peripheries started becoming cold and clammy. The complainant was explained the deteriorating condition of the patient and also necessity to shift the patient to major hospital for further management once the patient was stabilized. The patient was unfortunately not stabilized despite of the best efforts of the opponent. A nearby Mamta Hospital was contacted for availability of Birds ventilator for continuous respiratory support but RMO of the hospital informed that it was not in working condition. Opponents vigorous efforts to save the patient did not respond. Cause of death as recorded by the opponent is terminal cardio respiratory failure in case of pulmonary embolism in case of acute prolapsed interventional disc with compressive radicalipathy menopause. The opponent by way of additional help summoned allegedly Dr.Abhade, M.D. Anaesthesiologost and Dr.Prabhakar, qualified Surgeon for resuscitation and intubation. Dr.Abhade and Dr.Prabhakar reached the nursing home within a period of 10 minutes and started resuscitative measures and by emergency injections and medicines were administered but the patient did not respond and unfortunately succumbed in the midnight. On Dr.Bhats advice fresh ECG was obtained and was sent for perusal and advice. The opponent denied the allegations of the complainant of medical negligence leading to death of the patient and finally prayed for dismissal of the complaint.(4)
Heard Ld.Advocate Mr.Rushab Sheth for the Complainant and Advocate Mr.Shirish Deshpande for the opponent.(5)
After having heard the arguments advanced by the parties, the case was reserved for pronouncement of order on 23.12.2014. However, on carefully going through the record, we found it necessary to obtain clarification from the parties. Therefore, parties were directed to explain, whether development of pulmonary embolism is sudden or otherwise since cause of death as recorded in respect of patient was Pulmonary Embolism and the opponent was also directed to bring on record legible typed copies of the hospital record. The matter was adjourned for obtaining clarification on 21.01.2015. On the adjourned date, the Complainant or his Advocate failed to remain present.
Dr.Jayant Gokhale, the opponent was present along with Advocate Shri Shirish Deshpande. Opponent submitted the authentic text from Harrisons Internal Medicines to explain the query about development of Pulmonary Embolism (in short PE). The opponent also submitted typed copies of hospital record. In the text material filed on record to explain Pulmonary Embolism, under the head Signs and Symptoms, it is stated that, symptoms of PE are typically sudden in onset and may include one or many of the following: dyspnea (shortness of breath), tachypnea (rapid breathing), chest pain of a pleuritic nature (worsened by breathing), cough and hemoptysis (coughing up blood). More severe cases can include signs such as cyanosis (blue discoloration, usually of the lips and fingers), collapse, and circulatory instability because of decreased blood flow through the lungs and into the left side of the heart. About 15% of all cases of sudden death are attributable to PE.
PEs are sometimes described as massive, submassive and nonmassive depending on the clinical signs and symtoms. Although the exact definitions of these are unclear, a generally accepted definition of massive PE is one in which there is hemodynamic instability such as sustained hypotension, bradycardia or pulselessness.
Further it is also mentioned in the text material Complications of PE:
symptoms of PE shall begin suddenly and if a large blood clot blocks the artery in the lung, the blood flow may be completely stopped, causing sudden death.(6)
The complainant again failed to remain present and rebut the submissions made on behalf of the opponent about development of Pulmonary Embolism.(7)
We have gone through the record and the documents relied upon by the parties.
Though it is stated in the complaint that the complainant has led medical experts evidence to demonstrate for known complications of the treatment administered by the opponent, no expert evidence is adduced by Complainant. Complainant is solely relying on the hospital case papers and the affidavit of evidence filed to establish the alleged medical negligence of the opponent. There is no other documentary evidence to support the contentions of the complainant. The main allegation against the opponent is that, when the patients health condition deteriorated the opponent failed to attend the patient though he was available in his clinical room. This allegation is refuted by the opponent relying on case papers of the hospital which gives detailed account from time to time of attending the patient by nursing staff and the opponent himself. The contention of the complainant that the qualified Doctor was not available to attend the deteriorating health condition of the patient which is also refuted by the opponent by relying on the documents viz. case papers and the medical summary recorded therein. On going through the case papers on the date of admission i.e. on 10th January, 2000, we perused that the vital parameters of the complainant have been recorded as normal and also the general health condition as fair. Dr.V.G. Bhat physician has recorded his findings at about 02.20 p.m. on 10.01.2000 after clinically examining the patient and going through the ECG, haemotological test report that nothing abnormal was noticed. The allegation of the complainant that the patient was without visit by a single Doctor between 02.30 p.m. to 09.30 p.m. on 10th January, 2000 are falsified as medical summary recorded in the hospital case papers demonstrate otherwise.(8)
Opponent himself has clinically examined the patient immediately on reporting at about 12.30 p.m. and recorded his finding at about 01.00 p.m. Thereafter the treatment administered to the patient was recorded after diagnosing the patient for acute PID. The noting clearly reveals that Dr.V.G. Bhats (physician) opinion was solicited who after examining the patient recorded his observations of the patient at about 02.00 p.m. Dr.Bhat observed that general condition of the patient was fair, all other viral parameters did not show any abnormality. The hospital case papers indicate that time to time account of the patient has been recorded by the opponent and such notes are available in the case papers indicating time 02.10 p.m., 07.25 p.m., 08.45 p.m., 09.25 p.m., 09.35 p.m., 09.50 p.m., 10.30 p.m., 10.50 p.m., 10.55 p.m., 11.00 p.m., 11.15 p.m., 11.30 p.m., 11.45 p.m., 12.00 midnight and 12.15 a.m. Thus it would indicate that patient was constantly under the care of the opponent and opponent never neglected to examine the patient throughout the day on admission as alleged by the complainant. Dr.Abhade, the qualified M.D. Anesthetist who was summoned in the emergency also recorded his observations about the efforts made to resuscitate the patient when the patients condition was deteriorating.
Dr.Prabhakar, surgeon who was assisting the opponent handled the emergent medical condition of the patient have recorded observations of the events jointly put in to revive the patient.
Opponent also dutifully informed the concerned local police station about the death of the complainants wife and also suggested the complainant to go for post mortem to ascertain the cause of death. However, the complainant refused to go for post mortem and instead tried to level the allegations against the opponent without any basis and that too without any documentary evidence ever produced on record to strengthen the case.
(9)On going through the opponents written version, affidavit of evidence, the treatment prescribed is claimed to be as per the standard protocol of the treatment.
As against this complainant failed to adduce expert medical opinion to counter the statements made on affidavit by the opponent.
(10)Opponent in his defence relied on the authorities as detailed below:
(i) Honble Supreme Court in the matter of V. Kishan Rao V/s. Nikhil Super Speciality Hospital in Civil Appeal No.2641 of 2010 decided on 8th March, 2010. (ii) Honble Supreme Court in the matter of Vinitha Ashok V/s. Lakshmi Hospital in Civil Appeal decided on 25th September, 2001.
(iii) Honble National Commission in the matter of S.S. Kahlon V/s. Bawa Hospital, in original Complaint No.63 of 1993 decided on 10th January, 1994.
(iv) Honble National Commission in the matter of Prabha Shankar Ojha V/s. Dr.Neelmani Rai, in Revision Petition No.2436 of 2005 decided on 4th November, 2009.
(v) Tamilnadu State Consumer Disputes Redressal Commission, Chennai, in the matter of Govt. Primary Health Centre and Ors. V/s. Prince, reported in 2011(1) CPR 92.
(11)(i) In the first mentioned case in the matter of V. Kishan Rao V/s. Nikhil Super Speciality Hospital, it was held by the Honble Supreme Court that all possible care was taken by the respondent therein in treating the petitioner. It was observed that the duties of the Doctors towards his patient is duty of care in deciding what treatment is to be given and also duty to take care in the administration of the treatment. The breach of any of those duties may lead to an action for negligence by the patient.
A Doctor is not guilty of negligence, if he is acted in accordance with practice accepted as proper by responsible body of medical men skill in that particular art.
(ii) In the second mentioned case in the matter of Vinitha Ashok V/s. Lakshmi Hospital, the Honble Supreme Court held that the doctor cannot be held guilty of any negligence either in respect of diagnosis or in the matter of treatment administered.
(iii) In the third and fourth mentioned cases in the matters of S.S. Kahlon V/s. Bawa Hospital and Prabha Shankar Ojha V/s. Dr.Neelmani Rai, respectively, the Honble National Commission held that the complainant was not held to be a Consumer u/sec 2(1)(o) of the Consumer Protection Act, 1986, since there was no evidence to show that any operation fee was charged by the opponent from the complainant. This authority is not applicable since during the course of arguments it was admitted by the opponent that he is running the hospital not on charity basis though in this case certain fee was required to be paid. However, due to unfortunate death of the wife of the complainant the opponent did not proceed to recover the fees.
(iv) In the last mentioned case, in the matter of Govt. Primary Health Centre and Ors. V/s. Prince, the patient in this case was admitted in Government Health Centre. Obviously except registration fees, no consideration was paid. The service rendered was totally free of charges, is outside purview of the Consumer Protection Act. Therefore, this authority is also not applicable in the instant case.
(12) It is important and necessary to note and rather place on record as to what constitute medical negligence. A doctor owes certain duties to the patient.
Negligence on the part of Doctor is simply failure to exercise due care and discharge the duties. Honble Supreme Court in celebrated case of Bolam vs. Friern Hospital Management Committee (1975) 2 All ELR 118 observed that negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action.
Further, it is observed that A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
(13) Complainant did not adduce any expert evidence to disprove that the opponent failed to act reasonably in the given circumstances nor submitted any evidence to disprove that the treatment administered to the complainant by the opponent was not appropriate. Opponent as what we find on the document placed on record (hospital record) exercised reasonable degree of skill and knowledge while treating the patient, even summoning additional help of Medicos.
(14) Only question, whether Doctor V.G. Bhat, Physician, who initially examined the patient and found the patient physically fit for undergoing operation for PID, his presence during critical time when the patients condition deteriorated fast would have made any difference to revive the condition of the patient. As a matter of fact, the opponent has summoned Dr.V.G. Bhat. However, since he was not keeping well he has advised to go for fresh E.C.G. and sent for his opinion, which was duly followed by the opponent. Dr.Bhat advised ct all and shift the patient once stabilized. However, on going through the hospital record notes since 10.30 p.m. onwards of the fateful day, condition of the patient was deteriorating fast. During this crisis the opponent at 11.15 p.m. contacted Mamata Hospital for Birds ventilator. However, to his dismay it was told that the ventilator is out of order and thereafter the patients condition was continuously deteriorated and patient was declared dead at 12.15 a.m. on 11.01.2000. We do not find any reason to disbelieve the submissions made by the opponent in paragraph 5 supported by authentic text material about development of Pulmonary Embolism.
(15) We have carefully gone through the record pertaining to maintaining the opponents hospital documentary evidence placed on record and find that due diligence to attend the patient has been exercised by the opponent along with his colleagues leaving no scope for allegations leveled by the complainant. Complainant failed to bring on record cogent evidence to support his contentions to establish medical negligence while attending the patient by the opponents.
The complainant failed to discharge the initial burden to prove his contentions and claim. Therefore, no negligence can be attributed against the opponent to incur deficiency in service to the complainant. The complaint is therefore liable to be dismissed. Hence, we pass the following order:
O R D E R
(i) Complaint is dismissed.
(ii) No order as to costs.
(iii) Inform the parties accordingly.
Pronounced on 3rd February 2015.
[HON'BLE MR.
P.B. Joshi] PRESIDING MEMBER [HON'BLE MR.
Narendra Kawde] MEMBER ep