State Consumer Disputes Redressal Commission
Mrs. Usha Mulchandani vs Dr. P. S. Punshi on 22 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/07/99 (Arisen out of Order Dated in Case No. CC/06/134 of District Nagpur) 1. MRS. USHA MULCHANDANI NAGPUR ...........Appellant(s) Versus 1. DR. P. S. PUNSHI NAGPUR ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Advocate Mr.S.B.Solat. For the Respondent: Advocate Mr.Tidke. Dated : 22 Aug 2017 Final Order / Judgement Per Shri B.A.Shaikh, Hon'ble Presiding Member.
1. This appeal is filed by original complainant (who is herein after referred to as an appellant) feeling aggrieved by the order dated 12/12/2006 passed by the Additional District Consumer Forum, Nagpur in consumer complaint No.134/2006, by which the said consumer complaint filed by the appellant herein came to be dismissed. The original opposite party Nos.1 and 2 are herein after referred to as respondent Nos.1 and 2 respectively.
2. The case of the appellant as set out by her in the aforesaid consumer complaint in brief is as under.
a) The respondent Nos.1 and 2 are doctors by profession. The appellant is a married woman and she had conceived second time and she was under the treatment, advice and supervision of the respondent No.1 who runs Hospital at Nagpur. The appellant had under gone sonography test on 03/08/2002 and it was found in that sonography test that she was carrying twins. Doctor Dinesh Singh who carried out the sonography stated in his report that the twin babies are normal. Moreover the pathology reports also showed that the condition of the appellant was normal.
b) However on 05/01/2003 when the appellant visited the hospital of respondent No.1, it was told to her by the respondent No.1 that the cesarean section was to be perform as an extreme urgency. Accordingly the respondent No.1 performed the cesarean operation and two premature babies were delivered by the said operation. They were under weight and therefore they were shifted to hospital of respondent No.2.
c) On 06/01/2003, one of the baby died and other baby was again shifted to the hospital of Dr.Vikram Rajan and then the said other baby was discharged from the hospital of Dr.Vikram Rajan on 21/01/2003.
d) The respondent No.1, without there being any reason had persuaded the complainant to under go immediate operation for unlawful gain. As a result of the same one of the baby died due to premature delivery. The respondent No.1 also refused to provide certificate of birth to the appellant though demanded. The criminality by respondent No.1 is involved in the matter. So also the respondent No.2 did not bother to carry out necessary investigations relating of the presence of potassium in blood of deceased baby. Moreover respondent No.2 did not provide necessary treatment/medicines to the baby girl who died on 06/01/2003 in the hospital of respondent No.2. There is gross medical negligence on the part of respondent No.2 and because of that the appellant lost one of one her child.
e) The appellant paid necessary charges to respondent Nos.1 and 2 for availing their services. However they rendered deficient service to the appellant. Therefore the appellant issued legal notice to respondent Nos.1 and 2. The respondent No.1 managed the endorsement on the envelope containing notice as "left". The respondent No.2 gave false reply to that notice denying his liability.
f) Therefore the appellant filed consumer complaint before the District Forum below claiming compensation as follows.
i) Loss of company of child Rs.5,00,000/- ii) Charges paid by the appellant to the respondent No.1 Rs.16,200/ iii) Charges paid by the appellant to respondent No.2 Rs.5,000/ iv) Compensation towards mental agony and suffering Rs.2,00,000/ v) Charges paid to Dr.Vikram Rajan Rs.50,000/ ................................... Total Rs.7,71,200/- ...................................
The said amount is claimed by the appellant from respondent Nos.1 and 2 with interest @ 18% p.a. from the date of the complaint till its realization.
3. The respondent Nos.1 and 2 appeared before the District Forum and filed their independent reply and denied their respective liability.
4. The respondent No.1 in reply submitted in brief is as under.
i) The appellant suppressed from the Forum that on 18/05/2002 she had visited the hospital of respondent No.1 and at that time medicines were prescribed to her for conceiving and accordingly she conceived as a result of those medicines. She was under treatment of respondent No.1 from 18/05/2002 till 05/01/2003. Moreover the first delivery of the appellant was already carried out by cesarean section. The appellant had visited the hospital of the respondent No.1 on Sunday being the case of emergency. It was found that it was the case of impending rupture because she had cesarean section during first pregnancy as dehiscence, which means that the previous stitches have stretching effect on the mother's womb which may rupture at any point of time after 30 weeks of second pregnancy.
ii) As per medical terminology the nine months and seven days period is calculated as 40 weeks. When the appellant approached to respondent No.1 on 05/01/2003, it was not routine check up but it was emergency as she has having acute pain due to rupture of stitches of previous operation. Therefore seeing her condition, factual position was explained to her and also to her husband and they consented for operation. Else appellant would not have been survived leave apart twin babies in her womb. Therefore appellant gave consent for operation in presence of respondent No.2.
iii) Doctor Mohta, (respondent No.2), child specialist was also present at the time of cesarean section (operation). After the said cesarean operation twin babies were born whole hearty and appellant was also heal and hearty. Both the twin babies were shifted to the Children Specialist hospital of respondent No.1 and at that time both babies were normal.
iv) All the details of treatment and the cesarean section are given in the reply of respondent No.1. It is denied that the consent of the husband of the complainant was not obtained and every things was done in great hurry and speedy. It is also denied that criminality is involved in the performance of the cesarean operation by respondent No.1. The discharge papers and entire medical sheets were given to the appellant from day one. All other allegations made in the complaint are denied by respondent No.1 and submitted that it is not know to the respondent No.1 what treatment was given to the babies by the respondent No.2 after they were shifting to the hospital of respondent No.2. Therefore it was prayed by the respondent No.1 that complaint may be dismissed being devoid of merits.
5) The respondent No.2 in his reply submitted in brief is as under.
i) The twin babies of the appellant were shifted to hospital of respondent No.2 on her own accord, after delivery on 05/01/2003. At the time of admission in the hospital of respondent No.2, the babies were under weight due to premature delivery and they had difficulty in breathing. Condition of the babies was explained by the respondent No.2 to Shri Dilip Mulchandani who was father of the babies and to the Mrs.Bharti Lalwani who was the relative of the appellant. The consent letter was also signed by husband of the appellant on 05/01/2003. It is denied that no tests or investigations were carried out by respondent No.2 and it is denied that no proper treatment was given by respondent No.2 to the babies. The clinical notes prepared by the respondent No.2 are filed on record to prove that all necessary tests were carried out and necessary treatment was provided and necessary care was also taken by the respondent No.2. It is denied that due to negligence on the part of respondent No.2, one of the baby girl died. The said baby girl died due, "Cardiorespriatory arrest following apnea of prematurity". Thus the allegations made by the appellant against respondent No.2 are after thought. The potassium level of baby was normal. All necessary treatment was provided by the respondent No.2 to both the babies. As one of the baby had some abnormal heart sounds, the respondent No.2 had taken it to the hospital of Dr.Mahesh Fulwani who investigated the heart problem and diagnosed "Moderate PDA (Patent Ductus Arteriousus) and ASD (Atrial Septal Defect) of 5.5 mm. Therefore as per suggestion of Dr.Fulwani, first twin given oral Indomethacin through tube by respondent No.2. The shifting of first baby to Dr.Vikram Rajan is not disputed by respondent No.2. However the second twin baby passed away despite of taking all care and precautions and providing proper treatment to her by respondent No.2. Therefore respondent No.2 had prayed that complaint may be dismissed.
6) Both the parties adduced their respective evidence before the District forum below. However during the pendancy of the complaint, the medical case papers were referred to De.Mrs.Shalini Fusey and Dr.Bokade through I.M.A. (Indian Medical Association) Nagpur, for expert opinion by District Forum. They gave their expert opinion separately.
7) On receiving the experts opinion, the settlement was arrived in between appellant and respondent No.2 and therefore the appellant did not want to prosecute the complaint against respondent No.2, as seen from the observations made by the District Forum on page No.9 of the impugned order. It is further seen from the impugned order that the request of the appellant to delete the respondent No.2 from the array of the respondent was allowed by the Forum. However the Forum considered the case and the evidence as against both respondent Nos.1 and 2 on the ground that the similar allegations are made against both of them by the appellant.
8) The Forum after hearing the concerned parties and appreciating the evidence brought on record by both parties, passed the impugned order on 12/12/2006. The Forum concluded in brief as under.
The indoor case papers of the hospital of respondent No.1 show that it was a case of impending rupture of uterus because the appellant had previous cesarean section (operation) and has dehiscence, which indicated the utmost emergency to manage the patient (appellant) by cesarean operation. Therefore the respondent No.1 called Anesthesis and also child specialist Dr.Mohta to manage the premature baby after delivery. The appellant was taken to the operation theater and after operation, the first live baby was delivered at 10.32 a.m. weighing 2 kg. and second live baby was delivered at 10.34 a.m. The respondent Nos. 1 and 2 had informed the appellant about the condition of twin babies and risk involved and advised her to shift the twins to premature baby unit for further management. Then the husband of the appellant shifted both babies to the hospital of respondent No.2. The medical experts Dr.Shalini Fuse and Dr.Bokde after examining the medical papers opined that there was no negligence on the part of respondent Nos.1 and 2 in the management and treatment of the twin babies. Their opinions are of utmost value to reach to the conclusion that medical negligence is not proved against the respondents. Thus the complaint is devoid of any merits. Hence the Forum dismissed the complaint.
9) We have heard learned advocate Mr.S.B.Solat appearing for the appellant and learned advocate Mr.Tidke appearing for the respondent No.1. The respondent No.2 is not joined in this appeal. We have also perused the entire record of the appeal and the authorities cited by advocates of both parties.
10) The sum and substance of the submission of the learned advocate of the appellant is as under.
i) The sonography report given by Dr.Singh on 16/12/2002 and other pathology tests showed that the appellant and twins in the womb of the appellant were normal. However the respondent No.1 without considering the same and without any urgency performed cesarean operation and thereby premature twin babies were born and due to that reason one of the baby died.
ii) The normal delivery period was up to second week of Feb. 2003 and only on account of urgency expressed by the respondent No.1, there was premature delivery on 05/01/2003. One of the twins baby died on 06/01/2003. This proves the criminality on the part of the respondent No.1.
It is also a case of gross medical negligence on the part of respondent No.1.
iii) The expert opinion was given by the doctors without going through the case papers and therefore Forum erred in relying the same.
iv) The District Forum did not consider the opinion of Dr.Vikram Rajan and Dr.P.Bhattacharya which proves that immediate operation was not necessary.
v) The operation could have been postponed for some time as there was no possibility of rupture of scar, so that the babies could have matured fully.
The impugned order passed by this Forum therefore needs to be set aside and complaint needs to be allowed.
The appellant's advocate relied on the decision in the following cases.
Savita Garg......V/s.....Director, National Heart Institute, 2005 (1) Mh.L.J.451. It is held in the said case by Hon'ble Supreme Court that burden lies on the Institute and concerned doctors who treated the patient that there was no negligence involved in the complaint.
Deep Nursing Home and anothers....V/s....Manmeet Singh Mattewal and others, III (2012) CPJ 154 (NC). In that case Antenatal management of the patient by appellant No.2 in respect of necessary hematological and cardiological investigations was not carried out at all in accordance with standard protocol that obstetrician of average skill would have adopted. Therefore the appellant was directed to pay Rs.20,26,000/- to complainant No.1.
Kalpana......V/s.....Dr.K.Ramalakshmi and anothers, I (2015) CPJ 79 (NC). In that case Family Planning Operation was done by surgery and post operation complications arose. But defence of the opposite party doctor that perforation could be caused by typhoid fever or TB was not believed. There was no evidence that the patient suffered from typhoid fever at any stage. It was held that perforation was resulted due to the procedure done by opposite party doctors and that negligence is proved. Therefore compensation of Rs.14,13,109/- was awarded in that case.
11) On the other hand the learned advocate of the sole respondent reiterated the aforesaid defence of the said respondent as put forth in the reply and he relied on the copies of Medical Text Reports and submitted that the District Forum below has rightly considered the evidence brought on record and passed the legal and correct order and needs no interference in appeal. During the course of hearing he took us through the medical case papers filed on record and submitted that those medical case papers proved that it was a case of urgency and hence to save the lives of appellant and her twins, the cesarean operation was required to be done and it was done with all care and caution and therefore the sole respondent in appeal has been rightly held as not responsible for the death of one of the twin. He relied on the decisions in the following case and submitted that appeal may be dismissed.
i) Mrs.Kiran Bala Rout.......V/s.....Christian Medical College and Hospital and others, 2003 (1) CPR 238 (NC). Under the facts and circumstances of that case, it was found that medical negligence is not proved.
ii) Smt.Vinitha Ashok......V/s.....Lakshmi Hospital and others, decided by Hon'ble Supreme Court in appeal No. 2977 of 1992 on 25/09/2001. In that case the appellant was not able to establish the case of negligence on the part of the respondents and therefore the appeal was dismissed.
iii) Kusum Sharma and others .....V/s......Batra Hospital and Medical Research, decided on 30/08/2000 by the Hon'ble National Commission. In that case it is held that the practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. It is further held that a person is not liable for negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in different way and nor is he guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among the medical men.
12) At the out set we find that the medical expert opinion given by two independent doctors namely Dr.Shalini Fusey and Dr.C.M.Bokde, is not disputed who had examined all the medical case papers and submitted their reports. Doctor C.M.Bokade is an Associate Professor of Department of Pediatrics, Government Medical Collage and Hospital, Nagpur. He in his report dated 15/01/2006 opined that there is no negligence at any given point of time by respondent No.2 Dr.Rajiv Mohta. Dr.Shalini Fuse, is an Associate Professor of OBST and Gynecology Department, Government Medical Collage and Hospital, Nagpur. Her opinion is relevant so far as the allegations made against the respondent No.1 is concerned. The said opinion is as under.
"There was absolutely no negligence in the management and treatment rendered by the respondent No.1/Dr.P.S.Punshi. It was timely decision to operate appellant, otherwise it would have caused complete rupture of uterus (peritoneal covering of uterus also gives way) causing expulsion of baby outside the uterus. It might have caused deaths of the babies as well as seriously affected the general condition of the patient."
13. The appellant has not adduced any cogent evidence in rebuttal of the above expert evidence which support the aforesaid case of the respondent No.1/Dr.P.S.Punshi.
14. The medical case papers of the hospital of the respondent No.1 also prove that it was a case of emergency as there was a sign of impending rupture of uterus. The possibility of the impending rupture can not be ruled out seen the first delivery of the appellant was performed by cesarean section. The medical case papers also prove that though it was a sunday, the appellant was having severe pain in her abdomen and therefore she approached to respondent No.1 as a emergency case. After due examination of the appellant, it was found by the respondent No.1 that it is a case of emergency and hence cesarean operation was to be performed immediately so as to save the life of not only the appellant but also of her twins.
15. Thus we are of the considered view that the respondent No.1 herein had brought to her task a reasonable degree of skill and knowledge and exercised the reasonable degree of care while performing the cesarean section on the appellant. Moreover she acted in accordance with the practice accepted as proper by the reasonable body of medical men skilled in that field as seen from the expert opinion referred to above.
16. Moreover it is also pertinent to note that as per advice of the respondent No1 both the premature babies were shifted to the hospital of respondent No.2 on 05/01/2003 and out of them one died in the hospital of respondent No.2. However the appellant entered in to settlement with the respondent No.2 during the pendency of the complaint, before the District Forum. Serious allegations were made against the respondent No.2 in the complaint, that due to the negligence on the part of the respondent No.2 in carrying out the proper test and investigations and for not providing proper treatment, the death of one of the twin was occurred. The only allegation was made against the respondent No.1 was that though it was not the case of emergency, the cesarean operation was performed. However, it is not proved by the appellant that without any urgency the cesarean operation was performed by the respondent No.1. Therefore we hold that the medical negligence can not be attributed to the respondent No.1/Dr.P.S.Punshi.
17. The aforesaid decisions relied on by the learned advocate of the appellant are of no assistance to the appellant since we have found that the medical negligence on the part of the respondent No.1/Dr.P.S.Punshi is not proved by the appellant. Therefore we are of the considered view that the District Forum below has properly appreciated evidence brought on record and reached to correct conclusion and findings. We find no merits in this appeal and it deserves to be dismissed.
// ORDER // The appeal is dismissed.
No order as to cost in the appeal.
Copy of the order be furnished to both parties free of cost.
[HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER