State Consumer Disputes Redressal Commission
The New India Assurance ... vs Nooranibegum W/O Sk.Salim,Jalna. on 7 May, 2010
1 F.A.No.:1099 & 1819/05
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing :10.05.2005
Date of order :07.05.2010
APPEAL NO. :1099 OF 2005
IN COMPLAINT CASE NO.:3 OF 1999
DISTRICT CONSUMER FORUM : JALNA.
Dr.S.S.Misal,
R/o Misal Hospital,
Near Shani Mandir, Old Jalna,
Jalna. ...APPELLANT
(Org. Opp.No.1)
VERSUS
1. Nooranibegum W/o Sk.Salim,
R/o Sevali, Tq. & Dist.Jalna.
2. Sk.Javed S/o Sk.Salim,
R/o above.
3. Sajedabeg D/o Sk.Salim,
R/o as above,
4. Bilkis Fatema D/o Sk.Salim,
R/o as above.
5. Sk.Kalim S/o Sk.Salim,
R/o as above.
6. The New India Assurance Co.Ltd.,
Branch Jalna,
Through LIC Branch Jalna, Office at
Lakkadkot At Jalna. ...RESPONDENTS
(No.1 to 5-Org.complainants
No.6-Org.Opp.No.2)
Date of filing :10.05.2005
Date of order :23.09.2010
APPEAL NO. :1819 OF 2005
IN COMPLAINT CASE NO.:3 OF 1999
DISTRICT CONSUMER FORUM : JALNA.
2 F.A.No.:1099 & 1819/05
The New India Assurance Co.Ltd.,
Through Branch Manager,
Lakkadkot Branch At Jalna. ...APPELLANT
(Org.Opp.No.2)
VERSUS
1. Nooranibegum W/o Sk.Salim,
R/o Sevali, Tq. & Dist.Jalna.
2. Sk.Javed S/o Sk.Salim,
3. Sajedabeg D/o Sk.Salim,
4. Bilkis Fatema D/o Sk.Salim,
5. Sk.Kalim S/o Sk.Salim,
6. Dr.S.S.Misal,
R/o Misal Hospital, Near Shani Mandir,
Old Jalna,
Jalna. ...RESPONDENTS
(No.1to5-org.Complainants,
No.6-Org.Opp.No.2)
CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.S.B.Deshpande for Dr.Misal, Adv.Shri.V.R.Mundada for Insurance Co., Adv.Shri.S.C.Thombare for org.complainant.
O R A L O R D E R Per Shri.S.G.Deshmukh Hon`ble Presiding Judicial Member.
1. These two appeals No.1099/05 & 1819/05 have been filed by Dr.Misal and New India Assurance Co.Ltd. for quashing and setting aside the judgment and order dated 30.12.1998 in complaint case No. 03/99 passed by District Consumer Forum, Jalna.
2. Respondent/Org.Complainants` case before the Forum is that, husband of respondent No.1 and father of respondent No.2 to 5 3 F.A.No.:1099 & 1819/05 Shaikh Salim was taken to Dr.Raka resident of Sewali for severe pains in his abdomen who after medical examination advised the complainant, respondent No.1 and her father-in-law to shift him to doctor at Jalna. According to advice given by Dr.Raka complainant/respondent No.1 & her father-in-law shifted Sk.Salim to Dr.Misal at Jalna. Dr.Misal examined him and advised immediate operation of abdomen. Respondent No.1 was required to deposit Rs.5000/- as advance for expenses of operation of the hospital. Respondent No.1 and her father-in-law were told that it is small operation and there is no need to worry about it. Patient will be discharged within 2-3 days of the operation. Accordingly Sk.Salim was operated on abdomen at 8.00 p.m. on very day. They were told that operation is successful. It is contended that medicines prescribed by Dr.Misal were purchased by complainant and her father-in-law. Accordingly, those were given to Sk.Salim as per Dr.Misal`s advise. It is contended that on the 3 rd day of operation stitches were opened and stool and urine were being passed through it. There was discharge of pus and foul smell. It was brought to the notice of Dr.Misal, Dr.Misal asked them not to worry about it, everything will be all right. He also told that condition of the patient is in his control and no other expert`s opinion is required to be obtained. It is contended that Dr.Misal treated him for the period 5.11.1997 to 19.1.1998. They incurred huge expenses for the treatment as per advice of Dr.Misal. Dr.Misal did not take proper care while operating and treating Sk.Salim. Dr.Misal and his staff were negligent in the operation and treatment given to Sk.Salim. Wound had not been dressed systematically by Dr.Misal. It is contended that on 19.01.1998 Dr.Misal asked them to shift the patient to Ghati Hospital,Aurangabad as patient is serious. Accordingly they shifted him to Ghati Hospital at Aurangabad where he was examined by doctor. Thereafter within a short time he died. Post-mortem was carried on the dead body of Sk.Salim. It is contended that as per post-mortem report Dr.Misal is responsible for the death of the 4 F.A.No.:1099 & 1819/05 patient. He was negligent while performing operation. He was negligent even in post operative care. Because of untimely death of Sk.Salim complainant No.1 and her children and her father-in-law became orphan. Respondent No.1 gave him notice dated 28.08.1998 through advocate demanding compensation of Rs.4,75,000/-. It is contended that Dr.Misal falsely replied the notice and did not comply the same. Thus complainant approached the Forum. It is contended that respondent No.2 insurance company is impleaded as party to the complaint as Dr.Misal had obtained provisional indemnity policy for sum assured of Rs.5,00,000/- from insurance company for the period from 4.9.97 to 3.9.98. During pendancy of the complaint names of sons and daughters of Sk.Salim were impleaded as complainants.
3. Dr.Misal appeared before the Forum and resisted the claim. It is contended that one Dr.Kulkarni had come with the patient in his hospital on 5.11.1997. He examined the patient. Patient was suffering from unbearable pains in abdomen. General condition of the patient was very poor. As a result of typhoid, fever etc. patient suffered for long perforation & peritonitis with toxaemia developed. From x-ray taken and sonography of the patient it was the case of generalised peritonitis. It is contended that in such case immediate surgery is the only way left for saving the life of patient. Accordingly patient was advised the same to which patient himself consented and his relatives insisted upon. Dr.Misal denied the contention that they deposited Rs.5000/- as advance for operation on his say. He also denied that he had stated that surgery is minor one and patient will have relief on trouble within 2-3 days and would be discharged within 2-3 days. He is not at dispute that surgery is performed in the evening, it took considerable time due to aggrivated form of disease and poor resistance power of the patient. Surgery was successful. Patient and his relatives were advised to follow directions given by him for the well being of the patient. He further contended that he never expressed opinion that there was nothing to be worried. He had 5 F.A.No.:1099 & 1819/05 advised the patient and his relatives to take utmost possible care relating to post surgical treatment. It is contended that patient was suffering from perforation and peritonitis with toxaemia with very poor general condition and weak resistance power. Immediate surgery was the only way in the case. It is contended that patient and his relatives after performance of surgery were extremely non-cooperative. Patient was advised not to take anything orally. However paying no heed to medical advice, he had taken food and drinking water for which patient and his relatives were warned. Strict bed rest was advised, but non-following the advice, patient was indulging himself in unwarranted movement. It is contended that with the best possible treatment mortality in such type of cases is about 10%. It is also contended that medicines prescribed by him were not supplied, some blood as advised was provided to the patient. Various examinations and check up including x-ray were done. He had explained general condition of the patient from time to time. Risk of the ailment was also explained to all of them. He had left it open to patient and his relative and suggested them to remove patient to any other hospital. All of them declined to do so and insisted him to continue the treatment. It is contended that death of patient in no way can be attributed either to surgery , post surgical treatment or his skill. He can not be said to have acted without due diligence and care. It is contended that he is M.B.B.S., M.S. in general surgery. He had served in Jalna Civil Hospital for about 5 years as public servant and as private practitioner, has performed thousands of surgeries for which he has been appreciated by the superiors in service and public in general. It is contended that patient was treated with utmost care and caution and he had given all required medical assistance. Patient was in his hospital for more than 2 months and during this period proper care was taken in the nature of dressing and was given medicine at proper time. It is contended that no consideration was paid. On 19.1.1998 patient got discharged against medical advice. It is also contended that complicated question of facts and law arise in 6 F.A.No.:1099 & 1819/05 the matter. Thus matter is required to be decided by Civil Court. It is also contended that complaint was filed in the police station and police investigated the same, as nothing was found in the investigation no action was taken and thus complaint is not tenable.
4. Respondent No.2 also appeared and adopted the say filed by Dr.Misal.
5. The Forum below after going through the papers and hearing he parties allowed the complaint and directed appellants to pay Rs.4,00,000/- jointly and severally within a month to respondent No.1 to 5. Forum also directed them to pay interest @ 6% p.a. from the date of complaint. Forum further directed that amount of Rs.60,000/- each, be kept in the name of minors respondent No.2 to 5 in any Nationalised Bank till they become major. Forum also allowed the complainant to withdraw the interest on every 3 months from the deposit of the minors. Forum further directed remaining amount is to be paid to respondent No.1 out of which Rs.50,000/- is to be kept in Nationalised Bank in the name of respondent No.1 for 3 years.
6. Being aggrieved by the said judgment and order passed by the District Forum, Jalna, Dr.Misal as well as The New India Assurance Co.Ltd. came in appeal.
7. Notices were issued to the appellants as well as respondents in both the appeals. Learned counsel Shri.S.B.Deshpande appeared on behalf of Dr.Misal, learned counsel Shri.V.R.Mundada appeared on behalf of insurance company and learned counsel Shri.S.C.Thombare appeared on behalf of complainants. We heard counsels for both sides at sufficient length. They also filed written notes of arguments. Learned counsel Shri.Deshpande for Dr.Misal submitted that appellant is qualified, he is M.S. in general surgery. He performed thousands of surgeries. He submitted that complainant did not 7 F.A.No.:1099 & 1819/05 challenge his credentials as qualified medical practitioner. He submitted that complainant nowhere alleged in the complaint that he is not qualified to treat the patient. He further submitted that no material is brought on record by complainant to suggest that line of action adopted by him is incorrect at any stage. Patient was suffering from perforation peritonitis with toxaemia with very poor general condition. He was admitted in preterious condition, patient was made aware of the risk involved in it. According to him immediate surgery was the only way out in the case. Appellant had taken utmost care while performing operation. The patient was in hospital for more than 2 months. He also submitted that no consideration was paid by complainant. Procedure adopted by appellant is accepted as per medical science. Inspite of care taken by doctor patient could not survive. He submitted that mortality rate in such case is on higher side. In such cases, inspite of best possible efforts things may go wrong. According to him, complainant did not adduce any sort of evidence in the form of expert opinion showing that treatment and practice adopted by doctor was not proper and not in accordance with the established medical procedure. According to him, Forum erred in sending confidential letter to Civil Surgeon to seek his opinion about cause of death. He submitted that Forum erred in relying on the translation given by Civil Surgeon regarding cause of death. He also submitted that doctor was not given opportunity to put his interpretation about the opinion of Civil Surgeon. Forum did not consider evidence of Dr.Jinturkar who had carried post-mortem on the dead body of Sk.Salim. Dr.Jinturkar was examined by complainant himself. According to him the evidence of Dr.Jinturkar shows that patient did not die due to the negligence in previous operation. The evidence shows that he did not come across any negligence in the performance of surgery made by Dr.Misal. He submitted that operation of perforation is difficult and involved much risk. Patient was made aware of the risk involved in front of relatives. Consent for performing operation was taken from the patient. He also 8 F.A.No.:1099 & 1819/05 submitted that doctor had advised the complainant to take patient to higher station but they insisted him to continue the treatment, he can not be held guilty for committing negligence in taking care. Learned counsel submitted that the observations regarding health of the patient are noted down in the case papers. According to him medical negligence is to be established and not to be presumed in the absence of expert opinion. Respondent`s counsel brought on record extracts of Principles of Surgery, 4th Edition by Seymour I.Schwartz, M.D. and others page 1153, Davidson`s Principles and Practice of Medicine 19 th Edition, Bailey & Love`s Short Practice of Surgery 22 nd Edition by Charles V.Mann and others, Indian Journal of Surgery, Comparative study of operative procedures in typhoid perforation Beniwal Udai Singh and others. Learned counsel also relied on
i) 'Kusum Sharma & others -Vs- Batra Hospital & Medical Research Centre & Others........
ii) 2009 DGLS(Soft) 630, C.P.Shree Kumar V/s
Ramanujam,
iii) 2005DGLS (Soft) 417 Jacob Mathew V/s
State of Punjab,
iv) 2009DGLS (Soft) 194, Martin F.Dsouza V/s
Mohd.Ishfaq.
8. Learned counsel Shri.V.R.Mundada for the Insurance Company adopted the argument of learned counsel Shri.Deshpande for Dr.Misal. On the other hand, learned counsel Shri.S.C.Thombare for respondents/org.complainants submitted that patient was admitted on 5.11.1997 and he was in the hospital upto 19.01.1998. There were complaints of negligence but doctor did not advise to go to some other hospital. He submitted that at last stage he discharged the patient and advised to shift him to Ghati Hospital, Aurangabad. Learned counsel submitted that post-mortem was conducted on the dead body. As per post-mortem report, cause of death is 'septicaemic shock due to faecal fistula with generalized peritonitis associated with history of 9 F.A.No.:1099 & 1819/05 abdominal operation(old).' Learned counsel submitted that Forum had sent confidential letter to Civil Surgeon and sought clarification of the same, in simple language. Report of Civil Surgeon, Jalna is on record which shows that after operation 'septicaemic shock due to faecal fistula with generalized peritonitis associated with history due to abdominal operation. Learned counsel further submitted that Forum rightly relied on report given by Civil Surgeon. Learned counsel submitted that appellant doctor is not expert specialisation in abdominal surgery. Even then he performed operation without obtaining advice of expert and without taking pre-medical test. Learned counsel further submitted that complainant had pointed to the appellant on 3rd day of operation that pus was emerging from operation spot. It was necessary for the appellant doctor to obtain opinion of expert and advise the complainant to take patient for further treatment in some other hospital. But appellant doctor chose to keep patient in his hospital. He further submitted that consent letter alleged to be signed by patient is not obtained before the operation. Learned counsel further submitted that appellant doctor advised complainant to shift him to some other hospital only because he was not expert in surgery in abdomen. He submitted that Forum rightly held that respondents are consumers as appellant is not running charitable hospital. Learned counsel fully supported the judgment and order of the Forum. Learned counsel relied on ;
i) A.Xavier -Vs- Cantonment Polyclinic & Ors., I
(2005) CPJ 229, Karnataka State Commission.
ii) S.Muralidhar & Anr. -Vs- Basappa Memorial
Hosptial & Ors, I(2005) CPJ 237, Karnataka State
Commission.
iii) Randhir -Vs-Inscol Tertiary Care Hospital & Anr., I (2005) CPJ 505, Union Territory Consumer Commission, Chandigarh 10 F.A.No.:1099 & 1819/05
9. We perused the papers and gave our anxious thoughts to the arguments advanced by both the counsels. Before we discuss merits of the case we find it necessary detail as what does one understands by the term medical negligence.
10. In 'Dr.Laxman Balkrishna Joshi -Vs- Dr.Trimbak Bapu Goldbole & Anr.' reported in AIR 1969 SC 128. Hon`ble Apex Court held that, "The petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires".
11. In Achutrao Haribhau Khodwa & Ors -Vs- State of Maharashtra & Ors., reported in 1996(II) Supreme Court cases 634, Hon`ble Apex Court held that, "The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient but as long as acts in a manner which is accepted to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffer a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence".
12. In Smt.Vinita Ashok -Vs- Laxmi Hospital & others, reported in 2001 AIR SCW 3881 the Hon`ble Apex Court held that " A doctor will not be guilty of the negligence if he has acted in accordance with practice accepted as proper by responsible body of medical men skilled in that particular art and if he has acted in accordance with such 11 F.A.No.:1099 & 1819/05 practise merely because there is a body of opinion that takes as contrary view will not make him liable for negligence. This is the standard of care required by the doctor".
13. In Jacab Mathew -Vs- State of Punjab reported in (2005)6 SCC 1, the Hon`ble Apex court observed that "a simple lack of care or error of judgment or an accident does not constitute negligence. Similarly, availability of better alternative course or method of treatment was available but not adopted or that doctor did not possess highest level of expertise or skills in that branch in which he practices does not constitute negligence. Thus, if there is breach or failure in taking that reasonable care in treatment of the patient as is expected by normal standards of practice it constitutes negligence".
14. In 'Martin F.D'Souza -Vs- Mohd.Ishfaq' reported in II(2009) SLT page 20 the Hon`ble Apex Court observed that;
(ii) Medical Negligence-Complaint-Matter should be referred to competent doctor/committee of doctors, specialized in field relating to which medical negligence attributed-Notice should be issued to concern doctor/hospital, only if there is prima facie case of medical negligence as per doctor/committee report-Police officers warned not to arrest/harass doctors unless facts clearly come within parameters laid down in Jacob Mathew`s case, otherwise, legal action to be faced by policemen.
(iii) Medical Negligence-General principles-Medical practitioner not liable for negligence, simply because things went wrong from mischance/misadventure through error of judgment-Medical Practitioner would be liable only where his conduct fell below that of 12 F.A.No.:1099 & 1819/05 standards of reasonably competent practitioner in his field-Standard of care has to be judged in light of knowledge available at time of incident, not at date of trial-Charge of negligence regarding failure to use particular equipment would fail, if equipment not generally available at that point of time-Simply because patient not favourably responded to treatment given by doctor or surgery failed, doctor cannot be held straightway liable for medical negligence by applying doctrine of res ipsa loquitur.
15. It is apparent from the above that the settled law is that complainant has to allege as to which action of the doctor was not as per accepted medical practice, what was required to be done and what was not required to be done and the same has to be proved by expert`s evidence or medical literature on the subject. Thus the burden to prove negligence of doctor is always on the person alleging the same. Negligence in relation to medical profession covers diagnosis, advise, medical treatment and post operative treatment. It is the failure to exercise that care which the circumstances demand. What amounts to negligence depends upon the facts of each particular case. The true test for establishing negligence in diagnosis or treatment on the part of doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care.
16. In the instant case, patient Sk.Salim was admitted in the hospital of Dr.Misal on 5.11.1997. He had come at around 6.00 p.m. with the complaint of pain in abdomen. He had fever and omitting for more than 5 days. There was 8 days constipation. There was also distension of abdomen. The patient was examined by Dr.Misal. It also be mentioned that case papers in respect of Sk.Salim had been brought on record on the request of complainant. It reveals that x-ray and sonography were done which reveal obstruction with perforation.
13 F.A.No.:1099 & 1819/05Patient was diagnosed as suffering from perforation peritonitis with toxaemia. It also appears that condition of the patient was explained to relatives. They were informed that it is necessary to do surgery. It also reveals from the papers that written consent for performing surgery and administration of anaesthesia was obtained which was signed by the patient himself. It also reveals from the papers that patient was advised laparotomy to which patient himself consented in writing. Doctor undertook surgery and performed the same in the evening. It also reveals surgery took considerable time due to aggravated form of disease and poor resistance power of the patient. Surgery was performed with the help of anaesthetist Dr.Agrawal. The patient was suffering from perforation peritonitis with toxaemia with poor general condition and weak resistance power. It also reveals that all the observations relating to the health and operation of patient were noted down in the case papers. There was about 200 CC pus in the peritoneal cavity. Bowels were congested and hypertrophied. Multiple pus flakes present. There was about 1 cm perforation of the terminal ileum which is closed and omental patch kept over it. Through peritoneal levage done and wound closed after malikott`s drain. Case papers also disclose that antibiotics and medicines were administered to the patient. It also reveals that on 11.11.1997 blood transfusion was advised and was given. On 14.11.1997 advise was given to shift the patient to Government Medical College & Hospital, Aurangabad. It appears that relatives of patient insisted the doctor to continue the treatment. It also reveals that patient had taken food orally against medical advice. It reveals that relatives did not bring medicines and IV kits inspite of advice. It reveals from case papers that proper care was taken. Patient was timely attended by appellant`s staff. Blood transfusion was given whenever required, dressing was made frequently. It reveals that all the tests were conducted.
14 F.A.No.:1099 & 1819/0517. It is also apparent from the papers that complainant did not adduce any sort of evidence in the shape of expert opinion to prove the treatment and practice adopted by Dr.Misal are not in accordance with the established medical procedure. Clinical notes of the hospital run in several pages indicate sincere efforts were made by the doctor to perform the procedure. Case paper is mirror of reasonable care and skill exercised by the doctor in the treatment of patient. No expert evidence has been adduced by complainant to prove negligence on the part of doctor. Mere allegations will not suffice, it was obligatory duty on the complainant to show that there was negligence on the part of doctor.
18. Forum relied on opinion given by Civil Surgeon, Jalna. It reveals from the papers that complainant had produced death certificate showing the cause of death as 'septicaemic shock due to faecal fistula with generalized peritonitis associated with history of abdominal operation(old).' It appears from the papers that Forum had sent confidential letter dated 2.4.2004 to Civil Surgeon, Jalna with the Xerox copy of the cause of death mentioned in the certificate and had sought clarification of the same in simple language. It also appears from the papers that Civil Surgeon, Jalna vide letter dated 23.7.2004 sent translation of the same in Marathi language. According to Civil Surgeon complications arose after operation 'septicaemic shock due to faecal fistula with generalized peritonitis associated with history of abdominal operation(old).' It reveals that Forum relied on so called translation of the cause of death submitted by the Civil Surgeon and held appellant guilty for negligence. It be mentioned that Dr.Jinturkar Anil Digambar, Associated Professor and Head of the Forensic Department, Government Medical College & Hospital, Aurangabad who carried post-mortem on the dead body of Sk.Salim has been examined on behalf of complainant to prove cause of death. On perusal of his evidence recorded by Forum it reveals that Dr.Jinturkar in examination-in-chief itself has stated that there is no negligence on 15 F.A.No.:1099 & 1819/05 the part of Dr.Misal. He referred death certificate in examination-in- chief. He stated that the person did not die due to negligence in previous operation. He has clarified that certificate issued by him simply mentions things that become apparent during performing post mortem i.e. the fact that there was previous operation. He stated that he had not come across any negligence in performance of operation/surgery. In the cross examination he stated that in case of abdominal burst, it is difficult to cure the patient as the toxic substances are absorbed in the body. He admitted the suggestion that mortality rate in the case of typhoid perforation is upto 60 to 70% irrespective of any care. Thus it is apparent from the evidence of Dr.Jinturkar who had conducted autopsy on the dead body that the death of Sk.Salim was not on account of any negligence at the hand of Dr.Misal.
19. Civil Surgeon, Jalna who translated the cause of death certificate in vernacular language was not present at the time of carrying the post-mortem on dead body of Sk.Salim. He was not party to the post-mortem. Neither contents of entire post-mortem report were sent to him for translating the cause of death. Contents in post-mortem report regarding examination of internal abdomen walls peritoneum cavity, stomach and its content, Small intestine & its content, Large intestine and its content, liver and gall bladder etc. were not before the Civil Surgeon at the time of translating the cause of death in vernacular language. Even the case papers about surgery performed and treatment given by Dr.Misal were not before the Civil Surgeon. Simply xorox copy of portion of the cause of death from death certificate was sent to Civil Surgeon for translating the same and not for its interpretation. It appears that Civil Surgeon while translating the portion of cause of death tried to interpret the same and that too in the absence of post mortem report and case papers regarding surgery and treatment. In the absence of required papers it is difficult to interpret the cause of death in some other manner which 16 F.A.No.:1099 & 1819/05 is not apparent on the face of it. It is also apparent that appellant had no opportunity to cross examine the Civil Surgeon on the alleged interpretation of cause of death as same is not the translation. Certainly, in the circumstances the evidence of Dr.Jinturkar who had carried the post mortem on the dead body will have to be accepted rather than so called translation alleged to be made by Civil Surgeon in the absence of any case papers and post mortem report. We have mentioned that so called translation can not be said to be translation but it appears to be sort of interpretation which is not based on the documents. Entire judgment of Forum rests on the so called translation made by Civil Surgeon.
20. In Principles of Surgery 4th Edition by Seymour I.Schwartz page 1153, it is stated that;
Typhoid Enteritis 'This is an acute, systemic infection of several weeks duration, caused by Salmonella typhosa and manifested by fever, headache, prostration, cough, maculopapular rash, abdominal pain, and leukopenia. There is hyperplasia and ulceration of Peyer`s patches of the intestine, mesenteric lymphadenopathy, splenomegaly, and parenchymatous changes in the liver. Confirmation of diagnosis is obtained by culturing S.typhosa from blood or feces or by finding a high titer of agglutinins against the O and R antigens.
Typhoid fever is still a major disease in areas of the world that have not yet attained high public health standards, but the incidence has progressively declined in the United States since 1900. The death rate, which was formerly about 10 percent, is now about 2 percent, in large part because of the specific antimicrobial chloramphenicol, which was introduced in 1948.
21. In Davindson`s Principles and practice of Medicine 19 th Edition, it is stated that ;
17 F.A.No.:1099 & 1819/05Aetiology The enteric fevers are caused by infection with Salmonelia typhi and S.paratyphi A and B. High levels of transmission continue in India, sub-Saharan Africa and Latin America. The bacilli may live in the gallbladder of carriers for months or years after clinical recovery and pass intermittently in the stool and less commonly in the urine. The incubation period of typhoid fever is about 10-14 days: that of paratyphoid is somewhat shorter.
22. In Bailey and Love`s Short Practice of Surgery 22 nd Edition by Charles V.Mann, it is stated that;
Post-operative peritonitis has a mortality of at least 50 per cent. Faecal peritonitis has a mortality of 75 percent. Peritonitis associated with appendicitis, perforated peptic ulcer or bile-leakage are much less dangerous(mortality less than 10 per cent).
Complications of peritonitis All the complications of a severe bacterial infection are possible, but the special complications of peritonitis are as follows.
Acute intestinal obstruction due to peritoneal adhesions. This usually gives central colicky abdominal pain with radiological evidence of gas and fluid levels confined to the upper portion of the small intestine. It is more common with localised peritonitis. It is essential to distinguish this from paralytic ileus.
Paralytic ileus. There is usually little pain and gasfilled loops with fluid levels are seen distributed throughout the small and large intestines on the radiograph. In intestinal obstruction, bowel sounds are increased. In paralytic ileus bowel sounds are reduced or absent.
18 F.A.No.:1099 & 1819/0523. It appears from all these extracts the patient with typhoid perforation is to be treated as emergency, mortality rate in such case is on higher side. Usually Peritonitis occurs when an infection develops in the peritoneum from a perforation(per-fo-Ray-Shun), or hole, in the stomach, intestines, appendix, or one of the other organs covered by the lining. People also can get peritonitis from complications of other illnesses, such as ruptured appendix, diverticulitis(dy-ver-tik-yoo-Ly-tis), a perforated ulcer, or pelvic inflammatory disease(PID). In all of these cases, bacteria can infect the peritoneum.
The treatment of peritonitis usually includes surgery and antibiotics. Surgery is performed to repair any ruptured organs that caused the infection as well as to drain the infectious fluids from the abdominal cavity. Antibiotics are used to treat the bacterial injection.
Peritonitis is a potentially life-threatening condition and one may need surgery to remove the source of infection, such as inflamed appendix, or to repair a tear in the walls of the gastrointestinal or biliary tract. People with peritonitis often need surgery to remove infected tissue and repair damaged organs.
24. It is apparent from the papers that the patient was brought to the appellant`s hospital when he was in critical condition. Case papers brought on record disclose that the possible treatment was given by appellant. It also reveals from the papers that appellant was possessed requisite skill. He is M.S. in general surgery. He performed thousands of surgeries. Complainant did not challenge the credential of appellant as qualified medical practitioner. It is not the case of complainant that appellant is not qualified to treat the patient. We have mentioned that on examination of patient appellant found that patient was suffering from perforation of peritonitis with toxaemia with poor general condition and weak resistance power. It is also 19 F.A.No.:1099 & 1819/05 apparent that immediate surgery was the only way in such cases. It was the case of generalized peritonitis. It is also apparent that procedure which had been adopted by appellant is accepted to the medical science. The professional may be held liable for negligence on one of the two findings: either he was not possessed the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence skill which he did possess. In the instant case the evidence on record shows that doctor is M.S. in general surgery. We have also mentioned that it is nowhere the case of complainant that appellant is not qualified person to treat the patient. The evidence brought on record shows that patient was treated with due care and caution and was given all assistance by doctor. All the observations relating to health of patient have been noted down in the case papers. Patient was made aware of the risk involved in the surgery and consent was obtained from him. Assistance of anaesthetist Dr.Agrawal was taken. It is also apparent that patient was in the hospital for about 75 days after operation. We have mentioned that appellant was advised time and again to take the patient to higher station. However complainant did not follow the advise. We have mentioned that burden to prove doctor was negligent is on the complainant. Complainant did not lead any evidence with supportive medical text to prove negligence on the part of appellant. It is not for doctor to show he was not negligent. No presumption for the negligence can be drawn from the circumstances of the case. We also mentioned that the evidence of Dr.Jinturkar who conducted the autopsy on the dead body is on the record. Translation is alleged to be made by Civil Surgeon can not prevail over the evidence of Dr.Jinturkar. The negligence can not be presumed merely because complainant alleges, the same is required to be proved. There is nothing to show that operation and treatment given by appellant was palpably wrong. There is enough material to establish the case of the appellant that all possible treatment emergently required was given to the patient. Inspite of all the diligences and care taken by the 20 F.A.No.:1099 & 1819/05 appellant patient could not survive. It is unfortunate that patient died but for that appellant can not be blamed since no negligence has been proved by complainant. We are inclined to allow the appeals and quash and set aside the judgment and order passed by the Forum. We pass the following order.
O R D E R
1. Both the appeals are allowed.
2. The impugned judgment and order passed by the Dist.Forum is hereby quashed and set aside.
3. Complaint stands dismissed.
4. No order as to cost.
5. Record and proceedings be sent back to the Dist. Forum.
6. Copies of the judgment be issued to both the parties.
Mrs.Uma S.Bora S.G.Deshmukh
Member Presiding Judicial Member.
Mane