State Consumer Disputes Redressal Commission
Manoj Aappasaheb Chavan vs 1. The Dean, on 16 July, 2013
C.C.No.:09-08
1
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing: 02.07.2008
Date of Order: 16.07.2013
COMPLAINT CASE NO. 09 OF 2008
Manoj Aappasaheb Chavan
R/o. Sai Vishram Dham, Sitanagar,
Shirdi, Tq. Rahta, Dist. Ahmednagar,
At present R/o. Nool, Tq. Gadhinglaj,
Dist. Kolhapur. ...Complainant
-VERSUS-
1. The Dean,
Shirdi Saibaba Hospital,
Tq. Rahata, Dist. Ahmednagar,
2. Dr. Satish Reddy
C/o. Shirdi Saibaba Hospital,
Tq. Rahata, Dist. Ahmednagar.
3. Dr. Kiran Gore
C/o. Shri. Saibaba Hospital,
Tq. Rahata, Dist. Ahmednagar. ... Opponents
Coram : Shri. S.M. Shembole, Hon`ble Presiding Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Shri. K. B. Gawali, Hon'ble Member.
Present: Adv. Shri. A. V. Chaudhary for complainant.
Adv. Shri. R. L. Kute for opponent No.1.
Adv. Shri. S. A. Nagapurkar for opponent No.3.
- :: O R A L O R D E R :: -
(Delivered on 16.07.2013) Per Shri. K. B. Gawali, Hon'ble Member
1. This complaint is filed by the complainant against the opponent No.1 to 3 on the ground of medical negligence and deficiency in service. On perusal of the C.C.No.:09-08 2 complaint and hearing the complainant on the point of admission, the complaint came to be admitted and the opponents were summoned for the hearing.
2 (a): The complaint in a nutshell is that, the complainant was the employee of opponent No.1 i.e. "Shirdi Saibaba Hospital", working as a Manager on monthly salary of Rs.5000/-. That, the opponent Nos. 2 & 3 were the doctors working with the opponent No.1. That, the complainant had a trouble of Choleothiasis and hence on 19.11.2006 he approached to opponent No.2 Dr. Satish Reddy, who advised him to get the sonography done. That, accordingly he obtained his sonography report and on the basis of the said sonography report he was advised by opponent No.2 for removal of his Gallbladder. Therefore, he was admitted with opponent No.1 on 22.11.2006 for surgery and on 23.11.2006 after having his consent his Gallbladder was removed by way of "Laparoscopic Surgery" during which the tube (duck) connecting the Gallbladder had a stricture.
2 (b): That, even after "Laparoscopic Surgery" he had no relief from his abdominal pain and on his complaint about the same to the opponent No. 2 & 3, he was simply given pain killer tablets. However, when his sister had again complained about the severe pain of the complainant, the opponent Nos. 2 & 3 after having clinical examination found that due to C.B.D. stricture there was a bleeding and accumulation of waste in his stomach. Hence he was advised for immediate "open surgery". Accordingly, again after obtaining consent of the complainant and his sister his open surgery was carried out on 25.11.2006 by the opponent No. 2 & 3 & treated him as indoor patient upto 09.12.2006, on which date he was given discharge with the instruction to visit on 26.12.2006 for check up. That, accordingly he visited the opponent No. 2 & 3 on 26.12.2006 when his drainage pipe was removed and he was advised to take rest at his home. He therefore left for his native place at Kolhapur.
2 (c ): That, after he had been to his home he again had a severe pain in his abdomen for which he had contacted Dr. Naikwade. That, on telephonic talk with C.C.No.:09-08 3 opponent No. 2 & 3 by Dr. Naikwade it was suggested to him to approach Dr. Vinay Thapar from K.E.M. Hospital, Mumbai for further treatment. That, the complainant accordingly contacted opponent No.2 & 3 who gave him reference letter dated 29.01.2007 to Dr. Vinay Thapar of K.E.M. Hospital. That, thereafter he visited Dr. Thaper on 31.01.2007 of K.E.M. Hospital. He was there as indoor patient from 31.01.2007 to 15.02.2007. He contended that Dr. Thapar had advised him to go for endeoplasty as the earlier two operations performed by opponent No.2 & 3 were unsuccessful. Accordingly his endeoplasty was done on 14.09.2007. He further contended that till the date of complaint he had been taking treatment of Dr. Thapar.
2(d): The complainant thus contended that due to the negligence of opponent No. 2 & 3 in giving proper medical service he suffered financial, physical and mental harassment. He submitted that due to the negligent treatment given by opponent No. 2 & 3 he had to suffer resultant weakness and therefore become physically disable, due to which he was removed from service by the opponent No.1. That, on his medical treatment he had to spent total Rs.2,78,500/- at opponent No.1's hospital and at K.E.M. Hospital, Mumbai. In addition, as per his contention he had to bear the financial loss of about 17,40,000/- due to his removal from service, considering total future service period of 29 years (Rs.60,000/- per year @ Rs.5000/- per month). He had therefore issued legal notice to the opponents demanding total compensation of Rs. 35,18,500/- which included Rs. 15,00,000/- towards mental and physical harassment. However, his claim was denied by the opponents and therefore he filed the present complaint seeking direction to the opponent No.1 to 3 to pay him total compensation of rs.35,33,500/- which included medical expenses of Rs. 2,78,500/-, compensation of Rs. 32,40,000/- towards financial loss due his removal from service, along with mental and physical harassment and Rs. 15,000/- towards cost of the complaint.
C.C.No.:09-08 4 2 (e): In support of his complaint the complainant submitted evidence affidavit as well as following documents:
1. Sonography report obtained from Dr. Vikram P. Bade,
2. Copy of admission card from opponent No.1's hospital,
3. Copy of letter dated 29.01.2006 issued by opponent No. 2 & 3 to Dr. Vinay Thapar
4. Copy of letter given by opponent No.3 Dr. Gore to Adv. Desai
5. Dispatch letter dated 15.08.2007 of K.E.M. Hospital, Mumbai
6. Copy of endeoscopy report
7. MRI report from K.E.M. hospital
8. Copy of liver test report,
9. Copy of notice issued to the opponents through Adv. Desai
10. The acknowledgment of opponents receiving the notice
11. Copy of reply of notice by opponents through Adv. Jape Patil
3 (a): The opponent Nos. 1 & 3 appeared before this Commission and filed their written version along with evidence affidavits. The opponent No.2 though served with notice did not appear. However, the opponent No.1 by way of its written version supported by affidavit of its authorized medical director namely Dr. Nanasaheb Sarangdhar Mhaske has resisted the claim of the complainant against itself and also against opponent No. 2 & 3. The opponent No.3 by way of his separate written version and evidence affidavit has also resisted the claim of the complainant.
3(b): The opponent No.1 has submitted that the hospital by name "Shirdi Saibaba Hospital" is being run by the Saibaba Sansthan, a charitable trust, which provides medical facility including medicine at cheaper rate to the patients who cannot offer the expenses of medical treatment/operations etc. It has further submitted that, both the opponent No.2 Dr. Satish Reddy and opponent No.3 Dr. Kiran Gore are qualified doctors having master degree in surgery and also have C.C.No.:09-08 5 very good experience in carrying out surgeries. Opponent No.1 specifically denied the allegation of medical negligence against both the opponent doctors and also claim for the compensation against the three opponents. It has also denied that the complainant was working as Manger and earning Rs.5000/- per month in the opponent No.1's hospital.
3 (c ): The opponent No.1 further contended that the complainant having abdominal pain, had consulted Dr. Kasbekar at Mumbai on whose advise he had obtained his sonography report on 04.01.2006 from Dr. Bade. That, as per the said sonography report the complainant had mobile calculli in his Gallbladder. That, in order to have treatment at comparatively cheaper rate, the complainant approached to opponent No.1 i. e. Saibaba Hospital on 14.01.2006 i.e. about 10 months after obtaining the said sonography report from Dr. Bade. He was examined by opponent No.2 Dr. Reddy and after confirming the multiple calculli i.e. stone of the size of 7 to 9 m.m. in his Gallbladder by way of fresh Ultra Sonography report, the complainant was advised for removal of his Gallbladder. That, after getting the written consent of the complainant and his sister his Gallbladder was removed by way of "Laparoscopic Surgery" on 23.11.2006, which is recommended all over the world and is also called as 'Cholecystectomy'. That, prior to performing the said surgery the complainant was given understanding that the said operation might develop certain complications. That, his Laparoscopic operation' though was successful, on 24.11.2006 the complainant had little pain in his stomach, which was diagnosed as due to bile leakage from the liver. It is thus contended that, after the laparoscopic surgery such bile leakage is a known complication. That, opponent no.2 with the assistance of opponent No.3 had therefore immediately on 25.11.2006 performed "open Cholecystectomy" to stop the said leakage after having obtained written consent of both the complainant and his sister Aarti Gaonkar. That, thereafter the complainant was kept as indoor patient with opponent No.1 for 15 days and his health had improved having no complaint of abdominal pain. He was therefore given discharge on 09.12.2006. That, as per the advise of opponent No.2 the C.C.No.:09-08 6 complainant visited the hospital on 26.12.2006 when he had no complaint of such stomach pain, and hence his drainage pipe was removed and the complainant was advised to visit hospital after every 15 days, however he failed to visit as per the advise given.
3 (d): That, complainant visited to the opponent No. 2 & 3 on 29.01.2007 with the same complaint of stomach pain. That, after clinical check up, it was found that, he had developed a jaundice as well as stricture in Common Bile Duct (C.B.D.). Thereafter opponent No. 2 & 3 referred the complainant to Dr. Vinay Thapar of K.E.M. Hospital, Mumbai for further treatment. That, thereafter the complainant did not turn up for treatment to opponent's hospital.
3 (e): It is contended that the complainant was given best possible treatment and there was no negligence on the part of opponents. It is further contended that even the contention of the complainant that Dr. Thaper had opined about first two operations as negligently done by the opponent Nos 2 & 3 has no basis. It is also stated that no disability can be occurred due to removing of Gallbladder. He therefore submitted that opponent Nos. 1 to 3 are not at all liable to pay any compensation to the complainant and that his complaint being false and baseless be dismissed.
4.: The opponent No.3 i.e. Dr. Kiran Gore by way of his written version supported the contention of opponent No.1. In his written version, he has specifically submitted that he had assisted opponent No.2 i.e. Dr. Satish Reddy in performing both operations along with pre and post operative treatment. He further contended that there is no any negligence on his and also on the part of opponent No.2 in giving medical service to the complainant and requested to dismiss the complaint.
5 (a): We have finally heard the complaint on 02.07.2013. Adv. Shri. A. V. Chaudhary was present for the complainant, whereas Adv. Shri. R. L. Kute was C.C.No.:09-08 7 present for opponent No.1 and Adv. Shri. S. A. Nagapurkar was present for opponent No.3. The opponent No.2 was already proceeded exparte. Both the parties have already submitted their written notes of argument which are briefed as under.
5 (b): Learned counsel Shri. A. V. Chaudhary for complainant contended, that the opponent No. 2 & 3 had without giving primary medical aid to the complainant, directly admitted the complainant in the hospital on 22.11.2006 and 'Laparoscopic surgery' was performed on 23.11.2006. Secondly, that even after Laparoscopic operation his abdominal pain continued and the complainant was re- explored by way of open surgery for biliary leakage which itself reveals that there was negligence on the part of opponent No.2 & 3. He further contended that performing of the double operation itself indicates that the opponent No. 2 & 3 had no sufficient knowledge and skill about the surgery. He also averred that even when pain in abdomen was not stopped the complainant was discharged on 09.12.2006. That, thereafter he had severe pain and hence USG report was obtained from which it was revealed that complainant had jaundice and C.B.D. stricture. The opponent Nos. 2 & 3 therefore referred him to Dr. Thapar from K.E.M. Hospital, Mumbai where he was under the treatment of Dr. Thapar from 31.01.2007 to 15.02.2007 during which period ERCP (Endeoscopic Retrograde Cholangiopancreatography) with biliary sphineterotomy with double biliary steinting was done. He was also given further treatment on 14.05.2007, 12.06.2007 and 13.08.2007. He was again operated for C.B.D. structure on 14.09.2007 and discharged from hospital. The learned counsel further submitted that opponent No. 2 & 3 have not done C.T. Scan, M.R.I. Scan of the complainant and thus not followed standard medical treatment and made diagnosis only on the basis of sonography which is not a final diagnosis. For this contention he relied on decision of Hon'ble National Commission in the case of-
Rohini Hospital and Anothers Vs. P. Shashikala and others, 3 (2008) CPJ 53 (NC). He also stated that opponent No.1 did not provide free service & was charged towards hospitalization and medical treatment including medicines. The learned C.C.No.:09-08 8 counsel Shri. Chaudhary thus contended that opponent No. 1 to 3 had acted negligently and they are liable to pay compensation as claimed by the complainant. In support of his above said contention he further relied on the following citations:
1) The judgment dated 01.09.2009 in F.A. No. 93/2004 passed by Hon'ble National Commission in case of Mrs. Dhanwanti Kaur Vs. Dr. S. K. Junjhunwala. In this case the Gallbladder of the complainant's husband was removed without consent of the complainant.
2) Samira Kohil Vs. Prabha Manchanda and another, AIR 2008 SC 1385. In this case also no consent of the complainant was obtained before surgery.
3) Extract of DNA in which it is expressed that "Hospitals must follow standard treatment".
5 (c): On the other hand, the learned counsel Shri. R. L. Kute for the opponent No.1 submitted that the present complaint is barred by the limitation. He further submitted that there is no medical expert report in support of the contention of the complainant about medical negligence by the opponent 2 & 3. He also contended that opponent No.2 & 3 have given best available medical treatment and acted diligently to treat the complainant. He also averred that due to the multiple calculi in the Gallbladder of the complainant it was necessary to remove the Gallbladder and the common method used i.e. 'Laparoscopic surgery' was performed by opponent Nos. 2 & 3. He further contended that such removal of Gallbladder does not affect the normal working of the human being. He also stated that the incident of the biliary leak after the Laparoscopic surgery is a known complication and hence opponent Nos. 2 & 3 can not be held responsible for the same. In fact, opponent Nos. 2 & 3 had immediately performed the open surgery of the complainant to stop the said leakage. That, both the operations were performed after giving required information about the possible complications to the complainant as well as his sister and after having obtained their written consent. The learned counsel Shri. R. L. Kute further contended that the development of C.C.No.:09-08 9 jaundice as well as C.B.D. stricture might have been caused due to naturally entering of Gall stone into veins. Therefore, the opponent No. 2 & 3 can not be held responsible for the same. He also averred that the opponent Nos. 2 & 3 have referred the complainant for treating the said complications to an expert Dr. Vinay Thapar from K.E.M. Hospital, Mumbai. He thus contended that opponent Nos. 1 to 3 have given proper medical treatment and performed the operation of the complainant strictly as per the general and usual procedure laid down by the Medical Council of India and there was no negligence as alleged by the complainant. Hence, the complaint being false and baseless be dismissed. In support of his above said contention he relied on following citations:
1. Mortin F. D'souza Vs. Mohmmad Ishfaq, AIR 2009 SC 2049, in which it is held by the Hon'ble Supreme Court that, "
medical practioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error or judgment in choosing one reasonable course of treatment in preference to another.
2. Saint Tarajee Khimchand and others, Vs. Yelamarty Satyan and others, AIR 1971 S.C. 1865, in which it is held that, even marking of a document as a exibit does not dispense with its proof.
5 (d): The learned counsel Shri. S. P. Nagapurkar appearing for opponent No.3 has also submitted his written notes of argument. In his said argument he has raised certain questions but not given his opinion. However in his oral argument he supported the argument as advanced by learned counsel Shri. Kute for opponent No.1.
6. We have carefully gone through the complaint, supporting documents with evidence affidavit filed by the complainant, the written version as filed by the C.C.No.:09-08 10 opponent Nos. 1 & 3 along with other evidence and affidavit and the written notes as well as the oral arguments as advanced by both the parties from which following important points arise for our consideration and decision.
POINTS ANSWER:
A) Whether the complainant has proved medical negligence
and deficiency in service on the part of opponents ? NO.
B) Whether the complainant is entitled to receive compensation
as claimed by him in his complaint ? NO.
The answers to the points raised above are given in negative for the reasons which follows:
A) (1) The complainant's contention that the opponents have given him negligent and deficient service is based mainly on the following three grounds:
a) That, opponent Nos. 2 & 3 without giving any primary medical aid to the complainant have directly performed "Laparoscopic surgery" and that too was unsuccessful because subsequent to the said surgery the complainant had a problem of biliary leakage for which he was required to under go open surgery.
b) That, following the two surgeries as performed by opponent No. 2 & 3 the complainant had developed further complication i.e. jaundice and C.B.D stricture. For the treatment of which the complainant was referred to Dr. Vinay Thapar at K.E.M. Hospital, Mumbai where he had to take repeated treatment causing him financial loss as well as mental and physical harassment.
c) As the opponents 2 & 3 were required to perform double surgery, they were not having sufficient knowledge and skill in respect of 'Laparoscopic and open Cholecystectomy' as performed by them on the complainant.
C.C.No.:09-08 11 (2) All the above said grounds on the basis of which the opponents have been charged of medical negligence and deficiency in service are not sustainable for the reasons given below:
i) First of all these charges are not supported by any cogent evidence. In this respect we have relied on the observations made by the Hon'ble Supreme Court in the case of-
C.P. Shrikumar (Dr) Vs. S. Ramanujam - (2009) SC. 730, wherein it is held that, "onus of proving medical negligence lies on the complainant. It is further held that the bald statement regarding medical negligence against the opponent Doctor can not be accepted. In the present case the complainant has not produced on record any expert evidence to prove medical negligence against the opponents as rightly pointed out by the learned counsel Shri. R. L. Kute for the opponent No.1. Although the complainant has mentioned in his complaint that Dr. Vinay Thapar from K.E.M. hospital had opined about unsuccessful operations as performed by the opponents 2 & 3, there is no such document regarding the opinion given by Dr. Vinay Thapar about the negligence by the opponents 2 & 3. Hence mere statement of the complainant to that effect can not be sustained and therefore not acceptable.
ii) From the extract of internet report on Gall stone and Gallbladder as published by the University of Marriland Medical Centre, it is observed that, the Gallbladder is a four inch sac i.e. resorvior where bile is stored. Bile is a fluid secreted from liver and used in the small intestine to digest the food we take. In Gallbladder some times stones are formed which causes severe abdominal pains associated with other complications. This forming of stones in the Gallbladder is a disease called as "Choleothiasis". The complainant had this disease which was diagnosed on the basis of sonography report prepared by Dr. Vikram P. Bade on 04.01.2006 and presented to the opponent Nos. 2 & 3 by the complainant himself. In this report there is a clear impression about Gallbladder calculi (stones). This fact was again got confirmed by the opponents 2 & 3 in their hospital by way of Ultra C.C.No.:09-08 12 Sonography on 16.11.2006 and 17.11.2006 as per which it was found that there were multiple calculli of the size of 7 to 9 mm and the decision of removing Gallbladder was taken. Hence, we don't find any negligence on the part of opponent No.2 & 3 in removing the gallbladder of the patient.
iii) As per the said extract of internet report, the Laparoscopic surgery is most commonly used method, because after this operation the patient can leave the hospital earlier compared to open surgery, the incisions are small, there are fewer complications and it is less expensive. The opponents 2 & 3 have thus rightly chosen this method for treating the complainant and it is only after getting the written consent from the complainant and his sister, the complainant was operated.
iv) As regards the biliary leakage after the "Laparoscopic surgery" of the complainant it is observed from the said extract that it is a known complication for which the opponents 2 & 3 can not be held responsible. In fact, the opponents 2 & 3 immediately acted to stop the said leakage by way of open surgery of the complainant and he was kept under observation upto 09.12.2006 & he was discharged from hospital with the direction to visit after every 15 days. But, the complainant visited only on 26.12.2006 when having confirmed that there were no pains to the complainant, his drainage pipe was removed & he was advised to take rest. It is not also the case of the complainant that he had any pains or other trouble at the time of discharge on 09.12.2006. That, it is only in the last week of Jan.2007 the complainant had made complaint about his pains and weakness etc. after having USG test of the complainant it was diagnosed that he had a trouble of obstructive jaundice and C.B.D. stricture. The said jaundice and CBD stricture as contended by the learned counsel for the opponent No.1 might have caused as the Gall stone naturally entered into the veins, for which both opponents 2 & 3 can not be held responsible. In fact, after having diagnosis about the jaundice and CBD stricture, the opponents 2 & 3 immediately by letter dated 29.01.2007 referred the complainant for further treatment to an expert Dr. Vinay Thapar from K.E.M. C.C.No.:09-08 13 Hospital Mumbai. Thereafter as is observed from the record he did not turn up to the opponents i.e. after 26.12.2006 till filing of complaint. Thus it is apparent that both the opponents 2 & 3 working with opponent No.1 had acted diligently and can not be said as acted negligently or given deficient service as alleged by the complainant.
v) It is further observed that the case laws as relied by the learned counsel for the complainant are not applicable to the present case as the facts and circumstances of those cases are different from those which existed in the case under reference. In the case of Mrs. Dhanwanti Kaur Supra, there was a biliary leakage to the complainant's husband after the operation, but no proper action was taken by the opponent doctor. In the present case however immediately after detecting the bile leakage, open surgery was performed and the said leakage was stopped. In the case of Samira Kohil Supra the Gallbladder of the complainant was removed without the consent of the complainant, which is not the case of the present complainant.
vi) On the other hand, ratio given in the case of- Martin D'Souza Vs. Mohd.
Ispaq (Supra) as relied by the learned counsel for opponent No.1 is applicable to the present case, in which it is held that, "a medical practioner is not liable to be held negligent simply because things went wrong for mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another."
vii) We also rely on the observations made by the Hon'ble Supreme Court in case of - Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre - 2010 (1) SCC 131 (NS). In this case it is observed by the Hon'ble Supreme Court that, as long as the doctor has performed his duties and exercised an ordinary degree of professional skill and competence, he cannot be held guilty of negligence. In the present case, the complainant has not proved that the opponents 2 & 3 have not exercised an ordinary C.C.No.:09-08 14 degree of professional skill and competency and therefore they can not be held guilty of medical negligence.
B) In view of the aforesaid facts and circumstances and also the observations made by Hon'ble Supreme Court in the cases as referred above, the complainant has failed to prove medical negligence or deficiency in service on the part of opponents and therefore the complainant is not at all entitled for any compensation as claimed by him in his complaint.
7. In view of the aforesaid facts and observations we are inclined to dismiss the complaint and hence we pass the following order.
-:: ORDER ::-
1. Compliant is dismissed.
2. No order as to cost.
(K. B. Gawali) (Mrs. Uma S. Bora) (S.M. Shembole)
Member Member Presiding Judicial Member
Kalyankar