State Consumer Disputes Redressal Commission
Dr.Anil J.Solunke, vs Matin S/O Abdulla Sattar, on 18 April, 2012
1 F.A.No. :690/2007
Date of filing:17.07.2007
Date of order:18.04.2012
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
F.A. NO.: 690 OF 2007
IN COMPLAINT CASE NO. : 119 OF 1999
DISTRICT FORUM : BEED.
1. Dr.Anil J.Solunke,
Through C/o Tirupati Hospital,
Shivaji Chowk, Beed,
Tq. & Dist.Beed.
2. Dr.S.P.Chavan,
R/o as above.
3. Dr.Yeshwant S/o Bhanudas Khose,
R/o as above. ...APPELLANTS
(Org.Opponents)
VERSUS
Matin S/o Abdulla Sattar,
R/o Khandak, Karanja Road,
Beed. ...RESPONDENT
(Org.Complainant )
Coram : Shri.D.N.Admane, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.S.N.Tandale for appellants, Adv.Shri.Vilas Joshi for respondent.
O R A L O R D E R Per Shri.K.B.Gawali, Hon`ble Member.
1. Present appeal is filed by the appellant No.1 to 3 who were original opponent No.1 to 3 against the judgment and order dated 22.5.2007 2 F.A.No. :690/2007 passed by Dist.Forum, Beed in complaint case No.119/1999. Present respondent is original complainant(herein after termed as "complainant") .
2. The reasons behind the emergence of this appeal are briefed are as under.
i) That, respondent/Org.Complainant`s deceased mother namely Ayeshabi w/o Abdul Sattar had throat pain and knowing the good reputation for expertise in ENT medical services of "Tirupati Hospital"
she was taken to the said hospital by his father and grandfather as on 2.9.1999. That, this hospital is owned and being run by appellant No.3 i.e. Dr.Yashwant Khose who is M.D.(Medicine), appellant No.1 Dr.Anil Salunke is 'ENT Specialist' and appellant No.2 i.e. Dr.S.P.Chavan is an 'Anesthetist'. It was contended by complainant that after having done medical check up by appellant No.1 she was advised throat surgery and having obtained consent of his father and her pathological report of blood and urine she was administered anaesthesia through appellant No.2 and surgery of throat was performed in between 4.30 to 5.20 p.m. on same day i.e. 2.9.99 . That, after her surgery she was died at about 5.50 p.m.
ii) It was contended by the complainant that respondent Dr.Solunke did not take proper care during the surgery which resulted into the unfortunate death of his mother. It was also alleged that there were no medical facilities available in the hospital which were necessary for surgery. Operation theater was not well equipped. There was no other surgeon available and only appellant No.1 & 2 performed the surgery negligently without taking proper precautions. Thus, complainant alleged that the death of his mother was caused due to negligence of appellant 3 F.A.No. :690/2007 No.1 to 3. Complainant has further alleged that on the day of surgery he was out of station and therefore appellant No.1 to 3 by adopting pressure tactics through police on his father and grandfather got the papers prepared as per their own will and wish and managed to perform funeral of dead body hastily without having done post mortem.
iii) It was further submitted that after he returned back he came to know all details of the incident and therefore sent legal notice dated 9.9.99 to the appellant No.1 to 3 alleging them to have caused the negligence for the death of his mother and claimed compensation of Rs.5 lakhs. That, in reply to the said notice the appellants admitted to have performed surgery and also that the deceased Ayeshabi had taken treatment since last 2 years. It was further stated by the respondent that the appellant No.1 contended that death of his mother was due to sudden non-functioning of heart during her unconsciousness and that the relative of the deceased did not disclose about her problem of B.P. It was therefore contended by complainant that appellant No.1 had knowledge about her health. It was therefore alleged that death of his mother was due to negligence and lapses in surgery as performed by appellant No.1 to 3. He further submitted that due to death of his mother he himself and father have to carry the burden of upbringing of his two brothers and six sisters. Hence he approached to the Dist.Forum and sought directions to appellant No.1 to 3 to pay him compensation of Rs.5 lakhs jointly and severally alongwith interest @ 18% p.a. from the date of filing of complaint.
3.i) Appellant No.1 to 3 appeared before the Forum and denied the claim. It was submitted that their "Tirupati Hospital" is well equipped and patients are given medical services through expert doctors. That, throat surgery of respondent`s deceased mother was performed in 4 F.A.No. :690/2007 between 4.30 p.m. to 5.15 p.m. on 2.9.1999 after her medical check up and after obtaining pathological report of blood and urine. It was contended that just after completion of surgery she died due to sudden stoppage of functioning of heart before she came out of influence of anesthesia. It was further submitted that when this was noticed by Dr.S.P.Chavan appellant No.2 , appellants had made every attempt for about 40 minutes so as to reinstate the functioning of heart but in vain. Therefore it was contended that there was no negligence on their part.
(ii) It was further contended by the appellants that immediately after death the concern police were informed in the writing and were requested for post-mortem of the dead body but the father and brother of the complainant i.e. present respondent refused for post-mortem and also submitted that they had no complaint against the appellants and the death was natural. It was also averred that the relatives of the deceased did not give information about the existing trouble of B.P. which deceased had and when checked before surgery the B.P.was normal. Therefore they could not predict about the sudden incidence of death of the said patient. It was therefore contended that they were not at all liable to pay any compensation as claimed by complainant.
4. Dist.Forum after going through the papers and hearing the parties partly allowed the complaint and by way of it`s impugned judgment and order has directed the appellant No.1 to 3 jointly and severally to pay compensation of Rs.1,50,000/- alongwith interest @ 6% p.a. from the date of filing of complaint and also Rs.20,000/- towards mental agony and cost of complaint.
5)(i) Aggrieved and dissatisfied with the said order this appeal is filed in this Commission. Notice was served on the respondent. Appeal was fixed 5 F.A.No. :690/2007 for final hearing on 28.2.2012. Adv.Shri.S.N.Tandale was present for the appellant whereas Adv.Shri.Vilas Joshi was present for respondent. We heard both the counsels at length and appeal was closed for orders.
ii) Learned counsel for the appellant Shri.Tandale submitted that "Tirupati Hospital" where deceased mother of respondent was treated is well equipped hospital. Appellant doctors are expert in their field. That, deceased was admitted in the said hospital to treat her chronic throat pain. That after taking her blood and urine tested and having confirmed they were normal, her tonsils operation was performed with the consent of her relatives. It was submitted that just after the completion of operation at about 5.20 p.m. deceased got sudden cardiac arrest. Her B.P. was not recordable, her pulse were not felt and inspite of attempts made continuously for about half an hour she was declared dead at 5.50 p.m. on the said date. Learned counsel Shri.Tandale further submitted that immediately after death police were informed and requested for to arrange for post-mortem. However relatives present at the spot specially husband of deceased namely Shri.Abdul Sattar and her son namely Shri.Kaleem S/o Abdul Sattar did not allow to conduct the post-mortem and admitted that they have no complaint against anyone about her death. It was further contended by Adv.Tandale Criminal Case No.1639/99 was filed in the Chief Judicial Magistrate. Local Crime Branch, Beed was directed for investigation vide order dated 27.10.1999. Accordingly matter was investigated by Police Inspector Shri.Arun Nikam on the request of investigation officer and expert committee of three independent doctors from Government Medical College, Ambejogai was appointed which consisted of i) Dr.A.D.Shinde, Professor and Head of E.N.T.(Department)-President ii) Dr.S.G.Chavan, Associate Professor and Anesthesia Department-Member iii) Dr.T.K.Kamble, Associate Professor, Medical Science-Member for giving their opinion. As per expert 6 F.A.No. :690/2007 committee`s report there is no negligence on the part of appellant doctors. Thus criminal complaint came to be dismissed by the order dated 26.4.2000 passed by Chief Judicial Magistrate. Learned counsel thus contended that complainant has not proved negligence on the part of opponent doctors. However Dist.Forum without considering the facts on record has wrongly passed the impugned judgment and order. Hence said order be quashed and set aside. In support of his above said contention he relied on following citations.
A) Anju Sharma & Anr. -Vs- Dr.D.Sinha & Ors. reported in IV(2011) CPJ 263(NC), B) Nalini -Vs- Manipal Hospital & Anr. reported in IV(2011) CPJ 280(NC), C) Meera Devi -Vs- Arun Kumar chaudhary (Dr.) and ors., I(2011), CPJ 116(NC), D) Kusum Sharma & Others -Vs- Batra Hospital & Medical Research Centre & Others, 2010 NCJ 449(SC), E) Dr.C.P.Sreekumar ,M.S.(Ortho) -Vs- S.Ramanujan, 2009(3) CPR 257(NC), F) Mrs.Indira Kartha & Ors. -Vs- Dr.Mathew Samuel Kalrickal & Anr. , 2002 NCJ 199(NC), G) K.S.Bhatia _ Vs- Jeevan Hospital , 2004 NCJ 37(NC), H) Martin F.D`Souza -Vs- Mohd.Ishfaq, 2009(1) CPR 231 (NC).
iii) On the other hand, learned counsel Shri.V.P.Joshi for the respondent submitted that appellants have nowhere mentioned about the non-disclosure of trouble of B.P. to the deceased by the complainant except in written version. It was contended that frequent reading of the B.P. was taken by the appellant which revealed that B.P. of deceased was normal. As regards facility available in the hospital he contended 7 F.A.No. :690/2007 that there was no documentary evidence on record as submitted by the appellants to prove that same was well equipped. It is also alleged by the learned counsel that case papers of the patient were prepared after death of patient Ayeshabi. It is submitted that blood and urine of the deceased Ayeshabi was got tested on 2.9.1999 but medical papers shows that same was tested on 1.9.1999. Secondly anesthesia notes are found after the operation notes. Therefore learned counsel Joshi contended that said papers are fabricated. It is specifically pointed out by learned counsel that operation started at 4.30 p.m. and ended by 5.15. p.m. but anesthesia dose was given at 5.15 p.m. Therefore he contended that due to heavy dose of anesthesia patient must have died. Secondly it is also contended that when B.P. taken at 5.15 p.m. it was normal. Contention of appellants that B.P. was not recordable at the same point of time i.e. 5.20 p.m., cannot be accepted. Learned counsel also submitted that tonsils removed were required to be sent for hystopathalogy but same was not done by the appellants. He further alleged that appellants have given heavy doses of 'adrenaline' injection and 'atropine' injection than medically recommended in between 5.20 p.m. to 5.50 pm. Learned counsel Shri.Joshi thus contended that it was only because of negligence act as mentioned above on the part of appellants complainant`s mother had lost her life. In support of his contention he has relied on following citations.
a) Kamini Jain -Vs- Dr.Padma Parakha &Anr. , II(2005) CPJ 583,
b) Sandeep Agrawal & Ors. -Vs- Modern Medical Institute & Ors. II(2005) CPJ 601,
c) Sunderavelu & Anr. -Vs- Dr.(Mrs.) Vijayalakshmi & Anr.
II(2005) CPJ 766,
d) Sunandabai Y.Patil -Vs- Dr.B.L.Patil II(2005) CPJ 772,
8 F.A.No. :690/2007
e) Mr.Ankush Vithoba Dhokale -Vs- Dr.Anant Dinkar
Bhosale & Anr. decided by Maharashtra State
Commission, Mumbai in C.C.No.88/1997 vide order
dated 10.08.2010,
f) Poonam Verma -Vs- Ashwin Patel & Ors. decided by
Hon`ble Apex Court in Revision petition No.184/1992.
6. We have carefully gone through the record and gave our anxious thoughts to the oral submission as put forth by the learned counsel of both parties. Main allegations of org.complainant is carelessness and negligence on the part of appellant doctors in treating his deceased mother. Forum below has held appellant doctors have committed negligency and deficiency in service and therefore awarded compensation against them. We have therefore to decide whether there was negligence on the part of appellants and whether order of Dist.Forum is just and proper.
7. Perusal of the case papers pertain to the treatment of deceased it is reveals that she had throat pain and Dysphagia from last six months and after examination appellant No.1 i.e. Dr.Anil Salunke who is E.N.T. Specialist diagnosed the patient as having "chronic follicular tonsils with dysphagia under investigations" and therefore advised the surgery. It is further observed that after having done routine investigation such as HB, TLC, DLC,BT, CT, Blood, Sugar, Urine etc. patient was taken for surgery. We find that no special investigations in respect of "Dysphagia" were carried out. Literature available on internet reveals one or more test such as a) Endoscopy, b) Esophageal manometry, c) X-rays of neck, chest or abdomen and d) Barium swallow were required to be done before going for surgery. Secondly the treatment for "Dysphagia" as per literature is (a) application of drugs , b) exercise, c) procedures that open 9 F.A.No. :690/2007 esophagus , d) surgery. Surgery is justified only when there is tumour or other obstructions. There is no evidence on record to show that there was tumour or any other obstruction in the throat of the deceased. We therefore feel that surgery of the deceased was done without having done the above said investigation and without proper thought. It is also to be noted that when it was diagnosed that deceased had "chronic follicular tonsils" what attempts were made to control the infection. In fact when there was infection in the tonsils how surgery was advised without controlling infection. It can therefore construed that this fact was not considered before going for surgery.
8. From perusal of anesthesia notes it is observed that, the first dose of 'Pavlon' injection of 4 mg. was given at 4.00 p.m. and last dose of same injection with 1 mg. is given at 5.15 pm. As per operation notes, the operation was performed in between 4.30 p.m. to 5.15 p.m. The point is, when surgery was finished by 5.15 p.m. what was the necessity for the dose of Pavlon injection at 5.15 p.m. There is no explanation in this regard on record. In absence of such explanation we therefore find that this additional dose of anesthesia after completion of surgery can be said to be a carelessness on the part of anesthetist doctor i.e. appellant No.2 which has also been contended by learned counsel Shri.Joshi for respondent. In fact appellant No.2 should have given reversible anesthetic drug after operation so as to bring the patient out of anesthesia. Thus this action on the part of appellant certainly adds to their negligence.
9. It is also observed that there is no record to show that operated part of tonsils was sent for hystopathological examination so as to know the exact cause of death of the deceased. This non-action on the part of appellant also amounts to their carelessness and negligency.
10 F.A.No. :690/200710. Learned counsel Shri.Tandale for the appellants contended that committee of the expert doctors was appointed by J.M.F.C. to help police investigation in criminal case No.1639/99 and has opined that there was no negligence on the part of appellant doctor and further contended that even criminal case as filed by the complainant however has been dismissed by J.M.F.C., Beed on 26.1.2000. In fact both these documents can not help the appellants as there is no final and firm opinion given by Committee. Secondly while deciding criminal case the J.M.F.C. court has observed that as post-mortem was not done the cause of death was not recorded. Therefore in the absence of any evidence on record said criminal case was dismissed which does not relieve the appellant doctors from their civil liability. The ratio given in various citations as relied on by learned counsel Shri.Tandale is also not found exactly applicable in the present case as the circumstances of the same are different from that of the cases cited above.
11. It is further noted that appellant No.1 has mentioned in the notice given in the complaint the fact of B.P. to the deceased was not disclosed to him and as B.P. at the time of admission of deceased was normal he could not predict about the said unexpected incident. In fact by making such statement what the appellant No.1 wanted to prove is not understood. It is revealed from the record that the B.P. was normal. Hence the appellants cannot be get away from their liability.
12. We further considered the definition of "medical negligence" as referred in the judgment cited at serial No. "f" by learned counsel Adv.Shri.Joshi for the respondent. It is stated that "negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do or doing something which a prudent and 11 F.A.No. :690/2007 reasonable man would not do". In the present case without investigating the exact cause of Dysphagia and without controlling infection of the tonsils the surgery was performed which amounts to breach of duty caused by omission of the act required to be done. Secondly, dose of anesthesia given after completion of surgery which was not required to be done. Thus both these acts do construed negligency on the part of appellant. Ratio given in the citation at serial No.(b) stands applicable in the present case because in the said citation without proper investigation medicines were prescribed and further heavy doses than required were given to the patient which resulted into permanent disability of the patient/complainant.
13. All the above said facts and observation does lead to the conclusion that appellants have acted negligently and committed deficiency in service, hence are liable for compensation jointly and severally. There is no merit in this appeal and therefore we have to upheld the judgment and order passed by the Dist.Forum. As regards quantum and compensation awarded by Dist.Forum we find it reasonable considering the extent of negligency and nature of consequences which the family members of the deceased Ayeshabi had to bear. In the result we pass the following order.
O R D E R
1. Appeal is dismissed.
2. No order as to cost.
3. Copies of the order be sent to both the parties.
12 F.A.No. :690/2007
K.B.Gawali D.N.Admane,
Member Presiding Judicial Member
Mane