State Consumer Disputes Redressal Commission
Dr. Umakant S/O. Nandkishor Chandak vs Ashabai W/O. Narayan Bulange on 18 December, 2012
F.A.No.:437,438-07
1
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD
Date of filing : 25.05.2007
Date of Order: 18.12.2012
(1)
FIRST APPEAL NO.: 437 OF 2007
IN COMPLAINT CASE NO.: 217 OF 2006
DISTRICT CONSUMER FORUM: PARBHANI.
Dr. Umakant S/o. Nandkishor Chandak
R/o. Chandak Hospital,
Near Bus Stand, Parbhani. ...Appellant
(Org. Opponent)
-Versus-
Ashabai W/o. Narayan Bulange
R/o. Shakar Nagar, Parbhani. ...Respondent
(Org.Complainant)
(2)
FIRST APPEAL NO.: 438 OF 2007
IN COMPLAINT CASE NO.: 217 OF 2006
DISTRICT CONSUMER FORUM: PARBHANI.
Ashabai W/o. Narayan Bulange
R/o. Shakar Nagar, Parbhani. ...Appellant
(Org.Complainant)
-Versus-
Dr. Umakant S/o. Nandkishor Chandak
R/o. Chandak Hospital,
Near Bus Stand, Parbhani. ...Respondent
(Org. Opponent)
Coram : Mr. B. A. Shaikh, Hon'ble Presiding Judicial Member
Mr. K. B. Gawali, Hon'ble Member Present: Adv. Shri. S. N. Welankar for appellant/Org. opponent in F.A. No.437/2007 & Respondent in F. A. No.438/2007.
Adv. Shri. M.P. Kale, for respondent/Org. Complainant in F.A. No.437/2007 & Respondent in F. A. No. 438/2007.
- :: ORAL ORDER ::-
Per Mr. B. A. Shaikh, Hon'ble Presiding Judicial Member
1. Both these appeals are being decided by this common judgment and order as they arise out of the same judgment and order dated 27.04.2007 passed by District Forum, Parbhani in C.C. No. 217/2006 by which the complaint has been partly granted.
F.A.No.:437,438-07 2
2. The original complainant is the appellant in Appeal No.438/2007 and respondent in counter Appeal No. 437/2007. She filed a complaint before the District Forum, Parbhani. She made allegations in that complaint in brief that, the deceased Narayan Bulange was her husband. He was suffering from minor problem of Harniya and therefore he went to the hospital of original opponent Dr. Umakant Chandak (herein after referred to by name) on 29.11.2004 at 5.30 p.m. Dr. Umakant Chandak examined him and prescribed some medicines which were brought and thereupon the Dr. Umakant Chandak injected medicine to him (Narayan Bulange). Thereafter Dr. Chandak (Org.opponent) admitted Narayan Bulange in his hospital on the next day i.e. 30.11.2004 at 3.30 to 3.50 p.m. The said doctor Dr. Chandak performed surgical operation on left scrotum of deceased Narayan Bulange. The said Narayan was conscious at 6.30 p.m. He was normal till 12.30 mid night. On 01.12.2004 i.e. on the following day of the operation, at about 6.15 a.m., deceased Narayan Bulange had pain in his stomach. Therefore that information was given to Shobhabai, who was the nurse of that hospital. The said nurse gave information to Dr. Chandak on telephone. The said doctor did not personally visit to hospital, but on phone instructed nurse Shobhabai to inject medicine to deceased Narayan Bulange. The said nurse injected medicine to deceased Narayan Bulange. Thereafter Narayan Bulange did not speak. On that day at 8.30 a.m. the daughter of the complainant tried to wake up Narayan Bulange but he gave no response and hence the nurse Shobhabai Kirtane was contacted and that information was given to her. She said that she gave injection of Sedation to deceased Narayan, therefore he might be in sleep. Thereupon at 10.30 a.m. on that day Dr. Chandak attended the said Narayan and he checked him and asked complainant's daughter to bring his relative. That information was given to the complainant and she came to that hospital and met Dr. Chandak. At that time Dr. Chandak said that condition of Narayan was critical. The relatives of the complainant and some professors of D.S.M. College gathered there and at that time Dr. Chandak told them that, Narayan died at 5.00 a.m. due to heart attack. Dr. Chandak also intimated police about the death of the Narayan Bulange, due to heart attack. However, the death of Narayan was occurred due to negligence of the opponent Dr. Chandak. Hence, the complainant lodged report with the police. Crime No.229/2004 was registered against Dr. Chandak. Police prepared panchnama of his dead body in Civil Hospital, Parbhani and Post Mortem examination was done. The Civil Surgeon of Civil Hospital, Parbhani examined the medical case papers and gave opinion that the E.C.G. of Narayan Bulange was not taken before operation and that the case paper do not show which injection was given by nurse to F.A.No.:437,438-07 3 Narayan Bulange and it is not stated in the police report by Dr. Chandak on what basis who gave opinion about cause of death as heart attack. The Post Mortem report do not show symptoms of heart attack and therefore the complainant filed the complaint and claimed total compensation of Rs.19,50,000/- from the opponent Dr. Chandak on account of the death of her husband Narayan Bulange due to his negligence. She also claimed Rs.40,000/- towards mental agony.
3. Dr. Chandak (org. opponent) filed written version and denied the claim. He admitted that, the deceased had approached to him for problem of Harniya and after clinical examination on the basis of investigation he diagnosed "Epididynal Cyst Left Side" and therefore as per his advised the sonography was done for confirmation of diagnosis and accordingly it was not so diagnosed. He further submitted that the tests for blood sugar and hemoglobin were also carried out in Ganesh Pathology Laboratory and the test report was normal. Accordingly on 29.11.2004 the deceased Narayan Bulange was admitted for surgery in his hospital. The surgery was posted on 30.11.2004. Two doctors namely Dr. Ghute and Dr. Zarkar were also called and after examination of surgical fitness, the spinal anesthesia was given to the deceased by Dr. Ghute. The said opponent Dr. Chandak along with the Dr. Zarkar operated upon deceased Narayan Bulange. The intra operative and post operative period was uneventful and surgery was successful. In the evening, the respondent Dr. Chandak examined the patient Narayan Bulange and found his vital organs as normal and good. On 9.30 p.m. he was talking and he was advised to take water and tea which he had taken comfortably and he was talking till 12.30 a.m. mid night. On the following morning i.e. 12.01.2004 at about 6.15 to 6.30 a.m. Narayan Bulange had complained about stomach pain and that the duty nurse Shobhabai Kirtane informed the said fact to Dr. Chandak on telephone. Therefore he gave instruction to her to give him intramuscular injection Diclofenac i.e. pain killer. Therefore she gave one ample of the said injection to him. It has no side effect. It is denied that said Shobhabai has said that said injection of Sedation was given to Narayan Bulange. It is also denied that Dr. Chandak declared that Narayan Bulange died at 5.00 a.m. Complaint was lodged after gap of 25 days to the police because of instigation of relatives of the deceased due to their misunderstanding. Echocardiography reports were not called as the anesthetist did not ask for the same. The operation was successful and hence calling of those reports does not arise. The Civil Surgeon who examined the papers does not give any opinion about the negligence on the part of the doctor. Post Mortem report does not disclose cause of death. From the post mortem report F.A.No.:437,438-07 4 no negligence on the part of doctor is proved. The death of the Narayan Bulange appears to be natural. It is denied that the respondent doctor declared that the Narayan died at 5.00 a.m. It is also denied that nurse Shobhabai gave wrong injection which caused the death of Narayan Bulange. The death of Narayan Bulange might have occurred due to heart attack and his death has no nexus with diagnosis, treatment and the surgery. Therefore it is submitted by the opponent No.1 i.e. appellant in Appeal No. 437/2007 Dr. Chandak that the complaint may be dismissed.
4. Both the parties have adduced their respective evidence before the District Forum below. The arguments of respective advocates were also heard by the District Forum below. The District Forum below passed the impugned judgment and order and thereby partly granted the complaint. It observed that the opponent Dr. Chandak did not adduce any evidence to prove that the Shobhabai Kirtane was duly trained nurse and therefore it can not be ascertained that she had given the same injection namely Diclofenac to Narayan Bulange as per instruction of Dr. Chandak. The District Forum below also observed that, it can not be ruled out that the Shobhabai was untrained nurse and there was some mistake on her part in giving injection to Narayan Bulange. It also observed that it will not be proper to come to the conclusion that, the death of Narayan Bulange was caused only because of giving incorrect injection to deceased Bulange by the said nurse. But it is proved from on going facts that during the post operating treatment the required care was not taken. The opponent Dr. Chandak ought to have immediately attended the deceased Narayan at 6.15 p.m. when the Shobhabai had informed him on phone about the feeling of pain by deceased Narayan Bulange. The deceased Narayan was admitted in the hospital of Dr. Chandak under his supervision after the operation and therefore it was necessary for him immediately to examine Narayan Bulange after receiving complaint of stomach ache, but without doing so he gave instruction on phone to the nurse for giving him pain killer. Therefore it came to conclusion that negligence on the part of Dr. Chandak is proved. It also observed that had Dr. Chandak immediately examined Narayan Bulange, his life might have been saved by detecting heart attack, if he died due to heart attack. District Forum below also observed that there is no entry recorded on case paper which injection was given by Shobhabai to Narayan Bulange on receiving instruction on phone. The District Forum also observed that compensation of Rs.19,50,000/- claimed by the complainant can not be granted. It assessed compensation of Rs. 1,00,000/- as just and proper on account of death of Narayan. It granted the said compensation along with the compensation of Rs. 5000/- towards mental F.A.No.:437,438-07 5 harassment and Rs.1000/- cost of the complaint. It gave direction to opponent Dr. Chandak to pay the said compensation to the complainant.
5. Advocates of both the sides advanced common argument in both the appeals. It is submitted by Mr. S. N. Welankar appearing for the original opponent Dr. Chandak i.e. appellant in Appeal No.437/2007 that the deceased Narayan Bulange died due to pulmonary edema and his cause of death has no nexus with diagnosis, operation and treatment. He also relied upon the case law's which will be discussed in later course of this judgment. He also submitted that there is no expert evidence to prove the medical negligence and that District Forum has not properly considered the evidence and hence complaint may be dismissed.
6. On the other hand, Adv. Shri. M. P. Kale for original complainant Ashabai Bulange submitted that, the Narayan Bulange died due to giving of some wrong injection other than Declofenic to the deceased Narayan as she was untrained nurse. He also submitted that admittedly Dr. Chandak did not attend the said Narayan Bulange after information on phone was given to Shobhabai about the stomach ache of Narayan Bulange. According to him there was post operative negligence on the part of Dr. Chandak. He also submitted that the cause of death is shown as pulmonary edema and there is no cause of death due to heart attack as opined by Dr. Chandak. He also submitted that District Forum below has rightly come to the conclusion about the post operative negligence on the part of Dr. Chandak but compensation ought to have been granted on the basis of loss sustained by the complainant. He has drawn our attention to the salary certificate of deceased Narayan Bulange showing his income. He has also relied upon case laws which will be discussed in the later course of this judgment.
It is not disputed that, on clinical examination of deceased Narayan Bulange and after getting done basic investigation, "Epididymal Cyst left side" was diagnosed. He also referred the deceased Narayan Bulange for confirmation of the diagnosis to Dr. Mahidarkar of Suvidha Diagnostic Centre who did colour Doppler test and gave remark of "Multiple Epididymal Cyst on left side". After receiving that report Dr. Chandak advised deceased Narayan Bulange for surgery and thereafter the blood sugar and hemoglobin test was done in Ganesh Pathology Laboratory and report was normal. Thereafter on 29.11.2004 deceased Narayan Bulange was admitted in hospital of De. Chandak for surgery and actual surgery was done on 30.11.2004 by him in his hospital. The deceased Narayan Bulange died on 01.12.2004 in that hospital. The report of his death was given by Dr. Chandak to the police and thereupon the post mortem examination on the dead body of deceased Narayan Bulange was done by F.A.No.:437,438-07 6 two Medical Officer's. The said two Medical Officer's after doing the said post mortem examination issued the report. No cause of death is given in that report but opinion of the same was reserved as Viscera was preserved for chemical analysis and hysto pathological report.
7. It is seen that in this appeal the appellant produced Chemical Analysis report showing that no poison was detected in Viscera of the deceased Narayan Bulange. Moreover, the appellant also produced the copy of the cause of death certificate issued by two Medical Officer's who did the post mortem. It is stated in that report that in view of the post mortem finding, report of Chemical Analyzer and Hysto pathological report in M.L.C. and post mortem of Narayan Madhav Bulange, his probable cause of death is due to "Pulmonary Edema".
Medical text and authorities clearly spell out that; Pulmonary edema is an abnormal buildup of fluid in the air sacs of the lungs, which leads to shortness of breath. Pulmonary edema is often caused by congestive heart failure. When the heart is not able to pump blood to the body efficiently, it can back up into the veins that take blood through the lungs to the left side of the heart.
As the pressure in these blood vessels increases, fluid is pushed into the air spaces (alveoli) in the lungs. This fluid reduces normal oxygen movement through the lungs. This and the increased pressure can lead to shortness of breath.
8. The certificate produced before us showing cause of death of Narayan Bulange was "Pulmonary edema" can be accepted as it is issued by the two Medical Officers who did the post mortem examination. The said opinion supports the defense of Dr. Chandak that deceased Narayan Bulange died due to heart attack, as the pulmonary edema as discussed above is often caused by congestive heart failure. The original complainant has not produced any expert opinion in support of her case that death of Narayan Bulange was caused due to failure of Dr. Chandak in taking proper care during post operation period. It is not the case of the complainant that, there was any negligence of Dr. Chandak in doing the surgical operation on 30.11.2004. On the contrary, the complaint shows that the condition of Narayan Bulange was normal after the said operation. It is the case of the complainant that the cause of death given by Dr. Chandak as heart attack is wrong as there were no symptoms of heart attack. There is no expert evidence showing that there was any negligence on the part of Dr. Chandak. The cause of death of Dr. Chandak which has come on record is "Pulmonary F.A.No.:437,438-07 7 edema." There is no nexus in between the said cause of death and treatment given to the deceased Narayan Bulange by Dr. Chandak in his hospital.
9. The Civil Surgeon simply opined on going through the medical case papers that there is no entry of E.C.G. or opinion of physician was taken before operation that, there is no record which injection was given by the nurse to Narayan Bulange and that no reason is ascertained on which basis Dr. Chandak gave his opinion that Narayan Bulange died due to heart attack and in Post Mortem Report cause of death is not shown. However, said Civil Surgeon also opined that it is not possible to give opinion as to whether Narayan Bulange died due to negligence of Dr. Chandak and hence he suggested that to obtain any such opinion, report be called from Divisional Medical Board. No such report was obtained from the Divisional Medical Board as suggested by the said Civil Surgeon in his report.
10. The advocate of original complainant i.e. appellant in Appeal No.438/2007 as relied upon following citations:
i) Nizam Institute of Medical Sciences Vs. Prasanth S. Dhanakha & Ors, reported in 2009 STPL (LE) 41898 SC.
It is observed that, in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.
ii) Achutrao Haribhau Khodwa and Others, Vs. State of Maharashtra & Others, reported in 1996 STPL (LE) 23111 SC.
It is observed that, once death by negligence in the hospital is established, the State would be liable to pay the damages and that the High Court clearly fell in error in reversing the judgment of the trial court and in dismissing the appellant's suit.
iii) Dr. Uttamrao Bhimrao Pati Vs. Chaitanya Sanjay Pawar, in F.A. No.995/2006 of State Consumer Dispute Redressal Commission, Mumbai Circuit Bench at Aurangabad decided on 22.12.2011.
In that case appeal was preferred against order under which appellant doctor was held liable for medical negligence. In that case appellant doctor had left F.A.No.:437,438-07 8 the hospital immediately after surgery and Blood pressure of the deceased was not controlled by appellant doctor and he had also avoided producing case papers before the expert to decide the medical negligence and hence appeal was dismissed.
iv) S.H. Sharma Vs. Indraprastha Appollo Hospital & Anr, reported in 2007 (2) CPR 76 (NC) In that case due to carelessness in post operative treatment, the complication arose and complainant lost his eye sight. The medical expert opinion established negligence in treatment given by doctor during post operative stage. Therefore compensation was granted to the complainant.
11. On the other hand, the advocate of the Dr. Chandak appearing in Appeal No.437/2007 relied upon the following decisions:
i) K. S. Bhatta V/s. Jeevan Hospital, 2003 (3) CPR 110 (NC).
It is held that, in cases of medical negligence, specific act of negligence has to be alleged and then proved and also as to how that amounts to negligence.
ii) Mrs. Kiran Bala Rout Vs. Christian Medical College & Hospital & Ors, 2003 (1) CPR 238 (NC) It is held that, Medical negligence must be established and not presumed. In the absence of expert evidence on behalf of the complainant, no negligence or deficiency in service could be found against affidavits by the doctors.
iii) Ms. Swati Prakash Patil Vs. Dr. Kiran Rajaram Vanrase & Anr, 2006 (2) CPR 370 It is held that, unless it is a case of "Res ipsa Liquitor", the duty is cast on complainant to establish that there was Medical Negligence on the part of the doctors treating the patient to be proved by expert evidence.
iv) M/s. Upasana Hospital & Anr, reported in 2007 (2) CPR 145 (NC) It is held that, there is no case of post operative medical negligence proved by the complainant by leading any expert evidence and hence State Commission fell in error for granting compensation on that ground.
F.A.No.:437,438-07 9
v) Mrs. Varsha Priya Vs. Dr. Sushma Pandey & Anr. Reported in 2009 (2) CPR 221 (NC) It is held that, in case of Medical negligence, burden lies on complainant to prove the same. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence.
vi) Master Nitish Sethi & Ors, Vs. Dr. Naresh Trehan & Ors, reported in 2009 (2) CPR 285 (NC).
It is held that, mere allegations of apprehensions, conjectures, and surmises can not be relied upon unless they are corroborated with evidential value to conclude that there is negligence on the part of opposite parties.
vii) Baljinder Singh Vs. National Insurance Co. Ltd. And Ors, reported in 2011 (2) CPR 372 (NC) It is held that, Medical negligence cannot be presumed and has to be proved by complainant.
viii) Radhashyam Pratapsingh Vs. Women's Clinic & Nursing Home, reported in 2011 (4) CPR 230 (NC) It is held that, Question of medical negligence has to be ascertained by Expert Team.
ix) Mrs. Nalini Vs. The chief Cardiac Surgeon, Manipal Hospital & Anr, reported in 2011 (4) CPR 157 (NC) It is held that, in complicated cases, without support of any expert's opinion, complainant's case of alleged medical negligence cannot be accepted only on the basis of his affidavit or some entries in medical record.
12. We have gone through the aforesaid decisions. We find that this is not a case to which the principle of "Res ipsa Loquitor" applies. The said principle is applied only when the things speak for themselves. No doubt deceased Narayan Bulange was admitted in the hospital of Dr. Chandak on 29.11.2004 for under going surgery and he died on 01.12.2004 after surgery was successfully done on 30.11.2004. However that can not itself prove that there was negligence on the part of Dr. Chandak, particularly when no allelgation is made about negligence in the said surgery and defence of Dr. Chandak about natural death is not rebutted by the original complainant by adducing any expert evidence. As discussed above F.A.No.:437,438-07 10 the cause of death shown as pulmonary edema, can be occurred due to congestive heart failure. As per medical text and authorities discussed above, congestive heart failure leads to heart attack, or any disease of the heart that weakens or stiffens the heart muscles. Pulmonary edema may be also caused by certain medications.
12. In the instant case, the District Forum below observed in the impugned judgment and order that it is not proved from the papers produced by the complainant that deceased Narayan Bulange died due to incorrect injection given to him by the nurse and that no conclusion can be drawn that Narayan Bulange died due to incorrect injection given by the nurse to deceased Narayan Bulange. We agree with the said observations of the District Forum below. In the absence of any material on record it can not be said that nurse Shobhabai had given incorrect or wrong injection to the deceased Narayan Bulange and due to that reason Pulmonary edema was caused to Narayan Bulange.
13. The District Forum below awarded compensation of Rs. 1,00,000/- to the complainant only because Dr. Chandak did not personally attend deceased Narayan Bulange after operation on next day of operation i.e. on 01.12.2004 when the nurse informed him on phone at 6.15 a.m. that deceased Narayan Bulange was having pain in his stomach and had he attended Narayan Bulange immediately, the life of the Narayan would have been saved, after detecting heart attack symptoms. In our view, the said conclusion drawn by the District Forum below is not convincing and proper. It is not the case of the complainant that Narayan Bulange had shown any symptom of heart attack in the early morning of 01.12.2004 and the said symptoms were brought to the notice of Dr. Chandak and in spite of that, he did not attend that patient. There was complaint of pain in the stomach and in natural course of conduct Dr. Chandak gave instructions to the nurse Shobhabai to Narayan namely Diclofenac to subside that pain. In our view when the District Forum below had come to the clear conclusion that, the deceased Narayan Bulange did not died due to any wrong injection given by the nurse to him, then at the same time no conclusion can be drawn without any basis merely on the basis of surmises that had Dr. Chandak personally attended deceased Narayan Bulange on 01.12.2004, life of deceased Narayan would have been saved. Hence the said conclusion drawn about post operative negligence on the part of Dr. Chandak is erroneous and not based on the facts on record. We thus find no negligence on the part of Dr. Chandak during post operative care of Narayan Bulange.
F.A.No.:437,438-07 11
14. We also find that the aforesaid decisions relied upon by the advocate of original complainant i.e. appellant in Appeal No.438/2007 are not applicable to the facts and circumstances to the present case discussed above as they are totally different from those of the said cases. The facts and circumstances of the cases relied upon by the advocate of appellant Dr. Chandak in Appeal No.437/2007 are identical to those of present case hence decision given therein are applicable to the present case.
15. In the result of the aforesaid discussion, we hold that the complainant has failed to prove that deceased Narayan Bulange died due to negligence on the part of Dr. Umakant Chandak i.e. original opponent. Hence, in the result we hold that, complainant has failed to prove deficiency in service provided by the original opponent Dr. Chandak to deceased Narayan Bulange. Secondly, the Appeal No.437/2007 filed by Dr. Chandak deserves to be allowed and Appeal No.438/2007 filed by original complainant Ashabai Narayan Bulange deserves to be dismissed. Hence,
-:: O R D E R ::-
1. The appeal No. 437/2007 filed by Dr. Umakant Chandak is allowed and Appeal No.438/2007 filed by original complainant Ashabai Narayan Bulange is hereby dismissed. Impugned judgment and order is set aside.
2. Consequently the Consumer Complaint No. 317/2006 is dismissed.
3. Both the parties shall bear their own cost.
4. Copies of this judgment and order be sent to both the parties.
(K. B. Gawali) (B. A. Shaikh)
Member Presiding Judicial Member
Kalyankar