State Consumer Disputes Redressal Commission
Amitbhai Laxmanbhai Patel vs Dr Usha L Maisheri on 30 September, 2021
Details DD MM YY
Date of disposal 30 09 2021
Date of filing 25 06 2010
Duration 05 03 11
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
COURT NO: 04
C.C. No. 40 of 2010
Amitbhai Laxmanbhai Patel
Resident of: Nani Dadri, Gadariya,
Valsad. ...Complainant
V/s.
1. Dr. Usha L. Maisheri,
Medical Practioner,
Ramdarshan, 1st floor,
Opp. Bhagini Samaj, Haler Road
Valsad.
2. Dr. Kavita P. Tandel,
Medical Practioner,
Ramdarshan, 1st Floor,
Opp. Bhagini Samaj, Haler road,
Valsad.
3. Dr. Kalpesh Joshi,
Medical Practioner,
C/o. Kasturaba Hospital,
Valsad.
4. The Director,
Muljibhai Patel Urological Hospital,
Nadiad.
5. The New India Insurance Co. Ltd.
Sardar Road,
Opp. Anand Municipality,
Anand.
6. United India Insurance Co. Ltd.
1st Floor, D.N. Complex Center,
Opp. Gandhi Library, Station road,
Valsad-396001. ...Opponents
BEFORE:Dr. J.G. Mecwan, Presiding Member.
Smt. Usha P. Jani, Member.
APPEARANCE: Smt. Preeti Joshi, L.A. for the complainant.
Mr. Dilip Kanojia, L.A. for the opponent no. 1 & 2,
Smt. Nitaben Shah, L.A. for opponent no. 3,
Mr. M.J. Shelat, L.A. for opponent no. 4 & 6,
Mr. C.A. Modi, L.A. for opponent no. 5.
Page 1 of 24
R.I. DESAI CC/40/2010
ORDER BY DR. J.G. MECWAN, PRESIDING MEMBER.
JUDGMENT
1. The present complainant- Mr. Amitbhai Laxmanbhai Patel has preferred this complaint under Section 12 of the Consumer Protection Act, 1986 for getting jointly and severally amount of Rs. 30,00,000/- on account of compensation for the loss of companionship (company) of his spouse and motherly love and care to complainant's two children with Rs. 10,00,000/- on account of physical and mental agony, shock and inconvenience caused to him and his two children and also prayed for the amount of Rs. 1,00,000/- costs towards of compliant from the opponents for the gross medical negligence and deficiency in service.
2. The facts given rise to the present complaint in nutshell are as under:
It is the case of the complainant that Mrs. Mallikaben Amitbhai Patel, the wife of the complainant, was pregnant since about April 2008 and she was then under the pre-delivery treatment of the opponent no. 1 Dr. Ushaban L. Maisheri. It is further the case of the complainant that during her pregnancy various tests of complainant's wife Smt. Mallikaben were got done and the tests showed that everything concerning her was normal. It is further the case of complainant that on 05-11-2008 his wife Mrs. Mallikaben experienced labour pain and therefore she was admitted in the hospital of opponent no.1- Dr. Page 2 of 24 R.I. DESAI CC/40/2010 Ushaben, at 15.00 hours on the same day and thereafter Caesarean section was done on complainant's wife by the opponent no.1 - Dr. Ushaban and the opponent no.2 - Dr. Kavita P. Tandel and thereafter on 06-11-2008 at 14.00 hours, a baby boy was born. But the caesarean section of his wife's bleeding did not stop and due to which several bottles of blood were given to the wife of the complainant. It is further submitted by complainant that the stitches of her wife revealed that the cut which was made for caesarian section was about 14 inches long which was abnormally large. Subsequently, his wife's condition became critical due to mishandling of her caesarian section in delivery case by the opponent no.1 & the opponent no. 2 which resulting into excessive and prolonged bleeding to his wife. It is further alleged by the complainant that the opponent no. 1 & 2 were unable to assess and stabilize his wife's condition and therefore the opponent no.1 - Dr. Ushaben advised the present complainant to shift his wife to Kasturba Vaidakiya Rahat Mandal Hospital at Valsad and referred the case to Dr. Kalpesh Joshi who is the present opponent no.3. Under the advice of the opponent no. 1 Dr. Ushaben, his wife Mallikaben was shifted to Kasturba Hospital on 07-11-2008 at 15.00 hours.
3. It is further the case of the complainant that after the admission of complainant's wife to Kasturba Hospital, Valsad, various tests and ultrasound was carried out on 10-11-2008 by Dr. Rahul Garasia and Page 3 of 24 R.I. DESAI CC/40/2010 reports clearly indicated that the Gall Bladder of his wife Smt. Mallika was totally collapsed with thickened wall, and lot of gas shadows were seen within endometrial cavity, and free fluid was also found present there and the said report itself was self explanatory also. It is further the case of the complainant that as the complainant being naturally much concerned and worried about his wife's health enquired from the opponent no.3 - Dr. Kalpesh Joshi about the true condition of Smt. Mallikaben and the causes which led her to that state of critical health, soon after her caesarian section delivery but Dr. Kalpesh Joshi refused to reveal any information and he continued various tests for HIV, Dengue, Leptospirosis, APTT etc. ( APTT was done every now and then). It is further stated by the complainant that Dr. Joshi even refused to disclose as to what was his wife's condition at the time of admission to Kasturba Hospital, Valsad, nor he told the complainant about the line of treatment that was decided at that time for the complainant's wife and the condition of the complainant's wife continued to deteriorate, in view of which the complainant asked Dr. Kalpesh Joshi to get CT Scan / MRI of his wife but Dr. Kalpesh Joshi dismissed the suggestion bluntly by saying that the same were not necessary in spite of the fact that the ultrasound report was very suggestive and he told the complainant that he is to look after the upper part of Smt. Mallika's body as the lower part of her body was already done by Dr. Usha Meisheri and Dr. Kavita Tandel. It is Page 4 of 24 R.I. DESAI CC/40/2010 further submitted by complainant that this remark of Dr. Kalpesh Joshi is indicative of his lack of basic understanding that the body of the patient was one-whole and the problems of the patient in the present case, whether they were of the upper part or the lower part, were inter related and when he too was not able to bring any improvement in the condition of the complainant's wife, to wash his hands off the case, he told the complainant that free fluid in Mallikaben's body was pressurizing on her kidneys and told the complainant to shift Mallikaben to Muljibhai Patel Urological Hospital at Nadiad, and the same was done by the complainant. Accordingly Mrs. Mallikaben was shifted to Muljibhai Patel Urological Hospital at Nadiad on 11-11-2008 at 06.00 hours.
4. It is further the case of the complainant that upon admission of Mallikaben to Muljibhai Patel Urological Hospital, Nadiad, her tests including ultrasound tests were got done by the doctors of that hospital and immediately CT scan was also carried out and the report clearly indicated that there was huge collection of blood in posterior perinephric space with foci of air on right side and this collection had caused compression over the right kidney, pushing it anteriorly and medially and up to the upper border of iliac bone. A fistulus connection with foci of air within was seen on right side extending from right lateral abdominal wall into collection. Mix heterogeneous density was seen in left posterior perinephric space suggesting large Page 5 of 24 R.I. DESAI CC/40/2010 collection of blood and it also indicated right side plural effusion. It is further the case of the complainant that at Muljibhai Patel Urological Hospital, Nadiad, Mallikaben was also given blood transfusion almost continuously but even doctors of that hospital were not telling the the line of treatment and the causes which made Smt. Mallikaben to get into such critical condition of health. It is further alleged by the complainant that due to the wrong diagnosis, improper treatment, negligence, and professional incompetence, first on the part of the opponent no.1 & 2 to handle his wife's case at the time of her caesarian section delivery, and thereafter professional incompetence, negligence and failure of the opponent no.3 - Dr. Kalpesh Joshi and the doctors of the opponent no.4-hospital to assess and stabilize Mallikaben's condition his wife Mallikaben, who was only 25 years of age and the prime of her youth, finally passed away on 02-12-2008 at 02.50 hours leaving behind her the complainant, 2½ years old daughter and a newly born baby boy who was not even one month old at the time of her untimely demise. The causes of death, certified on form no.8 Medical Certificate of Death, have been given to be sepsis, multi organ dysfunction and post caesarian collection of blood. It was also clearly stated that the death was associated with pregnancy.
5. It is further submitted by the complainant that his wife Mallikaben was in good health when she was admitted to Dr. Ushaben's Hospital Page 6 of 24 R.I. DESAI CC/40/2010 for delivery and also Mallikaben's earlier caesarian section delivery was without any complication but during her second delivery for which she was admitted to Dr. Ushaben's hospital, the opponent no.1 & 2 complicated her case by their wrong judgment, negligence, professional incompetence to diagnose, cure and stabilize her wife's condition. After her caesarian section delivery Mallikaben could not pass urine and also the renal and other complications of Mallikaben were resulted from the mishandling of her delivery case by the opponent no. 1 & 2. It is further submitted by complainant that the opponent no. 3 & 4, too, have shown negligence and professional incompetence to cure and stabilize her wife's condition when she was under their respective treatments. Thus due to the wrong diagnosis, improper treatment, negligence, professional incompetence of the opponents no. 1 to 4, shown by them in treating Mallikaben, the complainant has lost his young wife and two small children have been deprived of motherly love and care and also the complainant has lost the companionship (company) of his loving wife. It is further submitted by the complainant that the wrong and expensive treatment of her wife Mallikaben by the opponent no. 1 to 4 has made the financial position of the applicant very critical and in this way, the opponent no. 1, 2, 3 & 4 have shown gross negligence and deficiency in service in Mallikaben's case, and have, therefore, complainant has filed Consumer Compliant with this Commission. Page 7 of 24
R.I. DESAI CC/40/2010
6. Being dissatisfied by the gross medical negligence committed by the opponents the complainant has field present Consumer Compliant before this Commission for getting Rs.30,00,000/- (Rupees thirty lac only) with 18% interest as compensation on account of loss of companionship of spouse to the complainant, and loss of motherly love, care and affection to his children and also prayed for Rs. 10,00,000/- towards mental agony and shock and necessary cost of this compliant.
7. The State Commission has admitted the complaint and the notice was duly served to the opponents and Mr. Dilip Kanojia, L.A. for the opponent no. 1 & 2, Smt. Nitaben Shah, L.A. for opponent no. 3, Mr. M.J. Shelat, L.A. for opponent no. 4 & 6, Mr. C.A. Modi, L.A. for opponent no. 5 has appeared before this Commission.
8. It is stated by the learned Advocate Mr. Shelat that as the opponent no. 06 - United India Insurance Company Ltd. has insured the said doctor; hence it is adopting the written statement of insured- opponent no. 03 - Dr. Kalpesh Joshi.
9. The complainant has submitted following documents in the present matter:
Sr. Particulars
No.
1 Pregnancy report given by Dr. Prerna Desai
2 Report of HAEMATOLAGY and SEROLOGICAL TESTS
3 Urine Report
4 HIV report
5 Report of Dr. Piyush Patel
6 Prescription given by opponent No. 1 and 2
7 HAEMATOLOGY report
8 Urine report
Page 8 of 24
R.I. DESAI CC/40/2010
9 Bio Chemistry report
10 Leptostrosts report
11 Electro Cardiogram report given by opponent no. 03
12 I.C.U. report of opponent no. 03
13 Consent form
14 Haematology report of Kasturba Vaidhykiy Rahat Mandal
15 APTT report
16 Biochemistry Report
17 Serum Protein Report
18 Serology Report
19 Complete blood Report
20 Haematology Report
21 Sonography Report
22 Bio Chemistry Report
23 Haematology Report
24 Bill of blood purchased from blood centre
25 Blood report
26 Haematology Report
27 Biochemistry Report
28 Biochemistry Report
29 Dengue report
30 Haematology Report
31 Report of blood purchased from blood centre
32 APTT report
33 Sonography Report
34 Electro Cardiogram report
35 Case memo
36 Case memo
37 Discharge card
38 Transfection reaction report
39 Case memo
40 Ultra sound report
41 Bill of blood purchased from blood centre
42 Bill of blood purchased from blood centre
43 Bill of blood purchased from blood centre
44 Ultra sound report
45 Bill of blood purchased from blood centre
46 Bill of blood purchased from blood centre
47 City Scan report
48 Doctor report
49 Ultra sound report
50 Death certificate
51 Letter written by complainant to opponent no. 01
52 Letter written by opponent no. 01 to complainant
53 Letter sent by RPAD to opponent no. 01
54 City Scan report
55 Letter written by opponent No. 01 to complainant
Furthermore, in the present case following documents are also on record:
Sr. Particulars
No.
1 Written arguments of complainant
2 Counter affidavit of complainant dated 17.12.2015
3 Copy of affidavit of Dr. Abhijit Madhav Konnur dated 22.11.2017
4 Copy of case papers of Muljibhai Patel Urological Hospital Nadiad
related to entire treatment taken by deceased 5 Written arguments of opponent no 1 & 2, 3, 4 & 6.
6 Additional argument on behalf of the complainant dated 18.09.2019 7 Counter reply of complainant against the reply of opponent no. 01 dated 30.01.2020.
Page 9 of 24
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10. Upon service of the notice learned Advocate Mr. Dilip L. Kanojiya has appeared on behalf of the opponent no. 01 and vehemently argued out that the present complaint suffers for want of genuine, valid, bona fide and legal cause of action and therefore the same deserves to be dismissed. Learned Advocate Mr. Kanojiya further submitted that the cause of action for claiming compensation in cases of failed operation arises on account of negligence of the surgeon and the failure due to natural causes would not provide any ground for claim and therefore also the complaint qua the present opponent deserves to be dismissed. Learned Advocate Mr. Kanojiya further submitted that the present complaint is filed under Section 12(2) of the Consumer Protection Act, 1986. However, the present opponent no. 01 has not at all responsible and/or liable for any of the alleged reasons averred by the complainant in the present complaint and also the present opponent has never taken any amount towards the treatment. Learned Advocate Mr. Kanojiya further argued out that the test for determining medical negligence as laid down in Bolam's case reported in (1957) 1 W.L.R., 582, 586 holds good in its applicability in India and the said Bolam's case has been widely accepted as decisive of the standard of professional men care required both of generally and medical practitioners in particular and also it has been invariably cited with approval before Courts in Page 10 of 24 R.I. DESAI CC/40/2010 India and applied to as touchstone to test the pleas of medical negligence.
11. Learned Advocate Mr. Kanojiya further submitted that in the present case also, opponent No.1 is professionally well qualified person and has been in the profession since last many numbers of years, even the complainant herein had brought his wife to the present opponent No.1 for her first delivery and that opponent No. 1 herein had performed the said delivery of the first child of the complainant and that was absolutely uneventful. Learned Advocate Mr. Kanojiya further submitted that it is pertinent to note here that the complainant has not come with a case that the present opponent No.1 does not possess the requisite skill he/she professed to have possessed, or, that she did not exercise, with reasonable competence, the skill which she did possess and therefore, no negligence can be held against present opponent No.1. Learned Advocate Mr. Kanojiya further argued out that in the present case also, it is only after obtaining the written consent of the complainant herein, opponent No.1 had performed operation on his wife and therefore, in no circumstance, opponent No.1 can be held negligent or there was any deficiency in her service and therefore, the complaint of the complainant being bereft of any cause of action, the same deserves to be dismissed qua the present opponent No. 1. Page 11 of 24
R.I. DESAI CC/40/2010 12. Learned Advocate Mr. Kanojiya further submitted that the
complainant has not alleged that the present opponent, who performed the operation, was not competent to perform the surgery and yet ventured into doing it. Learned Advocate Mr. Kanojiya further submitted that the present one is not a case where the opponent who performed the surgery has committed breach of any duty cast on her as a surgeon. It is further argued out by learned Advocate Mr. Kanojiya that the wife of the complainant suffered various complications and that her death had caused due to acute renal failure. It is further argued out by learned Advocate Mr. Kanojiya that all doctors who treated patient are skilled and duly qualified specialists in their respective fields and they have tried their best to save the life of deceased and performed their professional duties as team work. Learned Advocate Mr. Kanojiya further argued out that prior to hospitalization the test report has clearly showed that the HB was low and the WBC count of the deceased was high which was suggestive of some infection. However, the complainant has failed to utter a word about the same and therefore both on facts and in law the allegations made in the complaint do not make out any case of negligence or deficiency in service on the part of the present opponent doctor and therefore also the complaint qua the present opponent deserves to be dismissed. Page 12 of 24
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13. Learned Advocate Mr. Kanojiya further contended that there was no negligence on the part of medical practitioners and they have managed the case to the best of their ability. It is reiterated that the complainant and his wife had immense faith on opponent No.1 inasmuch as it is opponent No.1 who had treated the wife of the complainant during the delivery of her first child and it is therefore the complainant and his wife had approached opponent No.1 for consultation and treatment during the delivery of their second child. It is further argued out by learned Advocate Mr. Kanojiya that the complainant could not lead evidence of any expert doctor to counter or rebut the statement made by opponent No.1 in her written statement and similarly, the complainant could not even remotely substantiate the allegations made against opponent No.1 herein. It is further submitted by learned Advocate Mr. Kanojiya that there is not an iota of evidence on record to prove that opponent No.1 had ever departed from the line of treatment being taken or have given a wrong treatment to the wife of the complainant. It is further submitted by learned Advocate Mr. Kanojiya that the doctors who were involved in the treatment of deceased Smt. Mallikaben have established on record that the course of treatment pursued by them in their hospitals was in no way contradictory or against the treatment given all over the world. It is further submitted by learned Advocate Mr. Kanojiya that, the position of the patient was fully Page 13 of 24 R.I. DESAI CC/40/2010 explained by opponent No.1 to the patient as well as the present complainant and both of them were informed about the renal failure.
14. Learned Advocate Mr. Kanojiya concluded that there is no case of negligence/deficiency in service has been made out against present opponent No.1 and therefore, the complaint qua present opponent No.1 deserves to be dismissed.
15. Upon service of the notice learned Advocate Smt. Nitaben Shah has appeared on behalf of opponent no. 03. Learned Advocate Smt. Shah has argued out that the original complaint does not contain any specific ground of negligence. It is vaguely stated that opponents are guilty of wrong diagnoses, improper treatment, negligence and professional incompetency firstly on the part of opponents No.1 and 2 to handle the case of the deceased wife when caesarean section operation was done. Learned Advocate Smt. Shah has further argued out that so far as this opponent No. 3 is concerned similar allegations are made on the ground that doctors at Hospital where opponent No.3 is giving services were guilty of not being able to assess and stabilize the condition of the patient who expired on 02.12.2008. Learned Advocate Smt. Shah has further argued out that the facts are very well reflected in the treatment papers which are produced by the complainant along with the complaint and that would show that even before the operation she was in severe bad condition and she was also pregnant and in these circumstances Page 14 of 24 R.I. DESAI CC/40/2010 caesarean section operation was performed on her to save the life of the child and also to save her own life, even if this operation was not performed, even then, her life was in danger and also life of the child to be delivered would be in danger and thereafter in this condition she was operated. Learned Advocate Smt. Shah has further argued out that there was no alternative but had to operate on her and at that time, from the papers produced by the complainant it clearly appears particularly from the various reports that she was in badly infected condition and infection could not be controlled because of imminent delivery and for the foregoing circumstances, all the function like liver, kidney etc. were in state of dysfunction and therefore in that circumstances even opponents No.1 and 2 cannot be found to be negligent. All these conditions of the patient were within the knowledge of the present complainant and his wife. Learned Advocate Smt. Shah has further argued out that fortunately child could be saved but her condition deteriorated because of PPH bleeding which was very severe and which could not be controlled. Learned Advocate Smt. Shah has further argued out that bleeding was on account of her infected condition and not due to PPH or operational wound.
16. Learned Advocate Smt. Shah has further submitted that it is not true to say that reports were normal because of severe condition and dysfunction of liver and also renal failure, urine flow would not be Page 15 of 24 R.I. DESAI CC/40/2010 normal and the same is also indicated in various reports. It is further submitted by learned Advocate Smt. Shah that the Advocate of the complainant had given interrogatory to this opponent No.3, but the questions which are stated in the said interrogatory are directed only against the opponents No.1 and 2 and none of them is directed against this opponent No. 3. However reply was given and thereafter on behalf of the opponent No.3 interrogatories were given to the complainant and particularly the complainant was expected to reply to questions which were never replied, even complainant has put such question which would show that her condition was severe and she was having dysfunction of liver and also on account of platelets count and W.B.C counts which were not within the normal limit. Learned Advocate Smt. Shah has further argued out that it was in this condition that she was brought to Kasturba Hospital and the same interrogatory was submitted to the advocate of the other side but they were not replied.
17. Learned Advocate Smt. Shah concluded that complainant has claimed excessive and unreasonable compensation which shows the malafide intention of the complainant and therefore the present Complaint deserves to be dismissed with heavy costs.
18. Upon service of the notice learned Advocate Mr. M.J. Shelat has appeared on behalf of the opponent no. 4 and 6 vehemently argued out that the deceased Mallikaben Patel (indoor No - 50963) was Page 16 of 24 R.I. DESAI CC/40/2010 brought on stretcher and on oxygen support in morning of 11-11- 2008, she had suffered Post Partum Hemorrhage resulting in excess bleeding and thereafter she was admitted as an indoor patient immediately in the intensive care unit. It is further argued out by learned Advocate Mr. Shelat that detailed case history was furnished by her husband and herself and thereafter she was under the care and treatment of Dr. M.M. Rajapurkar and the opponent no.4. It is further argued out by learned Advocate Mr. Shelat that she had received previous treatment including dialysis in Kasturba hospital in Valsad. It is further argued out by learned Advocate Mr. Shelat that at the time of admission to MPUH, Nadiad, she had complaints of fever, edema and vomiting. Thereafter taking proper history, performing clinical examination and doing appropriate investigation, a provisional clinical diagnosis of Post Partum Acute kidney injury, due to severe Acute Tubular Necroses due to sepsis leading to multi organ system failure was kept. It is further argued out by learned Advocate Mr. Shelat that the opponent no. 4 examined her thoroughly and after taking patient's relatives in confidence, we explained in detail, the nature of illness, the poor medical condition of patient and need for renal replacement therapy namely hemodialysis till renal recovery occurs. He was also told that regular blood transfusions would be required to combat her coagulopathy and also the financial implications of the same were discussed and Page 17 of 24 R.I. DESAI CC/40/2010 life threatening nature of her condition was also explained to the complainant.
19. It is further argued out by learned Advocate Mr. Shelat that on 23- 11-2008 patient developed abdominal pain, and had fever of 100F and continued to be anuric and the patient's relatives were involved in discussion regarding her multisystem failure status with acute kidney injury, liver dysfunction, infection, coagulopathy, infected hematoma in the abdomen and hypoxia and also the critical nature of her illness and threat to life was explained. It is further argued out by learned Advocate Mr. Shelat that her brother was informed about seriousness of her illness, and we recommend and carried out multidisciplinary approach by involving urologists, aneasthetists, Radiologist etchant hematoma exploration was undertaken on 27/11/2008 and Grade 4 + risk for surgery was explained it is further submitted by learned Advocate Mr. Shelat that she had undergone exploration of hematoma on right side of abdomen, touching inferior pole of right kidney and thereafter the Punch biopsy from right kidney was taken during this explorative surgery and sent for histopathological examination and the biopsy report confirmed our clinical diagnosis of Acute Tubular Necrosis and Acute Interstitial Nephritis.
20. It is further argued out by learned Advocate Mr. Shelat that though all efforts were made by us in a multidisciplinary approach and staff Page 18 of 24 R.I. DESAI CC/40/2010 members of our hospital, they unfortunately resulted in vain. Ultimately, she suffered a cardiac arrest and despite cardiopulmonary resuscitatory efforts, she succumbed on 02-11- 2008. It is further submitted by ld. Adv. Mr. Shelat that she died of Sepsis, Multi Organ Dysfunction syndrome, Acute Renal failure and Post Partum Hemorrhage. It is further contended by ld. Adv. Mr. Shelat that we deny any negligence in assessment, care and treatment of the patient. It is further urged by led. Adv. Mr. Shelat that her condition was so serious and the nature of the disease was grave that despite our best medial efforts it was difficult and impossible to bring her back to normalcy.
21. Learned Advocate Mr. Shelat concluded that the complainant has miserably failed to prove medical negligence on part of the opponent no. 4 by leading cogent and reliable evidence except bald allegation of negligence which would not constitute medical negligence and therefore the present compliant is required to be dismissed. In support of his argument learned Advocate Mr. Shelat has submitted following judgments in his written statement:
(I) Jacob Mathew vs State Of Punjab & Anr (II) Halsbury's Laws of England (4th Edition, Vol. 30, Para 35), (III) AIR 2010 SC 100 - Kusum Sharma Vs. Batra Hospital (IV) Hucks Vs. Cole & Anr, (1968) 118 New LJ 469 (V) Hunter Vs. Hanley, 1955 SLT 213. (VI) III (2019) CPJ 11B (CN) Gujarat. Page 19 of 24 R.I. DESAI CC/40/2010
In support of his arguments learned Advocate Mr. Shelat additionally submitted following judgment:
Civil Appeal no. 1385 of 2001 (SC)
22. Upon service of the notice learned Advocate Mr. C.A. Modi has appeared on behalf of the opponent No. 5 and argued out that we are agree with all the arguments and submission made by opponent No. 4 and therefore this Commission may accept the same arguments accordingly in this matter.
23. In the present case it is the submission of the complainant that his wife Smt. Mallikaben was in good health when she was admitted to opponent no. 1 - Dr. Ushaben's hospital for delivery but the renal and other complications of Mallikaben were resulted from the mishandling of her delivery case by the opponent no. 1 & 2 and thereafter opponent no. 3 & 4 too have shown negligence and professional incompetence to cure and stabilize Mallikaben's condition when she was under their respective treatments.
24. I have gone through the record of this case. It is the main contention of the opponent no. 1 to 4 that opponent Doctors are well qualified, expert and has been in the profession since last many years in their respective field and they have provided best treatment to the wife of the complainant but due to renal and other prior complications and though all the efforts were made by the opponents in a multidisciplinary approach they unfortunately resulted in vain. She Page 20 of 24 R.I. DESAI CC/40/2010 suffered a cardiac arrest and despite cardiopulmonary resuscitatory efforts, she succumbed on 02.11.2008 and she died of sepsis, Multi organ dysfunction syndrome, Acute renal failure and post-Partum Hemorrhage.
25. On the other hand it is an averment of the complainant that opponent no. 1 to 4 have shown negligence and not performed their duty with reasonable skill but in connection with this allegation complainant has not submitted any medical expert opinion to prove his case.
26. Regarding the medical negligence of Doctor in the case of Martin F. D'Souza Vs. Mohd. Ishfaq reported in 2009 AIR SCW, 1807 the Hon'ble Supreme Court in para 41 and 46 has observed as under:
41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
46. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers some serious harm, should the doctor be held liable? In our opinion he should not. Science advances by experimentation, but experiments sometime end in failure e.g. the operation on the Iranian twin sisters who were joined at the head since birth, or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it is advisable for the doctor to explain the situation to the patient and take his written consent.
27. Regarding medical negligence of Doctor Hon'ble Supreme Court in Civil Appeal No. 1385/2001 in the case of Kusum Sharma and Ors. Page 21 of 24
R.I. DESAI CC/40/2010 Vs. Batra Hospital and Medical Research Centre and Ors. has observed following principles:
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring 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. IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.Page 22 of 24
R.I. DESAI CC/40/2010 IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
28. In the present case wife of the complainant has suffered various complications prior to hospitalization which is admitted fact in this case and the test report has clearly showed that the HB was low and the WBC count of the deceased was high which was suggestive of some infection in her body and therefore as observed by the Hon'ble Supreme Court in the instant case also when all the opponent Doctors are skilled and duly qualified in their respective field and when they have tried their best to save a life of the deceased and performed their professional duty then the allegation made by the complainant is not sustainable and also the complainant is miserable failed to prove the medical negligence of opponent doctors.
29. In view of the above conspectus when the complainant is failed to prove the negligence on the part of the opponent treating doctors and therefore in the opinion of this Commission the present compliant is Page 23 of 24 R.I. DESAI CC/40/2010 deserve to be dismissed and hence the following final order is passed.
ORDER
1. The present Compliant is dismissed.
2. No order as to cost.
3. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 30th September, 2021.
[Dr. J.G. Mecwan]
[Usha P. Jani] Presiding Member.
Member
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R.I. DESAI CC/40/2010