State Consumer Disputes Redressal Commission
Mrs Bhavana Shailesh Patel vs Dr Manmohan M Kamat on 19 January, 2012
C-130/2003 (DID)
BEFORE THE HON'BLE STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/09/50
1.
MRS BHAVANA SHAILESH PATEL
D-402 VISHAL
COMPLEX NARSING LANE, OPP. SANJAR
FURNITURE, S V ROAD MALAD (W),
MUMBAI
400064
Maharastra
...........Complainant(s)
Versus
1.
DR MANMOHAN M KAMAT
B
3/4 SATELITE CLASSIC, CAVES
ROAD, JOGESHWARI (E),
MUMBAI
400060
Maharastra
............Opp.Party(s)
BEFORE:
Hon'ble
Mr. S.R. Khanzode PRESIDING MEMBER
Hon'ble Mr. Narendra Kawde MEMBER PRESENT:
None for the Complainant.
Ms.Sukruta Chimalkar,Advocate, for S.B.Prabhawalkar, Advocate for the Opp. Party O R D E R Per Shri S.R. Khanzode Honble Presiding Judicial Member:(1)
This consumer complaint pertains to alleged deficiency in service on the part of Opponent Doctor vis--vis medical negligence shown while operating the Complainant Bhavana S. Patel on 11th December, 2006 for removal of the gall bladder or in technical term Calculous Cholecystitis surgery. For the surgery her original complaint of abdominal pain did not subside. Therefore, when she contacted the Opponent on 25th January, 2006, he advised to undergo a sonography test at Nanavati Hospital which she had undergone on 13th March, 2007. However, since there was no improvement and as advised by the Opponent she had further undergone endoscopy in Dr.Maydeos Clinic for more than one occasion. Since seeing that she had to undergo endoscopy frequently but no desire effect, she ultimately consulted one expert Doctor (the name is not mentioned) for taking second opinion and according to the Complainant such expert Doctor, on 24th November, 2007 had informed that the Complainant had met with an irreparable damage to CBD and the clip which was put after removing the Gall Bladder is put on CBD and thus clip cannot be removed. After coming to know at that juncture that the procedure followed by the Opponent while carrying out the surgery of removal of gall bladder on 11th December, 2006 was not as per standard practice and procedure.
After sending legal notice to the Opponent which was not replied by the Opponent, the Complainant has ultimately filed this consumer complaint on
02.03.2009, claiming the compensation for the deficiency in service on the part of the Opponent and for compensation of `90,00,523/-.
(2)The Opponent resisted the claim by filing his written version and submitted that after operation was performed treatment given to him was as per the procedure and protocol and there was no negligence on his part; submitted that thereafter the Complainant did not follow his advice and not consulted him at all.
(3)By way of evidence there is hardly any evidence led on behalf of the Complainant and perhaps he relies upon the verification affidavit of the Complainant. Opponent sworn his own affidavit and also relied upon the affidavit of Dr.Amarnath S. Upadhye, expert in field. The Opponent in his affidavit confirmed that the procedure followed by him was proper and there was no negligence on his part. Dr.Amarnath S. Upadhye, after scrutinizing all the material including the case papers of the relevant surgery and subsequent opinions opted by the Complainant, came to the conclusion that there is no medical negligence which can be inferred on the part of the Opponent. The version as presented by the Complainant confined to wrong clipping put after the removal of the gall bladder. However, this particular aspect is not at all established by the Complainant either by tendering any evidence of the expert from whom he has opted such opinion (he claimed to have consulted at least two experts on the subject). There is also no material on behalf of the Complainant tendered in evidence or the material placed before us for consideration to correlate the person suffering for which the Complainant has to undergo endoscopy urgently after a particular interval due to the complications such as common bile duct injury or narrowing of the duct of the CBD, is the cause for present suffering of the Complainant. Dr.Amarnath S. Upadhye, in his affidavit has stated that complication such as common bile duct injury or narrowing is known complication but whether that is the case of the present suffering by the Complainant is also not established by the Complainant and there is no material before us to infer accordingly. After the surgery, the Complainant had admittedly undergone series of endoscopy procedures at the clinic of Dr.Maydeo, which exact procedure was followed for each one of those endoscopy is not before us. There is nothing to show that the procedure followed in the surgery of removal of gall bladder by the Opponent, was at that point of time was not carried out as per requisite protocol or that there is any negligence committed by the Opponent while carrying out said surgery.
(4)Thus, for the reasons mentioned above, we find, material placed on record is not sufficient to hold any medical negligence vis--vis on the part of the Opponent while carrying out the surgery or removal of gall bladder on 11th December, 2006.
(5)Ld.Counsel appearing for the Opponent Doctor raised the point of limitation but considering the complaint as a whole, it can be seen that alleged medical negligence on the part of Opponent was made known to the Complainant only when he sought the expert opinion on 24th November, 2007. So, the negligence in question was not patent for the Complainant till then and therefore, since the limitation would start running from that day, the objection to limitation would not survive.
(6)For the reasons stated above, we hold accordingly and pass the following order:
O R D E R
(i) Complaint stands dismissed.
(ii) In the given circumstances, both the parties to bear their own costs.
Pronounced on 19th January, 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER ep