State Consumer Disputes Redressal Commission
Smt.Sharda D. Kamble & Anr. vs Dr Shantikumar D Chivate on 17 October, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/00/70
1. SMT.SHARDA D.
KAMBLE
30/61 BDD CHAWL N M
JOSHI MARG MUMBAI-13
2. MS.MANDIKINI D.
KAMBLE
30/61 BDD CHAWL N M
JOSHI MARG MUMBAI-13.
...........Complainant(s)
Versus
1. DR SHANTIKUMAR D
CHIVATE
JEEVAN JYOT HOSPITAL
AND CANCER
CENTER OPP SHAHU
MARKET NAUPADA THANE-400 602.
............Opp.Party(s)
BEFORE:
HON'ABLE MRS. Usha
S.Thakare PRESIDING MEMBER
HON'ABLE MR. Narendra
Kawde MEMBER
PRESENT:
Mr.Subodh Gokhale,
Advocate for the complainants.
Ms.Sukruta Chimalkar,
Advocate a/w. Mr.S.B. Prabhawalkar, Advocate for the opponents.
ORDER
Per Mrs.Usha S. Thakare, Honble Presiding Judicial Member
1. The present complaint is filed by legal representatives of deceased Dundappa Mariappa Kamble for claiming compensation by alleging deficiency in service on the part of opponents.
2. The facts and circumstances giving rise to present complaint in short are as under :-
Complainant No.1-Sharda D. Kamble is a widow of deceased Dundappa Kamble. Complainant No.2-Mandakini D. Kamble is unmarried daughter of deceased.
Opponent-Dr.Shandikumar D. Chivate represents himself to be a urosurgeon and places regular advertisements in Marathi newspapers mentioning about safe method for prostate removal. Husband of complainant No.1, namely, Dundappa Mariappa Kamble was suffering from benign enlargement of prostate and he was in need of medical treatment.
He approached KEMHospital on 19/05/1999 in Urology Department and consulted the specialists. After clinical examination, they suggested cystoscopy which was performed on 01/06/1999. Following cystoscopic examination, removal of the prostate by Transurethral Resection of Prostate Method was suggested. Deceased was lured by the advertisements in the newspapers announcing a safe method of removal of prostate without use of anaesthesia with just one day stay. Thereafter, deceased approached the opponent when he was given a brochure which mentions the procedure of Transurethral Needle Ablation (TUNA).
Opponent claimed that said procedure is safe, effective, reliable, minimally invasive, anaesthesia free and minimum blood loss. On enquiry regarding charges, deceased was informed that it would cost him `25,000/-. Though the cost was found to be high, deceased agreed to the procedure as it was safe, effective, anaesthesia free and a cheque for amount of `25,000/- was drawn in favour of JeevanJyotHospital and Cancer Centre.
Said cheque was cleared on 10/07/1999. Deceased was admitted on 12/07/1999 for TUNA operation for benign prostatic enlargement. It was shocking that instead of local anaesthesia jelly the opponents conducted operation under regional block. When the deceased was brought out from the Operation Theatre, he noticed numbness in both the feet. In the evening of 12/07/1999 he noticed swelling in abdomen and there was associated pain in the abdomen. When this was brought to the notice of opponent, he informed the complainants and deceased that abdominal distention was a rare complication following TUNA and it was usually due to gaseous distention. He further told that there was no cause of worry and there was no need for further treatment. Deceased was continued under the care of opponent upto 15/07/1999.
However, during this period abdominal distention increased and his general condition deteriorated.
Blood pressure started rising and the urine output started diminishing. Even at that stage, opponent failed to perform his bounden duty to investigate the deceased to identify and treat the cause of rapid deterioration of general condition of the deceased. Opponent continued to administer only heavy antibiotics, steroids and IV fluids. Neither X-ray was done nor second opinion was obtained. On 15/07/1999 at 8.00 p.m. when the general condition of the patient was worst, the opponent asked the complainants to transfer the deceased to another hospital. Discharge Summary was immediately prepared with a diagnosis of Paralytic ileus with toxaemia with bilateral hypostatic pneumonia. The complainants were asked to make the arrangement to transfer the deceased in that critical condition. Ambulance was arranged by the complainants and son-in-law of the deceased. Patient was transferred to NairHospital at Mumbai Central and was admitted to the said hospital at midnight. During the transportation, there was no doctor to accompany the patient though he was in critical state.
3. On admission at NairHospital, doctors noted that there was guarding and rigidity of the abdomen which had been shown to be absent by the opponent. Clinical examination was done, a clinical diagnosis of pre-renal failure was made. X-ray of abdomen showed that gas under
the diaphragm indicating peritonitis.
No X-ray was done by the opponent.
An exploratory laparotomy was performed at 5.40 a.m. which showed that there was a 1cm x cm perforation in the anterior wall of the rectum with massive fecal contamination of the abdomen. The rectal perforation was sutured and transverse colostomy was done. Later on, blood transfusions were given and peritoneal dialysis was done, but in spite of care taken by the doctors at NairHospital, the patient died on 21/07/1999 at 5.50 p.m. It is alleged that such a death would not have occurred if the opponent had performed the TUNA procedure with due care, caution, skill and diligence. The presence of rectal perforation speaks for itself, the negligence on the part of the opponent in doing TUNA operation. There was inordinate delay in deciding to transfer the patient to NairHospital. Postmortem of dead body was performed on 22/07/1999. Postmortem Report shows that there was thick pus in the abdominal and peritoneal cavity with evidence of pus flecks. Anterior wall rectum showed evidence of transverse suture wound of 2 cm. length with 3 intact sutures. The bladder on the posterior surface showed two circular openings 2 cm above urethral opening one of size 1.5 cm in diameter and the other 1 cm. in diameter with gray necrosis circumferentially. The final cause of death was Septicemia and acute renal failure following rectal perforation in a case of Transurethral needle ablation for benign prostatic enlargement (unnatural). This report clearly establishes that opponent had acted in negligent manner while performing TUNA operation causing rectal perforation and also bladder perforation. Due to sudden death of Dundappa Mariappa Kamble, complainants suffered very severe mental shock and agony. Opponent as a result of his deficient service caused early death of deceased. Opponent falsely represents to be urosurgeon/urologist. He falsely represented that TUNA is safe, effective and anaesthesia free procedure which amounts to an unfair trade practice.
Therefore, complainants have filed a complaint and requested to direct the opponent to pay a compensation of `6,40,000/- to the complainants and to stop opponent from carrying unfair trade practice on the basis of false representation.
4. Opponent has resisted the complaint by filing written version. He has denied all the adverse allegations against him. He has specifically denied the allegation of negligence while performing TUNA operation of the deceased. He has denied the deficiency in service on his part. It is submitted that present complainants have filed complaint in the capacity of legal heirs of Late Dundappa Mariappa Kamble. They have excluded other legal heirs and representatives of the deceased. Deceased had left behind him his son-Dr.Vijay Kamble and married daughter Mrs.Kanchan Kamble. They are not impleaded as necessary parties. It is an admitted fact that in February 1999 deceased developed frequency of micturition of both diurnal and nocturnal. The deceased had approached the KEMHospital on 19/05/1999 and cystoscopy was performed on the said deceased on 19/06/1999.
It is submitted that prior to approaching opponent in July 1999, deceased had approached to him one year prior thereto and had enquired about charges and procedure to be followed in TUNA. The deceased had represented that he is a retired person and unable to pay regular charges and said that he had made arrangement to pay `25,000/- through his married daughter-Mrs.Kanchan Kamble. Mrs.Kanchan Kamble on behalf of deceased gave a cheque of `25,000/- bearing No.148354 in favour of JeevanJyotHospital which was cleared on 10/07/1999 towards charges of TUNA operation.
5. It is further submitted that JeevanJyotHospital of the opponent is fully equipped hospital having X-ray machine and sonography unit. In case of deceased, it was not necessary to takeout X-ray of abdomen.
The opponent has passed M.B.B.S. from Government Medical College, Miraj in 1968 and thereafter, he joined Grant Medical College, Mumbai in the year 1970 and took training under the eminent Urologist Dr.Tilak and thereafter, in the year 1974 he had joined Tata Memorial Cancer Hospital in Mumbai and worked with eminent Onco-Urologist Dr.M.R. Kamat and worked with him for two years. Thereafter, he had joined ESISHospital, Mulund and by hard work and proficiency in service he retired as Head of the Department of Surgery after 25 years of service. He is a proprietor of JeevanJyotHospital having 15 beds.
Said hospital was started in the year 1980. The opponent has obtained special training in TUNA surgery in prostate disease in Australia. He is a Life Member of the Association of Surgeons of India, Indian Society of Oncology and Urology Society of India. He is practicing as Oncologist and Urologist with experience of 33 years. Till filing of this complaint, he was not involved in any proceedings of medical negligence or deficiency in service. He is most experienced surgeon performing TUNA operation in the MaharashtraState. Unfortunate allegations of medical negligence and lack of skill are levelled against him without any basis.
6. Late Dundappa M. Kamble approached to opponent in first week of July 1999 for TUNA surgery with case papers of various hospital including KEMHospital and NairHospital.
He reminded the opponent that he had consulted with opponent about TUNA one year back. He had taken few telephone numbers of some of the patients who had undergone TUNA surgery. Said deceased requested that due to money problem he did not avail TUNA operation and now he made an arrangement for `25,000/- from his son-in-law and paid a cheque of `25,000/- to JeevanJyotHospital. Deceased was admitted on 12/07/1999. He was having difficulty in passing urine, frequency of micturition, incomplete empting of the bladder, his urine stream was reduced and his urination time was prolonged from last two years.
He had undergone appendicectomy in past and few months back cystoscopy in KEMHospital. Opponent had examined the patient and found fit for TUNA procedure. He had confirmed diagnosis of Benign Enlargement of the prostate.
Deceased and his relatives were explained about TUNA and local/regional anaesthesia and written consent was taken. Operation of the patient was planned under jelly anaesthesia. Dr.V.P. Gadkari, M.D. (Anaesthesia) was called for observation and watch during surgery and standby as routine. When the opponent started administering xylocain jelly, deceased was apprehensive and had conveyed that when cystoscopy was done at KEMHospital, he had lot of pain and bleeding. He further requested that since he was operated for appendicectomy with back injection, it should be used. As per discussion with the deceased and the Anaesthetist Dr.Gadkari, saddle block regional anaesthesia was used which was safe. Said surgery went uneventful. Cystourethroscopy revealed right lobe of the prostate was larger than left one, both lobes were touching each other. Prostatic urethra was 8 cm long and tortuous. Deceased has moderate enlargement median lobe, moderate trabeculation of the bladder and bladder neck was elevated. Deceased was given saddle block regional anaesthesia as per his request as he was apprehensive about local jelly anaesthesia.
Cystoscopy was done as routine and findings were noted. As the routine for TUNA, cystoscopy sheath of handset was passed, whole prostatic urethra visualized and measured. Needle length deployed was between 20 to 22 cm. and covering sheath was 6 mm into prostatic urothelium. The procedure went very smoothly and was conducted only by the opponent. The patient was complaining pain during the procedure. Periprostatic 5 ml.
of xylocain was injected and injection pentazocin one ml. was given intra muscularly. A Folleys Catheter was passed and the patient was brought to the Ward. His condition was good. Pulse and other parameters were recorded by the opponent and Anaesthetist.
The patient was kept in head low position and antibiotics were given. The patient was seen at night at 10.30 p.m. when he was comfortable.
He was complaining about pain at operated site i.e. lower abdomen. He was given lbugesic tablet (analgesic). The patient had vomited at 6.00 a.m. and his tablets were vomited. Therefore, injection perinorm was given. On 13/07/1999 the patient was examined. He had slight abdominal distention but there was no guarding or tenderness. The peristalisis were heard well. Antacids and carminative and supplemented with intravenous fluid were given.
At 10.30 a.m. on 13/07/1999 the patient was again examined and he was comfortable. There was no guarding, rigidity or tenderness. No shifting dullness was present. On 14/07/1999 patient was examined at morning.
His abdomen was slightly distended, not increased. Peristalisis were reduced. Opponent has passed flatus tube, no gas was passed. His per rectal examination was normal. His urine output was 1600 ml. in last 24 hours.
Opponent had advised investigation i.e. CBC, blood urea, serum creatinine and serum electrolytes.
Dr.Gadkari was called for passing Ryles tube. He passed Ryles tube for aspiration and noted his findings at 1.00 p.m. on 14/07/1999. The report indicated blood urea, serum creatinine and urea nitrogen were normal.
The patient had good general condition. At 9.30 p.m. the patient had more discomfort and breathlessness, he was given oxygen inhalation. His abdominal distention was same. There was no peristalsis, no shifting dullness, no tenderness, no bound tenderness, liver dullness was not obliterated. The patient was examined at 10.30 p.m. when he was just improving. On 15/07/1999 at 4.00 a.m. on examination it was found that patient has distention of the abdomen, no peristalisis were present, his pulse, BP and temperature were normal. He was breathless and he had bilateral crepitations. His urine output was reduced. Fresh investigations were done. Necessary treatment was given. At 11.15 a.m. patients general condition was same. His abdominal girth was same, peristalisis were not heard. The patient passed stool which was well formed. At 6.00 p.m. general condition of the patient was same.
At 8.00 p.m. patients general condition was poor, has bilateral course crepitation a posterobasal aspect of chest were present. The opponent has informed the condition of the patient to his daughter and wife.
The blood urea was high. The patients son who is a doctor at NairHospital and his son-in-law met the opponent. Condition of the patient was informed to them. They decided to take the patient to NairHospital.
There was no discussion about line of treatment and investigations. Son of patient was doctor and he did not want medical assistance with him.
7. It is further submitted that patient was at NairHospital during 15/07/1999 to 22/07/1999. The patient died at NairHospital.
Opponent did not consult with the family members of the deceased nor he was appraised about the treatment given at NairHospital. On 16/07/1999 Dr.Vijay Kamble, son of deceased filed complaint against the opponent for offence under Section 304A of I.P.C. Offence was registered against the opponent At Naupada Police Station. The opponent was arrested on 14/01/2000 and subsequently, released on bail.
Report of Postmortem of the deceased under the caption final cause of death is shown as Septicaemia and acute renal failure following rectal perforation in a case of transurethral needle ablation for benign prostatic enlargement (unnatural). The findings reflected in the Postmortem Report are incorrect. In the Postmortem finding right lung had consolidation with pleural effusion and left lung had consolidation. The stomach indicated congestion. Rectal wall sutured 2 cm long. On histology wound was covering serosal surface (external) was covered with purulent exudates. In both studies during postmortem or histology examination did not reveal the perforation and biopsy report its margin. In case of bladder perforation muscles show disrupted along with focal necrosis which indicates mechanical injury just above the urethral opening is not possible by TUNA handset by direct perforation.
The TUNA needles cannot be placed at that site in a case of prostatic enlargement. The final cause of death does not suggest perforation is due to TUNA. It is coincident that a case was operated BEP by TUNA had perforation. It is well settled position that spontaneous perforation of the normal large bowel is a rare phenomena but can happen in complicated cases. The complaint filed by the complainants is false, frivolous and vexatious and same deserves to be dismissed with compensatory costs.
8. Complainant-Smt.Sharda D. Kamble led her evidence by filing affidavit.
Opponent-Dr.Shantikumar D. Chivate also led evidence by filing affidavit in support of his submissions.
9. We have heard Learned Counsel Mr.Subodh Gokhale for the complainants and Learned Counsel Ms.Sukruta Chimalkar a/w. Learned Counsel Mr.S.B. Prabhawalkar for the opponents.
10. Complainant No.1 is a widow of the deceased and complainant No.2 is unmarried daughter of deceased.
Relationship of the complainants with deceased is not disputed. But the opponent has raised an objection that deceased had left behind him his son, who is a doctor and one married daughter also. They are not added as complainants and therefore, complaint is bad for non-joinder of necessary parties.
11. We do not agree with the objection raised on behalf of the opponents. Consumer Protection Act, 1986 has been enacted to provide better protection of interests of consumers. In the present case, over-technical view cannot be taken to dismiss the complaint by holding that son and married daughter of the deceased are not impleaded as party in complaint. Technicalities cannot be encouraged because the only procedure which is prescribed under the Consumer Protection Act, 1986 is to follow the principles of natural justice and to decide the matter after hearing both the parties. Proceedings before the Consumer Fora are inquisitorial and not adversarial.
The orders are required to be passed in accordance with justice and equity on the basis of the evidence available on record. It is urged on behalf of the complainants that married daughter and son were not staying with the deceased. Son was residing separately. Therefore, widow and unmarried daughter have filed the consumer complaint.
In our view, said complaint is tenable.
12. It is an admitted fact that deceased was suffering from a trouble due to prostatic enlargement.
He approached to the opponent by seeing brochure. The deceased was lured by the advertisement in the newspaper whereby it was represented that the Transurethral Needle Ablation (TUNA) is safe, effective, reliable method of removal of prostate. The deceased had approached KEMHospital in 1999 in urology department and consulted the specialists. After clinical examination at KEMHospital, cystoscopy was performed on 01/06/1999. It appears that in spite of said cystoscopy, deceased did not get any relief and therefore, he had been to the opponent for treatment for removal of prostate by TUNA method. The deceased had paid amount of `25,000/- to the opponent by cheque dated 10/07/1999 and it was drawn in the name of JeevanJyotHospital and Cancer Centre. The deceased was admitted on 12/07/1999 for TUNA operation for benign prostatic enlargement. On 12/07/1999 deceased was operated for benign prostatic enlargement by TUNA procedure under local anaesthesia jelly. The deceased was brought out of Operation Theatre. The deceased was in the hospital of opponent upto 15/07/1999. He was shifted to NairHospital on 16/07/1999. At NairHospital, second operation was performed. Patient died at NairHospital on 21/07/1999 at 5.50 p.m. Postmortem of his dead body was carried out.
13. The complainants harped upon the fact that deceased Dundappa Kamble died due to negligence of the opponent while performing surgery by TUNA method. First point raised to point out the negligence of the opponent-doctor is that the alleged operation was performed under the regional anaesthesia.
14. Opponent has explained why surgery was conducted; why saddle block regional anaesthesia was given.
When the deceased was admitted on 12/07/1999 at the hospital of opponent at 1.30 p.m. he was facing difficulties in passing urine, frequency of micturition, incomplete empting of the bladder. His urine stream was reduced and his urination time was prolonged from last two years. In past, deceased had undergone appendicectomy and also cystoscopy for prostate in KEMHospital. The opponent-doctor examined the patient-Dundappa Kamble and found that he was fit for TUNA procedure and confirmed the diagnosis of Benign Enlargement of the prostate. Before the actual surgery, deceased and his relatives were explained about TUNA and local anaesthesia. Written consent was obtained before surgery. These facts are not challenged.
15. Opponent planned to perform operation under jelly anaesthesia. Dr.V.P. Gadkari, M.D. (Anaesthesia) was called for observation and watch during surgery and standby as routine. Opponent and Anaesthetist were about to administer xylocain jelly, at that time, deceased was apprehensive and complained that when cystoscopy was done, he had lot of pain and bleeding. He further stated that he was operated for appendicectomy with back injection and it may be used. After discussion with the deceased and Anaesthetist, opponent had used saddle block regional anaesthesia which was safe. Said surgery went uneventful. Nothing is brought on record to show that performance of surgery under the local anaesthesia/general anaesthesia is wrong or harmful.
16. Details of TUNA procedure is put forth by Learned Counsel for the opponents during the course of arguments. Said procedure is described and explained by the opponent in his affidavit evidence.
It is also pleaded in his written version. It was informed to the deceased that there are various procedures for removal of prostate. TUNA procedure is better than open prostatectomy or TURP.
17. In TUNA, there are two parts of instruments; one is operating handset and other is generator.
The handset had seven connecting lines for recording resistance of tissue impedus sensor, temperature sensor and energy conductor and urethral and rectal temperature sensor.
Tissue conductor reads resistance of the tissue in ohm and gives reference to microchips set into the energy source. The tissue in the prostate has resistance from 80 to 200, which gives guidelines for starting the energy source. The soft tissue like urethra, bladder or rectal tissue has these resistance less than 60 ohms. There is arrangement into the microchips that if these needles (electrodes) are deployed into tissue which has resistance less than 80 ohms, the energy source would not start. Same way if tissue resistance is more than 500 ohms the computerized energy source would not start. There is rod lens which is 50 cm long as 0 degree viewing axis and its hub consists of fibro optic and irrigation channel. Fibro optic bright light visualize very clearly site of deployment of needles. These needles are covered with Teflon sheaths, which protect prostatic urethra and creates lesion only inside prostate tissue. The size of handset is much smaller than regular diameter of the urethra. The cystoscopic sheath is always passed under vision inside prostatic urethra and no force is used. The handset has arrangement on the body to adjust length of needle and sheath.
The energy source has two energy sources inside a box connected to handset through microchips. It has a panel yellow self-illuminating figures clearly indicating input power, impedance of the tissue and temperature for each channel. It also illuminates time set for treatment and temperature to be achieved.
This description put forth by the opponent shows that instrument used for TUNA procedure is advanced instrument which itself gives information of each activity which is to be followed by doctor handling it. It controls the energy source and tissue resistance as per requirement.
18. Evidence of the opponent shows that the surgery was carried out uneventful. The deceased was given 0.75 ml. of xylocain as saddle block regional anaesthesia after consultation with Anaesthetist Dr.V.P. Gadkari. The patient was kept in sitting position so that anaesthesia was fixed to only desired part i.e. in perineal part and medical aspects of thighs.
Cystoscopy was done as routine and findings were noted. As the routine for TUNA, cystoscopy sheath of handset was passed, whole prostatic urethra visualized and measured. First three lesions were made at 1 cm distal to bladder neck in a clockwise position at 3, 9 and 6 OClock. At mid-point means 2 cm a distal to bladder neck two lesions at 3 and 9 OClock positions and 1 cm proximal to Veru Mountenum two lesions at 3 and 9 OClock position were carried. Opponent-doctor stated on oath that needle length deployed was between 20 to 22 cm and covering sheath was 6 mm into prostatic urothelium.
The procedure went very smoothly and patient was complained pain during the procedure. Therefore, periprostatic 5 ml. of xylocain was injected and injection pentazocin 1 ml. was given intra muscularly. A Folleys Catheter was passed and the patient was brought to the Ward. This procedure adopted by the opponent is not challenged by the complainants by adducing evidence of any other expert in TUNA procedure.
19. After operation, pulse and other parameters of the patient were recorded by the opponent and Anaesthetist Dr.Gadkari. The patient was kept in head low position, starved for six hours.
Condition of the patient was found out to be good. Antibiotics were given and after six hours of operation, oral tablets and liquids were given. Again patient was seen in the night at 10.30 p.m. when he was comfortable and complaining about pain at operated site i.e. lower abdomen. He was given lbugesic tablet (analgesic).
However, the patient had vomited.
Injection perinorm was given as tablet was vomited.
20. On 13/07/1999, the patient was examined thoroughly by the opponent. On 13/07/1999 the patient had pain in lower abdomen. His temperature was 99˚F, pulse 86 per min. and BP 130/80 mm of Hg. But on that date there was slight abdominal distention but at the same time there was no guarding or tenderness present. The peristalisis were heard well. Due to these observations, the opponent has given antacids and carminative and supplemented with intravenous fluid.
At 10.30 a.m. on 13/07/199 the patient was found comfortable when examined. His pulse was 88 per minute, BP was 110/80, temperature was 99˚F and abdomen was distended slightly, tympanic. But there was no guarding, rigidity or tenderness.
Shifting dullness was not observed.
Liver dullness was not obliterated.
On that day, peristalses were reduced. There was no rectal buldge. The output was 1800 ml. of slightly blood stained urine.
Similar findings were found in the evening as well as at 9.00 p.m. examination. The patient was under
consistent observation of opponent-doctor.
21. It is brought to our knowledge that opponent was trying to find out any acute abdomen is present and there was no suspicious finding which could alarm for acute abdomen.
On 14/07/1999 patient was again examined by the opponent. At that time his pulse rate was 102 per minute, temperature was 99˚F, BP 140/90 mm of Hg. He was again examined in morning at 10.30 a.m. His pulse was 88 per minute, BP was 130/80 and respiratory rate was 20 per minute. Abdomen was slightly distended not increased. It was tymphanic and no guarding, no tenderness or no rigidity was present. Peristalisis were reduced. The opponent himself passed flatus tube and no gas was passed. Opponent noticed that per rectal examination of the patient was normal. His urine out put was 1600 ml. in last 24 hours. Opponent-doctor advised investigation i.e. CBC, blood urea, serum creatinine and serum electrolytes. Abdominal girth was measured half hourly. Dr.Gadkari was called for passing Ryles tube.
Dr.Gadkari noted his finding at 1.00 p.m. on 14/07/1999. Reports indicated blood urea, serum creatinine and urea nitrogen were normal.
Serum sectrolytes were essentially normal, WBC count was raised 15,000/ml. On that date at 08.30 p.m. the patient had good general condition.
22. Subsequently, distention abdomen of the patient was same, pulse was 92/min, BP 150/90 mm of Hg but respiratory rate was 24/min. His urine output was 250ml. from 8.00 a.m. to 8.00 p.m. At 9.30 p.m. since the patient had more discomfort and breathless, opponent has given oxygen inhalation. The patient was again examined by opponent-doctor at 10.30 p.m. the patient was just improving.
23. On 15/07/1999 at 4.00 p.m. patient was examined by opponent-doctor. The opponent found that the patient had distention of the abdomen, no peristalisis were present, pulse, BP and temperature was normal, but he was breathless and he had bilateral crepitations. His urine output was reduced from 8.00 a.m. to 4.00 p.m. it was only 110 ml. Again fresh investigation were advised, CBC, blood urea, serum creatinine and serum electrolytes were asked urgently. The opponent has given injection Lasix 20 mg. I.V. stat, injection Deriphyline 50 ml., injection Decadram 4 ml. and injection soda BiCarb 20ml. by six hours. At 7.15 a.m. on 15/07/1999, patient was examined; he was improved by the treatment.
His pulse rate was 120/min, BP 130/80, respiration rate 24/min, urine output improved 500 ml. in last 12 hours from 8 p.m. to 7 p.m. Injection Lasix 20 mg. was repeated. Injection Taxim IG I.V. was given twice/day. At 11.15 a.m. the patients general condition was same.
His abdominal girth was same, peristalisis were not heard. Patient passed stool, which were well formed. Urine amount passed was 750 ml. in last 24 hours. Again patient was examined at 6.00 p.m. when his general condition was same. His distended abdomen girth was 34", no peristalisis were present, no guarding or rigidity. Blood urea 52 mg%, 40 mg% was upper limit, serum creatinine 1.7 mg%, 1.2% mg was upper limit and WBC count 2000 ml. was very low. Urine output from morning 8.00 a.m. to 4.00 p.m. was 500 ml.
The patient had bilateral crepitations at posterobasal area. The opponent had given Tr Benzioin inhalation and injection Deriphyline to the patient. At 8.00 p.m. the patients general condition was poor, he had bilateral course crepitation a posterobasal aspect of chest were present. His distention of abdomen was same.
Opponent had informed the condition of the patient to his daughter and his wife. Son of the patient decided to take him to NairHospital.
24. It is true that condition of the patient was deteriorating but the opponent was taking care of the patient and was giving treatment to control the condition of the patient by giving medicines after doing needful investigation.
25. The patient was shifted to NairHospital on 15/07/1999 by his son. The complainants raised the objection and made comment on the conduct of opponent by submitting that when the patient was shifted to NairHospital, opponent did not take care to send any one with the patient for shifting.
Opponent-doctor was negligent while handling and shifting the patient in NairHospital.
26. Learned Counsel for the opponents rightly urged that the patient was not shifted to NairHospital in consultation with opponent. Son of the patient, namely, Dr.Vijay Kamble was with the patient.
Therefore, relatives of the patient did not ask any assistance or help from the opponent. As the doctor son of the patient was with him, relatives of patient or complainants might have not felt it necessary to have assistance of opponent in shifting the patient.
27. Undisputed fact is that Dr.Vijay Kamble, son of deceased had filed report against the opponent for offence punishable under Section 304A of I.P.C. The Police registered crime bearing No.676/1999 at Naupada Police Station against the opponent. The opponent was arrested by the Police on 14/01/2000 and released him on bail on the same day. The criminal procedure is still pending against the opponent. In spite of all these facts, Dr.Vijay Kamble, son of the patient did not come forward to lead evidence against the opponent and to allege negligence of the opponent in conducting surgery by TUNA method. Son of the patient is serving as doctor at NairHospital. The complainants could have secured opinion of the expert to point out the negligence of the opponent while conducting the surgery by TUNA method.
28. Learned Counsel Mr.Gokhale urged that postmortem report is a clear indication of negligence on the part of the opponent while conducting operation by TUNA method. Autopsy Report shows probable cause of death as Septicemia and acute renal failure following rectal perforation in a case of Transurethral needle ablation for benign prostatic enlargement (unnatural). The report shows that the patient died due to rectal perforation and perforation was caused while conducting surgery by TUNA method by the opponent.
Rectal perforation was caused due to carelessness and negligence acts of the opponent.
29. We have perused Postmortem Report. At the time of Postmortem, right lung of the deceased had consolidation with pleural effusion and left lung had consolidation. The stomach indicated congestion. Rectal wall sutured 2 cm long. On histology wound was covering serosal surface (external) was covered with purulent exudates.
30. According to the opponent, Postmortem Report or histology examination did not reveal the perforation and biopsy report of its margins. In case of bladder perforation muscles show disrupted along with focal necrosis which indicates mechanical injury just above the urethral opening is not possible by the TUNA handset by direct perforation.
The TUNA needles cannot be placed at that site in a case of prostatic enlargement. If a mechanical injury is thought to be caused it should have perforation in the bladder first and then into rectum.
The patient was draining urine from 12/07/1999 to 15/07/1999 midnight before second operation.
31. The Postmortem Report states final cause of death as Septicemia and acute renal failure following rectal perforation in a case of Transurethral needle ablation for benign prostatic enlargement (unnatural). But, the report does not suggest perforation is due to TUNA.
Evidence on record is not at all sufficient to hold that opponent was not careful or he was negligent while treating the patient or operating the patient. It is well settled position that spontaneous perforation of the normal large bowel including rectum can occur. Opponent has pointed out said proposition from the Textbook Surgery of the Anus, Rectum and Colon by John Goligher 5th Edition.
32. Patient-Dundappa Kamble was having several complications. He was suffering from problem of prostate since long.
Deceased approached to the opponent in first week of June of 1999 for TUNA surgery. In fact he had consulted the opponent one year back and prior to that he had done investigation in various hospitals including KEMHospital and NairHospital. He had undergone cystoscopy and appendicectomy. He was facing urine problem and problem of prostate since long.
His case was complicated one.
Ultimately deceased himself decided to get operated by TUNA method to remove his prostate enlargement.
33. The opponent-doctor is an expert and most experienced surgeon. He is a proprietor of JeevanJyotHospital and Cancer Centre having 15 beds. He had obtained the special training in TUNA surgery in the prostate disease in Australia. He is the Life Member of the Association of Surgeons of India, Indian Society of Oncology and Urology Society of India. He is practicing Oncologist and Urologist having experience of 33 years. Only because patient-Dundappa Kamble died after operation in some other hospital, it cannot be said that opponent was negligent in performance of operation and in his duties. Evidence of the complainants or findings in the Postmortem Report are not sufficient to hold that opponent-doctor lacks basic skill in performing operation by TUNA method. Onus of proving medical negligence is on the complainants and mere statement in the complaint by complainants who are not well conversant with medical science is not sufficient to prove the medical negligence of opponent-doctor.
34. In case of C.P. Sreekumar (Dr.) V/s. S. Ramanujam, 2009(6) Mh.LJ page-892, Honble Apex Court observed as under :-
Simple hair line fracture developed into more serious type of fracture requiring surgery, no evidence shown by respondent that doctor lacked basic skills in performing the operation. Respondent not rebutting doctors version that aggravation was due to muscular spasm. Negligence could not be attributed to hospital staff with certainty. Onus of proving medical negligence was with complainant and mere statement in complaint was not evidence.
Complainant was obliged to provide facts probanda as well as facta probanda. Respondent not entitled to any relief.
35. In case of Kusum Sharma & Others V/s. BatraHospital and Medical Research Centre & Others, 2010 (4) Mh.L.J. page-541, Honble Apex Court has observed as under :-
Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risk. Every advancement in technique is also attended by risks. A mere deviation from normal professional practice is not necessarily evidence of negligence. Doctors in complicated cases have to take chance even if the rate of survival is low. The professional should be held liable for his act or omission if negligent; is to make life safer and to eliminate the possibility of recurrence of negligence in future. But, at the same time Courts have to be extremely careful to ensure that unnecessarily professionals are not harassed or they will not be able to carry out their professional duties without fear. It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. It is settled that deficiency in service has to be judged by applying the test of reasonable skill and care which is applicable in action for damages for negligence. 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 affair, would do, or doing something which a prudent and reasonable man would not do. The complainants failed to establish that opponent has committed gross negligence. On the other hand opponent has established that he has exercised reasonable degree of skill and knowledge. Negligence cannot be attributed to the opponent so long as he has performed his duties with reasonable skill and competence. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension. The medical practitioners are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients.
36. A medical practitioner cannot be held liable simply because things went wrong. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner. In case in hand, the opponent is a qualified medical practitioner. He had followed due care while treating and operating the patient/deceased. He used his skill and knowledge with due diligence.
37. The complainants miserably failed to make out a case for negligence of the opponents. We do not find any merit in the complaint filed by the complainants and it deserves to be dismissed. Hence, we pass the following order :-
-:
ORDER :-
1. Consumer Complaint stands dismissed.
2. Parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 17th October 2013.
[HON'ABLE MRS. Usha S.Thakare] PRESIDING MEMBER [HON'ABLE MR. Narendra Kawde] MEMBER dd.