State Consumer Disputes Redressal Commission
Rajani R. Gaunekar & Another vs Manipal Health Systems Pvt. Ltd. & ... on 3 September, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
PANAJI - GOA
C.C. No. 28/2014
1) Mrs. Rajani R. Gaunekar,
w/o Late Ramesh G. Gaunekar,
Major of age, house wife,
2) Mr. Atul R. Gaunekar,
s/o Late Ramesh G. Gaunekar,
Major of age, businessman
All the above are resident of
A1, Nandanban Co-op. Hsg. Soc. Ltd.
Near T.B. Hospital, Taleigao,
Panaji-Goa 403002. ...Complainants
V/s.
1) Manipal Health Systems Pvt. Ltd.,
A Company registered under the,
Companies Act, 1956 having its,
registered office at 'Manipal,
Towers', No. 14 Airport Road,
Bangalore 560 008 herein,
Represented by Dr. Chinnappa,
S. Metgud, s/o Dr. S.H. Metgud,
Residing at Flat no. S-2 Building 4-F,
Model Millenium Vista,
Caranzalem - Ilhas - Goa having its Goa,
Unit address at 'Manipal Hospital Goa',
Dr. E. Borges Road, Dona Paula, Panaji-,
403004 with the Goa Unit headed,
By its unit head Mr. G. Karthihaivelan.
2) Dr. Mahesh Naik (Department Gen. Surgery),
Attached to the Opposite Party No. 1,
residing at Panaji - Goa.
3) Dr. Mahesh Parsekar (Anaesthetist),
Attached to the Opposite Party No. 1,
residing at Panaji - Goa.
4) Dr. Siddharth Darji (Snr. Executive Operations),
Attached to the Opposite Party No. 1,
residing at Panaji - Goa. .......Opposite Parties
2
All the above addresses are their registered addresses.
The Opposite parties No. 2 to No. 4 can be served on Opposite Party
No. 1 at its Panjim - Goa address as mentioned above.
Complainants are represented by Adv. Shri. B.P. Sardessai.
OPs are represented by Adv. Shri. S.V. Joga Rao with Adv. Ms.
Radha Pyari.
Coram: Shri Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated: 03/09/2015
ORDER
[Per Shri. Justice N. A. Britto, President] The complainants are the widow and the son of late Ramesh G. Gaunekar who expired on 23/3/14. The complainants, alleging medical negligence, particularly on the part of OP No. 2 and 3, by this consumer complaint seek to recover from the OPs total compensation of Rs. 40,20,298/-.
2. The undisputed facts would be as follows:
3. The patient Ramesh G. Gaunekar, aged 68 years, was a known case of Diabetes and Hypertension, and was seen in the OPD by OP No. 2 Dr. Naik, General Surgeon, on 17/10/12 and was advised mesh repair of incisional hernia.
4. The patient got admitted in OP No. 1 hospital on 8/1/13 under Dr. Naik, surgeon, and OP No. 3 Dr. Parsekar, anesthetist, and the surgery was fixed on 9/1/13, after it was consented to by the patient himself. On 9/1/13 the patient was seen by Dr. Naik and was referred for ultrasound for marking the site of incision. The patient then first went for ultrasound and then to the OT by walk for repair of incisional hernia (copy at page 127). The spinal anesthesia procedure was explained to the patient and the patient was given spinal anesthesia (pages 119 and 397) under aseptic precaution.
3The patient had bradycardia during anesthesia (page 667). (Bradycardia is a slow heart rate, commonly defined as a rate of < 60 bpm or a rate which is too slow to be physiologically appropriate for the person and/or activity (generally recognized as < 45 beats/minute in men, < 50 beats/minute in women). Post spinal anesthesia, the patient suddenly suffered cardiac-respiratory arrest i.e. 25 minutes after the spinal anesthesia. The patient suffered a second episode of cardiac respiratory arrest after 25 minutes and later was diagnosed as a case of hypoxic brain injury which is secondary to cardiac arrest. The patient was shifted to ICU duly consented by Complainant No. 2 (pg. 656) where he remained till 17/1/13 and during the time of his stay in the ICU, the patient was suspected to have had acute kidney injury in view of decreased urine output and also had neurological problem for which opinion was taken from nephrologist and neurologist and the condition of the patient was improved. The patient had also focal seizure and one episode of GTCS (Generalised Tonic-Clonic Seizures) lasting for one minute which were treated and managed appropriately. On 16/1/13 tracheostomy was conducted by Dr. Deepak Murthy, ENT surgeon, with OP No. 3 Dr. Parsekar as anesthetist, and as the patient was stable haemodynamically and off ventilation, the patient was shifted to a private room under medical care of Dr. Oscar Rebello on 17/1/13. The patient was discharged on 8/3/13, after about 57 days of hospital stay, and thereafter was treated at home. While at home, the patient had to be treated at Campal hospital between 12/3/14 and 15/3/14 under the advice of Dr. Oscar Rebello. Towards the end, the patient stopped passing urine. The condition of the patient became edematous and deteriorated further and the patient ultimately expired on 23/3/14 of kidney failure.
45. The gravamen of the case of the complainants is that the spinal anesthesia to the patient was given by some incompetent quack, at the behest of Dr. Parsekar, OP No. 3, who was away from the O.T (operation theatre) which damaged the patient permanently and the patient who had walked in into the O.T came out of it in a comatose state. The condition of the patient further deteriorated for failure of prompt resuscitation on account of absence of both Dr. Naik, OP No. 2, and Dr. Parsekar, OP No. 3, who were absent from the OT while the patient was being experimented.
6. The complainants have sought to support their case with the affidavit-in-evidence of complainant No. 2, and medical records, particularly, the unsigned OT notes/Doctor's orders (copy at page
397), signed and officially given O.T notes (copy at page 119) and the nurse's record (copy at page 126). The complainants say that the last two records (copies at page 119 and 126) are fabricated as they contain different readings.
7. On the other hand, the case of the OPs is that the complaint is false and frivolous. The OPs say that they treated the patient as per standard medical practice and there is no negligence or deficiencies of services on their part. The OPs say that although they have sympathy for the complainants' family for having lost their loved one, they cannot be held liable for any claim towards mental agony, financial constraints, etc., as there was no negligence whatsoever on their part in rendering treatment to the patient. The OPs filed their detailed written version duly signed by all, verified as well as supported by affidavit of Dr. Shruti Malhotra.
8. In support of their defense, the OPs filed the affidavit of Dr. Siddharth Gupta, head of operations of OP No. 1 hospital and also the 5 affidavit of Dr. Shailesh Pai Raiturkar, anesthetist working for several hospitals. Dr. Raiturkar has opined that Dr. Parsekar is a well qualified and competent anesthetist who is in professional practice for last more than 12 years and that as per records Dr. Parsekar had chosen correct anesthesia technique, the drug and dosage was perfect and appropriate, considering the condition of the patient and the nature and duration of the surgery.
9. Later, after evidence was closed, on or about 4/8/15, Dr. Sachin Jain, Unit Head, filed his affidavit on behalf of OP No. 1 hospital (copy at page 1575) and so did Dr. Naik (copy at page 1470) and Dr. Parsekar (copy at page 1566).
10. Before referring to the evidence of the parties, it is necessary to dispose off some of the pending applications. The written version was signed by all the OPs and it can be said to have been filed also by OP No. 2 Dr. Naik, as well. We say so, because, inter alia, OP No. 2 Dr. Naik admitted in the written version that the complainants had approached him to seek some discount on billing and he had informed them to approach hospital authorities. On the same day, OP No. 2 Dr. Naik also filed an application for deletion of his name on the ground of misjoinder (copy at page 453) which application was contested by the complainants by reply dated 7/11/14. Dr. Naik alleged that no specific avernments of professional negligence was made in the complaint as against him. Referring to certain avernments made by the complainants in the complaint, OP No. 2 Dr. Naik pleaded that he is a general surgeon and had not role in the said case at all.
11. Now, Dr. Naik, OP No. 2, has filed a memo dated 4/8/15 with his affidavit-in-evidence stating that in case this Commission comes 6 to the conclusion that OP No. 2 is not a proper and necessary party, the affidavit be rejected and on the other hand, in case this Commission comes to the conclusion that OP No. 2 is proper and necessary party then the affidavit filed may be taken into consideration. As already stated, the written version was filed by OP No. 2 Dr. Naik as well, although an impression was sought to be created that it was filed only on behalf of OP Nos. 1, 3 and 4.
12. Shri. Sardessai, the lr. advocate of the complainants, would submit that the patient had given his consent to be operated by Dr. Naik and it is he who referred the patient to Dr. Oscar Rebello for fitness for surgery. Lr. Adv. Shri. Sardessai further submits that the patient was admitted under OP No. 2 Dr. Naik and in the anesthesia record he has been identified as main surgeon who has also signed the discharge summary and it is the case of the OPs that Dr. Naik was there, and, if that be the case the complaint cannot be held to be bad for misjoinder of OP No. 2 Dr. Naik.
13. We are entirely in the agreement with the submissions made by Shri. Sardessai, the lr. advocate. There is no dispute that the patient was admitted under OP No. 2 Dr. Naik to be operated by him and therefore he has every duty to explain to the complainants as well as to this Commission as to how the patient who walked in the OT, came out of it in a comatose state, as pleaded by the complainants. Irrespective of the avernments made by the complainants based on which the application for misjoinder is filed, on the facts of the case, the complaint cannot be said to be bad for misjoinder of Dr. Naik, OP No. 2. Dr. Naik appears to have been ill advised to file such an application. We, therefore proceed to dismiss the application filed by OP No. 2 for his misjoinder with costs. (copy at page 453). At the same time in the interest of justice we allow the OPs to produce their 7 evidence belatedly in the form of affidavits but with costs of Rs. 5000/- to be paid by both OP Nos. 2 and 3 to the complainants.
14. The complainants have filed an application dated 1/9/14 (copy at page 395) seeking leave to produce certain medical records including the unsigned OT notes/Doctor's orders (pg. 397), discharge summary of the patient signed by Dr. Oscar Rebello as well as by Dr. Naik (copy at page 420), documents which were in the custody of the complainants at the time of filing the complaint. The unsigned OT notes (copy at page 397) must have been in the hands of the complainants even before the patient was discharged from the hospital and the discharge summary, at the time of discharge. Complainants say that the said documents were left out without being produced inadvertently while arranging the compilation. The complainants have also filed another application dated 6/2/15 (copy at page 549) to produce on record particularly letters dated 15/1/15 written by Dr. Oscar Rebello to the complainants' advocate (copy at page 555) and letter dated 16/1/15 written by Dr. Madhumohan Prabhudessai also to the advocate of the complainants, stating the said letters were obtained by the complainants, after filing the defense version, with a view to verify the authenticity of the allegations made against the said doctors. The OPs have also filed a memo dated 24/4/15 (copy at page 585) producing a set of documents namely the medical records in connection with the treatment of said patient.
15. On behalf of the OPs, reliance is placed on Ms. Sejal K. Mandavia vs. Mr. M.N. Popat (decision of Gujarat H.C. dated 10/2/97 in CRA No. 851 of 1987)(copy at page 1478), wherein it has been held that "the ultimate aim of courts of law is to do substantial justice to the parties and procedural rules should not come in way. Procedure is always meant for discipline and systematic proceeding. If for some reason beyond control, the 8 procedure could not be followed as required under law, the party should not be deprived of legitimate legal rights. Procedural irregularity can be cured by exercising inherent powers for doing substantial justice if the same does not cause any prejudice to other side."
16. Both the parties accuse one another of slumbering in filing the said applications. What is sauce for the goose should be the sauce for the gander. Nevertheless, we allow the said applications dated 1/9/14 and 6/2/15 filed by the complainants and the application/memo dated 24/4/05 filed by the OPs. We also allow the OPs, in the interests of justice, to produce belatedly the affidavits-in- evidence of Dr. Naik, Dr. Parsekar and Dr. Jain vide memos dated 4/08/15; with costs. For dismissal of application for misjoinder and for allowing late filing of evidence, we imposed costs of Rs. 5000/- on OP Nos. 2 and 3 to be paid to the complainants, as stated in para 13 hereinabove.
17. Before we proceed further, it must be observed that it was nobody's case that the patient was not fit to undergo surgery under Dr. Naik, surgeon and Dr. Parsekar, anesthetist on 9th January, 2013. Because he was fit, he was admitted on 8th. If at all the OPs were compelled to refer to the past history of the patient, it was because the complainants had alleged that the patient was a hale and hearty person with a profound desire to live a healthy life. The OPs only desired to refute the said statements. The past medical history of the patient would show that the patient had undergone TURP on 17/6/05 under spinal anesthesia (prostrate surgery done to relieve moderate to severe urinary symptoms caused by an enlarged prostrate). On 17/6/05 the patient had also undergone colonoscopy under sedation on account of passing blood in stools. Cystoscopy with binding piles under spinal anesthesia was done on 24/11/05. Laparotomy with right hemicolectomy under general anesthesia on 9 16/11/05. Cystoscopy with VIU (visual internal urethrotomy) under general anesthesia on 9/11/07 and cystoscopy with VIU under spinal anesthesia on 6/3/12. The OPs have, therefore, contested the complainants statements that the patient was hale and hearty by showing that the patient was being treated for various illnesses from time to time and as such could not have been a hale and hearty person, as claimed.
18. There is also no dispute that the patient walked into the OT after undergoing sonography, for repair of incisional hernia, facts which are stated by the complainants and corroborated by the nurse's record (copy at page 127). The complainants have produced reference letter made by Dr. Naik to Dr. Oscar Rebello to certify the patient's fitness for surgery (copy at page 477) and Dr. Oscar Rebello in his letter dated 15/1/05 (copy at page 555) has stated that Shri. Gaunekar was his patient with DM with HTN for a number of years and had undergone several surgeries, uneventfully in the past and that he did vaguely remember seeing Mr. Gaunekar, a few days prior to the current surgery and he was then in the medical fit condition. The undated requisition (at page 477) prima facie appears to have been addressed by Dr. Naik to Dr. Oscar Rebello to certify the patient's fitness at his consulting room and not in the OP No. 1 hospital. Moreover, Dr. Parsekar in his affidavit-in-evidence has stated that immediately on admission on 8/1/13 the patient was referred to him by Dr. Naik, for PAC. He further states that as scheduled on 9/1/13 after obtaining the required consent from the patient himself for surgery as well as for anesthesia, a review PAC was done and all investigation were checked prior to shifting to OT. In other words, there is overwhelming evidence to show that the patient was fit enough to 10 undergo repair of incisional hernia under Dr. Naik surgeon, and Dr. Parsekar, anesthetist.
19. Admittedly, the patient suffered bradycardia during anesthesia and post anesthesia suffered cardiac respiratory arrests, twice. Whatever, happened to the patient, happened within the four walls of the OT and the evidence as to what happened to him could come only either from the surgeon or from the anesthetist or the OT attendant and other medical staff who were present there. Evidence could also come from medical records, but we must hasten to remember that the first priority of the surgeon and other medical staff in the O.T is the patient and not the writing of the records. That would be secondary. The complainants have placed reliance on Ram Avatar Sharma vs. Nabin K. Patnaik, I 2012 CPJ 502, a decision relied on behalf of the OPs, to say that:
"The settled law on the subject of medical negligence requires that to hold a medical practitioner guilty of professional negligence, the standards of an ordinary practitioner of that discipline will have to be applied, not those of the highest order of skills and expertise nor of the lowest". Moreover, the allegations will have to be established on the basis of medical record and as far as feasible, expert opinion or medical literature on standard practices and procedures." (emphasis by Complainants, page 1419)
20. The complainants have produced the unsigned OT notes (copy at page 397) and have stated that they got them whilst the patient was in the hospital. According to the complainants, the said unsigned OT notes/Doctor's orders was mistakenly got left out in the patient's pre- operative test report file and having compared the same with the signed/certified copy( copy at page 119) they came to know the same were fabricated. The complainants have not explained with clarity as 11 to how the said OT record (copy at pg. 397) came into their custody. On the other hand, the OPs have stated that the said OT notes are neither formally authenticated nor duly signed by the concerned doctor nor they are formally handed over to the patient's attendees and the said relevant report which was not duly authenticated suddenly disappeared from the patient's file and despite warranted efforts could not be traced at all and after the concerned doctor and other doctors realized that such report was not traceable, in compliance with the ethical obligation, the concerned doctor has rewritten the report and has duly authenticated the same and then formally handed over to the patient (patient's relatives) (copy at page
119) and that now the complainants in a misleading and unfounded manner are claiming that the content in both the versions contain discrepancies. The OPs have stated that there may be a change in the content but definitely deny the assertion that there is discrepancy in as much as the apparent change in the content does not reflect any substantive or significant discrepancy in both the versions. The complainants have tried to compare and contrast the said unsigned OT notes (at page 397) with those signed OT notes (at page 119) at page 1367 and have highlighted that the words "Dr. Mahesh Naik"
are missing from the unsigned OT notes. We are unable to accept the submission made, on behalf of the complainants, that the signed OT notes (copy at page 119) or for that matter the nurse's record (copy at page 196) are fabricated. Allegations such as these can be easily made but difficult to be proved. Rightly or wrongly, the complainants got the custody of the unsigned OT notes and retained them without returning it to the hospital authorities. They had to be reconstructed or re-written from memory after a passage of time and therefore slight variation in both the said OT notes, signed and unsigned was bound to be there. Certainly, the signed OT notes (copy at page 119) were 12 not copied from unsigned OT notes (copy at page 397) and therefore they could not be word to word the same. The phrase "patient responds to Dr. Mahesh Naik oral command" is absent from unsigned notes where only "patient responds to oral command is written" but does that not appear to have been written with any ulterior motive.
21. Shri. Sardessai, the lr. advocate of the complainants would submit that Dr. Korgaonkar's presence is seen from both the signed and unsigned OT notes at page 397 and 119 respectively, but there is nothing on record to show that he came and was involved in the resuscitation of the patient. Lr. advocate submits that the words in the nurse's record (copy at page 128) that CPR (cardio-pulmonary resuscitation) was started by Dr. Korgaonkar, have been inserted subsequently and according to him referring to consultation record the CPR was given by Dr. Vijay Naik, (copy at page 281). Lr. advocate submits that no consultation record of Dr. Korgaonkar has been produced, in case at all he had started the CPR on the patient. Referring to the written version of the OPs, that resuscitation was done by Dr. Korgaonkar, anesthetist, who was present in the OT complex, Dr. Gandhali Dhume, Dr. Vijay Naik, Physician, Dr. Madhumohan, Urologist, Dr. Devki, Physician and Dr. Vikram, Intensivist, Lr. advocate points out that Dr. Madhumohan has falsified the said version by his letter dated 16/1/15 (copy at page
556) that he never participated as a team member in the resuscitation of the patient.
22. We are not impressed with the submissions made by Lr. Adv. Shri. Sardessai. The complainants are trying to prove the absence of Dr. Naik, surgeon, Dr. Parsekar, anesthetist, from the OT in a very circuitous way. Dr. Parsekar has now filed his affidavit-in-evidence (at page 1566) and has stated that he was very much available there 13 and he himself administered the anesthesia dose, prior to which the patient had been explained in detail about the procedure. He has stated that spinal anesthesia was given after taking aseptic precaution in the presence of surgeon, anesthesia technician, OT attendant and OT nursing staff. He has stated that he was very much present in the OT, conducted the review PAC, explained the procedure to the patient in the OT, and all the required precautionary measures were taken before the spinal anesthesia was given. Dr. Parsekar has stated that spinal anesthesia was given after taking aseptic precaution in the presence of Surgeon, etc. and the patient got bradycardia, and post spinal anesthesia, the patient suddenly suffered cardiac respiratory arrest after 25 minutes of spinal anesthesia and immediately he and Dr. Naik called for the assistance from Dr. Korgaonkar, anesthetist who were present in the OT complex, Dr. Gandhali Dhume, etc. and after that the patient suffered a second episode after 25 minutes and immediately the patient was resuscitated again by them and shifted to ICU for further management.
23. It is nobody's case, not even of the complainants, that the unsigned OT notes (copy at page 397) were not written by Dr. Parsekar; they were written by him, and, therefore, first and foremost we must observe that the unsigned OT notes could not have been written by Dr. Parsekar in case he was not present in the OT. Secondly, it was not expected of Dr. Parsekar to have written in the unsigned OT notes "I gave anesthesia" or "Dr. Parsekar gave the anesthesia" as he himself was doing the procedure of giving the anesthesia. That spinal anesthesia was given by Dr. Parsekar is corroborated by the nurse's record (copy at page 128). If anesthesia was given by Dr. Parsekar, the operating surgeon would have been around as no sensible anesthetist would have started with anesthesia 14 in the absence of operating the surgeon. Moreover, Dr. Naik in his affidavit-in-evidence (at page 1470) has stated that he had referred the patient to Dr. Oscar Rebello, the physician, for surgical fitness and Dr. Parsekar, anesthetist for PAC. He states that on 9/1/13 after the patient was posted for repair incisional hernia, review PAC was done; all investigation were checked prior to shifting to the OT. Patient was shifted to OT; monitor was attached to the patient to check all the vitals; 20 G.I.V. line was taken on the left hand; 1L RL (crystalloid) intravenous fluid started as preloading. The anesthesia procedure was again explained to the patient in the OT. Spinal anesthesia was given after taking aseptic precaution in the presence of surgeon, anesthesia technician, OT nursing staff and OT attendant. The patient got bradycardia and post spinal anesthesia the patient suddenly suffered cardiac respiratory arrest after an interval of 25 minutes. In other words, Dr. Naik has corroborated the sequence of events that took place in the OT, including the fact that the patient suffered from bradycardia and post anesthesia suffered cardio-respiratory arrests at intervals of 25 minutes and the patient was resuscitated and then shifted to ICU for further management. As regards the patient being resuscitated, Dr. Parsekar has stated that he and Dr. Naik called for assistance of Dr. Korgaonkar, anesthetist, Dr. Dhume, Dr. Vijay Naik, Dr. Madhumohan, Dr. Devaki and Dr. Vikram and the patient was resuscitated. To the same effect is the version of Dr. Naik. That initial resuscitation was already started by the anesthetist is recorded on CPR notes (copy at page 742). The anesthetist referred therein could be none other than Dr. Korgaonkar; that CPR was started by Dr. Korgaonkar and Dr. Vijay Naik is also recorded on the nurse's record. The unsigned OT notes also show help being called from anesthetist Dr. Korgaonkar and the physician. This physician could be none other than Dr. Vijay Naik. As already stated, the complainants have 15 produced no medical evidence in support of their case. There is no reason why we should not accept the sequence of events as explained by Dr. Parsekar and Dr. Naik which ultimately resulted in the patient going into a comatose state. The versions given by them are supported by medical records. In the light of that, we are unable to accept the reckless allegations of the complainants that the anesthesia was given by a quack. It was given by none other than and experienced anesthetist Dr. Parsekar, and post cardiac arrests the patient was resuscitated by Dr. Korgaonkar and Dr. Vijay Naik and may be others who were present. Whether Dr. Madhumohan was there or not in the team which resuscitated the patient will not be of any consequence. The main plank on which the case is built by the complainants, falls.
24. Another allegation made on behalf of the complainants is that Dr. Naik ought to have come and informed the complainants as to what had happened to the patient but an unrelated Doctor by name Dr. Pankaj Mahtre, from the Nuclear Radiation Department, came and informed them that even before the operation started the patient was suddenly suffered from cardiac arrest twice and the patient has been immediately shifted to the ICU. As regards this aspect, the OPs have stated that Dr. Pankaj Mahtre, though directly not involved, was a friend of patient's family and had shown interest in the patient even before the surgery. Dr. Parsekar has stated that the patient's party was informed about the condition of the patient even before he was shifted to ICU and once the patient was shifted to ICU. Dr. Parsekar alongwith the Intensivist and Dr. Mahesh Naik jointly explained the condition of the patient. Likewise, Dr. Naik has also stated that the patient's party was informed about the condition of the patient even before he was shifted to ICU and once the patient was shifted to ICU 16 he alongwith the Intensivist and Dr. Parsekar jointly explained the condition of the patient. The written consent given by complainant No. 2 would support their versions. We would prefer to go by the corroborated versions of both the doctors in preference to the uncorroborated and self-serving version of complainant No. 2.
25. The complainants say that because of negligence of the OPs they were asked to shift the patient to GMC at Bambolim a government hospital, under the pretext that such cases were treated with their better results. The OPs, particularly Dr. Naik says that these allegations are absolutely false and concocted and on the contrary the patient's relatives i.e. the complainants themselves wanted to shift the patient to GMC, due to financial constraints which they had expressed later in writing. On facts of this case, this version appears to be more probable. This version is also corroborated by Dr. Parsekar, and, therefore the allegation of the complainants on that score has to be considered as not proved.
26. The complainants also say that they were given rebate by the OPs in the payment of bill with a view to wash their hands of their dirt and thereafter they were shifted from credit purchase to cash purchases, as a result of which after 28/1/13 the complainants paid for the medicines purchased by them. As regards this aspect, it can be seen from letter dated 29/1/13 addressed by complainant No. 2 to the Unit Head of OP No. 1, hospital, that the complainants had stated (copy at page 48) that they were finding it very difficult to bear such a heavy expenditure and that they would appreciate if they could look into their difficult situation at the earliest and help them out. By way of reply to this allegation, the OPs have stated that while the patient was in the hospital he had several incidental complication for which appropriate treatment was rendered and accordingly the bill 17 got proportionately increased as per treatment rendered, the bill raised was of about Rs. 4,20,665/- only and an amount of Rs. 1,40,000/- only was collected from the complainants on considering their request vide their letter dated 28/1/13 for financial help and the entire remaining balance was waived off by the OPs on humanitarian grounds and the allegation in that regard is false, frivolous and concocted. Dr. Naik in his affidavit-in-evidence has stated that at no point of time treatment was withheld for want of money as alleged by the complainants and that the complainants had approached him and had sought some relief in hospital charges and they informed the hospital management in that regard and that the complainants had requested him and Dr. Parsekar in writing (hand written application), to reduce the charges and based on their request both of them removed their charges from the final bill. This version of Dr. Naik is corroborated by the version of Dr. Parsekar in para 10 of his affidavit. Although Dr. Naik and Dr. Parsekar have not placed on record the hand written application, we are inclined to accept their version because the complainants had also approached the hospital for concession in the hospital bill. In our view, the complainants having been given discount on the hospital bill at their request cannot be allowed to turn around and say that discount was given to wash the hands from their dirt. This is unkind, to say the least. There was no deficiency in service, in case the complainants were asked to purchase the medicines on payment by cash instead of credit.
27. The burden to prove medical negligence was on the complainants i.e. to prove every fact necessary to fasten legal liability or in other words the complainants had the task of convincing the Forum that their version of the facts is the correct one. It is a known fact that sometimes in the worldly things some things go wrong in medical 18 treatment or surgery operation. A doctor cannot be held to be negligent simply because something went wrong (II 2004 CPJ 504). The Apex Court, quoted Lord Denning and observed in Kusum Sharma and ors., AIR 2010 SC 1050 that "it is so easy to be wise after the event and to condemn as negligence that which was only a misadventure". There was no misadventure here. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong, and therefore, somebody must be punished for it (see Martin F. D'Souza, 2009 (3) Bom C.R. 202). This is what has exactly happened in this case. From the evidence on record, we are satisfied that there has been no negligence or deficiency in service on part of Dr. Naik and Dr. Parsekar under whom the patient was admitted for repair of right incisional hernia. That the patient suddenly went into bradycardia and post anesthesia into cardiac arrest twice leading to hypoxic brain injury is an unfortunate situation for which the said doctors cannot be blamed. The defense evidence brought on record shows that the patient was resuscitated by Dr. Korgaonkar, Dr. Vijay Naik and others but nothing much could be done to the patient and thereafter his condition went on deteriorating. We find there is no negligence on the part of either Dr. Naik or Dr. Parsekar in particular or the OP hospital in general.
28. The human heart has become a very unpredictable organ of the human body. Of late, it does not even recognise age. Before parting, we may refer to an incident, for the benefit of the complainants, which took place last week at Hospicio Hospital at Margao, where a gym instructor, aged 23 years, died due to cardiac arrest. A very eminent cardiologist commenting on the same (Herald dated 29/8/15) has this to say:
19"Such incidents do occur and lead to loss of life in a jiffy, even in most advanced centres. We have all seen patients walking into the hospital and in the next minute - an episode of unheralded ventricular fibrillation - and the patient is dead inspite of best attempts at cardiac resuscitation".
29. We find there is no merit in this case and therefore the same is bound to be dismissed. We must remember that it is the doctors who treat but it is God who heals.
30. With the above observations, we proceed to dismiss the complaint with no order as to costs. Costs imposed hereinabove to be paid to the complainants within 30 days.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto]
MEMBER PRESIDENT
sp/-