State Consumer Disputes Redressal Commission
Dr.Uttamrao Bhimrao Patil, vs Chaitanya Sanjay Pawar(Patil), on 22 December, 2011
1 F.A.No.:995/2006
Date of filing :26.05.2006
Date of order :22.12.2011
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. :995 OF 2006
IN COMPLAINT CASE NO.:111 OF 2004
DISTRICT CONSUMER FORUM :LATUR.
Dr.Uttamrao Bhimrao Patil,
Patil Hospital, College Road,
Rahuri, Ahmednagar District. ...APPELLANT
(Org.Opponent )
VERSUS
1. Chaitanya Sanjay Pawar(Patil),
Minor.
2. Sanjay Narayan Patil(Pawar),
Both R/o Shirashi Hangarga,
Tq.Nilanga, Dist.Latur. ...RESPONDENTS
(Org.Complainants)
CORAM : Mr.D.N.Admane, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.Mahesh Kale for appellant, Adv.Shri.A.D.Shinde for respondent.
O R A L O R D E R Per Mrs.Uma S.Bora, Hon`ble Member.
1. Dr.Uttamrao Bhimrao Patil, resident of Nilanga, Dist.Latur appellant herein/original opponent challenges in this appeal order passed by Dist.Forum, Latur on 31.3.2006 in complaint case No.111/04.
2. The facts of the complaint are as under.
2 F.A.No.:995/2006Complaint is regarding medical negligence committed by appellant. Complainant No.1 Chaitanya Sanjay Pawar is minor child of complainant No.2 Sanjay Narayan Patil resident of Shirashi Hangarga, Tq.Nilanga, Dist.Latur. Complainant No.2 married with Baby Saroja who was working as teacher in school run by Zilla Parishad. On 8.12.1997 Baby Saroja was admitted in the hospital of appellant for the delivery. It is alleged by complainant that within the pregnancy period Baby Saroja was consulting appellant since August 1997. In the month of November when she visited the appellant tentative date for delivery was given as 8.12.1997. On 8.12.1997 appellant after consultation advised that there will be no problem in the delivery it will be normal delivery. On 9.12.1997 at 4.00 p.m. appellant informed the complainant No.2 and other relatives that caesarean is to be done as there is no possibility of normal delivery. After getting consent by mother of Baby Saroja patient was taken to operation theatre at 5.30 P.M.. It is alleged by complainant that appellant came out of operation theatre with new born child and informed relatives that baby boy is born and mother is well. Thereafter the appellant left the hospital. At 6.00 p.m. Baby Saroja brought on the stretcher by nurses. At that time relatives of Baby Saroja went to her side but found that she is not making any movement and they apprehend that she is dead. It is alleged by complainant that Baby Saroja died during surgery but appellant falsely told that mother is well. It is further alleged by complainant that there was no proper electricity in the hospital and as there was no electricity opponent prolonged delivery of Baby Saroja. Therefore relatives of deceased were asked appellant for shifting patient to another hospital. But appellant did not permit them to shift patient. It is alleged by complainant that due to delay in delivery such situation occurred due to which caesarean became necessary. It is alleged by complainant that after surgery opponent doctor left the hospital immediately. He did not follow the post operative care. It is alleged by complainant that while administering anaesthesia opposite 3 F.A.No.:995/2006 party did not take help of any anaesthesist which is necessary. Therefore complainant filed criminal case by CR.No. 135/90 U/s 304- A of I.P.C. on 9.12.1997. Accordingly, spot panchanama and inquest panchanama was conducted and body of Baby Saroja was sent for post-mortem. Thereafter complainant issued legal notice dated 11.11.1998 to the appellant and demanded compensation. The said notice was replied by appellant with denial. Therefore complainant approached to Forum and claimed compensation of Rs.9,27,600/- with 18% interest.
3. Appellant appeared before the Forum and denied the claim. It is submitted by appellant that allegations made in the complaint are false and therefore denied. It is submitted by appellant that after admission of Baby Saroja in the hospital he waited for normal delivery but as there were no labour pain even after the medication appellant took the decision to perform caesarean and accordingly informed relatives of Baby Saroja about the same and took consent of her mother. Thereafter with proper care and caution caesarean was performed. After the delivery the appellant brought new born child to the relatives of deceased Baby Saroja. At that time deceased was in semi conscious condition and shifted to ward at 6.00 p.m. After caesarean B.P. was checked it was 100/70. It is further submitted by appellant that deceased was conscious while shifted to the ward therefore there is no negligence as alleged by the complainant. Opinion of Civil Surgeon Dr.S.D.Kulkarni was called for by police authorities while investigating the matter. The said expert opinion was on record. According to which it can`t be held that appellant was negligent.
4. After hearing both the parties Dist.Forum allowed the complaint and directed appellant to pay Rs.2 lakhs to complainant No.1 & 2.
4 F.A.No.:995/20065. Dissatisfied with the said judgment and order org.opponent came in appeal.
6. Adv.Shri.Mahesh Kale appeared for appellant/org.opponent, Adv.Shri.A.D.Shinde appeared for respondent/org.complainant. It is submitted by Adv.Kale that after admission of Baby Saroja in the hospital of appellant he had taken all due care. As there were no labour pains decision for delivery by caesarean was taken. Accordingly consent was obtained by mother of deceased. At 5.30 p.m. caesarean was performed and new born child was shown to the relatives of Baby Saroja. At the time of surgery Baby Saroja was in semi conscious condition. Thereafter she was shifted to ward. At that time she was conscious. But immediately after that B.P. became low and she died due to cardiac respiratory arrest. At the same time appellant had informed about condition of deceased to her relatives. Thereafter post-mortem was conducted. According to report of post- mortem Baby Saroja died due to Cardiac respiratory failure. It is submitted by Adv.Kale that as per post-mortem report death of Baby Saroja is due to cardiac respiratory arrest. In the delivery by caesarean there is 2% possibility of death due to cardio respiratory arrest. Therefore it cannot be said that appellant is liable for medical negligence. It is further submitted by Adv.Kale that expert report given by Civil Surgeon Dr.S.D.Kulkarni is on record. As per said report there is no negligence on the part of appellant. Therefore in the absence of any evidence to show that appellant is liable for medical negligence Dist.Forum wrongly allowed the complaint. Without considering the facts and record Dist.Forum allowed the complaint.
7. In support of his contention he relied on 'Naseem Mohammed Bashir Ansari -Vs- Dhange Hospital and others' reported in S.C.& National Commission Consumer Law Cases( 2005-2008) page 128 wherein it is held by National Commission that "no medical expert opinion has been led by the appellant to show that whether the 5 F.A.No.:995/2006 treatment given by her was improper and for that anything was wrong in the administration of treatment". Adv.Kale also relied on 'Jacob Mathew -Vs- State of Punjab' reported in 2005(0)AIR(SC)3180, it is held by Hon`ble Supreme Court that " a professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he has professed to have possessed, or, he did not exercise the skill which he possessed". It is submitted by Adv.Kale that both these things are not proved by complainant. Adv.Kale also relied on 'Post Graduate Institute of Medical Education and Research, Chandigarh -Vs- Jaspal Singh' reported in 2009-SCC-7-330 and 'Smt.Ramesh Sharma -Vs- Tagore Heart Care and Research Centre & Ors.' reported in 2009 STPL(CL) 499NC and 'Noni singh -Vs- P.K.Talwar' reported in 2010 STPL(CL) 491 NC.
8. Adv.Shri.A.D.Shinde submitted that deceased Baby Saroja was admitted in the hospital of appellant. As delivery was prolonged by appellant relatives asked appellant for shifting of patient to another hospital. But appellant refused the permission. It is further submitted by Adv.Shinde that appellant informed the relatives that caesarean is to be performed. But for the said surgery the anaesthetist was not called by appellant. It is submitted by Adv.Shinde that as per settled practice anaesthetist and one more surgeon is to be remained present at the time of caesarean. In the present case appellant himself administered anaesthesia which is against the practice. No evidence to show that appellant was expert in administering the anaesthesia was provided by appellant. It is further submitted by Adv.Shinde that in the hospital there was no adequate arrangement of electricity. This is also deficiency in service. It is further submitted that appellant at one time contended that after surgery Baby Saroja was in semi conscious condition on other hand he stated that while shifted to ward, she was conscious but as per averment of complainant while shifted to ward Baby Saroja was already expired.
6 F.A.No.:995/2006No explanation given by appellant about the same. It is urged by Adv.Shinde that Dist.Forum has rightly considered all the facts while allowing the complaint. He fully supported the judgment and order of the Forum.
9. In support of his contention he relied on 'Nizam Institute of Medical Sciences -Vs- Prasanth S.Dhananka & Ors.' reported in 2009 (6) SCC 1, it is held by Apex Court that "while considering the matters relating to medical negligence court must consider negligence before, during and after operation committed by doctor".
10. We heard both the counsels and perused the record. It is an admitted fact that Baby Saroja was admitted in the hospital for delivery. It is admitted fact that surgery of caesarean was became necessary. It is also admitted fact that caesarean was performed by appellant. As per contention of appellant at about 5.30 p.m. on 9.12.2007 caesarean was performed. It is contended by appellant that at that time Baby Saroja was in the semi-conscious condition. It is contended by appellant that after surgery the patient was shifted to ward and at that time she was conscious. But as per allegation of the complainant which was affirmed on oath by complainant that patient was unconscious. It is contended by appellant that there was decrease in the B.P. of Baby Saroja but in the appeal it is nowhere explained that what treatment given by him to deceased to control the B.P. No particulars regarding medication given to maintain B.P. was given by appellant. Even nowhere it is stated by appellant that at what time surgery was completed and at what time patient was shifted to ward and what precaution he took after operation. He only denied that he left hospital but in fact his presence was not shown or proved by appellant. As per allegations of the complainant there was no electricity and there is no alternative arrangement of electricity through generator or inverter was made by appellant. It is admitted by appellant that it was not in his hand. But he did not mention that 7 F.A.No.:995/2006 any alternative arrangement through generator or inverter was made by him. In our view appellant running hospital without arrangement of alternative electric supply is itself deficiency in service.
11. Deceased Baby Saroja came to hospital walking on her legs means she was in sound healthy condition. But after caesarean she died means there is something fishy which appellant avoided to explain. In our view appellant left the patient unattended after surgery of caesarean. There was fall in B.P. due to which Baby Saroja Died. The case was referred to Civil Surgeon Dr.S.D.Kulkarni for giving his opinion about medical negligence, if any, committed by appellant. Dr.S.D.Kulkarni mentioned in his opinion that the case papers relating to treatment given by appellant to deceased Baby Saroja were not supplied to him. Therefore he is not able to give his opinion about medical negligence. In our view appellant deliberately avoided to supply the papers relating to treatment of Baby Saroja. In our view this is deficiency in service. The points for holding appellant liable for medical negligence are; firstly, immediately after surgery appellant left the hospital as no evidence to prove his presence was produced by him. Secondly, no particulars about treatment given by appellant to control the B.P. of deceased was produced on record. Thirdly, appellant avoided to produce case papers before the expert to decide the medical negligence. In our view Dist.Forum considered all the facts and record while allowing the complaint. We do not want to interfere the order passed by the Forum. Hence, O R D E R
1. Appeal dismissed.
8 F.A.No.:995/20062. Appellant to pay cost of Rs.5000/- to the respondent/org.complainant in appeal.
3. 'Record and proceedings' be sent back to the Dist.Forum.
4. Copies of the judgment be issued to both the parties.
K.B.Gawali, Mrs.Uma S.Bora D.N.Admane Member Member Presiding Judicial Member Mane