National Consumer Disputes Redressal
Smt Kamalabai Vishnu Khodse & Anr. vs Dr. Yeshwant B. Khaosle & Anr. on 17 January, 2020
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1358-1359 OF 2015 (Against the Order dated 09/01/2015 in Appeal No. 163/2010 & 186/2010 of the State Commission Maharashtra) 1. SMT KAMALABAI VISHNU KHODSE & ANR. OCCUPATION : HOUSEHOLD DHANDE GALLI, TEL BEED MAHARASHTRA 2. SHASHIKANT VISHNU KHODSE OCCUPATION : HOUSEHOLD DHANDE GALLI, TAL. BEED MAHARASHTRA 3. SHASHIKANT VISHNU KHODSE OCCUPATION : SERVICE HOUSEHOLD DHANDA GALLI TAL. BEED MAHARASHTRA ...........Petitioner(s) Versus 1. DR. YESHWANT B. KHAOSLE & ANR. OCC : DOCTOR TRIPATI HOSPITAL, NAGAR RAOD TAL. BEED MAHARASHTA 2. DR. RAHUL UMBRAJKAR OCC : DOCTOR TRIPATI HOSPITAL, NAGAR ROAD, TAL. BEED MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : Mr. N.B. Deshkukh, Advocate For the Respondent : Mr. Jayant Chitnis, Advocate Dated : 17 Jan 2020 ORDER MRS. M. SHREESHA, MEMBER Challenge in these two Revision Petitions filed by the Petitioners/Complainants, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), is to the order dated 09.01.2015 passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (for short "the State Commission") in Appeal Nos. 163 & 186 of 2010. By the impugned order, the State Commission has reversed the order dated 23.11.2009, passed by the District Consumer Disputes Redressal Forum, Beed (for short "the District Forum") in Consumer Complaint No. 200 of 2007, and allowed First Appeal No. 163 of 2010 filed by Dr. Yashwant Bhanudas Khose/Opposite Party No.1 (for short, the "treating Doctor") and consequently dismissed the First Appeal No.186 of 2010 filed by the Complainants seeking enhancement of the compensation awarded by the District Forum. The District Forum, while holding the treating Doctor guilty of medical negligence and deficiency in service, has directed him to pay a sum of ₹2,00,000/- towards compensation on account of death of the first Complainant's son, namely, Shaliwahan@ Pintu (for short, "the patient").
2. The Complaint was initially filed by the Complainants before the State Consumer Disputes Redressal Commission at Mumbai being No.213/2000; the same was transferred to Aurangabad on establishment of the Circuit Bench and thereafter was transferred to District Consumer Disputes Redressal Forum, Beed for want of pecuniary jurisdiction.
3. The material facts, as emerge from the Complaint, necessary for disposal of the Revision Petitions are as follows:-
4. Complainant No.1 was living separately from her husband along with three sons, namely, Shaliwahan @ Pintu, Shashikant and Sudarshan. Shaliwahan @ Pintu (hereinafter referred to as the "Patient"). The Patient after completing his school education from Bhosla Military School, Nasik was studying in Balbhim College, Beed. It is stated that during his education, he was also working with his maternal uncle and earning a sum of ₹2,000/- per month which was the only source of livelihood for the Complainants for their day to day requirements. The Patient was a body builder and maintaining good health. As he was suffering from abdominal pain since last 10 days, on 29.09.1999 he was taken to Tirupati Hospital at Beed, run by the Opposite Parties, Dr. Yeshwant Bhanudasrao Khose and Dr. Rahul Umbrajkar. He was examined by Dr. Yeshwant Bhanudasrao Khose (for short, the "treating Doctor") and was prescribed some medicines. The treating Doctor also advised the Complainants to come on the next day for further examination and investigations.
5. On the next date, after conducting further investigations including ultrasonography of the abdomen, the treating Doctor diagnosed that 50% of the Patient's liver was damaged and he was suffering from "Liver Cirrhosis". On the advice of the treating Doctor, the Patient was admitted in his Hospital as Indoor Patient in the ICU. The treating Doctor assured the Complainants that all the facilities to cure the said disease was available in the Hospital. The Patient remained in the Hospital from 30.09.1999 to 19.11.99 on which date he expired. The Complainants alleged that the Patient was given wrong treatment because of wrong diagnosis by the Opposite Parties. In the Hospital, there was no trained staff, expert Doctors, essential diagnosis equipment, test equipment and also no experts to run the ICU.
6. On the last date, i.e. 19.11.1999, the Patient's condition improved. However, the Opposite Parties had administered enema to the Patient as a result of which he went into shock and ultimately died at about 9.30 p.m. The Opposite Parties had not taken due care and caution in the treatment of the Patient and even post mortem of the deceased was also not done by them. The Complainants further state that the Patient was a young boy of 23 years of age and was the only earning member of the family. He would have earned ₹24,000/- per annum and an amount of ₹8,40,000/- for another 35 years. Alleging medical negligence/deficiency in service on the part of the Opposite Parties, the Complainants filed a Complaint in the District Forum, praying for compensation of ₹12,00,000/- along with interest and costs.
7. The Complaint was contested by the Opposite Parties. In their joint Written Version, while admitting that the Patient was under their treatment from 30.09.1999 to 19.11.1999, the allegations of wrong diagnosis and wrong treatment was denied. It was pleaded that the treating Doctor was well qualified and the Hospital was equipped with all the necessary equipment and machinery required for treatment and investigative tests of the Patient. The Hospital had the facilities of Central and Bed Side Monitors, Oxygen Concentrator, Intubation Sets, Deff Briliator, Suction Machine, E.C.G. Machine, well equipped laboratory, ultra sound machine, echo Cardiography, Operation Theatre, ICU, ENT facility etc. After the necessary examination, it was diagnosed that the Patient was suffering from Liver Cirrhosis and accordingly necessary treatment was administered. It was further stated that the Patient was consuming excessive alcohol for the past 7 years. During examination, he complained of discomfort and distention of the abdomen for the past 10 years. He was also having problem of breathlessness, sleeplessness, odema of lower limbs and face, cough, tremors on walking and loss of appetite. The Patient's relatives were also explained the complications and the importance of conducting Blood investigations, ultrasound and more particularly a test called Ascetic Tapping i.e. removing fluid from the stomach for further investigation. They also gave their consent for all these investigations. The Patient's condition was stable from 1.10.1999 to 04.10.1999. On 06.10.1999, he complained of distention of abdomen, tremors in extremity, sleeplessness and burning sensation in the feet. The necessary tests were conducted and the Patient's relatives were apprised of the seriousness of the situation. The Patient remained in ICU from 08.10.1999 to 11.10.1999 and there was improvement in his condition due to medication and due care. As the deceased was losing blood at the time of passing stools, his hemoglobin level went low and thereafter he was given blood on 11.10.99, 12.10.99, 15.10.99, 20.10.99, 21.10.99, 23.10.99, 06.11.99 and 08.11.99. On 14.10.1999, the deceased had hiccups and watery stools at 9.45 p.m. and also suffered a sudden cardiac arrest. He was immediately administered oxygen, intravenous ostropin, intracardiac odrenolin followed by external cardiac message. At 9.50 p.m. his pulse was palpable. He was given sodium bicarbonate and odomin and later on D.C. shock was also given. In spite of all the resuscitation and emergency medication administered to the Patient, he has expired. It is further averred that they had taken all possible care and administered treatment which is universally accepted by the medical fraternity.
8. Since, the Complaint was transferred to Beed District Consumer Forum, the treating Doctor again filed his Written Statement stating in addition to the above that the Ascetic Fluid of deceased was sent to "Shree Pathology Laboratory on 30.09.1999 and the Report confirmed the diagnosis of the treating Doctor. It was further pleaded that on 19.11.1999, the deceased was examined at 6.00 a.m. and his condition was not good as he was vomitings and diarrhea and his health started deteriorating. As the Patient started becoming comatose, 20 Ml. Glycerin enema was administered to the Patient to prevent this process. But in spite of all efforts, Patient died at 10 P.M on 19.11.1999. It has been emphatically denied by the treating Doctor that due to administration of enema, the deceased suddenly went into shock and died. The Patient died a natural death due to the disease with which he was suffering. The maternal uncle, namely, Tukaram Taware, has given in writing that they had no complaints about the death or the hospitalization of the deceased and they do not want to conduct post mortem. It is stated that the Complaint was filed to avoid payment of hospital charges of ₹17,375/-. There was no deficiency in service on the part of the Opposite Parties.
9. On evaluation of the evidence especially the Affidavit filed by Complainant's witness, Dr. Ranade, the District Forum came to the conclusion that there was deficiency in service on the part of the Opposite Parties in the diagnosis of the Patient. An objection was raised by the treating Doctor to the evidence of Dr. Ranade as he had filed the Affidavit on the basis of certain photo copies of the medical record. Accordingly, a Complaint was filed by the Complainants in the Court of Chief Judicial Magistrate Beed. The treating Doctor also filed an Appeal against the said proceedings and requested the District Forum not to entertain the Complaint till the outcome of the Appeal. However, the said request was declined by the District Forum and holding the Opposite Parties guilty of medical negligence it directed them to pay a sum of ₹2,00,000/- towards compensation on account of the death of the Patient, along with interest @8% p.a. from 19.11.1999 to 23.11.2009 within one month from the date of passing of the order. However, the Complaint against Opposite Party No.2 was dismissed. It was observed as under:-
"The affidavit is taken by respondents and proper opportunity was given to the Respondent to contradict the points. So also their application for cross-examination of Complainant's witness has been granted. In such circumstances, the Respondent did not cross-examine the expert witness, hence the affidavit of this witness remains unchallenged, for this reason it becomes important proof in view of the complaint. In view of this evidence, it is prima facie seen that definitely the Respondent treating doctor's diagnosis and method of medical treatment was incorrect. In addition to that the things which were expected to perform were not performed at proper times. For example, it was need to get examined block stool of patient at proper time. So also, it was necessary to have examined necessary tests of oesophagus, stomach and small intestine at proper time which was essential to diagnose Malena properly. Those were not examined at proper time. The treatment given was based upon wrong diagnosis. The things which were required to be prevented those occurred. It is made clear from the thing of Enema given on 19.11.199 which was the last incident in this respect, it shows that Enema was given to the patient because the treating doctor diagnosed about Liver Cirrhosis, the notings on case papers were showing infection explicitly, in spite of that it has been neglected. In effect of that the patient had lost his life. Prior to giving Enema the patient was examined by the Respondent No.1. At that time his pulse rate, BP was proper. There was no blood-vomiting or purgative to him is mentioned in the explanation. In such circumstances, the decision to give Enema to the patient was throughout wrong as opined by the experts."
10. Aggrieved by the said order, the Complainant as well as the first Opposite Party, the treating Doctor preferred Appeals before the State Commission. The State Commission, while allowing First Appeal No. 163 of 2010 filed by the treating Doctor, has set aside the order of the District Forum and dismissed the Complaint. The State Commission observed as under:-
"16. We however find these arguments as unfounded and hence cannot be sustained. The allegations of medical negligence or deficiency in service as made by complainants and held by the District Consumer Forum are mainly based on the so called expert opinion of Dr.Ranade. The question is therefore whether the Dr.Ranade's opinion can be considered as an expert opinion. As contended by the learned counsel Shri.Thigale for opponent doctor there is no any basis or any connection for calling Dr.A.J.Ranade all the way from Panvel. In fact it is to be noted that Dr.Ranade is a surgeon and not a physician. The case of deceased Pintu was, not surgical or there is no allegation against opponent doctor about negligence of surgery. Therefore he cannot be treated as an expert in physical disorder or diseases associated with human bodies. The opinion given by Dr. Ranade is not supported by any documentary evidence and is also contradictory to the facts of the case. For example, he has made statement that case papers are written after thought and are manipulated as there were overwriting. The details of these allegations of overwriting are not given. It is further mentioned that in case paper dated 29.9.1999 history of patient was not given. However, from perusal of case papers history of patient as alcoholic for 7 years is mentioned. As regards the basis of diagnosis liver cirrhosis is diagnosed on the basis of clinical examination and sonography. As per literature i.e. Harrison's principles of Internal Medicinės-15th edition Vol-II Page 1755 as produced by the opponent doctor for diagnosis of "liver cirrhosis". The clinical features and laboratory findings are usually sufficient to provide reasonable indication of the presence and extent of hepatic injury and that a percutaneous needle biopsy, the liver is not usually necessary to confirm the typical findings of the alcoholic hepatitis or cirrhosis. In the present case as submitted by opponent doctor who is M.D. medicine of 1990, having 11 years medical practice that the deceased was not having abdominal pain and was a serious liquor addict for the last 7 yrs. That, after clinical and pathological examination the deceased was diagnosed as suffering from liver cirrhosis. This diagnosis was also confirmed by sonography test and further by laboratory test of the ascetic fluid through the Shri. Pathology Laboratory on 30.9.1999. We also refer to the literature pertaining to diseases of liver written by Shiela Shereloc 11th edition page 372 which has also been referred by the complainant wherein it is stated that clinical history of the patient affected with liver cirrhosis involves fatigue and weight loss, abdominal pain, swellings of legs due to alcohol consumption. This clinical history was present in case of deceased Pintu. As regards the cause of death given by the opponent doctor, it was "cardio respiratory arrest due to G.I.T. bleeding, due to stress ulcer, due to hepatic encephalopathy, due to alcoholic cirrhosis of liver with P.H. Kocks abdomen. From extract of book of Shiela Sherlock 11th edition it reveals that the complications hepatic encephalopathy, stress ulcer, P.H. Kocks abdomen are associated with liver cirrhosis. Hençe it can be concluded that as per the clinical and pathological examination the diagnosis of the disease of liver cirrhosis was quite proper.
17. We, also refer to the expert opinion as given by the committee of doctors namely Shri. Satyanarayan Goli and Shri. N. D. Kulkarni from Government Medical College and Hospital Ambejogai appointed by its Dean at the instance of Chlef Judicial Magistrate, Beed, it is stated by them in reply to the questionnaires made by Court that as per O.P.D. paper notes deceased was properly examined and as per L.P.D. clinical notes treatment was proper which was recorded day by day properly except Kocks abdomen and stress ulcer mentioned in death certificate, for which treatment was not given. It is further mentioned that clinical, history entered in I.P.D. papers and investigations are indicative of deceased condition as mentioned in the death certificate except for stress ulcer, T.B abdomen for which there is no definite evidence. It is further stated that there was no massive bleeding from the statement given by these doctors and as per the cross examination they admitted that the deceased was affected by liver cirrhosis. As regards other diseases such as hepatic encephalopathy, stress ulcer, T.B. abdomen though it is stated by them that there was no evidence to show that they are associated with disease of liver cirrhosis as mentioned above. There are also no contrary finding about the disease of deceased as given by complainant.
18. It is also to be noted that complainant Kamalabai herself admitted in cross examination that opponent Dr. Khose used to visit and examine the patient twice in two day during the hospitalization of deceased Pintu and used to give information about status of his health including nature of treatment required to be given to him. It is further admitted that various tests and treatment were given to the diseased after taking consent of herself and her two brothers. As regards allegation given enima to the deceased before his death there is no documentary evidence to prove that due to enima given the patient died, the contention of the opponent doctor that on 19.11.1999 there was sign of some improvement in his health, suddenly he started vomiting associated with loose motions deteriorating his health condition with symptoms of coma, the patient was administered 20 ml. glycerine enema just to control his said deteriorating condition. But despite of efforts he died at about 10.00 pm on 19.11.1999. As far as allegations of non-conducting of port-mortem is concerned, complainant denied any relation with Tukaram Taware who is said as maternal uncle of the deceased by the opponent doctor as to have given consent for not conducting the post-mortem. It is also to be considered that if post-mortem was not done she could have filed complaint against opponent doctor before police. However, no such complaint was filed, hence this allegation cannot be considered."
19. We thus find that as held by Hon'ble Supreme Court in case of Kusum Sharma (Supra) that opponent doctor having degree of M.D. (medicine) and experience of practice in the same field for 11 years, has required skill and knowledge. It is also revealed that right from the day of admission till unfortunate death of deceased Pintu, the opponent Doctor has taken all required care conducting various clinical and pathological tests for proper diagnosis of the disease of patient, day to day follow up of the treatment, calling other consulting doctors to facilitate proper treatment of the deceased, administering transfusion of blood and so on. Therefore, as held by Hon'ble Apex Court in above case negligence cannot be attributed to the opponent doctor as he performed his duty with reasonable skill and competence."
11. Hence, the present Appeals have been filed by the Complainant.
12. The main issue whether there is any negligence or not has to be tested on the touch stone of catena judgements laid down by the Hon'ble Supreme Court in which 'duty of care' in deciding what treatment to give and 'due care in the administration of treatment' has been laid down by the Hon'ble Apex court. The Hon'ble Supreme court in Dr Laxman Balkrishna Joshi v Dr Trimbak Bapu Godbole, AIR 1969 SC 128 has observed as follows:
"11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient, owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties, gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17).
In Jacob Mathew v State of Punjab, a three-judge Bench of this Court upheld the standard of the ordinary competent medical practitioner exercising an ordinary degree of professional skill, as enunciated in Bolam (supra). The Court held that the standard of care must be in accordance with "general and approved practice".
13. The House of Lords per Lord Edmund-Davies, Lord Fraser and Lord Russell in Whitehouse v. Jordon & Another (1981) 1 All ER 267:
"The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon (dictum of McNair Jo. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118 at 121).
14. In Chin Keow v. Government of Malaysia & Anr. (1967) WLR 813: the Privy Council applied these words of McNair J in Bolam v. Friern Hospital Management Committee:
"..........where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill."
15. The first issue which needs to be considered whether the State Commission was right in not taking into consideration the expert opinion of Dr. Ranade. as can be seen from the aforenoted order of the State Commission, the State Commission has erred in coming to conclusion that Dr. Ranade was a Surgeon and not a Physician and therefore his expert opinion cannot be relied upon. There are no substantial reasons as to why the State Commission has come to a conclusion that Dr. A. J. Ranade, need not have been called all the way from Panvel for giving his opinion. There is a specific mention that the Dr. Ranade was called all the way from 'Panvel' and that the case was not a surgical one and therefore a surgeon cannot be treated as an expert. It is a matter of common knowledge that MS in Surgery is a higher qualification, which is done after MBBS and merely because Dr. Ranade is a Surgeon, and is better qualified, cannot be a cogent ground for rejecting his expert opinion. Additionally, the State Commission has also erred in observing in para 9 of its order that the Hon'ble High Court has given its verdict that the evidence of Dr. Ranade is not relevant. A perusal of the material on record shows that the Complainant had preferred a CWP No. 423 of 2015 before the Bench at Aurangabad of High Court of Bombay, challenging the order passed by the Chief Judicial Magistrate, First Class, Beed, who had rejected the Application filed on behalf of the Petitioner under Section 311 Cr.P.C. for seeking permission to examine Dr. Ranade as their witness. The Hon'ble High Court vide order dated 20.07.2015, allowed the Application preferred by the Complainant and permitted the Complainant to examine Dr. Ranade as their witness, therefore we find the observation made by the State Commission that the examination of Dr. Ranade not necessary, as erroneous. It is relevant to mention that apart from the aforenoted ground that is that Dr. Ranade was a Surgeon and not a Physician and that the Hon'ble High Court has stated that the evidence of Dr. Ranade was not relevant, there were no other reasons given by the State Commission not to rely on the opinion of Dr. Ranade. The State Commission has only observed that the history of the Patient was written; that as per the literature produced by the treating Doctor, it was a diagnosis of a liver cirrhosis; that the cause of death was cardio respiratory arrest due to G.I.T. bleeding, due to stress ulcer due to hepatic encephalopathy, due to alcoholic cirrhosis of liver with P.H. Kochs and all these are relating to liver cirrhosis and therefore the diagnosis is right. In Para 17 of their order the State Commission has relied on the expert opinion given by Shri Satyanarayan Goli and Shri N. D. Kulkarni from Government Medical College appointed by its Dean on the instance of Chief Judicial Magistrate, Beed and further observed that from the statement given by the Doctors in their cross examination, it was admitted that the Patient was suffering from liver cirrhosis and therefore no negligence can be attributed to the Treating Doctor. In fact a perusal of the medical expert report, which the State Commission itself relied upon, reads as follows:
To The Dean, S.R.T.R. Medical College, Amrajogai.
Sub: Opinion about death of Pitu alias Shalivan Vishnu Khodse.
Ref: your Letter No. Conf/MC Sir, After minutely going through the available OPD, IPD and other investigations records the Committee has come to the following opinion on points 1 to 5 in questionary form.
1. From OPD paper notes it appears that the deceased was not properly examined. However the IPD Clinical notes and the treatment given appears proper as per clinical diagnosis and appear to be recorded day by day properly except kochs Abdomen and stress ulcer mentioned in death certificate for which treatment was not given.
2. Clinincal history enetered on IPD papers signs, symptoms and investigations including biochemical tests were indicative of disease conditions mentioned in final diagnosis on death certificate, excepting the stress ulcer and kochs abdomen (T.B. abdomen) for which definite evidence is lacking.
3 . There is evidence of overwritings, erasions at many places in IPD record which could be manipulation.
4. Minimum requirement of the intensive care unit (ICU) in a private Hospital are trained staff, equipments for assessment, monitoring and emergency treatment of Cardiac Monitor, Defibrillator, Endotrachial tube, laryngoscope, Oxygen delivery system, Ventilator, Suction machine etc.
5. On date 19.11.99 at 10.00 p.m. there was no clinical evidence of massive bleeding.
Enclosed herewith the documents - Page 1 to 115.
This is for your kind information.
Thanking you.
(Emphasis supplied) Yours faithfully, Sd/- Sd/- (Dr. S.K. Goli) (Dr. N.D. Kulkarni) Assoc. Professor & Head, Professor and Head, Department of Forensic Medicine. Medicine Deptt. S.R.T.R. Medical College, S.R.T.R. Medical College, Ambajogai. Ambajogai.
16. From the aforenoted expert evidence, it is clearly observed that there is evidence of over writing, erasions at many places in the IPD record, which could be manipulations, that the Patient was not properly examined and that though the IPD clinical notes appears proper as per clinical diagnosis except Koch's abdomen and stress ulcer mentioned in the death certificate for which treatment was not given. It is also stated that as on 19.11.1999 at about 10 p.m. there was no clinical evidence of massive bleeding.
17. Even in the cross examination before the Chief Judicial Magistrate, Beed Dr. Goli, professor of Forensic Medicine clearly stated that from OPD papers it can be seen that the Patient was not properly examined; that no consent was taken for the several blood transfusions, which were performed as many as 13 times on the patient. Therefore it cannot be stated that in the cross examination of the Doctors, which had given the expert opinion they have observed that there was no negligence. Further when the State Commission had relied only on this expert report it has not taken into consideration the examination of the Pathologist, who had been given the sample for an ascetic fluid for analysis, in which he has stated that to ascertain liver cirrhosis a liver biopsy test is compulsory. In the cross examination of Dr. Kulkarni, a signatory of the expert opinion filed before the Chief Judicial Magistrate, Beed and on which report the State Commission has relied upon had also concurred with the opinion given by Dr. Goli and has clearly deposed that the cause of death of the patient may not be due to massive Gastro Intestinal Trout (G.I.T.) bleeding and liver biopsy is a definitive test for diagnosis of a liver disease'. He further deposed that the stools report showed that there was a occult bleeding, which may be the case of stress ulcer. Treatment in the form of drugs like Sucralfate and Zenocin which were given to the patient.
18. From the aforenoted material on record, it is seen that though Koch's abdomen and stress ulcer were written as one of the causes of death as per the expert opinion full treatment of Koch's and stress ulcer was not given to the Patient. At this juncture, it is also relevant to reproduce the expert opinion of Dr. A.J. Ranade:
'I Dr. Arun Jagannath Ranade, Age 58 years, Occupation Practicing Surgeon, residing at Mehar Arcade, Plot No.77, Flat No.1, M.C.C.H., Panvel, do hereby state on solemn affirmation is as under :-
2. I say that I have referred the Xerox copies of treatment papers of Shri Pintu Khodse and my medical observations and opinion is as follows -
i. From the papers before me, first of all, I say that the treatment papers written afterthought and full of overwriting and interpolations.
ii. From the treatment, it is evident that when the injury caused to patient powder applied to knife in this manner.
I say that my point-wise observations are as follows -
From the O.P.D. papers 29th September 1999, nowhere complainants, history of patient and findings are written.
In liver cirrhosis there will be ascites which causes discomfort but no pains. Therefore, at the beginning itself, diagnosis is based on wrong footing.
In the absence of history and clinical findings, it is difficult to understand, as to how the Doctor arrived at judgment alcoholic liver diseases of liver cirrhosis.
The liver cannot become palpable in a day. These are While the findings of Dr. Khose on 30-9-1999 at 5.10 p.m. while the U.S.G. on the same day states that the liver was reduced in size.
Whether abdominal tapping was done or not even after taking consent for the same is not mentioned in the case papers.
Delay in routine liver function and H.B. test for 5 days.
Till 19-11-1999, there were no signs of liver failure or pre-coma or coma.
Liver Functions Test and H.B. Test not repeated till 16-10-1999.
The tests which are specific to diagnosis of ascites and cirrhosis were not done upto 9-11-1999.
The liver biopsy was never done which is a must for diagnosis of liver cirrhosis, I.V. fluid given for 2 months have added Insult to the Injury presuming his diagnosis of liver cirrhosis is correct.
Injection digepam 2 C.C. given to the patient for very long time is also not correct treatment.
On the second day of admission, patient had black colour stool which is a sign of upper G.I. bleed for which condition endoscopy of upper G.I. track mandatory for both diagnosis and definitive treatment. This was not done for one and one half months and only I.V. fluids were given and because of this patient required number of bottles of blood. This amounts to symptomatic treatment and not the definitive treatment resultantly huge amount requires to be spent on blood transfusion.
Dr. Khose had employed a D.M.L.T. person in his laboratory. By law a D.M.L.T. person can only perform laboratory test but he cannot give the diagnosis on the laboratory tests. Only M.D. pathologist is authorized to give the final diagnosis.
On 11-10-1999 Dr. Khose diagnosed the patient having pre-coma without any written note and pathological opinion to prove the diagnosis.
There are manipulations or clinical findings on 11-10-1999 liver not palpable in the morning and palpable in the evening and because of continued I.V. fluid without any proper nutrive and lack of trained nursing staff in the hospital the patient developed bed-sores which usually leads to many complications.
There is a lot of discrepancy in laboratory tests and follow-up of the patient.
Dr. Majid was called on 2-11-1999 and he found that the patient was suffering from left hyper nephroma (Tumor of left kidney) which is absolutely a new diagnosis in this case and it does not explain malena ascites, breathlessness. Till that day, upto 2-11-1999 cause of malena was not known and therefore no specific treatment given.
On 3-11-1999 the abdominal tapping is done. The quantity is not mentioned and only ½ C.C. abdominal fluid which is insufficient was sent for pathological study. The pathological exam of this ½ C.C. fluid shows the evidence of infection and not cirrhosis.
Dr. Paithankar's opinion (Surgeon) was taken on 16-11-1999 but his advice was not followed.
Dr. Gaikwad's advice and diagnosis of Dr. Khose are contradictory to each other. Dr. Gaikwad diagnosed Erythema in the Oesophageous, stomach and dedonium which does not corroborate diagnosis of liver cirrhosis, in liver cirrhosis there should Oesophageous, vericises which can cause G.I. bleed, Erythema diagnosed by Dr. Gaikwad can be explained due to Septicemia.
H.I.V. test done twice is baseless.
Treatment of enema in presence of gastroentrities patient (which the patient had and proved by Dr. Gaikwad on endoscopy) is more harmful. This gastroentrities was due to Septicemia and in liver cirrhosis enema is given to a patient on cirrhosis to prevent patient development pre-coma and coma.
The patient died on 19-11-1999 after giving enema while from morning 6.00 a.m. till 5.00 p.m. according to Dr. Khose's own writing the patient was normal. His b.p., pulse normal. There was no G.I. bleeding in the form of Hematamasis or malent. But patient did have vomiting and loose motions. In Septicemic patient administration of enema can lead to perforation of Intestine which can cause severe pain and kill the patient instantly and therefore because of sudden unexplained death after giving enema in a otherwise normal patient throughout the day post-mortem was a must which was not advised by Dr. Khose whether to do p.m. or not is doctor's decision and not the relatives, Generally, patient's relatives avoid p.m. on emotional grounds. Ideally, p.m. should be done in every sudden death cases which helps the doctor and relatives alike.
Solemnly affirmed at Thane Dr.A.J. Ranade Dated : 15th day of September, 2008.
19. The contention of the learned Counsel for the Treating Doctor that the State Commission has relied on the expert opinion report and then decided it and therefore it cannot be stated that the Treating Doctor was negligent, is unsustainable in the light of the fact that both the expert opinions have specifically stated that there was an over writing and that proper treatment was not given to the Patient. The other contention of the learned Counsel that the treating doctor was acquitted in Criminal Application No. 1177 of 2016 and therefore no negligence can be attributed to his treatment is untenable as acquittal from criminal liability has no relevance to the tortious liability and negligence in treatment, as laid down by the Hon'ble Supreme Court in in Martin F D'Souza v Mohd. Ishfaq, (2009) 3 SCC 1,
20. There is no evidence on record to establish that the abdominal tapping was done and that whether tests which were specific to diagnosis of cirrhosis of liver were done prior to 09.11.1999. No substantial reasons were given for liver biopsy not being done, when it is the case of the Treating Doctor himself that it is the case of liver cirrhosis and the expert has stated in his cross examination together with the Pathologist that liver biopsy is a conclusive test for a liver cirrhosis specifically when patient was in the hospital for one month and 19 days. Dr. Ranade has also mentioned in his report that giving IV fluid for a long period of 2 months together with injection digepam for such a long period has further worsened the situation. The only contention of the Treating Doctor is that for abdominal tapping the notes were not written by mistake; that liver biopsy was not done as it was not necessary in this case; that IV fluid were given for 2 months together with injection digepam because the patient had alcoholic withdrawal syndrome. Though it is not the case of the Complainant that consent was not taken before the blood transfusion the expert has clearly mentioned in his report that consent has to be taken before the blood transfusion and that the case record does not show the same. It is seen from the record that Dr. Majid on 02.11.1999, suspected diagnosis as left hyper nephroma (Tumor of left kidney), which is a new diagnosis, it does not explain malena, ascetics or dysponoea.
21. It is the case of the Treating Doctor that when Dr. Majid had noticed a lump in the abdomen on 02.11.1999, which is suspected as hydro nephrosis (L) a USG was done on 03.11.1999, which showed peritonitis in lower abdomen. Further, the diagnosis given by Dr. Gaikwad is contrary to the diagnosis given by Dr. Khose as Dr. Gaikwad has diagnosed stress ulcer in Erythema in oesophagus stomach and duodenum which is not correlated with liver cirrhosis. The question whether anemia was to be given to a patient in the serious condition was already detailed by Dr. Ranade in his expert report. It is pertinent to mention that there were no objections/ rebuttal filed to this expert report before the state commission.
22. For all the aforenoted noted reasons, we are of the view that the State Commission, ought not to have neglected the opinion of Dr. Ranade and have also not appreciated the report given by Dr. Goli and Dr. Kulkarni in its right perspective and allowed the Appeal preferred by the Treating Doctor and dismissed the Complainant's appeal for enhancement. The fact remains that the Complainant was in the opposite party Hospital for a period of one month and 19 days and was a young student of 23 years at the time of admission and has ultimately died of cardiac arrest and GIT bleeding due to stress ulcer, hepatic encephalopathy, alcoholic cirrhosis of liver with P.H. Kochs abdomen. The Revision Petition preferred by the Complainant is allowed and the order of the state commission is set aside. The District Forum has awarded an amount of ₹2,00,000/- towards compensation with interest @ 8% per annum on the amount from 19.11.1999 to 23.11.2009, with default interest of 8%, if the amount is not paid within a month from the date of order.
23. Learned Counsel for the Complainant submitted that the Patient was a 23 year old young adult, a student who was also earning ₹2,000/- working with his uncle and that he would have been earning additionally for a minimum period of 35 years at least. The Hon'ble Supreme Court, while awarding compensation has observed in Shilaben Ashwinkumar Rana Vs. Bhavin K. Shah & Anr. (Civil Appeal No. 1442 of 2019, decided on 04.02.2019), that compensation has to be awarded based on the facts of each case. We take into consideration the mental agony suffered by the Appellants in losing a young child and also an earning member and the fact that the Patient was in the Respondents hospital for one month and 19 days, before he expired and that the Complainants had incurred medical expenses of ₹1,05,375/- during that period and therefore we are of the considered view that to meet the ends of justice an amount of ₹6,00,000/- be paid to the Complainant. It is seen that the Complainant has prayed for an amount of ₹12,00,000/- as compensation in the original Complaint. It has been submitted that there is a professional indemnity policy for the same period for an amount of ₹4,00,000/. The Insurance Company shall pay the same and the balance shall be recovered from the respondents within four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 8% p.a. from the date of filing of the Complaint till the date of realisation. We also award cost of ₹25,000/-. This reasonable compensation of ₹6,00,000/- also includes the medical expenses of rupees 1,05,375/- spent by the Complainant.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER