State Consumer Disputes Redressal Commission
Dr. T. Kiran Kumar vs Amedio Joseph Wilson Noronha on 4 December, 2015
1
BEFORE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI- GOA
FA No. 52/2015
Dr. T. Kiran Kumar,
Tailwaggerz, 4, Hemusha Chambers,
Opp. New Era High School,
Malbhat, Margao-Goa. ...Appellant
v/s.
Shri. Amedio Joseph Wilson Noronha
533 Nanu Beach Retreat,
Thondvaddo, Betalbatim,
Salcete-Goa. ...Respondent
Appellant/OP is represented by Adv. Shri. H.T.S. Bhangui.
Respondent/Complainant is represented by Adv. Shri. T. D'Costa.
Coram: Shri Justice N.A. Britto, President
Smt. Vidhya R. Gurav, Member
Dated:-04/12/2015
ORDER
[Per Shri Justice N.A. Britto, President] Challenge in this appeal is to the final order dated 7/7/15 of the Lr. South Goa District Forum in CC No. 23/12, by which the OP has been directed to pay compensation to the complainant in the sum of Rs. 15,000/- with interest at the rate of 9% and costs of Rs. 7500/-.
2. The undisputed facts would be as follows:
3. The complainant was the owner of a pet dog Lhasa Apso breed, named Fluffy, which expired on Saturday, 17th June 2012 in the clinic 2 of the OP. The Complainant has another pet pomeranian dog named Snowy.
4. The OP is a Veterinary doctor who has his clinic at Malbhat, Margao, which according to him, provides top quality veterinary clinical and diagnostic services and conducts minor and major surgeries in a well-equipped operation theatre and has also diagnostic facilities such as digital x-rays, ultrasonography, eye/dental care/surgery, ECG, etc. etc.
5. The complainant took Fluffy to OP's clinic on Wednesday, 13/6/12, and although the complainant initially claimed that he had taken Fluffy in a healthy condition, subsequently the complainant admitted that Fluffy was having a slight temporary limp in his left back leg. OP doctor on examination of Fluffy found that Fluffy had temperature of 102.6 F and tenderness in its hip/hind leg and experienced pain while flexing and extending his leg and upon palpation found its abdomen to be tense. The OP gave two injections to Fluffy, namely Tramadol (analgesic) 0.8 ml, intravenously, and Neohepatex (liver tonic) 1 ml, intramuscularly, and asked the complainant to come on 14th and 15th for repeating the said injections and which were accordingly repeated.
6. On Friday, 15/6/12, after returning home, and at about 3.00 p.m., the complainant noticed that Fluffy had passed off unusual liquid brown stools and its anus was bloody and the complainant contacted the OP on phone and the complainant was advised to observe Fluffy closely and to let him know if it vomits or passes such liquid again and the complainant later informed the OP doctor that Fluffy was passing some drops of blood in his potty and his bottom was stained with blood, whereupon the complainant took Fluffy to the OP's clinic and upon arrival the OP doctor checked Fluffy and found him 3 apparently normal but his fur was stained with dried blood and stools, and the OP doctor administered vit. K., whereupon Fluffy passed some more stools mixed with blood and since the OP doctor found Fluffy to be normal and his vitals stable, the complainant was told to take Fluffy home.
7. On reaching home, Fluffy climbed the stairs and again produced large pool of blood and the complainant washed him and dried him and Fluffy was having tremors and the complainant called OP doctor who responded the complainant's call late in the night and then Fluffy was taken to OP's clinic close to midnight. On being taken to the clinic, the OP doctor called his sr. asst. to help him and noticed that Fluffy was lying prostrate and was unable to walk or even stand. Its breathing was abnormal, his mucous membranes pale and almost white and his temperature had dropped to 96.3F, its heart rate was 33 and respiration rate about 7. Its lower abdomen was tense and painful and Fluffy was having uncontrolled seizure. Fluffy was sinking. OP doctor carried out required emergency protocol and having stabilized Fluffy after administering series of injections, told the complainant that he would do his best to pull Fluffy through. The complainant was told about the need to give Erythropoietin injection which is expensive and the same was administered with the consent of the complainant. Other injections were also given. Complainant left home at about 2.00 a.m. and returned on Saturday, 16/6/12 at about 11.30 a.m. when Fluffy was on drip but alert and they returned home on signs that Fluffy was stable, was able to stand upright, his mucous membranes were pink and he had not passed any blood in stool but later at about 14.00 hrs fluffy passed blood in stools and showed great discomfort with abdominal spasms and the complainant was informed about the critical condition of Fluffy and the complainant was asked to come to the clinic and by about 8.00 4 p.m. when the complainant went to the clinic Fluffy was dead. The dead body of the Fluffy was handed over to the complainant and his family who were very sad about the death of their pet. The OP suggested an autopsy which according to OP doctor, was opposed by the complainant. This is understandable, but the complaint also did not carry out an autopsy and his explanation is that he approached two distinguished vets but they were not able to do so. His further explanation is that Government vet hospitals were closed, Fluffy was buried on Sunday, 17/6/12.
8. Before we proceed further, a word about negligence will not be out of place. In Natham's Medical Negligence, 1957 Edition, quoting Hunter vs. Hanley (1955 SLT 213) it is stated that:
"The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with ordinary care."
"No human being is infallible and in the present state of science, even the most eminent specialist may be at fault in detecting the true nature of a diseased condition. A practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as, to prove negligence, that is to say if his mistake is of such nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession (see Smt. J. S. Paul vs. Dr. (Mrs.) A. Barkataki, 2004 10 CLD 1, at pg. 99 of the paper book).
9. The duties of a doctor towards his patient were set out in the judgment of the Apex Court in the case of Dr. Laxman Balkrishna Joshi, AIR 1969 SC 128, and they have been reiterated in Indian 5 Medical Association vs. V.P. Shantha & ors., AIR 1996 SC 550. They are as follows:
"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 require."
10. The Apex Court in Jacob Mathew vs. State of Punjab & anr., 2005 (6) SCC (1), speaking through three Lr. Judges has again this to say:-
(1)...
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have 6 chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) 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 professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performances of the professional proceeded against on indictment of negligence.
11. A word or two in the matter of burden of proof will also not be out of context. The burden of proving negligence and resultant deficiency in service is on the complainant i.e. the task of convincing 7 the Court that his version of facts is a correct one. Negligence has to be established and cannot be presumed (see para 26 of Smt. J.S. Paul, supra). As stated in Natham's Medical Negligence (supra), page 104, "the burden of proving negligence rests upon the person who asserts it. In medical negligence cases, therefore, it is for the patient to establish his claim against the medical man and not for the medical man to prove that he acted with sufficient care and skill. It is by means of evidence of course that the patient will seek to and indeed must, establish his claim; but the evidence he adduces may take several different forms".
12. At this stage we may also refer to the case of Ram Avtar Sharma vs. Nabin K. Patnaik, I 2012 CPJ 502, wherein it is held by the Apex Court as follows:
"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." (see Order dated 3/9/15 in CC No. 28/14 in the case of Mrs. Rajani R. Gaunekar & anr.)
13. The complainant filed his affidavit-in-evidence in support of the complaint and that of his wife. They were cross examined upon interrogatories by the OP. Likewise, the OP filed his own affidavit- in-evidence and that of his helper Bidur Khatri. They too were cross examined by the complainant on interrogatories. The OP has also produced the medical notes kept by him in discharge of his professional duties.
814. The complainant seems to contend in his complaint, that he had taken Fluffy, a healthy dog, for a checkup to OP's clinic at Malbhat on 13/6/12 and had to bring him back dead on 16/6/12 and therefore the OP was liable for his death. The complainant has however, conceded in his letter dated 21/6/12 that he had taken Fluffy to the doctor as Fluffy was having a slight temporary limp in his left back leg, and, the complainant on being asked on the said discrepancies between the said statements in cross examination, the complainant has explained that he did not make any contradictory statements and that Fluffy had temporary limp for about two months and was otherwise healthy.
15. On the other hand, the OP doctor stated that the complainant had brought Fluffy as he had a limp in his leg on and off for the last couple of months and that the complainant had informed him that the complainant was giving home remedies and some pain killers and the wife of the complainant had insisted that Fluffy should be taken to OP doctor for checkup as he was not comfortable climbing stairs and had not been eating too well. The OP has recorded, what he has stated, in his notes which have been produced by him, and, therefore the complainant's claim that he had taken a healthy dog for a simple checkup has to be discounted. As already seen, Fluffy died only after prolonged treatment given by OP doctor.
16. Shri. D'Costa, the lr. advocate of the complainant, firstly, would submit that the complainant had told the OP doctor to take an x-ray which the doctor refused, but gave two injections. Lr. advocate would submit that in case the x-ray was taken the cause of the limp would have been known and that the limp could have been due to a fracture. Lr. advocate submits that the complainant readily accepted to buy an expensive injection on 15/6/12 and therefore the complainant would 9 not have hesitated to pay for an x-ray on the first day itself, to know the probable cause of the limp.
17. We are not impressed with the said submissions. As per the complainant it is the OP doctor who told him that he would take an x-ray. At times the complainant has stated that he expected the doctor to do an x-ray. Complainant's only question is as to why the doctor did not take an x-ray? Complainant does not categorically say in his complaint that he had told the doctor to take an x-ray and yet he did not take the same. Complainant's wife claims she was present on the 1st day but she is silent on the point whether the complainant had told the doctor to take an x-ray or the doctor had told the complainant that he would take an x-ray. On the contrary, OP doctor has categorically stated that he had advised the complainant to get an x-ray done and even an USG scan but the complainant did not agree and therefore he decided to administer some analgesic by way of injection. The doctor's version is corroborated by the medical record maintained by him and also by doctor's helper Bidur Khatri who had stated that OP doctor, after examination of the pet, advised the complainant to get an x-ray done and also an USG scan but the complainant did not agree for the same. It is therefore obvious, that no x-ray was taken by the doctor to know the probable cause of the limp because of the refusal by the complainant. If at all the complainant agreed subsequently on 15/6/12 to buy an expensive injection it is only because by then the condition of Fluffy was becoming more serious or critical.
18. The next allegation of the complainant is that on the next two days injections were given by the male helpers without OP doctor being present and the complainant's question is why did the Dr. Kiran entrust the selection of medications, dosage and injection by helpers without his presence in the clinic? The Lr. District Forum has 10 observed that this contention of the complainant was not specifically denied by the OP in his written statement, and, although the written statement runs into 27 pages there is no categorical denial about the fact that injections was administered by the male helpers. The Lr. District Forum also observes that there is no averment in the written statement about the clarification of the male helper who administered the injection to the pet dog of the complainant. We do not know how there could be any clarification form the helpers in the written version filed by the OP. Be that as it may, we are constrained to ask: Did Fluffy die because the injections were given by the helpers of the OP and not by the OP?
19. The aforesaid finding of the Lr. District Forum is absurd. In para 48 of the written version, the OP has denied the allegations made by the complainant in paras 1 to 6 of the complaint. (These allegations are in paras 4 and 5). In his written version as well as in his affidavit- in-evidence, OP doctor has categorically stated that on 14th morning he gave the injection personally and examined Fluffy who looked active and the complainant told him that Fluffy was better and had eaten food eagerly. OP doctor has further stated that on 15th too it is he who injected the pet with the same injections and he asked the complainant to give Fluffy rest and not to make him run a lot and keep him tied. OP's helper Shri. Bidur Khatri has stated that on the next day morning, the pet was brought to the clinic and Dr. Kiran examined the pet and gave injection to the pet. The said helper has further stated that they do not give any treatment to any dog or pet and they do not do any veterinary work. So whom do we believe, the complainant and his wife or the OP doctor and his helper? It is quite probable that the injections were given in the clinic of the OP on the mezzanine floor while the complainant and his wife were waiting 11 elsewhere downstairs and as such could not see the presence of the doctor in the clinic on the mezzanine floor. It is to be noted that the complainant only heard Fluffy cry and not see Fluffy cry when he was injected and it is because Fluffy was being injected in the clinic on the mezzanine floor where complainant was not allowed to be present.
20. The other allegations are not the subject matter of the complaint, and it has been submitted by Shri. D'Costa, the lr. advocate that on 15/6/12 Fluffy was discharging blood, per anus, and the doctor did not diagnose the cause of bleeding or the cause of abdominal spasms. No scan was done to find out whether there was any injury or perforation of the intestines or abdomen or the rectum and the blood was not analyzed to find out whether there was any poison in its constituents to find out whether Fluffy had eaten any lizards. Lr. advocate also submits that stools were also not examined to find out any foreign body was present like chicken bones but the OP doctor gave two more injections namely Botrophase and vit. K allegedly to reduce and clot the blood flow and treat on the basis of symptoms only. No blood transfusion was given to compensate for the blood loss. These submissions have been made in the background of what OP doctor had stated in his evidence.
21. The OP doctor had stated in his evidence that in the course of discussion with the complainant and his wife while treating Fluffy, it came to light that Fluffy was left unattended in the balcony on several occasions and had the habit of eating lizards and chasing them and it was further revealed that the wife of the complainant had fed it a couple of chicken bones earlier and the OP having informed (the complainant) that feeding of chicken bones had surely caused the bleeding, the wife of the complainant became hysterical and started crying very loudly and was worried about her daughters blaming her for such a thing and even the complainant blamed his wife for feeding 12 chicken bones. In her cross examination, the complainant's wife has admitted that from the literature on dogs she knew that feeding chicken bones was harmful and this information was also given by Dr. Rashmi, the wife of the OP.
22. We are not impressed with the submissions made on behalf of the complainant. Firstly, there was no allegation in the complaint that on 15/6/12 the complainant had requested any scan to be taken or any blood or stool to be examined and in case there was such an allegation the OP would have certainly responded to the same. In the absence of pleadings, the said allegations cannot be allowed to be raised for the first time in appeal. The OP had no opportunity to deal with the same. Fair procedure is the hallmark of every legal proceeding and an affected party is entitled to be put to notice of the claim which such affected party has to meet. Secondly, did the complainant request for any such tests to be done? Certainly not. Was not Fluffy being treated conservatively on the basis of symptoms, after the complainant declined that any x-ray should be taken? The answer is in the affirmative. The Lr. District Forum has concluded that Fluffy died due to improper treatment given by the OP. How does the Lr. Forum know that the treatment given was improper? Did any other vet. doctor or textbook say so, after examining the treatment record produced by the OP doctor? There is not even mention in the impugned order to the very many injections, except one, given by the OP to Fluffy to say that wrong treatment was given. We have already stated that negligence cannot be presumed but has to be proved. The entire case of the complainant is that he took a healthy Fluffy to the OP doctor on 13/6/12 and brought it home dead on 16/6/15 and therefore apply the principle of res ipsa loquitur. The Apex Court in Martin F. D'Souza, has held that "simply because a patient (here it is 13 Fluffy) has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient (here it is Fluffy) since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse".
23. It is well settled that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another, simply because the patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence. As observed by the Apex Court in Jacob Mathew, supra, when a patient dies or suffers from some mishap, there is a tendency to blame the doctor for this. Things have gone wrong, and, therefore somebody must be punished for this. However, it is well known that even the best professionals, what to say average professional, sometimes have failures. A lawyer cannot win every case in his professional carrier but surely he cannot be penalized for losing a case provided he appeared in it and made his submission (see Martin F. D'Souza, 2009 (3) Bom. C.R. 202). It is a matter of common knowledge that after happening 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. Things have gone wrong and, therefore, somebody must be found to answer for it. This is exactly the case at hand. Complainant failed to prove that the treatment given to Fluffy conservatively was wrong treatment or how Fluffy died by 14 conducting a postmortem examination. As observed in Bina Rana vs. Dr. Amit Maheshwari, decided by State Commission, Uttarakhand in FA No. 183/2012, the complainant has not produced any evidence of any carelessness or negligence on the part of OP and that the exact cause of death could have come to light only if the dog was subjected to postmortem, but the same was not done.
24. A submission was made by Lr. Adv. Shri. Bhangui, relying on Martin F. D'Souza, supra, that the Lr. District Forum could not have entertained the complaint without seeking the opinion of an expert. The submission needs to be rejected. By our order dated 27/2/14 in C.C. No. 9/2012, filed by Michael Rodrigues and anr., we have held as follows:
"We have already held that a consumer complaint is in the nature of civil proceedings. In Civil proceedings, a mere preponderance of probability is sufficient. The directions of the Hon'ble Supreme Court in Martin F. D'Souza (Supra) are held to be, in V. Kishan Rao vs. Nikhil Super Speciality Hospital and anr. (2010 (2) CCC 356/2010 (5)SCC 513) contrary to the three Judge Bench in Jacob Mathew's case..." and reiterated in A. Srirmannarayan vs. Dasari Santa Kumari & anr., 2013 (1) CPR 601.
25. For the above reasons we proceed to allow the appeal, set aside the impugned order, and dismiss the complaint with no order as to costs.
[Smt. Vidhya R. Gurav] [Shri Justice N.A. Britto]
Member President
/sp