State Consumer Disputes Redressal Commission
Dr.Mahesh Avinash Joshi, vs Balasaheb Shankar Killedar, on 26 May, 2010
BEFORE THE HON
BEFORE THE HONBLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No.746 of
2007 Date of filing: 13/06/2007
In Complaint
No.120/2003 Date of order: 26/05/2010
District Forum: Kolhapur.
1.
2.
3.
Dr.Mahesh Avinash
Joshi,
Dr.Avinash Joshi,
Both residing at 666,
E-Ward,
Rama Clinic, Shahupuri
2nd Lane,
Kolhapur.
Dr.Sharad V. Pendharkar,
R/at Bhende Gully,
Kolhapur.
..Appellants
(Org. Opp. Nos. 1 to 3)
V/s.
1.
2.
3.
Balasaheb Shankar Killedar,
R/at and post Nigwe Khalsa,
Taluka Karveer, Dist. Kolhapur.
Mrs.Shobha Balasaheb Killedar,
Residing as above.
National Insurance Co. Ltd.,
Sation Road, Kolhapur.
(Org. Complainants)
(Org.Opp. No.4)
..Respondents
Quorum:
Shri P. N. Kashalkar, Honble Presiding Judicial Member.
Smt. S. P. Lale, Honble Member.
Present:
Mr.S.B. Prabhavalkar, Advocate for the Appellants.
Mr.L.A. Kesarkar, Advocate @ Mr. S.G. Thorat, Advocate for the Respondent Nos.1 and 2 .
Ms.Teja Thanekar, Advocate h/f Mr.Sanjay Mhatre, Advocate for the Respondent No.3.
-: O R D E R :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member:
1) Being aggrieved by the judgement and award passed by the Consumer Disputes Redressal Forum, Kolhapur, whereby while allowing the complaint partly, the Forum below directed Opposite Party Nos.1, 2 and 3 jointly and severally to pay Rs.5,00,000/- as compensation and directed Opposite Party No.4 - Insurance Company to pay out of said Rs.5,00,000/-, Rs.2,00,000/- to the Complainant and also directed to all the three Doctors to pay cost of Rs.1,000/- to the Complainants, the Opposite Party Nos. 1 to 3 have filed this appeal challenging award passed by the District Forum, Kolhapur dated 14/05/2007.
2) Facts to the extent material may be stated as under:
Complainants had filed consumer complaint alleging medical negligence on the part of Opposite Party Nos. 1 to 3 and also impleaded Opposite Party No.4 Dr. S. K. Jadhav and Opposite Party No.5 M/s. National Insurance Co. Ltd., but, it appears that opposite Party No.4 was deleted by order dated 16/04/2003. So, case was proceeded only against Opposite Party Nos.1 to 3 Doctors and Opposite Party No.5 Insurance Company. The Complainants are husband and wife. They had a daughter by name Kum.Aparna Killedar, aged about 13 years. She was suffering from ailment of tonsils. She had approached Dr. S. K. Jadhav Original Opposite Party No.4 (later on deleted). Dr. S.K. Jadhav, in his Padmashree Clinic examined the said girl and referred the patient to Dr. Mahesh Joshi and Dr.Avinash Joshi, for further treatment in their Rama Clinic. Opposite party No.1 examined the said girl and decided to operate the said girl for tonsil ailment. The girl was referred to Apple Hospital for X-ray, blood and urine tests. After receipt of reports from the laboratory on 27.04.2001, Opposite Party No.1 got her admitted in their Rama Clinic on 30.04.2001. It appears that on 01.05.2001 at about 09.30 a.m. to 10.00 a.m. Opposite Party Nos.1 to 3 together operated Complainants daughter Kum.Aparna Killedar. Opposite Party No.2 gave anesthesia to the patient. After some time after the operation was over, Doctors went home and Kum.Aparna Killedar was kept on the bed of the hospital ward.
After some time, there was excessive bleeding, at that time Doctors were not present. Doctors asked father of the girl to procure oxygen from another hospital. Accordingly, Complainant procured oxygen from another hospital, but, despite this fact within 4/5 hours said Kum.Aparna Killedar expired because of excessive bleeding.
Complainants alleged that death of Kum.Aparna Killedar took place because of negligence of Doctors. Complainants also pleaded that Doctors had reported to police 4/5 hours after the death of Kum.Aparna Killedar and made show that till then they were giving treatment to the patient. According to Complainants they had lodged report with police. They had made thorough enquiry and after getting satisfied with the report of Civil Surgeon, Kolhapur, he alleged that his daughter Kum.Aparna Killedar had died because of negligence exhibited by Opposite Party Nos.1 to 3. He also lodged police report against them. He asserted in his complaint that he has paid fees to all the Doctors and they had not taken proper care in operating their daughter and in stopping bleeding from her mouth. There was excessive bleeding post operatively. They had not taken proper care post operatively and despite SOS call, Doctors did not turn up immediately. They came after 10/15 minutes and therefore, they were negligent in handling the patient Kum.Aparna Killedar and they were squarely responsible for the death of the Complainants daughter.
The Complainants pleaded that, in the post mortem report, it has been mentioned that there was severe bleeding from her mouth and that bleeding was responsible for death of the patient. The Complainants asserted that their daughter Kum.Aparna Killedar was first class student. She had passed 8th standard examination. She was proficient in music and sports. She was very clever and both of them have suffered mental shock because of death of Kum.Aparna Killedar by the negligence exhibited by Opposite Party Nos. 1 to 3. They had asked for compensation from the Doctors, who were prepared to pay Rs.3,00,000/- as compensation, but, thereafter they had not paid compensation and therefore, Complainant sent registered notice through their Advocate to which false reply was given and as such, Complainants filed consumer complaint claiming compensation of Rs.5,00,000/- from all the Opposite Parties.
3) Opposite Party Nos.1 to 3 filed written statement and denied allegations made by the Complainants. According to them, Complainants had made false statement that after operation three Doctors went away. They denied the fact that when Kum.Aparna Killedar was bleeding through her mouth no Doctor was present with her in the hospital. They denied that because of wrong operation method adopted by them, Ms. Kum.Aparna Killedar had died in the hospital. They asserted that there had not been any negligence on their part and they had not agreed even to pay Rs.3,00,000/- as compensation as alleged by the Complainants. They asserted that demand of Rs.5,00,000/- as compensation is unjustifiable and improper.
According to them, Complainants daughter was having ailment of tonsils. After taking all the preoperative tests they had decided to perform operation on Kum.Aparna Killedar, Dauther of Complainants. Complainants only paid to them their professional fees, but, Complainants have not paid hospital bill. On 30.04.2001 Kum.Aparna Killedar was admitted as indoor patient and on 01.05.2001 after taking permission from Complainants and after taking due and proper care, the operation was performed by Opposite Party Nos.1 to 3 on the tonsils on Kum.Aparna Killedar. While performing operation there was no negligence of any kind or deficiency in service on their part. No major blood vessel was cut in the course of operation. Operation was conducted properly and after few hours she had regained consciousness.
She was then shifted to recovery ward and after every half an hour Opposite Party No.1 examined the patient thoroughly. At about 11.10 a.m. there was some saliva coming out from the mouth of the Complainants daughter. It was properly cleaned out with the help of machine. At that time there was no bleeding from the mouth. At about 11.30 a.m., the health of the Complainants daughter deteriorated. The heart bits were found in slow motion. She was not in a position to breath properly. Hence, she was given life saving machine and with the help of machine, artificially breathing was started. Immediately, cardiologist and physician were called and through their expert opinion her treatment was continued, but, Kum.Aparna Killedar was not giving any response to the treatment given from 11.30 a.m. to 04.30 p.m. All efforts were made to save life of the patient. There was no bleeding through her mouth at any time. Post mortem report was absolutely false. Opposite Parties pleaded that after tonsillectomy operation because of complications there could be death of patient. They asserted that death of Kum.Aparna Killedar was not because of excessive bleeding, but, because of the fact that one blood cot had got stuck in the respiratory track and resultantly there was laryngeal plasma that led to the death of the patient. Opposite Parties pleaded that they were not guilty of deficiency in service and therefore, complaint should be dismissed with costs.
4) Both the parties have filed Affidavits and documents on record and considering the same, Forum below held that Complainants were Consumers as against Opposite Parties because Opposite Parties had performed operation on Complainants daughter and in the said operation Complainants had alleged that there was medical negligence on the part of Opposite Parties. Complainants had paid fees to the Doctors and therefore, Complainants were Consumer as against the Doctors, who had hired their services for the better treatment on their daughter Kum.Aparna Killedar. The Forum below also held that despite taking fees of Rs.5,00,000/- the Complainants daughter had expired after operation and in the post mortem report, it has been mentioned that death was due to post operative bleeding (tonsil operation). It appears that seven panel Doctors from the Government Hospital had given opinion after seeing the Post Mortem Report and hospital papers of Rama Hospital and they had opined that death of Kum.Aparna Killedar was due to excessive bleeding post operatively and therefore, the surgeons who conducted the operation were responsible for the death of the patient. Relying on this opinion of the Doctors, the Forum below held that the opposite Party Nos.1 to 3 were guilty of medical negligence and therefore, they allowed the complaint partly and directed Opposite Party Nos.1 to 3 jointly and severally to pay a sum of Rs.5,00,000/- to the complainants and also directed to pay Rs.1,000/- as costs to the Complainant and Forum below held that out of amount payable, Rs.2,00,000/- shall be borne by Opposite Party no.4 Insurance Company. Aggrieved by this order Opposite Party Nos. 1 to 3 have filed this appeal.
5) We heard the submissions of Advocate Mr.S.B. Prabhavalkar for the Appellants, Mr. L.A. Kesarkar, Advocate @ Mr.S.G. Thorat, Advocate for Respondent Nos.1 and 2 and Ms. Teja Thanekar, Advocate h/f. Mr.Sanjay Mhatre, Advocate for Respondent No.3.
6) We are finding that the Forum below did not commit any error in arriving at the conclusion that the Appellants were guilty of medical negligence. Forum below relied firstly on the post mortem report wherein it is categorically stated that deceased died due to excessive bleeding after tonsil operation. Operation was conducted by Appellant Nos.1 and 3 and Anesthesia was given by Appellant No.2 Dr. Avinash Joshi. After Anesthesia, operation was performed by Appellant Nos.1 and 3. After operation, deceased Kum.Aparna Killedar was shifted to recovery home in the ward and Doctors had gone away. Then there was severe bleeding from the mouth of patient Kum.Aparna Killedar. Doctors were called. They did not come immediately. Oxygen was required to be given. Oxygen was procured and patient was put on ventilation, but, despite of the efforts made by Hospital and Doctors, after about 4/5 hours the patient died. In the post mortem report, autopsy surgeon mentioned that, patient had died because of post operation bleeding. However, viscera was preserved.
7) There was police case against these Doctors. They faced prosecution u/sec. 304-A of I.P.C. and in the Criminal Case No.2064/2001 by judgement dated 22.02.205 the Chief Judicial Magistrate, District Kolhapur, was pleased to acquit all the three Appellants for the offence punishable u/sec 304-A r/w 34 I.P.C. The Appellants are very much banking upon the said judgement to contend that the Appellants were not guilty of medical negligence of any kind. However, acquittal of Appellants from the criminal case or from the offence punishable u/sec 304-A r/w 34 I.P.C. is one thing, but, it does not prove total innocence of the Appellants and does not prove the case of the Appellants that they were not guilty of medical negligence. Medical negligence as contemplated under Consumer Protection Act rather in the area of torts is different than the medical negligence what is required to be proved by the prosecution for proving offence punishable u/sec 304-A r/w 34 I.P.C. Under Section 304-A r/w 34 I.P.C. the prosecution is duty bound to prove rashness or negligence on the part of any person who is responsible for causing culpable homicide not amounting to murder by any rash or negligence act. The charges against the accused in criminal trial is required to be proved beyond the shadow of doubt and Ld. Magistrate while acquitting the Appellants the Medical Professionals observed that prosecution did not prove the charges u/sec 304-A r/w 34 I.P.C. beyond the shadow of doubt and therefore, was pleased to give benefit of doubt to all the Appellants. For the Appellants before us that verdict per se is not binding on us and that verdict even if accepted in toto cannot exonerate the Appellants from civil liability they are facing for the medical negligence under Consumer Protection Act.
8) Under Consumer Protection Act, medical professionals can be imposed with compensation if it is established that Doctors were guilty of medical negligence in treating the patient in question. In our case, deceased Kum.Aparna Killedar was hospitalized for operation of tonsillectomy on 01.05.2001 for preliminary tests at about 09.30 a.m. All the three Doctors started operation and by 10.15 p.m. to 10.30 a.m. an operation was over. She was then shifted to recovery room in the ward. Kum.Aparna Killedar developed some complications at 12.30 p.m. and despite emergent measures taken as alleged by the Appellants, Kum.Aparna Killedar died at about 4.30 p.m. After death of Kum.Aparna Killedar at the instance of Police the body was sent for post mortem and in post mortem report, autopsy surgeon mentioned that patient died due to haemorrhagic shock due to post tonsillectomy however viscera preserved.
9) The police ultimately sought opinion of the experts. Seven Members expert committee was constituted. They included, (1) Dr. S.R. Chougule, Civil Surgeon, District Kolhapur, (2) Dr.J.S. Patil, Regional Medical Officer, Kolhapur, (3) Dr.V.S. Magdum, Medical Officer, Surgeon Class-1, (4) Dr.Sandip Salokhe, Medical Officer, Class-1 (Pathologist), (5)Dr.R.D. Thorat, Medical Officer, Class-1, (6)Dr.V.M. Joshi, Medical Officer, Class-1 and (7)Dr.Manisha Patil, Medical Officer, Class-1. They were given some questionnaire by Police and they were asked about the cause of death of Kum.Aparna Killedar, which occurred in the course tonsillectomy operation conducted by Appellant Nos.1 to 3. They opined that death of Kum.Aparna Killedar had occurred after tonsillectomy operation was performed because of excessive bleeding. For this death the surgeons who conducted operation and Doctors were required to take post operative care were responsible. They also opined that while conducting operation of tonsillectomy there can be death of patient. They specifically gave opinion that patient had died because of excessive bleeding post tonsillectomy operation and Doctors responsible for conducting operation and Doctors who were supposed to take due care post operatively were responsible for the death of patient. They also asserted that, in the post mortem report it has been mentioned that death had occurred due to excessive bleeding. They opined that after the operation if there has remained opening of the operative wound or if there is defect in the stitching of the operated would, there can be bleeding.
10) What is pertinent to note is the fact that post mortem report as well as 7 experts Committee appointed by the Civil Surgeon at the instance of police have categorically held that Appellants who conducted operation were guilty of medical negligence and they were responsible for the death of deceased Kum.Aparna Killedar. We therefore do not agree with Advocate Mr. Prabhavalkar when he tried to contend that no medical expert was examined by the Complainants. If there is already medical experts report produced on record, independent expert opinion need not be tendered by the Complainant in a consumer case. The post mortem report is tendered by Autopsy Surgeon at the request of Police for the purpose of Police case. Not satisfied with the Autopsy Surgeons post mortem report, to secure further evidence, the police approached Civil Surgeon, Kolhapur and Civil Surgeon, Kolhapur appointed Committee of Experts and that Committee of Experts had thoroughly examined the case of deceased Kum.Aparna Killedar and they opined that death of Kum.Aparna Killedar occurred due to excessive bleeding post operatively and Surgeons who performed tonsillectomy operation on deceased Kum.Aparna Killedar were squarely responsible for her death. When this is so, there was no further need for the Complainants to adduce any further expert opinion. This is summary trial and in summary trial the reports prepared by Government Officials in the official course of business have got to be accepted in toto, unless the Opposite Parties or Appellants herein show that those Officials were biased who had given report against them. No such allegation of bias is leveled against the seven medical officials who have given the experts report. Thus, we are finding that the order passed by the Forum below holding all the three Appellants guilty of medical negligence and directing them to pay compensation of Rs.5,00,000/- to the Respondents is appearing to be just and proper and there appears to be no merit in the appeal preferred by the Opposite Parties.
11) Mr. Prabhavalkar, Advocate for the Appellants tried to press into service Judgement of Honble Supreme Court, in the case of Martin F. DSouza V/s. Mohd. Ishafaq (reported in AIR 2009 Supreme Court 2049), but, the observations made by Supreme Court in that case is not applicable to the present case because there is already expert report procured by Police for the purpose of Police case besides there was post mortem report prepared by Autopsy Surgeon and both of them squarely pointed out that death of Kum.Aparna Killedar took place because of excessive bleeding post tonsillectomy operation.
12) In this view of the matter we are finding that the Appellants had not taken due and proper care post operatively in the instant case. After operation was over it was the duty of the Appellants jointly to ensure that there is no bleeding through the operation site. The very fact that there was excessive bleeding is proved from the fact that police recorded inquest panchanama and they found that total cloths were soaked in blood. The post mortem report also mentioned condition of the body that her back portion of the cloths were soaked in blood which go to prove that there was excessive bleeding when she was lying in the recovery ward of the Appellants hospital. Appellants have not taken due and proper care once they performed operation. They probably went away. No doubt, in response to SOS call they did come and tried to give some medical help to deceased which was not sufficient and she was not responding to the treatment they tried to give and ultimately Kum.Aparna Killedar died at about 04.30 p.m. in the another hospital. Thus she was not given timely help she utterly needed. In this view of the matter, we are of the view that the Forum below rightly handed out the judgement in faovur of the Respondents and Forum below is justified in holding that Appellants were guilty of medical negligence and in directing to pay sum of Rs.5,00,000/- as compensation to the Respondents for their medical negligence. We are finding that the said award passed by the Forum below is based on evidence on record. The said award as such is sustainable in law and we are finding no merit in this appeal. Hence, we pass the following order:
O R D E R
(i) Appeal preferred by all the Appellants stands dismissed.
(ii) Appellants to pay Rs.20,000/- as cost of this appeal to the Original Complainants and bear their own costs.
(iii) Copy of this order be furnished to the parties.
(S.P. Lale) (P. N. Kashalkar) Member Presiding Judicial Member