State Consumer Disputes Redressal Commission
Mohini Ashok Ganu vs Dnyaneshwar Digambarrao Sabne on 21 March, 2016
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FA/658/2014
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI CIRCUIT BENCH AT AURANGABAD.
Date of filing : 30/09/2014
Date of order : 21/03/2016
FIRST APPEAL No : 658 of 2014
IN COMPLAINT CASE NO : 209 OF 2009
DISTRICT CONSUMER FORUM: LATUR.
Dr. Sau.Mohini Ashok Ganu
R/o. Majge Nagar Kava road,
Latur. APPELLANT
VERSUS
1. Dnyaneshwar Digambarrao Sabne
R/o.Pan Chincholi Tq.Nilanga,
Dist. Latur.
2. National Insurance Company Ltd
Through its Branch Manager
Hanuman Chowk, Latur. RESPONDENT
Coram : Smt.Uma Bora, Hon'ble Presiding Judicial Member.
Mr.K.B.Gawali, Hon'ble Member.
Present : Adv.Shri.P.R.Adkine for the appellant.
Adv.Shri.Amol Patale for the respondent No.1.
Adv.Shri.S.P.Chapalgaonkar for the respondent No.2.
JUDGEMENT
( Delivered on 21st March 2016 ) 1 2 FA/658/2014 Per. Mr.K.B.Gawali, Hon'ble Member.
This appeal is filed by the original opponent No. 1 against the judgment and order 21/07/2014 passed by the Dist. Consumer Forum Latur in consumer complaint No. 207/2009. The respondent No. 1 is the original complainant and respondent No. 2 is the original opponent No. 2. For the sake of brevity the appellant who is a doctor is hereinafter termed as the "opponent doctor", the respondent No. 1 as the "complainant" and the respondent No. 2 as the "opponent insurance company".
2.(i) This is a consumer complaint of medical negligence. Facts of the case in a nutshell are that on 15/07/2000 the complainant's wife namely Surekha Sabane visited opponent Doctor, who after preliminary check up came to be admitted in the hospital by name "Sanjivan Hospital" Latur as indoor patient for treatment on the same day i.e. on 15/07/2000. That during her treatment she died on 21/07/2000 at 12.15 p.m. The complainant contended medical negligence on the part of the opponent doctor on two grounds (1) The opponent doctor failed to correctly diagnose the disease of his wife and given wrong treatment due to which the disease of his wife was aggravated and finally she died on the said date and (2) Case papers of the treatment given to his wife were changed and manipulated to match the treatment alleged to have been given by the opponent doctor.
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ii). As regards the first allegation about incorrect diagnosis and the wrong treatment the complainant submitted that, initially i.e. from 15/07/2000 upto 20/07/2000 his wife was kept and treated by the opponent doctor in the general ward. However, on 21/07/2000 she was shifted to I.C.U. That, opponent doctor neither explained the complainant the disease of his wife nor given proper treatment. It was also contended that, the opponent doctor's husband namely Dr. Ashok Ganu who is a chief of the hospital had gone out of station despite having knowledge that, the health condition of his wife was serious. It was also alleged that the opponent doctor did not checkup the health condition of his wife regularly during the admission period and failed to give proper treatment. It was further submitted that, on 20/07/2000 as per the request and demand of the complainant and his relatives the opponent doctor called other consulting doctor namely Dr.Ishwar Rathod and Dr. N.P.Jamadar for consultation and for further treatment of his wife. That, the Dr. Rathod narrated and disclosed the condition of the patient and also the disease which the patient was suffering from. It was also his contention that, when the opponent doctor had a knowledge that the patient was not feeling well on 15/07/2000 why did she not keep the patient in I.C.U. immediately.
iii) As regards the allegation about the change and manipulation of clinical case papers pertaining to the treatment given to his wife, 3 4 FA/658/2014 it is contended by the complainant, that opponent doctor did not write the case papers as usual but they were written after the death of his wife so as to suit the alleged treatment given by the opponent doctor. It was further submitted by the complainant that, the Xerox copies of the case paper supplied to the complainant by the opponent doctor revealed that there were no signatures of the opponent doctor and also others who have been shown in the case paper as visited the patient i.e. his wife. He pointed out that on 15/07/2000 the opponent doctor has mentioned in the case paper as "seen" but not signed the case paper. Further on 16/07/2000 it is written as "Seen" by the husband of the opponent doctor namely Dr.Ashok Ganu but no signature. Similarly, on 17/07/2000 the residential medical officer of the opponent doctor of the said hospital also mentioned as seen the patient but not signed. The similar position was continued on 18/07/2000. That on 19/07/2000 the opponent doctor signed the case paper upto 21/07/2000. That, the case papers were written in running script but the details mentioned on it were not as per the treatment given. That, on 19/07/2000 opponent doctor obtained the consent of the complainant for removing water from the back of the patient stating that the position of the patient was serious and difficult. It was also submitted that on 17/07/2000 the opponent doctor had diagnosed the disease of the patient as malaria and typhoid but report dated 19/07/2000 showed that the diagnosis of respondent was wrong. The complainant further submitted that, though on 17/07/2000 the patient was having temperature as per the graph of 4 5 FA/658/2014 temperature, the observations made in the relevant case paper were as "afebrile" this means no temperature. He therefore contended that the case papers were manipulated.
iv) The complainant therefore contended that, due to the incorrect diagnosis and wrong treatment given to his wife was finally died. That his wife was a assistant teacher in the S.P.High School and her age at the time of death would 35 years. She was earning Rs 8000/- per months. That, she would have survived up to her super anuation i.e. for 23 years. The complainant submitted that, his wife was providing Rs 6000/- per month i.e. 72,000/- per years. He further submitted that as per the settled norms of the Hon'ble Supreme Court he has calculated the loss only for 12 years i.e. Rs 72,000 x 12 = 8,64,000/-. Therefore alleging deficiency in service he filed consumer complaint before the Dist. Consumer Forum against the opponent doctor seeking directions to pay him a compensation of Rs 8,64,000/- towards financial loss and additional amount of Rs 40,000/- towards mental agony i.e. total compensation of Rs 9,00,000/-.
3(i) The opponent doctor appeared before the Dist. Consumer Forum and resisted the claim of the complainant. It was submitted by her that on 15/07/2000 with the history of high grade continuous fever and head ache the patient i.e. wife of the complainant was admitted in his hospital. As the deceased wife of the complainant had fever for last 8 to 10 days possibility of typhoid 5 6 FA/658/2014 fever was considered on initial assessment. Further investigation was also carried out and appropriate treatment was also started. It was contended that, as per the standard norms considering the symptoms of the patient i.e. deceased wife of the complainant, the diagnosis of the disease as typhoid was correct. She also gave an extract of the Harrison's Text Book of medicine 14th Edition page 93 wherein it is stated that "possibility of typhoid fever should always be considered in any patient with prolong or unexplained fever especially endemic area". Accordingly, the treatment of typhoid was started immediately and with the said treatment the temperature of the complainant's wife (patient) came down to the normal body temperature after two days and remained same for next 24 hours. That, on 18/07/2000 patient had fever again with chills and rigors hence injection Anikacin 250 mg B.D. was added to the treatment.
ii) That on 19/07/2000 the abnormal behavior and disorientation with gastroenteritis was diagnosed as sign of sepsis and steps were taken for confirming the same. That, in the evening of 19/07/2000 after getting the report of investigation and after necessary clinical assessments during the day, the opponent doctor carried out lumber puncrure after obtaining the consent of the complainant. The complainant was also explained the disease in detail. Considering the deterioration of condition of the patient very fast the opponent doctor with the consent of the complainant and his relatives called other expert doctor namely Dr.Ishwar Rathod, 6 7 FA/658/2014 who visited the patient at 9.30 p.m. of 19/07/2000. That the said Dr. Rathod also supported the diagnosis of gastroenteritis with septicemia with pneumonities as made by opponent doctor and he also asked the medicine already given to the patient by the opponent doctor with two more additional drugs. It was also contended that she along with Dr. Rathod again explained the condition and prognosis of patient to the complainant and relatives and the patient was immediately shifted to I.C.U. where she was given all required treatment. However, despite of all out efforts the patient i.e. complainant's wife died at 12.30 p.m. on 21/07/2000.
iii. As regards the allegations of manipulation of case papers she denied the same and submitted that, the case papers of the patient were written as usual. That, as per the usual practice the treating / examining doctor dictate the finding of the case either to the junior doctor Or RMO by writing the name of the doctor who examine the patient whereas some time notes are returned by the visiting doctors in their own hand writing. In such cases no signature is necessary though at some places doctor has signed the case papers. Therefore the opponent doctor contended that, the case papers were not changed and manipulated as alleged by the complainant.
iv) The opponent doctor specifically contended that, only because the patient was kept in the general ward and at later stage shifted to I.C.U. cannot be the ground of medical negligence. It was further 7 8 FA/658/2014 contended that, it is the treating doctor who has to decide considering the general condition of the patient whether to keep in the general ward Or in I.C.U. In the present case as the patient's initial ( patient's) condition was normal she was admitted and kept in general ward and when her condition was deteriorated, she was shifted to I.C.U. The opponent Doctor further submitted that, she herself and her husband Dr.Ganu are both physicians ( M.D.Medicine ) and she has a very good medical practice for 12 years and she was fully capable of treating the patient. That, the complainant's wife despite taking all efforts died during the treatment. But only because she died during the treatment it cannot be said that there was medical negligence on her part. Therefore the complaint filed by the complainant being false and baseless be dismissed.
4. The Dist. Consumer Forum after having considered the evidence on record as submitted by parties to the dispute and after hearing them, partly allowed the complaint by holding the opponent doctor liable for deficiency in service and directed the opponent doctor to the pay to the complainant a compensation of Rs 1,00,000/- within a period of 30 days else to pay 9 % interest on the amount of compensation after the prescribed period. The Dist. Consumer Forum has observed that, the opponent doctor was not firm in diagnosing the exact disease of the wife of the complainant. That the opponent doctor initially diagnosed the disease of the patient as "typhoid" and lateron it was stated there was symptoms 8 9 FA/658/2014 of the disease of "Prognosis" and lateron the disease was diagnosed as "Septicemia". It is further observed by the Dist. Consumer Forum that, the Chief of the said hospital who is the husband of the opponent doctor namely Dr. Ganu Ashok was stated to have gone to Miraj to visit his ailing relatives. However, no details are given by the opponent doctor and therefore the explanation given by the opponent doctor regarding absence of her husband doctor when the condition of complainant's wife was serious, was not proper and justified. That, the case papers of the complainant were also not signed at many places. It is also noted by the Dist. Consumer Forum that, no post morten was carried out by the patient. Therefore on all these observations the Dist. Consumer Forum came to the conclusion that, there was a deficiency in service and medical negligence on the part of the opponent doctor. However, while awarding the amount of compensation it has observed that, the complainant failed to prove on record the details of service of his wife and therefore on the basis of the view held by the Hopn'ble Supreme Court in case of SCC 2005 (7) State of Punjab -Vs- Shivram it has awarded the compensation of Rs 1,00,000/- to the complainant.
5. Aggrieved by the said judgment and order the present appeal is filed in this Commission which came to be finally heard on 11/03/2016. Adv.Shri.Adkine was present for the appellant / opponent doctor whereas Adv.Shri.Amol Patole for the complainant and Adv.Shri.S.P.Chapalgaonkar for the opponent insurance 9 10 FA/658/2014 company. The counsel for the opponent doctor and for the complainant have already submitted their written notes of arguments. We have also heard them at length and matter cam to be adjourned for judgment and order.
6. Adv.Shri.Adkine appearing for the appellant / opponent doctor Submitted that, the wife of the complainant was admitted in the complainant hospital on 15/07/2000 as a normal patient and therefore she was kept in a general ward. That, it is only on 19/07/2000 the patient developed a septicemia and after diagnosis of the same she was immediately shifted to the I.C.U. and was given proper treatment by the opponent doctor along with the consulting Dr.Ishwar Jadhav. The Ld. Counsel submitted that the opponent doctor has submitted affidavits of Dr. Rathod and affidavits of two more doctors i.e. Dr.Vijay Nalage and Dr.Amrut Patki working in the same hospital to support that her diagnosis and treatment given to the complainant's wife was quite proper. It is further contended that Ld. Counsel Shri. Adkine that to prove the negligence the complainant must show three things :
1. The doctor does not have sufficient skill, knowledge and experience.
2. The doctor has given a treatment which is totally against the settled norms.
3. That the doctor did not take due care and did not do the things which were absolutely necessary.10 11
FA/658/2014 The counsel Shri. Adkine contended that the complainant failed to establish all these three things against the opponent doctor. He further submitted that the decision as to whether the patient is to be kept in a general ward Or in I.C.U. is the total outlook of the doctor considering the condition of the patient. As regards the allegations of non performance of the P.M. he contended that if the patient is admitted in the hospital for more than 24 hours and if the cause of death is known, there is no need to conduct the P.M. The Ld. Counsel further contended that, the Dist. Consumer Forum has failed to appreciate the settled principle of medical negligence. It has also confused regarding the term "progress" and considered the same as name of the disease. He therefore contended that without application of mind the Dist. Consumer Forum as held the opponent doctor has liable for deficiency in service and wrongly passed the impugned judgment and order which be quashed and set aside.
7. On the other hand Ld. Counsel Shri. H.V.Patil for the complainant by way of his written notes of arguments submitted that, the opponent doctor made the wrong diagnosis of the complainant's wife and gave the wrong treatment. Secondly, he contended that the case papers were not signed and P.M. of the deceased wife of the complainant was not done. He therefore contended that the death of deceased was due negligence on the part of the opponent doctor and her sub-ordinate staff. He also 11 12 FA/658/2014 contended that, the complainant's wife was admitted on 15/07/2100 and kept in the general ward and suddenly on 21/07/2000 she was shifted to the I.C.U. But no proper explanation was given to the complainant as well as his relatives. He thus contended that the Dist. Consumer Forum rightly considered all these aspects and rightly passed the impugned judgment and order and therefore there being no merit in the appeal the same be dismissed and the complainant be awarded compensation of Rs 9,00,000/- as claimed by way of complaint before the Dist. Consumer Forum.
8. We have perused the documentary evidence on record and also thoughtfully considered oral as well as written notes of arguments as submitted by Ld. Counsel for both the parties. There are two major points which come up for our consideration:
i. Whether complainant has proved medical negligence against the opponent doctor.
ii. Does the impugned judgment and order requires our intervention.
As regards point No. 1 :- there are mainly four grounds on the basis of which the complainant has alleged the opponent doctor for medical negligence and deficiency in service.
a. The wrong diagnosis and treatment. 12 13 FA/658/2014
b. The patient i.e. complainant's wife was initially kept in a general ward and then shifted to I.C.U. c. The case papers were changed and manipulated. d. The P.M. of the deceased wife of the complainant was not conducted.
a) As regards the wrong diagnosis and treatment it is observed that, the complainant has not given any cogent evidence. According to the opponent doctor when the patient approached her on 15/07/2000, as per preliminary check up and clinical assessment, the disease of the patient was diagnosed as typhoid. The opponent doctor in support of her assessment of the disease has referred to the relevant part of the "Text book of Harrison on Medicine 14th Edition Vol. I page 953". As per this extract of text book it is stated that any patient with prolonged and unexplained fever especially in endemic area, can be considered as a typhoid fever.
Therefore considering the initial symptom the opponent doctor diagnosed the disease of the complainant as typhoid and accordingly treatment was started. It appears that, the patient also had responded to the treatment given as the fever of the complainant was normalized on 15 and 16/07/2000. However, on 17/07/2000 again there was mild fever with head ache and on 18/07/2000 there was a fall up fever but on 19/07/2000 loose motions were started to the patient and there was disorientation and restlessness of the patient was observed. The opponent doctor made some investigation and diagnosed the disease as "septicemia"
13 14FA/658/2014 and "gastroenteritis" and started treatment accordingly. Further with the consent of the complainant and his relatives immediately called other expert Dr.Ishar Rathod who visited the patient at 9.30 p.m. and confirmed the diagnosis of the opponent doctor. Accordingly, the patient was shifted to I.C.U and she was kept on ventilation with all required treatments. However, on 21/07/2000 there was unfortunate death of the complainant's wife. The complainant in his complaint has stated that, as per the request and demand of the complainant the opponent doctor has called Dr.Ishwar Rathod and Dr. Jamadhar who were visiting doctor for consultation and for further treatment of the wife of the complainant. The opponent doctor has submitted the affidavit of Dr. Rathod who was called for consulting the patient at the instance of the complainant himself. In his affidavit he submitted that, the diagnosis and the treatment given by the opponent doctor to the patient was correct. There is nothing on record to counter the diagnosis and treatment given by the opponent doctor, is submitted by the complainant therefore mere statement about medical negligence against the opponent doctor is not sufficient to hold the opponent doctor liable for medical negligence or deficiency in service. In this regard we rely on the views held by Hon'ble Supreme Court decided on 01/05/2009 in case of C.P.Shrikumar (Doctor) - V/s-S.Ramanujan II (2009) CPJ 48 (SC). It is held by Hon'ble Supreme Court that onus to prove medical negligence lies largely on claimant- onus can be discharged by leading cogent evidence- mere averment in complaint, which is denied by other side, not evidence 14 15 FA/658/2014 by which complainant's case can be proved. Therefore in absence of any cogent evidence the allegation of wrong diagnosis and wrong treatment against the opponent doctor cannot be accepted.
b. The complainant has not proved by any contrary evidence that the case papers were changed and manipulated. Only because at some places the doctors have not signed the case papers it cannot be said that there was a manipulation in the case papers as alleged by the complainant.
c. The another allegation that the complainant's wife was initially kept in the general ward and then shifted to I.C.U. cannot also be the ground of negligence. In fact it is the total out look of the doctor to decide whether to kept the patient in a general ward or in I.C.U. considering the over all conditio0n of the patient.
d. The allegation of the complainant that, no P.M. was conducted by the opponent doctor and therefore she is held as liable for deficiency in service. However, this averment is also not supported by any concrete grounds cannot also be sustained. In fact as pointed out by the Ld. Counsel Shri. Adkine for the opponent doctor the patient was admitted with opponent doctor for than 24 hours and there was clear opinion regarding the cause of death. There is also no record to show that the complainant or his relatives had demanded P.M. of the deceased and that the opponent doctor denied the same.
15 16FA/658/2014 Considering the aforesaid facts and observations all these four allegations are ill founded and hence cannot be accepted.
As regards point No.(ii) we find that the Dist. Consumer Forum has failed to consider that there was no any concrete evidence as produced by the complainant to hold the opponent doctor for medical negligence and the resultant deficiency in service. It is also interesting to note that the Dist. Consumer Forum considered the term "prognosis" as the name of disease. In fact the term prognosis is not a disease but the outcome of the treatment given to the patient In the present case there was poor prognosis which resulted in to death of the patient i.e. despite the required treatment given by the opponent doctor. The further observations of the Dist. Consumer Forum i.e. by keeping the patient in a general ward the opponent doctor has committed deficiency in service is also a vague finding without any basis. It is also observed that while awarding the compensation the Dist. Consumer Forum has relied upon the citation i.e. SCC 2005 (7) State of Punjab -V/s- Shivarm. However, this citation is not applicable as the facts and circumstances of the said case are quite difference from those which exist in the present case.
9. Considering the aforesaid facts and our observations it can be concluded that, the impugned judgment and order passed by the Dist. Consumer Forum has no any proper basis and there is no any 16 17 FA/658/2014 cogent evidence to support the same. There are substantial merits in the present appeal and therefore we are incliend to allow the same by setting aside the impugned judgment and order. Hence, the following order.
ORDER
1. Appeal is allowed.
2. The impugned judgment and order passed by the Dist.
Consumer Forum is hereby quashed and set aside.
3. Complaint stands dismissed.
4. No order as to cost.
4. Copies of the judgment and order be sent to both the parties.
Sd/- Sd/-
K.B.Gawali Smt.Uma Bora
Member Presiding Judicial Member
A.H.Patil
Steno H.G.
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FA/658/2014
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