State Consumer Disputes Redressal Commission
Arjunlal Thakerele vs Dr. Anita Parashar on 9 September, 2016
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
FIRST APPEAL No.1332 /2007.
DECIDED ON : 9.9.2016.
Arjunlal Thakrele,
s/o Late Shri Punaji Thakrele,
R/o Village Kanki, P.S. Lalburra,
Tehsil Waraseoni,
District Balaghat (M.P.).
.... Appellant.
Versus
1. Dr. Smt. Anita Parashar,
Surgical Specialist,
District Hospital, Balaghat.
2. Dr. K. K. Khosla,
Surgeon,
District Hospital Balaghat.
3. Dr. P. K. Parashar,
District Hospital Balaghat.
.... Respondents.
BEFORE:
HON'BLE SHRI JUSTICE RAKESH SAKSENA, PRESIDENT
HON'BLE SMT. NEERJA SINGH, MEMBER
COUNSEL APPEARING FOR THE PARTIES :
SHRI AJAY DUBEY, LEARNED COUNSEL FOR APPELLANT.
SHRI DEEPESH JOSHI, LEARNED COUNSEL FOR RESPONDENTS.
- 2-
ORDER
The following order of the Commission was delivered by Rakesh Saksena, J. :
The Appellant / complainant has filed this appeal against the order dated 29.1.2007 passed by District Forum, Balaghat in CC no.214/2004 whereby the complaint filed by the appellant claiming compensation from the respondent / opposite parties for the death of his mother on account of medical negligence has been dismissed.
2. In short, facts of the case are that on 21.8.2003 complainant's mother - Smt. Sampta Bai was admitted in District Hospital, Balaghat for pain in abdomen. Respondent no.2 / Dr. K. K. Khosla got sonography of Smt. Sampta Bai done by Dr. Sanjay Shukla. Respondent no.1 / Dr. Anita Parashar and Dr. Smt. P. Sambhare, after going through the sonography report told that no operation was possible and advised some medicines. It is alleged that Dr. Smt. Anita Parashar told to the brother of complainant that treatment of Smt. Sampta Bai was possible in her private Nursing Home. On 16.1.2004, when pain in abdomen of Smt. Sampta Bai increased, complainant took her to the Nursing Home of Dr. Smt. Parashar. She demanded Rs.10,000/-, but complainant could deposit only Rs.7000/-. It is alleged that without any X-ray or sonography examination, respondent / Dr. Smt. Parashar and respondent / Dr. K. K. Khosla on 17.1.2004 subjected Smt. Sampta Bai to operation. In midst of the operation they called complainant and informed that further operation was not possible and stitched the wound. On 25.1.2004 when stitches were removed, the intestine of Smt. Sampa Bai protruded out. When complainant told to doctors that they wrongly operated his mother, Dr. Smt. Parashar rebuked him and asked him to take away Smt. Sampta Bai from -3- Hospital. When complainant refused to take away mother in that condition. She charged Rs.1500/- per day for keeping Smt. Sampta Bai in Hospital till the wound healed. On 2.2.2004 / 3.2.2004 complainant's brother however lodged a report at Police Station, Balaghat whereupon police went to Hospital and shifted Smt. Sampta Bai to District Hospital, Balaghat. It is further alleged that even in the Hospital Dr. Smt. Anita Parashar and Dr. K. K. Khosla misbehaved with the complainant and his relatives and insisted for discharge of Smt. Sampta Bai from Hospital. Complaints in this regard were sent to Collector, Chief Minister and other high Officers, but there had been no response. It is alleged that due to wrong treatment Smt. Sampta Bai died on 20.2.2004. Post mortem examination of the body of Smt. Sampta Bai was also performed. Alleging it to be a case of medical negligence and deficiency in service on the part of respondent / doctors, complainant approached to District Forum claiming compensation of Rs.4,65,000/-.
3. Respondents no.1 and 2 / doctors stated that a false complaint was filed against them by twisting the facts. On receipt of the sonography report dated 21.8.2003 when swelling in the uterus of Smt. Sampta Bai was detected, to rule-out the possibility of malignancy, biopsy was advised, but instead of it, complainant got Smt. Sampta Bai discharged from the Hospital and took her home. On 16.1.2004 when there had been excessive swelling on the abdomen of Smt. Sampta Bai, complainant himself brought her to Dr. Parashar's private Nursing Home. After examining Smt. Sampta Bai, Dr. Anita Parashar advised operation of hysterectomy (surgical removal of uterus) for which the complainant accorded written consent. However, on opening the abdomen on 17.1.2004 when respondent / doctors found uterus badly adhered to omentum, internal lining, urinary bladder and other internal organs in abdominal cavity with disseminated cancer due to which the removal of uterus was not -4- possible, they stitched the wound without proceeding for further operation and informed the situation to the complainant.
4. Dr. Smt. Anita Parashar stated that she did not charge any amount from the complainant for the operation. Respondents denied that intestine of Smt. Sampta Bai came out of the abdomen on 25.1.2004 when the stitches were removed. They also denied that they misbehaved with the complainant, demanded further money and refused to hand-over the medical papers to him. The respondents, however, admitted that on 3.2.2004 on a report being made by the complainant, the police took away Smt. Sampta Bai from the Nursing Home and admitted her in the District Hospital. According to respondents, they committed no negligence in the treatment of Smt. Sampta Bai. Initially, while in Government Hospital, the complainant was advised to take her for investigation and treatment to some higher Medical Center, but he failed to do so and later when Smt. Sampta Bai suffered with excessive pain he brought her to respondent's Hospital, where on the basis of ultra sonography report and other symptoms respondents decided for diagnostic laparotomy. But on finding the condition of uterus bad as aforesaid they decided not to proceed further.
5. The District Forum after considering the affidavits and other material on record passed the order of dismissal of complaint on 30.8.2005, but this Commission in Appeal No.1654/2005, by order dated 1.5.2006 set-aside the said order and remanded the case to the District Forum, Balaghat with a direction to afford an opportunity to both the parties to adduce further evidence and documents and also to permit parties for cross-examination on the affidavits, if needed. After taking further evidence, the learned District Forum again held it not to be a case of medical negligence by respondent / doctors and dismissed
- 5- the complaint by the impugned order. Aggrieved by the said order, the appellant has preferred this appeal.
6. Shri Ajay Dubey, learned counsel for the appellant challenged the order passed by the Forum on the ground that learned Forum misappreciated the evidence on record. He submitted that learned Forum failed to consider that before subjecting Smt. Sampta Bai to operation, the respondent / doctors did not obtain an ultra sonography and biopsy report. When doctors knew that Smt. Sampta Bai was referred for investigation and treatment to some higher Medical Center, they should not have operated. The evidence of Dr. Smt. Anita Parashar was inconsistent and contradictory and was not reliable. Medical report of Parashar Nursing Home was fabricated with a view to create false defence.
7. Shri Deepesh Joshi, learned counsel for the respondents submitted that the complainant out of his own free will took Smt. Sampta Bai to Nursing Home of Dr. Smt. Anita Parashar and accorded consent for her operation. On the basis of sonography report given by Dr. Sanjay Shukla and also subjecting Smt. Sampta Bai to scanning, doctors decided to subject Smt. Sampta Bai to diagnostic laparotomy, but on opening of the abdomen when they found condition not fit for further operation due to spreading cancer they decided not to proceed for further operations. On opening the abdomen since cancer was visible directly, it was not possible or necessary to take steps for biopsy. Otherwise also when Smt. Sampta Bai was suffering with excessive pain and swelling, it was not preferable to seek a report of biopsy which would have taken further atleast 25 days time. Learned counsel submitted that in respect of the same incident, the complainant and his brother had instituted criminal -6- proceedings against Dr. Smt. Anita Parashar and Dr. K. K. Khosla. But, the said proceedings were quashed by the Hon'ble High Court of Madhya Pradesh exercising the powers under section 482 of the Code of Criminal Procedure, on 17.1.2007 in Misc. Criminal Case No.6013/2006.
8. We have heard learned counsel for the parties and perused the evidence and material on record carefully.
9. In their affidavits, complainant and his witnesses Chainlal, Krishna Kumar and Tejpal narrated the same story that on Smt. Sampta Bai's suffering excessive pain, they admitted her in Parashar Nursing Home. But without any serious investigation or fresh sonography, doctors opened the abdomen for no reason and closed it. Even at the time of removal of stitches, intestine of Smt. Sampta Bai came out. Thereafter, doctors forced them to get Smt. Sampta Bai discharged. Ultimately, they made complaint to police.
10. From the evidence of Dr. Parashar, it is revealed that in the District Hospital on the advice of Dr. K. K. Khosla report of sonography was obtained from Dr. Sanjay Shukla, who as per his report, Annexure R/8 diagnozed a large uterine mass in lower abdomen and advised biopsy. But, the complainant got Smt. Sampta Bai discharged from the Hospital and brought her to Nursing Home on 16.1.2004. Dr. Parashar, in her cross-examination categorically stated that before operation she got the ECG and sonography of Smt. Sampta Bai done. She herself had done the sonography, but since the report of the previous sonography given by Dr. Sanjay Shukla was already there, and both the reports tallied, she only recorded the conclusion in the case file and did not prepare any separate report. Learned counsel for the appellant submitted that this fact was not disclosed by Dr. Parashar in her reply as such it was an omission which rendered the evidence of Dr. Parashar unreliable. We are -7- unable to accept the submission of the learned counsel since we find the aforesaid fact recorded in Annexure R/10, the admit card / case sheet of the Hospital. It has been clearly recorded as USG (scanning) done, UT mass 99 x 92 x 72 mm, no free fluid in abdomen. It further stands corroborated by the statement of Dr. K. K. Khosla recorded by the Forum in the cross-examination on affidavit. Even otherwise, since the laparotomy operation was performed just after 3 - 4 months after receipt of sonography report, R/8, which indicated large uterine mass in the lower abdomen with advice of biopsy, it could not be held that Dr. Parashar was ignorant of the said fact.
11. On perusal of the evidence of Dr. P. Sambhare recorded before the Judicial Magistrate, First Class in enquiry proceedings, it is revealed that when Smt. Sampta Bai was admitted in District Hospital on 21.8.2003, on the advice of Dr. K. K. Khosla, her sonography report was brought. She also had seen the said report. On the basis of the said report, they found her condition not fit for operation and advised complainant to take her to some higher Medical Center. She had referred her for the treatment at Nagpur Medical College. 12 It seems that for reasons best known to complainant, Smt. Sampta Bai was not taken to any higher Medical Center and was got discharged. However, when she suffered severe pain she was taken to private Nursing Home of Dr. Parashar where Dr. Parashar and Dr. Khosla conducted the laparotomy after obtaining the written consent from the complainant. From the direct evidence of Dr. Khosla and Dr. Smt. Parashar, it stands proved that on the basis of sonography reports they opened the abdomen of Smt. Sampta Bai for operation. The evidence of Dr. Khosla and Dr. Anita Parashar recorded before the Forum, however, seemed to be inconsistent on the point whether the laparotomy was done for the purpose of biopsy or for hysterectomy operation.
- 8- Dr. Smt. Anita Parashar admitted that she opened the abdomen of the patient for the purpose of biopsy, but on finding cancer therein she did not opt for biopsy. Whereas Dr. Khosla stated that they opened the abdomen for the operation and not for biopsy since it was in their knowledge by the sonography report that there had been tumour in the abdomen. This inconsistency however cannot be described as a material contradiction. Since there had been a report of sonography disclosing large uterine mass, after laparotomy, the hysterectomy operation could have been done if feasible, and at the same time biopsy report could also be sought. In any case, in our opinion, there appeared nothing to infer any negligence or carelessness on the part of respondent / doctors.
13. As far as the allegations made by the complainant that stitches of the wound were defective and intestine protruded out, it is quite possible that the wound might not have healed completely, but it is a common phenomena and no negligence could be attributed for that, especially when no harm was caused to patient on account of that.
14. It is significant to note that Smt. Sampta Bai was taken from the Nursing Home of Dr. Parashar by the police on 3.2.2004 and was admitted in the District Government Hospital on same day. Record of the District Hospital, Annexure R/2, has been filed in the case. From the said record, it does not appear that the surgical intervention done at private Nursing Home was defective in any manner. The case sheet indicates that on number of occasions Smt. Sampta Bai was referred to Medical College Hospital, Jabalpur, but patient's attendants were not willing to take her to higher Medical Center. It is also on record that Smt. Sampta Bai died on 20.2.2004 and her body was subjected to post mortem examination. Post mortem report, R/3, revealed "large pelvic mass -9- adherent to surroundings structure with ascitis is suggestive of advance disease -
- ? Malignancy and bilateral plural effusion is because of secondaries in lungs." It has been opined by a team of three doctors who conducted the post mortem that "female died due to respiratory failure due to bilateral plural effusion and collapse of lungs caused by secondaries from pelvic tumour --- Pelvic tumour along with uterus is preserved to be sent for histopathological examination for confirmation and type of malignancy". Thus, it has been clearly established that Smt. Sampta Bai died on account of advance cancer with secondaries and not on account of any negligence in the operation.
15. In the above circumstances, it seems probable that the complainant might not have agreed to pay the charges of the Nursing Home resulting in some altercation which led complainant and his people to approach to police. Perusal of the order passed by the High Court in Misc. Criminal Case No.6013/2006 indicates that since police took no action against respondent / doctors, complainant filed a private complaint against them under section 200 of the Code of Criminal Procedure. Learned Magistrate though took cognizance of the case, but the High Court exercising the powers under section 482 of the Cr. P.C. by order dated 17.1.2007 quashed the cognizance observing that even if, there had been some error of judgment, the criminal liability could not be attached to it.
16. The National Commission in case of Anoop Awasthi Vs. Dr. T. Kataria & Anr., III (2016) CPJ 379 (NC) observed that a doctor cannot be held negligent simply because something went wrong. He will not be liable for mischance or misadventure; or for an error of judgment. He will not be also liable for taking one choice of treatment, out of two or for favouring one school rather than another. The doctor will be only liable when he falls below the standard of a
- 10 -
reasonably competent practitioner in his field so much that his conduct might deserve the censure of inexcusable. While observing so the Commission took the clue from the Apex Court decision rendered in case of Jacob Mathews, III (2005) CPJ 9 (SC) quoting :-
"20. We take a clue from the judgment of Hon'ble Supreme Court in Jacob Mathews case, III (2005) CPJ 9 (SC), wherein it was observed by Hon'ble Supreme Court as under :-
'When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what so say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.'
21. In Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others, IV (2006) CPJ 8 (SC), the Hon'ble Supreme Court held that, 'in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession.'
22. The Hon'ble Supreme Court in the case Kusum Sharma & Others v. Batra Hospital & Medical Research Centre & Others, I (2010) CPJ 29 (SC) the Bench comprising Hon'ble Justices Dalveer Bhandari and H.S. Bedi while dismissing the complaint, held that :
'Consumer Protection Act (CPA) should not be a 'halter round the neck' of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death.'
- 11 -
Also said that 'Doctors in complicated cases have to take chance even if the rate of survival is low. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act, 'It further observed as, 'It is a matter of common knowledge that after 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."
17. After examining the facts and circumstances brought on record in the instant case and in light of the law laid down by the Apex Court, we find that the respondent / doctors committed no negligence or carelessness in treating the deceased or the treatment given to deceased was not in accordance with the standard and established treatment protocols as per medical science for the ailments of deceased. As such we find no deficiency in service on the part of the respondent / doctors. We find appeal sans merit. It is accordingly dismissed.
(Justice Rakesh Saksena) (Smt. Neerja Singh)
PRESIDENT MEMBER
Phadke