National Consumer Disputes Redressal
Dr. Miss Herat Parmar vs Dr. Venilal G. Panchal & 4 Ors. on 12 January, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 184 OF 2015 (Against the Order dated 05/12/2014 in Complaint No. 65/1994 of the State Commission Maharastra) 1. DR. MISS HERAT PARMAR 4/34, RAMGIRI, OPP. SANYAS ASHRAM, 7TH ROAD, RAJAWADI, GHATKOPAR EAST, MUMBAI-400077 MAHARASHTRA ...........Appellant(s) Versus 1. DR. VENILAL G. PANCHAL & 4 ORS. SUVIDHA HOSPITAL, BHAVESHWAR ROAD, GATKOPAR EAST, MUMBAI-400077 MAHARASHTRA 2. DR. BHASKAR P. SHAH, ASHIRWAD HEART HOSPITAL, 1, VINAY VIVEK, 67, TILAK ROAD, GHATKOPAR EAST, MUMBAI-400077 MAHARASHTRA 3. DR. K.C. SHAH KUMAR KUNJ BUILDING, MEGHA CO-OPERATIVE SOCIETY, S.V. ROAD, ANDHERI (W) MUMBAI-4000053 MAHARASHTRA 4. DR. GANESH KINI OFFICE NO. 213, 2ND FLOOR, MAHAVIR COMMERCIAL COMPLEX, JUNCTION OF DERASER LANE & M.G. ROAD, GHATKOPAR (E) MUMBAI-400077 5. ASHIRWAD HEART HOSPITAL, TILAK ROAD, GHATKOPAR EAST, MUMBAI-400077 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Appellant : Mr. Shridhar Y. Chitale, Advocate For the Respondent : Mr. Sukruta A. Chimalker, Advocate Dated : 12 Jan 2017 ORDER Dr. S. M. KANTIKAR, MEMBER
1. The relevant facts to dispose this appeal are that on 24.3.1993, the appellant/complainant, Dr. Miss Herat Parmar's father suffered stroke during evening walk. He suddenly had weaknesses in both lower limbs, burning right eye, perspiration, difficulty in balancing himself and slurred speech. As complainant herself being a gynecologist, consulted family, doctor and called Dr. Venilal G. Panchal/ OP 1-Neurologist. OP 1 opined that patient suffered from diminished blood supply to the part of brain, i.e. near the vital respiratory and vasomotor area (heart and circulation) and needs extensive care. Accordingly, OP 1 recommended for hospitalization in Ashirwad Hospital (OP-5) of Dr. Bhasker P. Shah/OP 2 with the advise for urgent CT scan of brain and prescribed Nimodip tablet. On the same day, OP 1 saw the patient in the night. CT Scan, ECG, Blood Sugar reports were normal. The BP was 150/90 mm. The complainant alleged that in order to control BP of the patient, there was no monitoring. Neither any doctor nor nurse was present in the ICU throughout the night. On 25.3.1993, the patient's BP was 150/90 mm, OP 2 examined the patient at 10.30 a.m. and informed the complainant that Nimodip could cause fall in blood pressure and IV Dextron could overload the heart. Despite being the patient in ICU, the patient was left unattended. At about 3.00 a.m. the complainant protested to OP 2 regarding this issue. OP 2 recommended Dr. K. C. Shah/OP 3 to examine the patient. Accordingly, the OP 3 examined the patient and made the diagnosis as diminished blood supply to the Base of Brain. He also recommended at least 72 hours hospitalization. He did not recommend for any test or any advise for cardiac monitoring. At about 10.30 on 25.3.1993, OP 2 arrived at the hospital and assured that the patient could recover and promised to visit the patient at 8.00 a.m. on the next day but in the night neither any doctor nor nurse attended the patient in ICU.
2. In the early morning of 26.3.1993, the patient felt uneasiness, no one was in the ICU, therefore, complainant being a doctor herself, recorded the blood pressure of patient. It was dropped to 140/80 mm. She called the duty doctor, but there was no response. At about 9.30 a.m., Dr. Deepak Patel recorded the BP as 140/80 mm. He also detected slight fluid in lungs and conveyed the same to OP 2. At about 11.30 a.m., complainant called OP 1 on telephone and conveyed the condition of patient, upon which OP 1 asked to continue Nimodip despite fall in the blood pressure. Throughout, a day, OP 1 did not visit the patient despite of prior assurances. During the course of treatment, complainant's brother living in USA was also in touch with the OP doctors. The complainant alleged that, there was lack of duty of care and proper assessment, which constitutes gross medical negligence on the part of OP 1. At about 3.30 p.m., OP 2 examined the patient but failed to detect the cause of moist sounds in lungs and fall in urine output. Due to persistent hiccups, complainant made a call to OP 2 and informed that neither OP 3 nor OP 1 visited to look for hiccups or belching. OP 2 opined that it was due to hyperacidity and accordingly advised antacid. Thereafter, the resident doctor, Dr. Anil Mishra, an Ayurveda doctor, started IV drip of Lomodex with Trentral. It caused rigors, so the drip was immediately stopped. Thus, the said resident doctor deemed to have acted upon OP 2's instructions. At 8.30 p.m. on the same day, Dr. Ganesh Kini (OP 4) examined the patient and found that BP was 110 / 90 mm of Hg, but he did not take any step to investigate or to control the blood pressure of the patient. By 9.30 p.m. the patient's condition started deteriorating further, no proper investigation, analysis or treatment being meted out to the patient. As a result, the patient developed difficulty in breathing and it was diagnosed as due to heart failure. The resident doctors told that, the patient was suffering from pulmonary edema followed by ventricular fibrillation which is a fatal condition. The patient was kept unattended, it was a gross negligence on the part of OPs who failed to take basic steps to care and properly treat the patient being a high risk case and who was admitted for 72 hours under ICU for brain base and infarct. The patient died on the intervening night of 26-27.3.1993 at 12.00 a.m.
3. Thus, complainant filed a complaint ( CC 65/1994) before State Commission, Maharashtra for alleged deficiency and negligence caused by OPs during treatment of her father and prayed for compensation of Rs., 8,50,000/- from the OPs jointly and severally. The State Commission dismissed the complaint on 21.3.1996. Aggrieved by the impugned order the first Appeal No. 212 of 1998 was preferred by the complainant before this Commission, it was decided on 11.2.2004 whereby this Commission set aside the impugned order and remanded back the matter to the State Commission to be decided as afresh on merits. After re-hearing, the State Commission and dismissed the complaint on 15.12.2014.
4. Aggrieved by the impugned order dated 15.12.2014, the complainant preferred the instant appeal.
5. We have heard the learned counsel for the parties. Mr. Shridhar Y. Chitale, the learned Counsel for complainant/Appellant reiterated the facts narrated in the complaint. He submitted that out of three doctors, one was Homeopathic doctor, one was Ayurveda doctor, who were not qualified to treat the patient. The third doctor was M.B.B.S. However, in the ICU, a doctor, qualified M.D. is required. The resident doctors of OP 5/hospital, namely, Dr. Kharade and Dr. Dubey have filed false affidavits that they were working as a regular doctors. The OP failed to produce any evidence to show that Dr. Dubey and Dr. Kharade, the alleged RMO's of the hospital have monitored the patient during 24 to 26.3.1993. Despite patient was being in the ICU left unattended. The ICU was not up to the mark but OP 1 recommended such ICU. He did not visit the patient regularly, not examined the patient carefully and failed to order cardiac monitoring. Similarly, Dr.Bhaskar Shah (OP-2) also was careless, did not follow the standard protocol. OP-2 has examined and treated the patient casually. OP 2 ignored the notations of moist sounds mentioned first as 'Creps+' and later as 'Creps++' by his own Resident, which lead to accumulation of fluid in lungs (condition known as Left Ventricular failure in medical parlance). OP-2 also ignored the vital signs of persistent Belching and hiccups with fall of Blood Pressure. The ICU monitor was not attached, hence failed to diagnose heart failure in time. Similarly, Dr. K. C. Shah, (OP-3), as he refused to come on 2nd day. The staff in the OP 2/hospital, never recorded vital parameters regularly as per standard ICCU protocol. Dr.Ganesh Kini (OP-4) also failed to save the patient though there was fall of Blood Pressure significantly. Counsel further submitted that, the doctor wrote an imaginary and fictitious cause of death as Cardio-respiratory failure secondary to Brain Infarction. Therefore, in nutshell, the Counsel submitted that, there was deficiency and dereliction in duty of care on the part of all OPs and the nursing staff. Thus, the OPs are liable for medical negligence causing death of patient.
6. The learned counsel for the OPs, Ms. Sukruta A. Chimalker vehemently argued that, patient was looked after by four qualified doctors present in the hospital (OP 5) viz OP 2/Dr. Bhaskar Shah, M.D. (Med), D. M. (Card), Dr. Sunil Dubey, M. D. (Med.), Dr. Vilas Kharade, M. D. (Med.) and Dr. Deepak Patel, M. B.B.S. The medical record (case paper) show all the parameters like Blood Pressure, Pulse, Respiration were regularly recorded by the nurses and doctors on duty.
7. We have perused the complaint's evidence and cross-examination. She had admitted that she is not expert in the field of cardiology, critical care, internal medicine and neurology. She further admitted that her 83 year old father was known diabetic and hypertensive for past two decades. He suffered "Vertibro Basilar Insufficiency" which is basically a neurological disorder. He was suffering from diabetic neuropathy. She has also admitted that Dr.Methalia is a diabetologist and she was regularly attending father of the complainant i.e. patient. She has also admitted that because of her father's treatment was essentially related to neurology, the Dr.Panchal, Dr.K.C. Shah and Dr.Ganesh Kini were called to treat her father. Patient was shifted to OP-5 hospital because of availability of I.C.U. facility. The complainant has stated that her father was admitted for neurological problem and not for cardiac problem.
8. It is pertinent to note that, the complainant has not examined any expert on the subject to prove that the OP/doctors have not followed standard of practice. The OP's evidence clearly shows that the father of complainant was treated properly. An 83 years old man developing brain stroke, a serious condition. Such patients are more prone to succumb despite the best treatment. Such incidences are seen all over the world even in the best of the medical centers. The affidavit of OP-2 mentioned that, the crepitation at lung bases may be due to basal stasis, infection and pulmonary edema. It needs cautious approach to treat Pulmonary oedema with diuretics in elderly patient, since that may lead to dehydration, increased viscosity of blood and further aggravation of existing stroke. Signs of left ventricular failure like breathlessness, gallop sound and rise in respiratory rate were not present in patient. Therefore, cardiac investigations were not advised. Dr.Ashwin Mehta, an expert opined from the records that, there was no negligence on the part of any of the doctors.
9. It is pertinent to note that OPs have examined a medical expert Dr. B. S. Singhal, a Neurologist from Bombay Hospital and Medical Research Centre, Mumbai. He is a Professor and Head of Department of Neurology, Bombay Hospital Institute of Medical Sciences and practicing as a specialist in Neurology for 43 years. He gave his expert opinion after careful perusal of hospital records in respect of the said patient. He expressed that Dr. V. G. Panchal on the basis of clinical findings rightly suggested that the patient had Vertebro Basilar Ischaemia (impaired circulation to the brain) and rightly suggested for the ICU admission. The CT scan report revealed that there was no neuro surgical problem and the patient was continued to be jointly under care of Dr. Bhaskar Shah and Dr. Panchal. Thus, both of them ably handled the case. It is also pertinent to note that, at the request of complainant Dr. Herat Parmar, both the OPs 1 and 2 consented to have second opinion from the Neurologist of her choice. Thus, Dr. K. C. Shah and Dr. Ganesh Kini were called for second opinion. It shows open mindedness of OP 1 and OP 2 in calling second opinion. Both have diagnosed it as a case of Cerebro Vascular Ischemia. Dr. Singhal opined that the patient despite all the competent efforts done by Dr. V. G. Panchal and Dr. Bhaskar Shah, died due to extension of the brain stem infarct resulting in drowsy state, pulmonary congestion, supra ventricular and ventricular arrhythmias. Thus, there was no medical negligence on the part of any treating doctor, who provided best possible treatment.
10. The Hon'ble Supreme Court in several judgments held that, only because the patient was died or suffered any mishap, it cannot be taken as medical negligence of treating doctor. Dr. Ashwin Mehta submitted in his affidavit that 83 years old man developing brain stroke has sufficient medical reason to succumb despite the best treatment and this happens worldwide despite post medical centre. It is pertinent to mention here that the deceased patient was aged about 83 years and suffering from diabetes mellitus and hypertension since three decades of 28 to 30 years.
11. The two decisions rendered by Hon'ble Supreme Court namely, Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128 and A.S. Mittal vs. State of U.P. AIR 1989 SC 1570, it was laid down that when a Doctor is consulted by a patient, the former, namely, the Doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his Doctor.
12. In the instant case we do not find any negligence or deficiency during treatment of complainant's father. The doctors were qualified followed the proper protocol. The medical record clearly shows that, the diagnosis was made with relevant investigations; the patient was under care of Neurologist, Cardiologist and Physician. We do not find anything as an act of omission or commission which caused harm to the patient. The patient was treated under ICU care with regular monitoring of vital parameters. The complainant has not produced any cogent evidence to prove the medical negligence.
13. On the basis of forgoing discussion, we do not find any need for interference in the impugned order of State Commission. Accordingly, the first appeal is hereby dismissed. Parties shall bear their own cost.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER