State Consumer Disputes Redressal Commission
Dr. Prashant Pol vs Arzoo Yusuf Bagwan on 18 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
RBT/A/14/907 IN A/08/1087
DR.PRASHANT POL
POL HOSPITAL,588-A,
GANPATI ALI,
NEAR MUNICIPAL COUNCIL,WAI.
TALUKA-WAI
DISTRICT SATARA ...........Appellant(s)
Versus
ARZOO YUSUF BAGWAN
THROUGH ITS NATURAL GUARDIAN
SOU.NAFISA Y.BAGWAN
593,GANPATI ALI,TAL-WAI
DISTRICT SATARA ...........Respondent(s)
BEFORE: Smt.Usha S.Thakare, Presiding Judicial Member
P.B.Joshi, Judicial Member Per Smt.Usha S. Thakare, Presiding Judicial Member Being aggrieved by judgment and order passed by Learned District Consumer Disputes Redressal Forum, Satara, in consumer complaint no.8/2008 dated 11/07/2008, original opponent/appellant has preferred the present appeal.
2. Facts giving rise to present appeal in short are as under:-
Complainant/respondent-Arzoo Yusuf Bagwan had filed consumer complaint against the opponent by alleging deficiency in service. It is alleged that the opponent/appellant was negligent while operating the ear of complainant Arzoo Bagwan. Complainant Arzoo Bagwan was having severe pain in her ear. Therefore, she was brought to the hospital of opponent Dr.Prashant Pol for medical treatment. Opponent Dr.Prashant Pol had given certain medicines and tablets to complainant Arzoo Bagwan and compelled her to undergo ear operation. Ear operation was not performed 1 diligently. There was negligence on the part of opponent Dr.Pol while doing ear operation. During course of operation, he caused injury to Tympanic membrane. After operation, complainant Arzoo Bagwan had severe headache. Parents of Arzoo Bagwan requested opponent Dr.Pol for urgent treatment. However, intentionally he avoided to take immediate steps. On next day of operation, cotton swab and bandage were removed. Cotton and bandage were having foul smell. There was infection and septic in ear. Opponent Dr.Pol refused to give further treatment. The parents were required to take their daughter Arzoo Bagwan initially at Jeevan Jyot Hospital at Satara and, thereafter, at Chirayu Hospital to cure the injury caused to Tympanic membrane. They incurred expenses of Rs.2 lakhs to cure the injury to ear. Opponent-Dr.Pol is responsible for negligent ear surgery. He falsely replied the notice issued to him. Therefore, complainant/ respondent filed consumer complaint for claiming an amount of Rs.9 lakhs towards compensation with interest. The complainant also claimed an amount of Rs.20,000/- towards compensation for mental pain and agony and also claimed litigation charges.
3. The opponent/present appellant resisted the claim by filing written statement at Exhibit 13 and denied all adverse allegations. It is specifically denied that the opponent/present appellant is guilty of deficiency in service or he was negligent while operating right ear of complainant Arzoo Bagwan. It is submitted that complainant Arzoo Bagwan brought to his hospital for medical treatment. Prior to that complainant Arzoo Bagwan was taking medical treatment from Dr.Ulhas Athavle at Satara. The complainant was having pain in her right ear. After examining the patient, medicine was given but pain did not stop. Hence, operation was required to be conducted on 10/02/2007. After operation on right ear, complainant Arzoo Bagwan did not turn up on very next day although she was advised to come on 11/02/2007. Patient Arzoo Bagwan was suffering from Keratosis obturans. It was found in the right ear. In spite of giving 2 medicine, it did not dissolve. Hence, operation was required to be conducted. Said operation was successfully done by opponent Dr.Pol. There was no negligence while operating or treating the patient. The opponent/appellant when lastly examined patient Arzoo Bagwan at that time she was having fever, giddiness, vomiting sensation, therefore, she was advised to visit Child Specialist. Ear problem of patient Arzoo Bagwan was completely cured on 16/02/2007 after operation. She visited opponent doctor on 20/02/2007 after operation. Her symptoms were not pertinent to ear problem. Therefore, patient was directed to go to Pediatrician. Complainant Arzoo Bagwan was admitted at Jeevan Jyot Hospital on 21/02/2007 and was discharged on 22/02/2007. At Jeevan Jyot Hospital several tests and pathological tests were carried out. It was diagnosed that patient Arzoo Bagwan was suffering from Meningitis. There is no nexus of disease Meningitis and ear operation conducted by opponent/appellant doctor. On 22/02/2007, patient was admitted at Chirayu hospital. As per case papers, on 22/02/2007 patient was examined by ENT Surgeon Dr.Jaywant Thoke. Dr.Thoke examined the patient and opined that there was no ear infection in the ear of the patient. On 23/02/2007, patient was examined at Ruby Hospital, Satara, where MRI of brain was carried out. Reports were found out to be normal. Report of Hearing Health Services, Pune dated 12/03/2007 shows that Tympanic membrane of the patient was intact. The complainant has filed false complaint. It is liable to be rejected with costs.
4. Both the parties led evidence by filing affidavits of evidence. The complainant/respondent/ patient has mainly relied on medical papers. Ruby Medical Services report, certificate issued by Chirayu Children Hospital, report of Dr.Bhadari, report of Bokil laboratory, bills of laboratories and hospitals are relied by the complainant/respondent. Opponent/appellant also relied on the documents filed by the complainant to substantiate the innocence of the opponent. Dr.Pol has mainly relied on affidavit of 3 Dr.Jaywant M. Thoke, affidavit of Dr.Shrikant Anil Bokil and medical literature.
5. After considering the evidence adduced on behalf of both the parties and after giving thoughtful consideration to the arguments advanced on behalf of both the parties, learned District Forum was pleased to allow the consumer complaint by order dated 11/07/2008. The opponent was held guilty of deficiency in service. Opponent Dr.Pol was directed to pay an amount of Rs.3 lakhs towards compensation and an amount of Rs.1000/- towards costs of litigation within 30 days from the date of order to the complainant/ respondent.
6. Being dissatisfied with the order, original opponent/appellant has preferred the appeal. Heard learned counsel Mr.Balasaheb Deshmukh- Advocate for the appellant and learned counsel Mr.A.V.Patwardhan for the respondent.
7. It is vehemently urged on behalf of the appellant that the order passed by the Learned District Forum is against the facts and merits of the case. Learned District Forum failed to appreciate evidence in its proper perspective and arrived at wrong conclusion. Learned District Forum failed to consider affidavit of Dr.Thoke and failed to appreciate that there is no evidence on record to prove that appellant Dr.Pol was negligent in performing the ear operation of patient and, as such, he is guilty of deficiency in service. Learned counsel Mr.Balasaheb Deshmukh requested to set aside the illegal order passed by the learned District Forum in order to avoid injustice.
9. Learned counsel Mr.Patwardhan supported the order and findings by the Learned District Forum and urged to dismiss the appeal for want of merits.
10. It is to be noted here that earlier Appeal bearing no.1087/2008 was decided by the State Commission vide order dated 12/09/2012. Original complainant/respondent preferred Revision Petition no.548/2013 to 4 challenge the order passed by the State Commission. This State Commission was pleased to allow appeal by order dated 12/09/2012. However, Hon'ble National Commission was pleased to set aside the order passed by the State Commission in Revision Petition no.548/2013 by order dated 24/05/2013. Hon'ble National Commission was pleased to remand the appeal for fresh consideration. While deciding the revision petition it is observed that State Commission should have considered the professional assessment of treating doctors after recommended observation of 2 to 2½ days. Both the parties are heard on remand of appeal to the State Commission by keeping in mind the observations made by Hon'ble National Commission.
11. Fact of operation is not in dispute. However, according to appellant, operation was successful. Patient Arzoo Bagwan was directed to come on the following day for dressing. She did not turn up on following day but she attended on 12/02/2007, 13/02/2007, 16/02/2007 and 20/02/2007. Operation was performed on 10/02/2007. After operation there was good recovery. Later on, on 20/02/2007, patient Arzoo Bagwan had some complaints which had nothing to do with ear operation. Therefore, patient Arzoo Bagwan was advised to go to Pediatrician. Patient Arzoo Bagwan had symptoms of Meningitis. Therefore, she was referred to Pediatrician. There was no ear infection or septic as alleged by the complainant/ respondent.
12. The consumer complaint is filed by the respondent mainly on the allegations that the appellant Dr.Pol performed the operation of ear of complainant Arzoo Bagwan without any need and necessity. Proper care and caution was not taken while operating ear of the complainant. As a result, Tympanic membrane/ ear drum was damaged. There was injury to Tympanic membrane, which was not properly cured. As a result, Complainant Arzoo Bagwan had infection. All these facts are alleged and pleaded to make out the case of negligence and deficiency in service against the opponent/appellant.
513. Learned counsel Mr.Patwardhan for respondent on the basis of literature collected from Google urged that ruptured ear drum is also known as perforated eardrum or Tympanic membrane perforation. It can lead to complications such as middle ear infections and hearing loss. It may also require surgery to repair the damage to the ear drum. But if ear is properly protected, a ruptured eardrum will heal on its own without treatment within a couple of months.
14. Now we have to see whether the complainant/respondent led sufficient evidence to substantiate the allegations of negligence against the opponent/appellant. It is to be noted here that the patient/complainant Arzoo Bagwan visited the clinic of the appellant as an outdoor patient from 18/01/2007 to 09/02/2007. She was attending the hospital as an outdoor patient for treatment. Prior to that patient had consulted one Dr.Ulhas Athavle at Satara for her ailment. Patient Arzoo Bagwan was suffering from Keratosis obturans. Medicines and eardrops were given but it was not dissolved. It is not the case that immediately decision was taken to operate right ear of the patient without giving any intimation to the patient and her parents. Need of operation was explained. The appellant doctor obtained signature of the patient as well as natural guardian upon preoperative consent. At that time, risk involved in surgery was also explained.
15. After operation, medicated cotton was inserted in the operated ear and bandage was applied to the ear. Prescriptions filed by the complainant on record show that medicines and eardrops were prescribed by the appellant doctor. Medicines were given as per standard protocol. On visit after operation medicated cotton was removed. It might be having foul smell due to oozing of fluid from the operated ear. But nothing is on record to establish that operated ear was having septic or due to operation, Tympanic Membrane was perforated.
16. It is admitted fact that the appellant doctor advised the patient to go to Pediatrician. The patient was taken for treatment at Jeevan Jyot Hospital 6 and then at Chirayu Hospital. Patient Arzoo Bagwan had symptoms of Meningitis. Later on during medical treatment it was confirmed that Patient Arzoo Bagwan was suffering from Meningitis. Complainant/ respondent has no sufficient evidence to point out that operation of the ear caused development of bacteria, which ultimately caused Meningitis.
17. Learned counsel Mr.Balasaheb Deshmukh has drawn our attention to case papers of medical treatment, reports of laboratory filed by the complainant along with the complaint. Mr.Deshmukh vehemently urged that the patient was treated by ENT surgeon Dr.Thoke at Chirayu Hospital. Dr.Jaywant Manohar Thoke is an eminent Ear, Nose and Throat Surgeon from Satara. He is quite an independent witness and also a treating doctor of complainant Arzoo at Chirayu Hospital at Satara, where she was brought and admitted for treatment by parents of Arzoo. She was examined by Dr.Jaywant Thoke on 22/02/2007. Dr.Thoke opined that patient was suffering from Meningitis as per the report dated 21/02/2007 of Jeevan Jyot Laboratory. Dr.Thoke did not find any infection in the ear of complainant Arzoo. He specifically and categorically stated that Meningitis suffered by complainant Arzoo had nothing to do with the earlier ear operation carried by the appellant doctor. We do not find substance in the arguments advanced on behalf of complainant /respondent in view of case paper dated 22/02/2007, which reads as follows:-
" 22/2/2007 Seen by Dr. Thoke History of wax removal from Right ear. On examination
Right Otitis Externa (Infection of external ear) Tympanic membrane intact (Lyar)-
No mastoid tenderness-
No nystagmus-
7No active middle ear or mastoid infection-
Clinically Right Otitis Externa Here meningitis does not appear to be related to ear infection Seen by Dr. Thoke.
Adv. - To review patient after 48-72 hours to find out connection between ear Spiral CT Scan infection and meningitis 22/2/07 Seen by Dr. Thoke 7:15 p.m. MRI Shows mastoiditis O/E - Otoscopy shows intact tympanic membrane No perforation seen Hearing Tunning fork test no responding on either sides not attentive- No active otological pathology-
(No active ear disease)"
18. The complainant/respondent has not filed any independent evidence to establish that operated ear of patient Arzoo was infected due to perforation of Tympanic Membrane, which ultimately resulted into complications. It is for the complainant/respondent to prove that opponent/ appellant was negligent while performing the operation. Complainant failed to adduce any expert evidence on account of which it could have been presumed that appellant Dr.Pol was negligent in operating ear of patient Arzoo Bagwan.
19. It is urged on behalf of complainant/respondent that notes of Dr.Thoke in case papers are contradictory. Prior to report of MRI, opinion was given by Dr.Thoke.
20. In the case of Usha Lakshman & Ors......appellants v/s.Dr.N.Chandrashekhar & Another...respondents in First Appeal no.115 of 2009 reported in 2016 Volume 1 CPR (NC) 794, Hon'ble National Commission held as under:-
8"Complainant has failed to adduce any expert evidence on account of which it could have been presumed that Ops were deficient in providing treatment."
21. In the case in hand, complainant/respondent has not adduced any expert evidence except his own statement. On the other hand, opponent/ appellant has adduced evidence of two experts. It is held by the experts that Tympanic Membrane/ear drum of patient Arzoo was intact. The opinion is supported by pathological and clinical tests. It is not the case of complainant/respondent that complainant sought expert opinion but said prayer was rejected by the District Forum. In short, there is no evidence on record in support of case of complainant/respondent.
22. The complainant was having every opportunity to cross examine Dr.Thoke by way of interrogatories. Permission was never sought by the complainant to cross-examine Dr.Thoke. From the case paper dated 01/03/2007 filed by the complainant/respondent, it is evident that on 01/03/2007 at 8.15 p.m. both ears of patient were examined by Dr.Thoke. After examination of both ears, Dr.Thoke found that Tympanic Membrane is intact and normal. He did not notice any congestion, redness, swelling at the time of examination of ears. There was no response to bone conduction as well as ear conduction. His notes are as under:-
"On examination - Both ear TM (Tympanic Membrane) intact and normal.
-No congestion (Redness, swelling)
-No response to bone conduction as well as air conduction
-Clinically bilateral severe S.N.(Sensovineural) Deafness?
Due to Meningitis Adv- Tab Bilovas 1 TDS x 15 days."
23. Dr.Thoke is ENT Surgeon and expert. His opinion finds support from report of MRI. Report of MRI of brain dated 23/02/2007 issued by Ruby Medical Services and Heartline Diagnostics Pvt.Ltd. speaks that 9 "there is no evidence of any abnormal signal intensity in the adjacent right cerebellum and cerebral hemisphere. There is no obvious abnormal meningeal enhancement. There is no evidence of any filling defect in the right sigmoid/ transverse sinus. Both the cerebellar hemispheres and vermis appear normal."
24. Pathological report of patient dated 21/02/2007 from Jeevanjyot Laboratory shows that WBC count of the patient was 15,300/cumm. when normal range was 4500 to 10000. It is suggestive of blood infection. However, nothing is on record to show that infection was due to external right ear operation.
25. Learned counsel Mr.Balasaheb Deshmukh for the appellant has drawn our attention to report of Jeevanjyot Laboratory dated 26/02/2007. It is pertinent to C.S.F.Culture and Sensitivity. It is as under:-
Specimen : C.S.F.
Colony Caracteristics:-
Nutrient Agar : Circular, opaque, mucoid colonies
MacConkey's Agar : No growth
Gram Stain : Gram Negative diplococcic seen
26. There is a report of Hearing Health Care Services dated 12/03/2007. It speaks about Impression. It is observed as under:-
RIGHT: "A TYPE TYMPANOGRAM Normal middle ear pressure, normal compliance tympanogram, absence of acoustic reflexes in all frequencies on ipsilateral and contralateral stimulations. These findings are suggestive of normal middle ear conditions.
27. Report of 12/03/2007 of Impedance Audiometry in respect of complainant /patient Arzoo Bagwan reads as under:-
Right :- External auditory meatus is found to be free from any obstruction, intact, tympanic membrane is visualized. Left :- External auditory meatus is found to be free from any 10 obstruction, intact, tympanic membrane is visualized. Measurement of Middle ear Pressure and compliance :-
Parameters Right Left
Middle ear pressure -35 daPa 5 daPa
Compliance 0.51 ml 0.67 ml
28. It is not the case of complainant/respondent that wrong medicines were given by the appellant doctor during medical treatment. Appellant Dr.Pol is a qualified doctor. He followed standard medical protocol.
Appellant/original opponent on the basis of the documents pointed out that complications were due to Meningitis, which was developed subsequently ten days after operation. Evidence on record is not sufficient to hold that the opponent/appellant did wrong surgery which was not at all necessary and, as such, he is guilty of medical negligence. Learned District Forum failed to appreciate that operation of right external ear performed by the appellant doctor was successful. Middle ear was never operated. There is no evidence of infection in middle ear. Meningitis was developed either on 20/02/2007 or 21/02/2007, which has no nexus with the operation carried out on 10/02/2007. It cannot be said that Tympanic Membrane was damaged at the time of operation on 10/02/2007, which was healed on 22/02/2007. Various reports are supporting case of the appellant. We find no hesitation to hold that Learned District Forum wrongly observed that Meningitis was suffered because of operation of middle ear. We find no reason to discredit the evidence of Dr.Jaywant Thoke, who treated patient Arzoo Bagwan.
29. In view of the above discussion, we find no hesitation to hold that the Learned District Forum committed error while appreciating the evidence in its proper perspective. Order passed by the learned District Forum is incorrect as contrary to the evidence on record. It requires to be set aside by allowing the present appeal. Hence, the following order:-
11ORDER Appeal is allowed.
Impugned order dated 11th July, 2008 passed by the District Forum, Satara in Consumer Complaint No.08 of 2008 is hereby set aside. In place of it following order is substituted:-
"The consumer complaint stands dismissed."
In the given circumstances, parties to bear their own costs.
Pronounced on 18th April, 2017.
[USHA S.THAKARE] PRESIDING JUDICIAL MEMBER [P.B.JOSHI] JUDICIAL MEMBER Ms 12