National Consumer Disputes Redressal
Ms.Swati Prakash Patil vs Dr.Kiran Rajaram Vanasare & Anr. on 26 July, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.299 OF 2006 (From the order dated 20.02.2006 in Complaint No.209/1996 of the State Commission, Maharashtra) Ms.Swati Prakash Patil Appellant Versus Dr.Kiran Rajaram Vanasare & Anr. Respondents BEFORE : HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Appellant : Ms.Supriya Mharolkar, Advocate For the Respondent(s) : Mr.S.B.Prabhavalkar, Advocate (R-1) Mr.Anant Bhushan Kanade, Sr.Advocate with Mr.Prashant R.Dahat, Advocate(R-2) Pronounced on 26th July, 2012 ORDER
PER VINEETA RAI, MEMBER This First Appeal has been filed on behalf of Ms.Swati Prakash Patil (hereinafter referred to as the Appellant), , by her father and natural guardian Prakash Appasaheb Patil (hereinafter referred to as the Guardian) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Maharashtra (hereinafter referred to as the State Commission) dismissing her complaint of medical negligence and deficiency in service against Dr.Kiran Rajam Vanarase (Respondent No.1) and Dr.(Mrs.) Vijaya Mohan Potdar (Respondent No.2) herein.
FACTS In the complaint before the State Commission, it was contended that in 1996 the Appellant who were then aged 8 months, was taken to the hospital of Respondent No.1 on 19.06.1996 since she was suffering from loose motions and vomiting.
After examination, she was admitted in the hospital on 20.06.1996 and Respondent No.1 decided to inject IV fluids through the veins near the elbow joint of the right arm as a part of the treatment. In the process, a number of veins were badly punctured, cut and incised apparently because the proper vein could not be easily located for injecting the IV fluids as result of which the right hand of the Appellant became very swollen. When Appellant continued to be in great pain and her condition worsened on 21.06.1996, the parents of the Appellant called Respondent No.1 to the hospital to examine the Appellant but he did not come till 10.00 am.
It was also noted by the Appellants guardian that the fingertips of the swollen hand of the Appellant had started becoming black. Therefore, losing confidence in the medical treatment by Respondent No.1, Appellants guardians demanded immediate discharge from the hospital. Appellant was thereafter taken to the hospital of Respondent No.2 at 10.00 am on 21.06.1996 where on examination it was found that the right hand of the Appellant was swollen and her fingertips had blackened. Respondent No.2 recorded that this was case of gangrene and an expert opinion of a specialist, Dr.Badave, was sought who confirmed the same. Treatment was started but on 22.06.1996 the condition of the Appellant worsened with the gangrene gradually spreading to the upper portion of the arm. Appellant guardians realised that Respondent No.2 was not able to control the gangrene nor was the required treatment given for its prevention/spread.
Therefore, they decided to shift Appellant to Wanless Hospital, Miraj on 22.06.1996. The doctors at Wanless Hospital opined that if proper treatment had been started, to check spread of gangrene within 6 hours of its detection, the situation would not have aggravated to this extent. The doctors at the said hospital tried their best to save the Appellants hand but finally had to amputate the right hand of the Appellant above the elbow joint on 02.07.1996. Guardian of the Appellant contended that it was because of the negligence on the part of Respondent No.1 in repeatedly puncturing the veins and later on the part of Respondent No.2 in not taking adequate medical care to prevent the spread of the gangrene that the Appellant lost a part of her right hand at such a young age which has adversely affected her future since this is a permanent disability.
Legal notices were issued to both Respondents. Respondent No.1 denied the allegations and Respondent No.2 did not respond.
Appellant therefore filed complaint before the State Commission on grounds of medical negligence and deficiency in service on the part of both Respondents and sought compensation from them for the pain and suffering, past, present and future, cost of treatment and related matters amounting to Rs.8,22,300/- along with interest @ 18% per annum from the date of Complaint till its realization.
Respondent No.1 denied the allegations of medical negligence and stated that he had been treating the Appellant since her birth.
Since she was a low-weight baby, she was constantly suffering from one illness or the other. In the present case, Appellant was brought to the hospital with complaints of loose motions for two days, fever and vomiting and was therefore, hospitalised the next day. In order to check dehydration which could be life threatening, as per standard case management, a saline IV drip was given to the Appellant. Admittedly, it was difficult to locate the vein in the arm despite several attempts and therefore, the IV fluids were final given through a vein in her leg. Her condition was also constantly monitored and on 21.06.1996, the diahorrea was coming under control. However, since the child was crying incessantly, her parents insisted on shifting her to another hospital against Respondent No.1s medical advice. At the time of discharge, there was some redness and swelling in the arm but no symptoms of gangrene. This fact was confirmed by the medical records of Respondent No.2 at the time of Appellants admission to that hospital. The allegations made of medical negligence causing gangrene thus are false and even the case filed by the Appellants guardian before the Chief Judicial Magistrate under Section 304 of IPC was dismissed.
Respondent No.2 on being served filed her written statement denying allegations of medical negligence and contended that on examining the Appellant on 21.06.1996, she was diagnosed with acute gastroenteritis, anaemia, tachycardia (fast heartbeat) and fever of 102 FH. The superficial veins in the right arm were punctured and there was thrombophlebitis in that area. However, there was no blackness or evidence of gangrene at the time of her admission as contended by the Appellant. The appellant was treated as an indoor patient for gastroenteritis, dehydration and onsetting septicaemia as also for the swelling and redness. Apart from the intravenous drip which was administered in the leg with a great deal of difficulty, Appellant was given antibiotics and other medicines. Fomentation and thrombophobic ointment was also applied in the affected area. A specialist, Dr.M.K.Badave was also included in the treatment of the Appellant. It was only on 22.06.1996 at 6.00 am that Respondent No.2 noted that the right index finger, middle finger and ring fingers tips of the Appellant were having bluish tinge and the hand was cold. Dr.Bavade was therefore, again consulted and by the evening on 22.06.1996 there were clear symptoms of impending gangrene.
Necessary treatment to check the same including administration of drugs was immediately started. Appellants guardian was advised to arrange for blood since blood transfusion in such cases checks the spread of gangrene, which the guardian failed to do. Respondent No.2 further stated that at that point of time, it was premature to even consider amputating any part of the hand/finger through surgery primarily for two medical reasons: (i) because the zone of demarcation which indicates that the tissues in the affected are irrevocably dead had not set in; and (ii) the Appellant was not in a fit condition to undergo surgery under general anaesthesia and could have lost her life on the operation table. Even in the Wanless Hospital where the Appellant was shifted against medical advice, the same line of treatment continued and the doctors waited for about 8 days before conducting the amputation.
The State Commission after hearing both parties and on the basis of evidence filed before it including medical literature on the subject concluded that there was no medical negligence on the part of Respondents and dismissed the complaint. It was specifically observed by the State Commission that the Appellant did not produce any evidence to prove the case of medical negligence although adequate opportunity was given to examine/produce medical expert in support of her case. Even the case history from Wanless Hospital was not produced to support her contentions and only a certificate from that hospital was filed stating that the Appellant was diagnosed with gangrene in her right arm which resulted in the amputation of the arm upto the elbow joint under anesthesia on 02.07.1996 after which she was discharged on 08.07.1996.
Hence, the present appeal.
Learned Counsel for both parties made oral submissions. Learned Counsel for Appellant averred that the State Commission erred in its conclusion including in respect of three issues: (i) that from the evidence on record it could not be concluded at which hospital the gangrene occurred; (ii) that the reasons for the gangrene could not be explained and (iii) that in the absence of any expert opinion filed by the Appellant in support of her contentions, Appellant was not able to establish that there was any medical negligence. Counsel for Appellant stated, that on the other hand, it is clear from the evidence on record that gangrene had started setting-in in Respondent No.1s hospital because of the injuries caused to her arm while injecting the intravenous fluids and puncturing several veins. This fact was clearly established from the case-history of Respondent No.2s hospital dated 21.05.1996 i.e. at the time of admission wherein inter alia it has been stated that the second, third and fourth fingers had turned blue and were showing gangrenous changes. From this it is clear that both the cause and the onset of gangrene had actually started on 20.06.1996 and 21.06.1996 respectively. Regarding the cause for the gangrene, it is well established through medical literature that one of the causes for this is due to arterial injuries caused by injection which admittedly occurred in this case for which Respondent No.1 is clearly responsible because due care was not while unsuccessfully injecting the saline in the arm. Regarding Appellants non filing of expert medical opinion in support of the case, Counsel for Appellant cited a judgement of the Honble Supreme Court in V. Kishan Rao vs Nikhil Super Speciality Hospital - [(2010) 5 SCC 513 wherein the Honble Supreme Court had inter alia observed that it is not necessary that expert evidence is required for concluding that there is medical negligence particularly. In cases where negligence is evident the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing proves itself. In the instant case, apart from negligence on the part of Respondent No.1, Respondent No.2 was equally guilty of medical negligence because instead of amputating the affected fingers immediately, she started conservative treatment which did not help. All these are clear indications of medical negligence and deficiency in service and therefore, the present appeal deserves to be allowed and the Appellant duly compensated.
Counsel for Respondent No.1 reiterated that as rightly concluded by the State Commission there was no medical negligence on his part. Being a qualified Paediatrician, Appellant was administered standard case management for dehydration and gastroenteritis through intravenous saline drip which is necessary since this medical condition particularly in low-weight birth babies is life threatening. Admittedly, there was some problem in locating the vein in the arm because of which some veins did get punctured but there was no medical negligence on the part of the Respondent No.1 in this line of treatment which was purely in the interest of the Appellants health and survival. Appellants contention that the gangrene developed in the Respondent No.1s hospital is also not factually correct because the case sheet of Respondent No.2s hospital as well as the affidavit filed by her clearly stated that at the time of admission there was no evidence of gangrene and in fact some symptoms indicative of it were noted for the first time only on 22.06.1996. A perusal of the document at the time of admission clearly indicates that the date 22.06.1996 was fraudulently changed to 21.06.1996 through overwriting, to help Appellants case.
Counsel for Respondent No.2 confirmed that the Appellant had been brought in a very serious condition but because of proper medical treatment by Respondent No.2 her condition stabilized to a large extent with the assistance of Dr.Bavade a well-known surgical specialist. Regarding the contention of the Appellants guardian that had Respondent No.2 amputated the fingers either on 21st or 22nd June, 1996, the gangrene could have been checked and subsequently half the arm would not have to be amputated, Counsel for Respondent No.2 pointed out that amputation is not an option unless the zone of demarcation becomes obvious which was not so in the instant case. Medical literature on the subject filed in evidence also clearly indicates that with proper treatment, there is a good chance that the gangrene at this stage can be reversed. Also admittedly, since of the Appellant was suffering from gastroenteritis and septicaemia, she was not fit for undergoing anaesthesia and a surgical procedure since she could have lost her life on the operation table. The pros and cons of the line of treatment to be done were carefully weighed and the best possible treatment was given. In fact, it was the Appellants guardian who was negligent in not providing blood for transfusion which may have checked the spread of the gangrene(Source: - Berktow, Robert, editor. The Merck Manual of Diagnosis and Therapy. 17th ed. Rahway, NJ: Merck Research Laboratories, 1997) and getting the Appellant discharged against medical advice.
That correct treatment was given to the Appellant is further proved by the fact that the same line of treatment was continued in Wanless Hospital and amputation was conducted only after 8 days when it was clearly established that the tissues had become irrevocably dead.
The State Commission has therefore, rightly dismissed the complaint of medical negligence against Respondent No.2.
We have heard learned Counsel for both parties and have gone through the evidence on record including the medical literature on the subject. It is an admitted fact that the Appellant was hospitalized in Respondent No.1s hospital with symptoms of gastroenteritis which led to dehydration and some other side effects including fever. It is also not disputed that after being clinically examined by Respondent No.1 who was an MD in Paediatrics, it was decided in the best interest of the Appellant who was an underweight and sickly child to take immediate steps to prevent further dehydration which can be life threatening.
Therefore, as per standard case management, IV saline was administered through conventionally the most common area i.e. through the veins in the arm near the elbow (Source: Dehydration Treatment & Management by Lennox H. Huang, Chief of Paediatrics, McMaster Childrens Hospital and Member of American Academy of Paediatrics - quoted in Wikipedia). The contention of Appellant that from the case-history at the time of admission in Respondent No.2s hospital on 21.06.1996 gangrene had already occurred, is not borne out by the evidence on record including the affidavits of two medical specialists i.e., Respondent No.2 and Dr.Bavade., that there were no gangrenous changes that were noted at the time of admission. Thus in the absence of any other evidence to the contrary and merely relying on the statement of the Appellants guardian, we are unable to conclude that there was any medical negligence on the part of Respondent No.1.
Appellants allegation against Respondent No.2 is essentially that it was due to her medical negligence that the gangrene was allowed to spread and this could have been checked through early amputation of the fingers in the initial stage, instead of following a conservative line of treatment. We have carefully gone through the evidence on record including the medical literature filed in evidence. In the first place, we are not convinced by the Appellants allegation that gangrenous changes had occurred on 21.06.1996 itself. There is clear overwriting on the admission sheet wherein 22.06.1996 has been changed to 21.06.1996. This has been confirmed by the evidence/affidavits of both Respondent No.2 and Dr.Bavade as also the sequence of events on record that the gangrenous change occurred only on 22.06.1996. From the evidence on record, we are further convinced that due care was taken in the treatment of the Appellant by Respondent No.2 right from the time of her admission. Her condition was correctly diagnosed, duly monitored, specialists advice taken and required medication for her multiple ailments administered. Respondent No.2s reasons for not conducting the early amputation are fortified by the medical literature on the subject (Bailey & Loves Short Practice of Surgery 21st edition published by Chapman & Hall Medical, Page 222) and we agree that as stated by Respondent No.2, it was premature and risky to have considered amputation at that stage. Further, as stated earlier even the third hospital (against whom Appellant has no grievance of medical negligence), had waited for 8 days before carrying out the amputation. On the other hand, the Appellant/Appellants guardian on whom there was onus to prove medical negligence has failed to do so despite adequate opportunity given especially when the principle of res ipsa loquitor does not apply in this case. We thus agree with the observations of the State Commission that in the absence of any independent evidence including the relevant records of the Wanless Hospital, Miraj, the Appellant has not been able to prove medical negligence though due opportunity was given to him. In fact, we take adverse note of the conduct of the Appellants guardian in getting the Appellant who was only 8 months old, discharged on two occasions against medical advice and also not arranging for blood to carry out the necessary transfusion to check gangrene as per advice of Respondent No.2.
It is now well accepted through a number of judgments including of Honble Apex Court in Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 as to what constitutes medical negligence.
Essentially we are required to see; (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated (Bolam Vs. Friern Hospital Management Committee (1957)1 WLR 582).
Applying these principles in the instant case, clearly no case of medical negligence has been proved. Admittedly, the Respondents/doctors who treated the Appellant were well qualified, specialist doctors in Paediatrics, Medicines and Surgery and they correctly diagnosed the medical condition of the Appellant which was as per standard case management and keeping in view the vulnerable health condition of the young Appellant. Cogent and convincing reasons were given by Respondent No.1 for administration of IV fluids as also by Respondent No.2 for not conducting premature surgery on the gangrenous fingers as discussed earlier. Also as discussed, no evidence was produced by the Appellant despite opportunity given by the State Commission. Keeping in view of these facts, we agree with the well-reasoned and detailed order of the State Commission that there was no case of medical negligence or deficiency in service against Respondents No.1 and 2.
The First Appeal is, therefore, dismissed with no order as to costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/