State Consumer Disputes Redressal Commission
Shri Sunil Murlidhar Lad vs Dr. Mrs. Krittika V. Moghe And Another on 25 June, 2013
Daily Order
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/07/119
SHRI SUNIL MURLIDHAR LAD
R/AT:- ASHIRWAD, 338/290,
SECTOR-7, R.S.C.41,
CHARKOP, KANDIVALI (W),
MUMBAI-400067.
...........Complainant(s)
Versus
1. DR. MRS. KRITTIKA V. MOGHE
OMKAR CLINIC, D-2E/1,
GROUND FLOOR, LILAC GARDEN,
OPP. SECTOR-3,
CHARKOP, KANDIVALI (W),
MUMBAI - 400067.
2. DR. ANIL GANPATLAL NIMA,
R/AT:- 501, LAXMI VILLA,
M. G.
ROAD, KANDIVALI (WEST),
MUMBAI - 400 067.
............Opp.Party(s)
BEFORE:
HON'BLE MR. S.R. Khanzode, PRESIDING MEMBER
PRESENT:
Adv. Kashinath K. Jadhav for the Complainant
Adv. Shekhar B. Prabhavalkar for the Opponent
ORAL
ORDER
Per - Hon'ble Mr. S. R.
Khanzode, Presiding Judicial Member Consumer complaint alleges deficiency in service on the part of the Opponent Doctors alleging medical negligence while treating the wife of the Complainant, namely - Late Mrs. Snehal Sunil Lad during her family planning operation which was performed in the afternoon of 27/12/2005. Unfortunately, during the operation Late Mrs. Snehal suffered cardiac arrest and died. Her cause of death as per post-mortem report is mentioned as 'Death due to pulmonary haemorrhage with adenomyosis with air embolism'. In short, death caused due to pulmonary embolism (air embolism).
[2] Opponent No.1 Dr. Mrs. Krittika V. Moghe is a surgeon while the Opponent No.2 Dr. Anil Ganpatlal Nima is an anesthetist. Late Mrs. Snehal was working with the Municipal Corporation of Greater Mumbai in Shops and Establishment Department as an Inspector while the Complainant was formerly working with Texport Syndicate as a Junior Accounts Officers but as a family arrangement to look after their son Shubham, aged 09 years had taken a break from his job since from the year 2002. The couple decided to undergo a family planning operation to be performed on Late Mrs. Snehal and, therefore, contacted Dr. Mrs. Krittika V. Moghe to whom they were acquainted. After explaining to her the different procedures of family planning, Late Mrs. Snehal opted for laparoscopic procedure. For the same, she got herself admitted in the hospital of Dr. Mrs. Krittika V. Moghe in the morning of 27/12/2005.
Service of the Opponent No.2 Dr. Anil Ganpatlal Nima could be made available only during the afternoon and, therefore, Late Mrs. Snehal was taken to the operation theatre after completing the necessary pre-procedure around 02:45 p.m. After few hours at around 03:45 p.m. serious condition of Late Mrs. Snehal was reported to the Complainant by Opponent No.1 Dr. Krittika V. Moghe and subsequently, around 05:30 p.m., as stated by the Complainant, Late Mrs. Snehal was reported dead (actual time of death of Late Mrs. Snehal as per hospital papers is 06:10 p.m.).
[3] According to the Complainant, both the Opponent Doctors were negligent in rendering their respective services and he blamed them in following words:-
"The Complainant states that in the Family Planning operation the procedure which is to be carried out is that after Anesthetion, two surgical cut wounds are made to the lower part to dyfrom i.e. at the side of umbilical area, and that from one cut wound Air through scope have to be passed in the operated area and other wound is kept for surgical work. The Complainant states that it can be seen from the post mortem report itself that there is deliberate and gross negligence on the part of the Opposite Parties of proper and adequate precaution which resulted in passing the Air through scope in Blood Vessel and from the blood vessel the Air passed to Heart and from Heart to lungs and that Air was stuck in the lungs and also to brain which caused death of the Complainant's wife Snehal."
Consumer complaint is ultimately filed claiming compensation of `42,67,200/-.
[4] Opponents, Dr. Krittika V. Moghe and Dr. Anil Ganpatlal Nima resisted the consumer complaint as per their respective written versions specifically explaining as to what happened inside the operation theatre and how the complications developed and the efforts made by them to save the life of Late Mrs. Snehal. They also referred to the services on emergency basis taken from Dr. Yogen Bhatt, Senior Anesthetist and Dr. Anand Ambesange, a physician. The Opponents tried to emphasize that all the requisite procedures as per standard protocol were observed by them but they could not unfortunately save the life of Late Mrs. Snehal.
[5] In support of his contention, the Complainant Mr. Sunil Lad relied upon his affidavit filed alongwith the complaint and the case-papers of the OmkarHospital, post-mortem notes.
These papers are not in dispute and are referred by both the parties. However, other papers such as copies of police statement etc. are not tendered in evidence or admitted or referred by the Opponents. Since it was a death during the family planning operation as per rules & procedure the matter was referred to Quality Assurance Committee Report On Sterilization/IUD Death consisting :-
Sr. No. Name Designation 1 Dr. J. G. Thanekar Executive Health Officer Chairman 2 Dr. S. V. Parulekar Prof. & HOD, Gyn. KEM Hosp. Member 3 Dr. M. A. Gore Prof. & HOD, Surgery LTMGH Member 4 Dr. B. M. Kandalkar Prof. & HOD, Pathology KEM Member 5 Dr. L. V. Dewoolkar Prof. & HOD, Anesthesia KEM Member 6 Dr. Sandhya Kamat Prof. & HOD, Medicine, Nair Member 7 Dr. A. Fernandes Mother N. G. O. Sneha Member 8 Dr. S. K. Mehta Special Officer, F. W. & M. C. H. Member [6] Copy of the report prepared by Quality Assurance Committee is also placed on the record which is referred by both the parties and hence, same is taken into consideration. Besides this, on behalf of the Opponents their affidavits as well as affidavits of Dr. Vandana V. Laheri, Anesthetist and Dr. Kartikeya M. Bhagat, Obstetrician & Gynecologist were tendered in evidence on behalf of the Opponents.
[7] As to what happened inside the operation theatre is stated by the Opponents in their respective written versions and the affidavits. Their version finds corroboration from the hospital papers of OmkarHospital i.e. one where Late Mrs. Snehal was operated. It is revealed from this material placed on the record that the Opponent No.2 Dr. Anil Ganpatlal Nima after examining Late Mrs. Snehal found her fit for the procedure and then, administered anesthesia after following due protocol. Thereafter, Opponent No.1 Dr. Krittika Moghe started laparoscopic family planning operation. Undoubtedly, both the Opponent Doctors are well-qualified in their respective fields. Opponent No.1 Dr. Krittika Moghe has explained the procedure followed in detail, step by step, which according to her is as per standard protocol/procedure and her statement finds corroboration from the evidence of Dr. Vandana Laheri. After taking the primary puncture when the Opponent No.1 Dr. Krittika Moghe selected site for second puncture and made an incision of about 06-07 mm. and separated the subcutaneous tissue and further inserted trocar with cannula till sheath and under vision inserted it until it was seen in the cavity, she removed the trocar leaving the cannula and was about to low the band on the band applicator. At that time suddenly Opponent No.2 Dr. Anil Nima noticed that Late Mrs. Snehal was cyanosed and her pulse rate was dropping and the monitors were not recording anything. He further noticed drop of oxygen saturation drastically. Opponent No.1 Dr. Krittika Moghe immediately stopped her procedure and removed the laparoscope and deflated the pneumoperotinum and removed the cannula. Simultaneously CPR was started by the Opponent No.2 Dr. Anil Nima with the help of Dr. Nayak and paramedical staff and realizing the emergency the Opponent No.1 Dr. Krittika Moghe decided to call Dr. Yogen Bhatt, Senior Anesthetist and Dr. Anand Ambesange, Physician who reached the operation theatre within ten minutes. Further resuscitory measures were taken but with no result and ultimately Late Mrs. Snehal was declared dead at 06:10 p.m. The Complainant was informed accordingly.
[8] The procedure followed which is reflected from the hospital papers in detailed were scrutinized by the Quality Assurance Committee on Sterilization and IUD Death, supra, as well as by experts Dr. Vandana Laheri and Dr. Kartikeya M. Bhagat.
Quality Assurance Committee in its report categorically opined as under:-
" The Committee is of the opinion that the cause of death is Pulmonary gas embolism due to pneumoperitoneum during Lap. T. L. (Please refer note at the bottom and give opinion as applicable in the above case)
a) Pre-operative Care :- Adequate
b) Operation Procedure/Technique :- The technique was adequate however mini laparotomy would have been more appropriated.
c) Post Operative Management & :- Adequate hold following "
[9] In reply to the enquiry made by the police inspector since it is the Opponent No.1 Dr. Krittika Moghe on the death of Late Mrs. Snehal reported the matter immediately to the police, has categorically opined that there was no medical negligence on the part of the Opponent Doctors. Expert opinion of Dr. Vandana V. Laheri and Dr. Kartikeya M. Bhagat who in detailed analyzed the situation and the papers also confirm that medical protocol followed and procedure adopted by both the Opponent Doctors were proper and they were also of the opinion that there is no medical negligence on the part of the Opponent Doctors. As to the complication of air-embolism, it is revealed from the above experts' evidence as well as from the supporting medical literature that though rare, it is not uncommon.
Unfortunately, in case of Late Mrs. Snehal it happened. Matter placed on the record further shows that once said emergency arose, Opponent Doctors had taken all possible necessary steps and even secured support of a senior anesthetist Dr. Yogesh Bhatt and a physician Dr. Anand Ambesange.
Unfortunately, their collective efforts did not yield any result. There is no material placed on the record on behalf of the Complainant to counter the above-referred evidence. We find no reason to disbelieve the evidence tendered on behalf of the Opponents which as earlier pointed out gets corroboration from the experts' evidence and medical literature as well as hospital papers including post-mortem notes.
[10] Thus applying 'Bolam's' test in the instant case, no medical negligence is established on the part of the Opponent Doctors. Useful reference on the point can be made to the decision of the National Commission in the matter of Smt. Tilak Chaudhary Vs. All IndiaInstitute of Medical Sciences and Another ~ 2012-(4)-CPR-506-(NC) as well as decision of the Apex Court in the matter of Jacob Mathew & Anr. ~ (2005)-6-SCC-1.
[11] As to the opinion expressed by the Quality Assurance Committee, supra, that the technique adopted by the Opponent Doctors was adequate, however, mini-laparotomy would have been more appropriated, we find that the Committee did not find fault with the procedure adopted by the Opponent Doctors. Choice of one reasonable course to treatment to other is with the treating doctor/surgeon/anesthetist which they have rightfully exercised and, therefore, it cannot be a case of negligence. Useful reference on the point can be made to the decision of the Apex Court in the matter of Martin F. D' Souza Vs. Mohd. Ishfaq ~ (2009)-3-SCC-1. It would be useful to quote the following observations of Their Lordships:-
"The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful."
[13] For the reasons stated above, we find that medical negligence vis--vis deficiency in service on the part of the Opponent Doctors cannot be said to have been established. We hold accordingly and pass the following order:-
ORDER Complaint stands dismissed.
In the given circumstances the parties to bear their own costs.
Pronounced and dictated on 25th June, 2013 [HON'BLE MR.
S.R. Khanzode] PRESIDING MEMBER KVS