State Consumer Disputes Redressal Commission
Shri.Sunil Digambar Nandwalkar vs Dr.Rajesh Patil,M.D. on 29 April, 2013
1 F.A.No. :2656/2006
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI.
CIRCUIT BENCH AT AURANGABAD.
First Appeal No. A/2656/2006
(Arisen out of Order Dated 13/11/2006 in Case No. 174/2006 of District Jalgaon)
1. Shri.Sunil Digambar Nandwalkar.
R/o.Fagne,Tq.and Dist.Dhule. ...........Appellant(s)
Versus
1. Dr.Rajesh Patil,M.D.
Vishwaprabha Hospital,Akashwani chowk,Near
Venkatesh Temple,National Highway No.6,Tq.and
Dist.Jalgaon.
2. Dr.Vivek Chowdhary.
Gajanan Heart & Eye Hospital,564/2,Mandore
Bhavan,Near Panchamukhi Hanuman,Tq.and
Dist.Jalgaon.
3. Shraddha Laboratory.
2670/1,M.J.College road,Near Bhaskar
Market,Tq.and Dist.Jalgaon. ...........Respondent(s)
BEFORE:
HON'ABLE MR. B.A.SHAIKH PRESIDING MEMBER
HON'ABLE MRS. UMA BORA MEMBER
HON'ABLE MR. K.B.GAWALI MEMBER
PRESENT:Adv.Madhukar Dalvi , Advocate for the Appellant 1
Adv.Shri.V.B.Patil, Advocate for the Respondents
ORDER
Date : 29.04.2013 Per Mr.B.A.Shaikh, Hon`ble Presiding Judicial Member.
1. This appeal is directed against the order passed by District Forum Jalgaon in C.C.No. 174/2006 on 13.11.2006, by which the said complaint has been dismissed.
2. The case of complainant as set out in the complaint in brief is that, complainant is the husband of Smt.Jaya. She delivered baby in the 2 F.A.No. :2656/2006 hospital of Dr.Nitin Choudhary on 15.5.2003 at 5.45 p.m. at Jalgaon in Maher Hospital by caesarian operation. Opposite party No.1 Dr.Rajesh Patil who is Neo Natologist, was present at the time of that delivery. He informed the complainant that his child did not cry immediately after birth and child appears to be bluish and hence he required hospitalization in incubator. Therefore as per his request, complainant took his child to his hospital and child was admitted there. Oxygen mask was fixed on face of child. The oxygen saturation was noted as 96%. On enquiry with opposite party No.1 he said that child was suffering from heart disease as child was bluish in colour and some tests are required to be carried out immediately. As per advise of opposite No.1 at about 9.00 p.m. complainant got blood gas analysis of his child done at Shraddha Laboratory i.e opposite party No.3. In that analysis the PO2 concentration was shown as 27 mm Hg. Thereafter as per request of opposite party No.1, urgent Colour Doppler Test was also carried out at diagnostic centre of opposite party No.2. There upon opposite party No.2 told the complainant that without wasting any time child be taken to Ruby Hospital of Pune as an emergency cardiac surgery required to be performed on his child. Opposite party No.2 said that as blood vessels supplying both pure and impure blood to the body of the child have been joined and until and unless emergency surgery done, chances of survival are very low. Opposite party No.1 handed over the letter of reference to Ruby Hospital of Pune and asked the complainant to fix saline bottle on child and that it would last till end of journey. However on the way saline bottle was cracked at Aurangabad. Hence saline bottle was removed. Opposite party No.1 prohibited breast feeding to the said child. Child was shifted to Ruby Hospital of Pune at 4.00 p.m. on 16.5.2003 and 2D Echo-cardiogram was taken there. It was opined by doctor of Ruby Hospital that his child did not suffer from any heart disease. Doctor also said that due to extensive journey in huge heat without water and milk 3 F.A.No. :2656/2006 the child was severally dehydrated. It is also stated in Ruby Hospital by doctor that the new born child always has always slight 'shunt' in the heart and there is nothing abnormal in the same. Child was treated in Ruby Hospital from 16.5.2003 to 22.5.2003. The child was then admitted in K.E.M. hospital of Pune on 22.5.2003. He was discharged on 4.6.2003 from that hospital. Due to utter negligence, want of skill and due care on the part of opposite parties, complainant and his family had to undergo utter nightmare and harrowing time and they had to incur heavy expenses without any existing cause. Therefore the complainant claimed total compensation of Rs.21,60,000/- from the opposite parties.
3. Opposite party No.1 filed written version and resisted claim. It raised preliminary objection that complaint is barred by limitation as it is not filed within two years from the date 16.5.2005 on which cause of action arose. He denied all the allegations made in the complaint about negligence on his part. He submitted that after delivery of the child in his hospital, it was found that oxygen saturation in the body of the child was about 40% only and the said child did not cry immediately after birth. Therefore it was sufficient to suspect heart disease. Child was required Colour Doppler Test. Joined blood vessels test was also carried out by opposite party No.2 and opinion given by opposite party No.2 was not final diagnosis. It was the question of life and death of child and therefore opposite party No.2 asked the complainant to shift the child to Ruby Hospital of Pune. It was suspected that child was suffering from heart disease and hence breast feeding was not allowed to avoid extra burden to heart/lungs. Moreover surgery may be performed on said baby and hence it was necessary not to have intake from mouth before surgery. It is denied that, in Ruby Hospital, of Pune doctor opined that baby/child was not suffering from heart disease whatsoever. It is 4 F.A.No. :2656/2006 submitted that presence of murmur mentioned on the case papers of Ruby Hospital clearly indicate some kind of heart problem. The case papers of Ruby Hospital show that baby was "Euhydrated" which means normal hydrated. It is incorrect that new born child always has slight shunt in heart. Having of shunt in heart is abnormal thing which should be taken care in time. Discharge certificate of Ruby Hospital shows that child was suffering from "Sub-Diaphragmatic TAPVC with large ostium secundum ASD" and it was an emergency case. This shows that there was a heart problem. The papers of K.E.M.hospital, Pune also shows that baby was suffering from congenital heart disease. Therefore it is submitted by opposite party No.1 that complaint is frivolous and vexatious and hence it be dismissed with compensatory cost of Rs.10,000/-.
4. Opposite party No.2 also raised preliminary objection that complaint is barred by limitation. It also submitted that oxygen saturation of the baby was 40% only. He had diagnosed joined blood vessels as matter of possibility and it was not finally diagnosed. He has also made similar pleading in his written version as made by opposite party No.1 and reproduced above in brief. He therefore submitted that complaint may be dismissed with compensatory cost of Rs.10,000/-.
5. Opposite party No.3 in his written version also raised similar plea as raised by opposite party Nos.1 & 2 as discussed above and he thus submitted that complaint may be dismissed with compensatory cost of Rs.10,000/-.
6. District Forum below after considering evidence brought on record 5 F.A.No. :2656/2006 found that at the time of admission of child, the oxygen saturation was about 40% and opposite party No.1 diagnosed joined blood vessels as possibility. District Forum referred to medical case papers brought on record for coming to the conclusion that it was not finally diagnosed. It also observed that in view of said diagnosis opposite party No.2 had asked the complainant to take child to Ruby Hospital of Pune. It also observed that in Ruby Hospital at the time of admission it was found that baby was "Euhydrated" and that "diagnostic murmur was found in left Strenal Border Grade-II/III, 3rd -4th internal costal space". District Forum below also referred to discharge certificate of Ruby Hospital of Pune in which it is shown that child was suffering from "Sub- Diaphragmatic TAPVC with large ostium secundum ASD" and it was an emergency case. District Forum below also found from the admission card of K.E.M. Hospital that baby was suffering from congenital heart disease. District Forum below referred to report of Dr.A.B.Chandorkar which shows that baby had possibility of left to right shunt. It also observed that opponent Nos.1 to 3 provided standard medical treatment to the child/baby by taking all precautions with utmost care. It also observed that opponent No.3 conducted test by computerized machine. Therefore opponent No.3 is not required to use special skill or anything like that. Therefore he cannot be blamed for values displayed by machine. Thus District Forum below thus came to the conclusion that no negligence is proved on the part of opposite parties. It therefore dismissed the complaint.
7. Feeling dissatisfied with the said judgment and order original complainant preferred this appeal.
8. It is submitted by Shri.Madhukar Dalvi the learned advocate 6 F.A.No. :2656/2006 appearing for appellant that there was faulty diagnosis of the child and the test carried out by opposite parties/ respondents herein were not warranted. He also submitted that no ambulance was made available to the appellant for taking child from Jalgaon to Pune. No medical attendance was provided by opposite parties. He also submitted that no heart disease was found at Pune. On the contrary the condition of child was deteriorated due to long traveling from Jalgaon to Pune without any feeding. He further submitted that District Forum did not consider the affidavits of doctors which proved negligence on the part of opposite parties. He also submitted that order was passed hurriedly by District Forum without considering the evidence brought on record and hence appeal may be allowed.
9. On the other hand, Shri.V.B.Patil, the learned advocate appearing for respondent supported impugned judgment and order and submitted that there is no case of wrong treatment and that there is no case that that the child had suffered due to any incorrect medical treatment from opposite parties. Neither medical opinion of doctor, nor case papers of Ruby Hospital or K.E.M.Hospital prove the negligence on the part of doctors. He also submitted that proper opportunity of hearing was given to the appellant and that there is no error in the impugned order. He therefore submitted that appeal may be dismissed. He relied on the observations made in the following cases in support of his submission.
i) Martin F.Dsouza -Vs- Mohd.Ishfaq, 2009 DGLS(soft) 194 (SC),
ii) Kusum Sharma & Ors. -Vs- Batra Hospital & Medical Research Centre & Ors., 2010 DGLS (Soft.) 84 (SC), It is seen from the aforesaid decisions that error of judgment may or may 7 F.A.No. :2656/2006 not be negligent, depending upon nature of error, that, in the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. Medical practitioner would be liable only where his conduct fell below that of the standards of a reasonable competent practitioner in his field.
10. Initially we proceed to consider the point of limitation raised by opposite parties in their written version. Admittedly the child was taken from Jalgaon to Ruby Hospital of Pune on 16.5.2003 as per advise of opposite party No.1 for the further emergent treatment. The cause of action arose on 16.5.2003 only for filing complaint. Complaint was to be filed within two years from the said date of 16.5.2003 i.e. on or before 16.5.2005, as per provision of Section 24A of Consumer Protection Act. However admittedly complaint was filed on 22.3.2006. Therefore it is clearly barred by limitation. This issue was not considered by District Forum below though it was raised in the written version filed by the opposite parties. Therefore we hold that complaint ought to have been dismissed as it was barred by limitation. However as matter of abundant precaution we proceed to consider the appeal on merits of the case also.
11. Keeping in mind aforesaid principle laid down by Hon`ble Supreme Court in aforesaid cases we proceed to consider the evidence brought on record.
It is not specific case of the complainant that any of the opposite parties gave wrong or incorrect treatment to his child. Wife of complainant delivered child on 15.5.2003 at 5.45 p.m. by caesarian operation in Maher Hospital at Jalgaon. The opposite party No.1 is a Neo 8 F.A.No. :2656/2006 Natologist. He examined the said child and found that it did not cry after its birth and its colour was bluish. Therefore as per his request child was taken to his hospital and he was kept in incubator. Opposite party No.3 gave blood gas analysis report of that child and opined that PO2 concentration is 27 mm Hg. Opposite party NO.2 did the Colour Doppler Test in his diagnostic centre and then he referred child to Ruby Hospital of Pune. The child was admitted to Ruby Hospital of Pune on 16.5.2003 at 4.00 p.m. The case papers of that Ruby Hospital of Pune as discussed in the impugned order by District Forum show that the child was "Euhydrated". It means that the child was normal hydrated. Moreover said papers also show that "Diastolic murmur in left sternal border grade II/III, 3rd & 4th inter costal space". The discharge certificate of Ruby Hospital also shows that child was suffering from "Sub-diaphragmatic TAPVC with largeostium secundum ASD". The child was then admitted to K.E.M. Hospital of Pune. Admission card of that hospital also shows that child was suffering from congenital heart disease. Report of Dr.A.B.Chandorkar of K.E.M.hospital also shows that the said child had possibility of left to right shunt. The diagnosis of disease of the child in the Ruby Hospital and K.E.M. Hospital of Pune and continuous treatment of that child there for long period i.e. from 18.5.2003 till 4.6.2003 gives inference of his serious ailment. In our view District Forum rightly considered the medical papers of the hospital to come to the conclusion that opposite parties committed no error in arriving at aforesaid diagnosis. Opposite parties used reasonable degree of skill and exercised reasonable degree of care. It is well settled principle of law that medical practitioner can not be held negligent simply because things went wrong from mischance or misadventure of through an error of judgment in choosing one reasonable course of treatment in preference to another. Liability would arise only if doctors conduct fell below that of the standard of a reasonable competent practitioners in their field.
9 F.A.No. :2656/200612. There is no medical evidence to prove that conclusion drawn by opposite parties after examining child or taking child`s joined blood vessels test or Colour Doppler Test is the result of negligence on their part. No inference can be drawn from the case papers of Ruby Hospital of Pune and K.E.M.Hospital of Pune regarding tests done in that hospital and treatment given to the child that diagnosis of the opposite parties is the result of any gross negligence on their part. In our view though the conclusion drawn by Dr.Harish Pathak in his affidavit relied upon by the complainant differs from opinion given by opposite parties, that does not prove negligence on the part of opposite parties, in as much as Hon`ble Supreme Court in the aforesaid case "Kusum Sharma and another -Vs- Batra Hospital & Medical Research Centre & Ors." has observed that "In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that other professional doctor". Therefore we are not inclined to rely on the affidavit of Dr.Harish Pathak to hold negligence in any way on the part of opposite parties. Thus we find that District Forum below committed no error in arriving at the aforesaid conclusion. Hence appeal deserves to be dismissed.
O R D E R 1. Appeal is dismissed. 2. No order as to cost.
3. Original record and proceedings of the complaint be sent to the District Forum below.
4. Copies of the order be sent to both the parties.
10 F.A.No. :2656/2006Pronounced on dtd.29.04.2013 [HON'ABLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'ABLE MRS. UMA BORA] MEMBER [HON'ABLE MR. K.B.GAWALI] MEMBER Mane