National Consumer Disputes Redressal
Kersi F. Dalal vs Dr. Janak K. Mehta & Ors. on 15 January, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI (FIRST APPEAL NO.387 OF 2007) (From the order dated 19.03.2007 in CC No.127/1999 of the State Commission, Gujarat) Kersi F.Dalal Appellant(s) Versus Dr.Janak K.Mehta & Ors. Respondent(s) BEFORE: HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS.VINEETA RAI, MEMBER For the Appellant (s) : Mr.S.J.Mehta, Advocate For the Respondent (s) : Dr.Sushil Kr.Gupta, Advocate for R-1 and R-2. Pronounced on 15th January, 2013 ORDER
PER VINEETA RAI, MEMBER This revision petition has been filed by Kersi F. Dalal(hereinafter referred to as the Appellant) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Gujarat(hereinafter referred to as the State Commission) which had dismissed his complaint of medical negligence filed against Dr.Janak K.Mehta and Dr.Jayesh J.Shah, Respondents No.1 and 2 herein. The National Insurance Co.Ltd.
is Respondent No.3 in this case.
In his complaint before the State Commission, Appellant, a practicing Advocate, who had also earlier been treated by Respondent No.1, consulted him on 07.01.1997 with complaints of feeling feverish with abdominal pain. He was given a course of antibiotic injections for 4 days but instead of getting relief, his fever rose to 104 FH and his stomach became very distended and he also started vomiting. In spite of this, Respondent No.1 without trying to find out the cause of his multiple medical complaints, did not advise any pathological or other examination e.g. X-ray, stool examination etc. and instead he referred the Appellant to Respondent No.2 who conducted a sonography twice but could not get a good image. During this procedure, two big straps were tightly tied across appellants stomach which caused him extreme distress. As a result of the defective sonography, Appellants ailments could not be properly diagnosed and the infection spread into the stomach. Respondent No.1 instead of treating him for this condition, asked him to go to Patwa Nursing Home to an unknown doctor. It was only another senior surgeon whom the Appellant consulted in the late evening, who advised him to immediately get admitted into the hospital and be put on a saline drip prior to an emergency operation for appendicitis. The saline drip which was fixed by Respondent No.1 was done so carelessly that Appellants biceps and forearm became swollen upto three times. It was with difficulty that the Appellant managed to get a ticket to Pune and got admission in Jehangir Nursing Home where he underwent a 3 hours surgery and had to stay there for 4 months undergoing extreme mental agony as also substantial expenditure on boarding, lodging as also on medical treatment.
Besides, Appellants profession also suffered due to his inability to regularly attend to his clients. Being aggrieved by the treatment and medical negligence on the part of Respondents No.1 and 2, Appellant filed a complaint before the State Commission and requested that they be directed to jointly and severally pay him compensation of Rs.10 lakhs with interest @ 18% per annum, Rs.30,000/- as costs and any other damages as considered appropriate.
On being served, Respondents filed written statements before the State Commission challenging the allegations made against them by the Appellant. Respondent No.1 contended that he had a Degree in Medicine and is fully qualified as a General Medical Practitioner who had been practicing medicine for several decades and had been the family doctor of the Appellant for about 2 decades. On 07.09.1997 on a request from the Appellant, he visited him and noted that he had complaints of watery diarrhea, vomiting and mild pain on the left side of the lower abdomen. Respondent No.1 thoroughly examined him and gave him two injections i.e. Gentamicin and Ranitin and also prescribed oral medication. The Appellants general condition was satisfactory.
His blood pressure was 140-90 and there was no distension of the abdomen and his fever was 99 Deg.FH. He was advised liquid diet. In the evening, Appellant phoned the Respondent No.1 and requested that since he does not want to take oral drugs, he may be given injection and a drip. On 08.09.1997 when Respondent No.1 again examined appellant, he had only mild fever and pain and no diarrhea. However, he was put on an IV drip slowly for one hour and after examination his pulse rate, blood pressure etc. was found to be normal and his general condition continued to be good. In this way, he was given conservative treatment to manage his minor medical complaints. On 10.09.1997, Appellant continued to complain of vague pain and Respondent No.1, therefore, advised him to consult Dr. Rahul Thakore, a senior surgeon, for further investigations. Dr.Thakore gave Appellant an appointment for 5.15 pm and Respondent No.1 also accompanied the Appellant to Dr.Thakore who after examining him advised the sonography and X-ray to be done at the clinic of Respondent No.2. The sonography was satisfactorily conducted and after seeing the two reports, Dr.Thakore immediately advised the Appellant to get admitted in Patwa Nursing Home where surgery may be required. However, the Appellant did not get himself admitted there and instead requested the Respondent No.1 to give him a drip which was done. There was however no swelling on the Appellants forearm or biceps. It was contended that Respondent No.1 had medically treated the Appellant as per the standard medical practice and used his best professional skills. It was Appellant who did not heed the medical advice for which Respondent No.1 cannot be held responsible. Respondent No.2 also denied that he had conducted a defective sonography. He contended that he is a qualified Radiologist and Sonologist and has a post-graduate degree in Radiology. He had used the best available equipment for conducting the sonography and the same was satisfactorily done. It was specifically denied that any flaps or straps were tied on the abdomen of the Appellant. In fact, when the sonography of the abdomen is performed there cannot be any obstruction between the machine and the skin of the patient and therefore, the question of putting any obstruction like a flap did not arise. The State Commission after hearing the parties and on the basis of the evidence produced before it, dismissed the complaint by observing as under:
There is nothing oral or written on record or evidence to suggest that treatment given to Mr.Dalal was incomplete, inappropriate or wrong. Mere say of Mr.Dalal (in absence of any documentary or oral evidence) cannot be accepted as truth. Mr.Dalal had ample time and opportunity to bring forth the evidence to substantiate the claim, but sadly complainant has failed to avail it. As far as opponent No.1 Dr.Mehta is concerned, though Mr.Dalal was not serious (as indicated by records showing his physical condition and vital data) Dr.Mehta showed indulgence to take him to Dr.Thakore for consultation. Dr.Shah for sonography and put I/V drip at home. These acts in itself will suggest that he exercised due care expected of him.
As far as treatment in form of medicine is concerned nothing indicates that the medicines given were wrong or inappropriate done o that medicine had harmed Mr.Dalal. As far as Dr.Thakores management is concerned, Mr.Dalal chose to ignore his advice to get hospitalized for treatment and chose to go to Pune of his own sweet will for further treatment. We do not have records of medical management of said treatment at Pune on record..Dr.Shah against whom allegations of poor quality of x-ray & sonography are not proved; Mr.Dalal has not only not produced the film nor an opinion on that film. Dr.Shah also rules out as physical impossibility to put straps tightly or for that matter even to put the strap as then sonography will not be possible, but in fact he did sonography further suggesting non-putting of strap.
Mr.Dalal has not shown us how Dr.Shahs report are wrong or his machineries were outdated, not even challenged the same in written statement of Dr.Shah or his evidence.
Hence, the present First Appeal.
Learned Counsel for both parties made oral submissions.
Learned Counsel for Appellant reiterated the medical negligence and deficiency in service on the part of both Respondents No.1 and 2 and stated that the main complaint against Respondent No.1 was that without conducting any diagnostic tests including a stool examination, he gave him medical treatment which actually worsened his condition.
He also reiterated that the sonography conducted by Respondent No.2 was not clear and undue agony and pain was caused to him by putting straps on his distended abdomen during the procedure which the State Commission failed to take note of. It was also reiterated that the patient actually suffered from appendicitis which could have been easily diagnosed if he was given proper medical attention including a proper sonography. Instead, a wrong diagnosis was made and it was only at Pune when the Appellants condition deteriorated that he was immediately detected with appendicitis and a surgery had to be performed. It was prayed that because of the mental agony and harassment as also the financial hardship and loss caused to the Appellant, compensation of Rs.10 lakhs was reasonable and justified.
Learned Counsel for Respondent on the other hand stated that the clinical condition of the Appellant was carefully assessed after due examination he was given conservative treatment as warranted during the first 3 days. Thereafter, when the complaints persisted, Appellant was advised to consult a specialist surgeon and in fact Respondent No.1 not only fixed the appointment but also accompanied him to the surgeon who advised diagnostic tests including a sonography which was properly conducted by Respondent No.2 who had a post-graduate degree in Pathology and was fully qualified to conduct the same. It was the Appellant who erred in rejecting the medical advice to get himself admitted in the hospital and instead rushed to Pune for further treatment. There was, therefore, no deficiency in service on the part of the Respondents.
We have heard learned Counsel for both parties and have gone through the evidence on record. The fact that the Appellant consulted Respondent No.1 with complaints related to his abdomen with nausea and related problems is not in dispute. It is also a fact that Respondent No.1 who was a qualified doctor after examining the Appellant decided to treat him conservatively since the parameters relating to his blood-pressure, temperature and the condition of the stomach was not unduly abnormal. There is nothing on record produced by the Appellant, on whom there was onus to do so, to support his contentions that he had very high temperature and other severe problems. We further note that when the Appellants condition remained the same with the lower abdominal pain continuing, he was immediately referred to a specialist surgeon and then a qualified Radiologist for conducting the required diagnostic tests which included sonography and X-ray. Appellant has made certain allegations against Respondent No.2/Radiologist pertaining to the quality of the sonography conducted by him. However, again there is nothing on record to support this contention. In fact, the sonography and diagnostic test reports were seen by a specialist surgeon who advised hospitalization since there was a possibility of surgery. The Appellant, however, chose not to get admitted to the hospital and instead went to Pune for treatment. These facts have also been confirmed by the State Commission as a first court of fact.
What constitutes medical negligence is now well established [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be followed: (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.
Applying these principles to the present case, we see no reason to disagree with the order of the State Commission, which had concluded that there was no deficiency in service or medical negligence in the treatment of the appellant, which was done by well-qualified doctors using their best professional judgment and skills to treat the patient after conducting the necessary diagnostic and clinical tests. The appellant has not been able to produce any credible evidence, including documentary or expert evidence to contradict or controvert these facts. We, therefore, uphold the order of the State Commission in toto and dismiss this first appeal. No costs.
Sd/-
(ASHOK BHAN J.) PRESIDENT Sd/-
(VINEETA RAI) MEMBER /sks/