State Consumer Disputes Redressal Commission
Vinayak S/O. Govindrao Joshi vs 1. Dr. Vijay Kumar Mainderkar on 22 November, 2012
1 F.A.No.: 2400-05
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD
Date of filing: 29.11.2005
Date of Order: 22.11.2012
FIRST APPEAL NO.: 2400 OF 2005
IN COMPLAINT CASE NO.: 93 OF 2004
DISTRICT CONSUMER FORUM: OSMANABAD.
Vinayak s/o. Govindrao Joshi
R/p. Terkheda, Tq. Vashi,
Dist. Osmanabad. ...Appellant
-Versus-
1. Dr. Vijay kumar Mainderkar
Mrutunjaya Hospital, Nehru Chowk,
Osmanabad, Dist. Osmanabad.
2. Dr. Ganesh Polawar,
Kala Maroti Chowk,Osmanabad.
3. Chairman, Ashwini Co-operative
Hospital and Research Centre Ltd.
North Sadar Bazar, Solapur.
4. Dr. Siddheshwar M. Rudrakshi,
Ashwini Co-operative
Hospital and Research Centre Ltd.
North Sadar Bazar, Solapur.
5. Dr. Babanrao Baburao Garad,
Ashwini Co-operative
Hospital and Research Centre Ltd.
North Sadar Bazar, Solapur.
6. Dr. Amol Sidramappa Malge,
Ashwini Co-operative
Hospital and Research Centre Ltd.
North Sadar Bazar, Solapur.
7. The Divisional Manager,
New India Assurance Co. Ltd.,
Hutatma Smruti Mandir Complex,
Park Chowk, Solapur.
2 F.A.No.: 2400-05
8. Branch Manager,
United India Assurance Co.,
Minakshi Lodge, Osmanabad.
9. The Branch Manager,
The New India Assurance Co. Ltd.
Naik Building, Shivaji Chowk,
Osmanabad. ...Respondents
... Respondent
Coram : Mr. B. A. Shaikh, Hon'ble Presiding Judicial Member
Mr. K. B. Gawali, Hon'ble Member Appearance : Adv. Shri. Jayant Chitnis, for the appellant.
Adv. Shri. S. P. Danve, for Respondent No.1 & 2.
Adv. Shri. G. H. Kulkarni for Respondent No.3 to 6.
Adv. Shri. S. V. Kulkarni for Respondent No.8.
Adv. Shri. R.P. Bafna for Respondent No. 7 & 9.
- :: ORAL ORDER ::-
Per Mr. B. A. Shaikh, Hon'ble Presiding Judicial Member
1. This appeal is preferred against the judgment and order dated 27.10.2005 passed by the District Forum, Osmanabad in C.C.No. 93/2004, by which the said complaint has been dismissed.
2. The case of the complainant as put forth in the complaint in brief is as under:
a) Girish aged about 29 years was the son of the complainant. The complainant son vomited four times at 00.15 hours on 23.01.2004 and he was feeling uneasy. He complained about not passing of gasses. Vomiting was completely stopped at 5.30 a.m. He was then taken to Osmanabad by the appellant/complainant for treatment in the hospital of Respondent No.1. There he was clinically examined by the Respondent No.1 Dr. Vijaykumar Maindarkar on the same date. The respondent No.1 took the x-ray of Girish and told the appellant that nothing was serious. Medicines were prescribed by respondent No.1 which were purchased by complainant from Mansi Medical Stores, Osmanabad. The complainant paid Rs.500/- towards fees to the Respondent 3 F.A.No.: 2400-05 No.1 but no receipt was issued by him. On the same date five bottles of DNS saline were injected along with injection of Wymesone and Efcorlin to Girsh in that hospital. Again at 3.30 p.m. on the same date, his x-ray was taken.
Respondent No.1 Dr. Mainderkar and Respondent No.2 Dr. Polawar told complainant that Girish was out of danger, but small ulcer is suspected. Thereafter saline was continued. On that date at 4.30 p.m. Girish requested Respondent No.1 to permit him to go to the house, but he was not discharged. Thereafter also two volumes of injection "sytex were injected to Girish and 5% saline was continued. Girish felt tremor. A tube was inserted through his nose in to his intestine where from reddish water was coming out. The respondent No.1 said that dirt of the intestine was being removed and that thereafter Girish would feel better.
b) The Respondent No.1 Dr. Maindarkar and Respondent No. 2 Dr. Polawar has some discussion interse and at about 8.00 p.m. the Respondent No.1 Dr. Maindarkar told appellant to take the deceased Girish to higher Centre at Solapur for some tests as they were not available at Osmanabad. Girish was taken by appellant to Respondent No.3 Ashvini Hospital at Solapur by a vehicle along with nephew of the respondent No.1. The Respondent No.5 Dr. Babanrao Garad attended Girish in that hospital and he made contact on phone with Respondent No.4 Dr. Sidhheshwar Rudrakshi. Girish was made to lie on stretcher for about one and half hour and saline and injections were injected during that period and oxygen was given to him. The appellant had made repeated requests to the Respondent No.5 Dr. Garad to call Respondent No.4 Dr. Rudrakshi to attend Girish, but he gave no response. Medicines were prescribed at every half an hour interval which were purchased by the appellant. At about 11.35 p.m. Respondent No.4 Dr. Rudrakshi directed telephonically for taking E.C.G. and taking Girish to I.C.U. Thereupon also the Respondent No.4 Dr. Rudrakshi without personally examining the patient, keep directing the attending Doctors for the treatment of Girish. The Respondent No.6 Dr. Amol Malge was directed at 11.35 p.m. for taking E.C.G. but the E.C.G. was taken at 4 F.A.No.: 2400-05 2.45 a.m. At that time urine acetone was shown to be 1 +. The Respondent No. 4 attended Girish at 5.55 a.m. He told the appellant that Girish was serious and costly treatment was required to be given and saying so he left the hospital. Thereafter one hour without taking test of blood sugar or urine sugar, 40% insulin injection was asked tobe brought, though Girish was not having history of diabetic in his family. After injecting said insulin, Girish was under tense and he was feeling trouble in breathing. To reduce the breathing trouble oxygen ventilator was applied to him. Unfortunately Girish died at about 8.00 a.m. in that hospital.
c) Girish was not treated properly by Respondent No. 1 to 6. He was not attended timely by Respondent No.4 Dr. Rudrakshi. He was expected to attend Girish within reasonable time of 15 minutes of his admitting in I.C.U. being expert. The Respondent No.1 to 6 were most careless and negligent in treating Girish. If Girish would have been timely attended, he would have been survived. Girish was the only son of the appellant. The aforesaid acts and omissions on the part of Respondent Nos. 1 to 6 amount to deficiency in service and therefore the appellant/complainant claimed compensation of Rs.19,50,000/-, cost of complaint to the extent of Rs.50,000/- and further compensation of Rs.20,000/- towards mental harassment from all the opponent Nos. 1 to 6.
3. During the pendency of the complaint, the Opponent Nos. 7 to 9 came to be impleaded in the complaint. They are officials of United India Insurance Company and the New India Assurance Co. Ltd. with whom the risk of life of patients of the Ashwini Hospital was insured.
4. The Opponent No.1 Dr. Vijaykumar Maindarkar resisted the claim by filing the written version before the District Forum, Osmanabad. He admitted that deceased Girish was brought to his hospital at Osmanabad by the appellant on 24.01.2004 and he then examined deceased Girish at that time. He had made clear to the appellant that Girish was having critical condition and it was very difficult to shift into Civil Hospital due to that reason. However, as the appellant 5 F.A.No.: 2400-05 being by profession a Doctor and as appellant was his friend, Girish was admitted by him (Respondent No. 1) in his hospital. At that time pulse of Girish could not be detected and therefore his Blood pressure could not be recorded. He gave emergent and proper treatment with all care and skill to Girish. Therefore at about 11.00 to 11.30 p.m the pulse of Girish could be detected and his Blood pressure was recorded and his condition had become stable. He had shown progress in his health condition. The treatment given to Girish was recorded on case papers. X-ray of Girish was taken. During the treatment Dr. Polawar was called and his opinion, guidance and assistance was sought. He also cooperated with the Respondent No.1 mindfully and without any remuneration. At about mean time x-ray of Girish was taken and his health condition was improved. However, at that time it was suspected that deceased Girish had peptic perforation. At the mean time Girish had said that he is feeling 95% good and he had requested to discharge him. However it was necessary to continue his treatment. Therefore he was not permitted to go to his house. His treatment was continued thereafter also. The water, food etc. were removed from the stomach of Girish by inserting riles tube through his nose in to his stomach. In spite of all type of treatment, Respondent No.1 Dr. Maindarkar and Respondent No. 2 Dr. Polawar noticed that Girish was having drowsiness and therefore they were worried and after due discussion they advised the appellant to take Girish for further treatment with the help of advanced technology at Solapur without any delay. The Respondent No.1 called motor vehicle and sent his nephew Avinash along with Girish to Solapur. At that time health condition of Girish was stable. The Respondent No.2 also gave reference letter stating all the facts and treatment given. The said letter was addressed to Medical Officer of Government Hospital, Solapur. The x-ray reports and lab reports were also tagged to that letter of reference.
Girish was thereafter admitted in the said Government Hospital and treatment was started but as against the advise of Medical Officer the appellant took away Girish from that hospital and took him to Ashwini Hospital at Solapur and admitted him there.
6 F.A.No.: 2400-05It is denied that Respondent No.1 received fees Rs.500/- from the complainant/appellant. The Respondent No.1 gave free treatment to Girish due to his friendly relationship with the complainant. It is denied that Respondent No.2 Dr. Polawar had told complainant/appellant nothing to be worried. It is denied that Girish was not treated properly and he was not timely attended. Copies of all the case papers were also handed over to the complainant as per his letter dated 04.05.2004. It is denied that there is deficiency in service provided by the Respondent No.1. It is submitted that deceased Girish as well as the appellant are not the consumers of the Respondent No.1. The decision about referring Girish to Solapur was taken at proper time. The occurrence of the death of a patient having such a disease is high. Therefore it is prayed by Respondent No.1 that complaint may be dismissed.
5. The Respondent No.2 Dr. Polawar filed an application before the District Forum stating that in the complaint it is not stated that the complainant or Girish are the consumers of said Respondent No.2 and that fees was paid to the Respondent No.2 for availing his services. There is no pleading that the Respondent No.2 has acted negligently or provided service belatedly or there is deficiency on his part in service. Therefore it is stated that he is non-suited and hence his said preliminary objection may be considered and he may be deleted from the complaint.
6. Respondent No.3, Chairman of Ashwini Hospital, Solapur and Respondent No.4 Dr. Rudrakshi filed common written version before the District Forum. They submitted that complainant is neither consumer nor there is a consumer dispute between them and the complainant and hence District Forum has no jurisdiction to entertain the complaint. They also submitted that as complicated question of law and facts are involved, the complaint may be returned to the complainant for presentation to the Civil Court. They also submitted that there is neither delay nor any deficiency in service on their part. They further submitted that they obtained professionally indemnity policy from 7 F.A.No.: 2400-05 New India Assurance Co. Ltd and therefore said Insurance Company is necessary party to the complaint.
They denied that when Girish was brought to their Ashwini hospital, he was kept on stretcher on one and half hour. They also denied that instructions were given on phone to give medicine to the deceased and to admit in I.C.U. and to take his E.C.G. It is denied that Respondent No.4 did not attend Girish on time. It is submitted that after Girish was admitted to Ashwini Hospital his urine acetone and blood sugar was checked. It is denied that 40 % insulin injection was given to him. In fact 22 unit Insulin injection was given which was of adequate quantity as the urine Acetone was 1 +. It is denied that there was negligence on the part of the said opponent No.4. It is denied that the opponent No.3 & 4 are responsible for the death of Girish. It is their case that physical condition of Girish was critical since 23.01.2004 and he was treated by Opponents No. 1 & 2 till 10.30 p.m. on 24.01.2004 and he was discharged at 10.30 p.m. Girish was initially taken to General Hospital of Solapur after midnight. His case was registered at Sr. No.1174 in that hospital. Girish was brought to Ashiwini Hospital at about 1.10 a.m. and at that time his physical condition was very critical. His sugar was above 450 and B.P. was low. He was admitted in surgical unit of opponent No.3. Dr. D. N. Kulkarni attended him and instructed to carry out the detail investigation. At least four hours were required for detail investigation. The complainant did not give any information to the attending doctors and therefore necessary information was obtained from Respondent No.1. Girish was given necessary treatment by Houseman who was trained on top priority. Dr. Paresh Patel holding M.B.B.S. degree and doing M.D. was also present there. Girish was having high sugar and as such insulin was given to him at 2.10 a.m. He was having Urine Acetone 1 +. He was given steroid prior to his admission to Ashiwini Hospital and he was giving response to the treatment slowly. He was drowsy and was breathless since beginning. He was referred to opinion to Respondent No.4 Dr. Rudrakshi, at 4.00 a.m; considering the reports and condition of Girish. It was measure medical problem and therefore opponent No.4 Dr. Rudrakshi immediately attended Girish and gave him treatment. The 8 F.A.No.: 2400-05 opponent No.4 Rudrakshi diagnosed that the Girish is suffering from Pancreatitis. The respondent No.4 gave book treatment which was required to be given for Pancreatitis. The lever, kidney and lungs were badly affected. So respondent No.4 Dr. Rudrakshi advised proper treatment in the form of I.V. fluids, C.V.P. and ventilator and antibiotics. There was no response from Girish to that treatment due to the steroids which were given to the patient prior to his admission in Ashiwini Hospital. Entire treatment was given in presence of complainant and he had agreed for the same. Considering that it was a measure medical problem, Girish was transferred to Dr. Rudrakshi at 7.30 a.m. on 25.01.2004. Complainant gave in writing at that time that he is aware of the fact that, the condition of Girish is critical and he gave full consent to the treatment given by the doctors. The complainant had also no complaint about doctors and staff of the hospital. Girish was checked from time to time and after 7.00 a.m. he was taken on ventilator. At 7.45 a.m. Girish had sudden cardiac arrest and therefore "atropine adrenaline" injection was given to him and cardiac massage was also given. At about 7.50 a.m. Girish became unconscious and his B/P was not recordable. Hence again cardiac massage and other treatment was given. At about 8.00 a.m. he was unconscious, pupils fixed dilated and B.P was not recordable. At 8.10 a.m it was found that in spite of all life saving drugs given, Girish was not able to survive and he was declared dead. The cause of death was Cardio Respiratory Arrest due to pancreatitis. The complainant was advised to perform the post mortem, but he was refused to do so. In case of mild pancreatitis mortality is 30 % and in severe form, in spite of all care it is more than 60 %. In case of patient taking steroid, the chances of development of diabetics are high. Deceased Girish was taking steroid for long time for many years for skin disease as stated by the appellant. The opponents had given necessary treatment as per medical science. The opponent No.4 is having educational qualification as M.D. (Physician) and he is practicing at Solapur since last 12 years. Opponent No.5 Dr. Garad was not in employment of Opponent No.2 and he was not present in the hospital. The opponent No.4 has also not 9 F.A.No.: 2400-05 given any treatment to deceased Girish. Thus both the Respondent Nos. 3 & 4 submitted that complaint may be dismissed.
7. The respondent No.5 has not appeared before the District Forum and he refused to take the notice. Therefore complaint proceeded exparte against him.
8. The Opponent No.6 Dr. Amol Malge filed written version and thereby resisted the claim. He, in his written version made the similar submission as made by the Respondent No.3 & 4 in their written version and as stated above in brief. He also submitted that the complaint may be dismissed.
9. The Respondent No.7 & 9 New India Assurance Company filed a pursis (memo) stating that, the Respondent No.2 has obtained from that Insurance Company, Personal Indemnity policy for Rs. 2,50,000/- for the period from 10.10.2003 to 09.10.2004 and respondent No.4 obtained said policy for Rs.10,00,000/- for the period from 03.04.2003 to 02.04.2004 and therefore the said Respondent No. 7 & 9 adopt the written statement filed by Respondent No.2 & 4.
10. The Respondent No.8 United India Insurance Company Limited also filed pursis stating that it adopts the written version of the respondent No.1 subject to terms and conditions of the Insurance policy.
11. The complainant/appellant produced the letter of the opponent No.1, bill of the opponent No.2 and the papers of treatment given in the hospital of opponent No.3, and affidavit of Dr. Khose. The opponent No.1 produced the consent letter of the complainant, copies of case papers and affidavits. The Opponent Nos. 7 & 9 produced the insurance policy. The opponent No.8 produced the letter given by it to Government Medical College of Ambejogai and the opinion of Professor of that college.
12. The District Forum below after having considered the evidence brought on record and after hearing of respective advocates of the aforesaid contesting parties, passed the impugned judgment and order on 27.10.2005 which is 10 F.A.No.: 2400-05 assailed in this appeal by the original complainant. The District Forum below came to the conclusion that it is proved that the complainant is the Consumer of Opponent Nos. 3, 4, 6 & 9 only and he is not a consumer of opponent Nos. 1,2 &
5. It is observed in the impugned judgment and order that there is no evidence on record showing that any remuneration was paid by complainant to opponent No. 1 & 2 for treatment given by them to disease Girish at Osmanabad. It is also observed that the opponent No.1 gave treatment to Girish due to friendly relationship with the complainant and that the opponent No.2 had assisted the opponent No.1 during treatment and he received no remuneration from the complainant. It is further observed that the opponent No.5 who was not in employment of opponent No.3 & 4 and therefore no question arises for his treating deceased Girish in the hospital of opponent No 3 & 4. It is also observed that the opponent No. 3,4 and 6 treated deceased Girish in Ashwini Hospital at Solapur on receiving fees from the complainant and that the opponent No. 7,8 and 9 are the Insurance Companies and they have given insurance to cover the risk of the patients of that hospital and therefore the complainant is the consumer of opponent No. 3,4 and 6 to 9 only.
13. Having considered by the District Forum that the complainant was the consumer of opponent No.3, 4 and 6, it proceeded to consider as to whether there was any negligence on their part and as to whether due to that negligence Girish died. It observed that here is no complaint about the diagnosis and treatment given to deceased Girish in Ashwini Hospital at Solapur. It also reported the opinion of Dr. Yashwant Bhanudas Khose, Beed in impugned judgment which is as follows:
"After referring patient to Ashwini Hospital Solapur, was admitted, on 25.01.2004 at 1:06 a.m. he was correctly diagnosed as Acute Pancreatitis with Septicemia with ARDS. After seeing Dr. Rudrakshi at 6.10 a.m. which is two hours earlier to patient's death, almost five hours were lost to diagnose the case properly and proper treatment was administered lately. Ashwini Hospital is 11 F.A.No.: 2400-05 tertiary care hospital, there was much delay for attending this patient by competent specialist as this case was an emergency case."
14. The District Forum below also considered that the Girish was admitted in Ashwini Hospital on 24.01.2004 and he was examined at 2.45 a.m., 4.00 a.m., 6.00 a.m., 7.00 a.m. 7.45 a.m., 7.50 a.m., 7.55 a.m. and 8.00 a.m. as per the case papers and his condition was also recorded and he was given treatment which is mentioned on the case paper. It also observed that initially at Solapur, Girish was admitted in Civil Hospital but it is not stated by complainant as to what treatment to Girish was given in that Civil Hospital. It is also observed that, as per case paper after Girish was admitted in Ashwini Hospital, immediately his blood sugar and urine sugar was checked and he was injected 22 unit insulin and then he was transferred to Dr. Rudrakshi of that hospital as his condition was critical and his sugar level was 450 and B.P. was low. It is observed that Opponent No.4 Dr. Rudrakshi had given emergent treatment to Girish and he tried to save his life and Girish died due to Cardio Respiratory Arrest due to pancreatitis and that time his blood sugar was 450 mg. The District Forum below found no negligent act or deficiency in service provided by opponent No.3, 4 and 6 to Girish. It also observed that the affidavit of Dr.Yashwant Khose filed by the complainant was verified before Notary on 07.10.2005 and Dr. Khose put date of signing said affidavit as 08.10.2005 and therefore the said affidavit is suspicious and it affects validity of the said affidavit. It also observed that the cases cited by the complainant are not having identical facts with those of present case and therefore they are not applicable to the present case.
Lastly, it is observed by District Forum below that as no deficiency is proved by the complainant as alleged and as complainant is not the consumer of opponent No. 1,2 & 5, the complaint needs to be dismissed. Accordingly the District Forum below dismissed the complaint.
15. The original record and proceeding of C.C. No. 93/2004 are called by this Commission and the same is also perused by us. We have heard Adv. Shri. Jayant Chitnis appearing for the appellant. Adv. Shri. S. P. Danve appearing for 12 F.A.No.: 2400-05 Respondent No.1 & 2, Adv. Shri. G. H. Kulkarni appearing for Respondent No.3 to 6, Adv. Shri. S. V. Kulkarni appearing for Respondent No.8 at length. None was present for Respondent No. 7 & 9 at the time of final hearing of appeal, though Adv. Shri. R.P. Bafna filed V.P. (power) for them. Adv. S. P. Danave and Adv. G. H. Kulkarni also filed written notes of arguments separately which we have perused. We have also perused the copies of all the papers placed before us by both the sides in this appeal.
16. The sum and substance of the arguments advanced by Adv. Chitnis for appellant is enumerated below:
i) Girish was not attended properly and his proper care was not taken in hospital at Osmanabad by the opponent No. 1 & 2.
ii) Excess of sugar in the form of saline was administered to the deceased which caused high level of sugar i.e. 450 mg in the blood of deceased, though the appellant was insisting for not giving such over dose of saline at Osmanabad.
iii) No pathological test of Girish was carried out at Osmanabad so as to diagnose his disease correctly.
iv) The diagnose of disease at Osmanabad was not correct and proper.
v) The respondent No. 5 & 6 who treated deceased Girish at Solapur was not holding requisite qualification and they were holding simply Ayurvedic decree as B.A.M.S.
vi) The respondent No.4 Dr. Rudrakshi did not promptly attend Girish at Solapur.
vii) The E.C.G. of deceased Girish was taken belatedly at Solapur.
viii) Thus Adv. Chitnis tried to point out that from beginning till end deceased Girish was not properly treated by respondent Nos. 1 to 6 and he was not attended timely by them. He also pointed out the affidavit of Dr. Y. B. Khose of Beed in which it is stated that five hours were lost to diagnose the case properly and proper treatment was administered lately. He also submitted that Dr. Khose in his 13 F.A.No.: 2400-05 affidavit filed in support of the complaint negatived the opinion of Dr. Sudhir Deshmukh which is given in the form of affidavit filed before District Forum as called by Respondent No.1. Thus he submitted that the aforesaid facts and circumstances coupled with the affidavit of Dr. Y. B. Khose proved that the respondents were negligent and there was deficiency in service provided by them to deceased Girish. He also submitted that the said facts and circumstances were not appreciated in correct prospective by the District Forum below which resulted into erroneous judgment and order. He thus submitted that impugned judgment and order may be set aside and compensation as claimed by the complainant in the complaint may be awarded. He relied upon the observations made in the following case:
V. Kishn Rao Vs. Nikhil Super Specialty Hospital and Another, reported in (2010) CJ 997 (SC).
It is observed by Hon'ble Supreme Court that, one of the duties of doctor's towards his patient is a duty of care in deciding what treatment is to be given and also a duty to take care in administration of treatment and that a breach of any of those duties may lead to a action for negligence by patient.
17. On the other hand, Adv. Danve appearing for Respondent No. 1 & 2 supported the impugned judgment and order. He also submitted that there is no evidence to prove that the respondent No.1 & 2 accepted any fees or treatment charges from complainant for treatment given to deceased Girish and therefore the District Forum has rightly held that the Respondent No.1 & 2 are not the consumers. He further submitted that no specific allegations are made in the complaint about the negligence on the part of Respondent No. 1 & 2 and there is no pleading and evidence about the alleged over dose of saline given to deceased Girish. He also submitted that Dr. Khose did not say so in his affidavit. He has also drawn our attention to the copies of the case papers produced on record 14 F.A.No.: 2400-05 about the treatment given to the deceased Girish. He also submitted that Dr. Mainderkar (Resp.No.1) had called Dr. Polawar (Resp.No.2) for second opinion and this also shows that both the said doctors had taken full care of deceased Girish and used full skill during his treatment. He also submitted that the deceased Girish was attended round the clock by the expert doctors and when his condition was found stable, he was referred to higher Centre for further investigation and treatment. He has drawn our attention to the affidavits of Dr. Vijaykumar Mainderkar, (Resp.No.1), Dr. Sujit Jahagirdar and Dr. Mukund Ganesh Zambare and Dr.S. B. Deshmukh in support of his submission that the said doctors have refuted by proper reasoning the opinion given by Dr.Khose in his affidavit filed by the complainant. He further submitted that Dr. S. B. Deshmukh in his affidavit opined that the treatment given to the Girish was correct and morality in such a case is about 50% and that the considering the condition of Girish the Respondent No.1 has properly referred Girish to higher Centre at proper time after stabilizing the said patient.
18. He has relied upon observations made in the following cases:
i) Kusum Sharma and others Vs. Batra Hospital and Medical Research, reported in 2010 (4) Mh.L.J. 541.
It is observed by Hon'ble Supreme Court that, a mere deviation from normal professional practice is not necessarily evidence of negligence, and the deficiency in service has to be judged by applying the test of reasonable skill and care which is applicable in action for damages for negligence.
ii ) Mortin F. D'Souza Vs. Mohd. Ishfaq, reported in I (2009) CPJ 32 (SC).
It is held by Hon'ble Supreme Court that, Medical practitioner is not liable for damages, simply because things went wrong from mischance/misadventure through error of judgment. Medical practitioner would be liable only where his conduct fell below that of standards of reasonably competent practitioner in his field.
15 F.A.No.: 2400-05iii) Jacob Mathew (Dr.) Vs. State of Punjab and another, reported in III (2005) CPJ 9 (SC). It is observed by Hon'ble Supreme Court, that failure to use special or extraordinary precautions which might have prevented particular happening cannot be standard for judging alleged negligence.
19. Adv. Shri. G. H. Kulkarni appearing for Respondent No.2 to 6 submitted that the complainant suppressed material fact that the deceased Girish was admitted initially at Solapur in Civil Hospital and he was treated there and it is not known what treatment was given to the deceased Girish in that hospital. He has drawn our attention to the copies of papers about treatment given to deceased Girish at Ashwini hospital of Solapur. He has also drawn our attention to the affidavits of Dr. Sujit Jahagirdar, Dr. Amol Malge (Respondent No.6). Dr. S. B. Deshmukh and Dr. Mukund Ganesh Joshi which are filed in support of the aforesaid case of the Respondent No.3 to 6 before the District Forum below. He also submitted that admittedly deceased Girish died due to Cardio Respiratory Arrest due to Pancreatitis with ARDC (adult respiratory distress syndrome) and D. M. (diabetic mellitus). He also submitted that admittedly the deceased Girish has having high 450 mg blood sugar level and therefore he was given 22 unit insulin to maintain blood sugar level and deceased died as he was having very high level of sugar in his blood and since inception he was having critical condition and there was no hope of his survival. He also submitted that, the medical papers proved that Girish was treated at war footing but he did not give response to the treatment and hence respondent No. 3 to 6 can not be blamed for his death. He further submitted that respondent No.4 had applied full skill, knowledge and care to treat Girish and no negligence is proved on their part. He also submitted that Dr. Khose in his affidavit admitted that diagnosis made by respondent No.4 Dr. Rudrakshi is correct and so also treatment given by him is correct. He also submitted that the Dr. D. N. Kulkarni immediately attended Girish and thereupon Dr. Rudrakshi attended Girish and therefore the opinion of Dr. Khose, about causing delay in attending critically ill patient by specialist and 16 F.A.No.: 2400-05 not giving ventilator might have caused him harm and ultimately death, is not acceptable. He therefore submitted that appeal may be dismissed. He relied upon aforesaid case laws cited by the advocate of the respondent No.1 & 2.
20. The Adv. Shri. S. V. Kulkarni appearing for the respondent No.8 adopted the arguments advanced by Adv. S. P. Danve and submitted that appeal may be dismissed.
21. It is not disputed that deceased Girish was the son of the complainant/appellant and he was initially admitted in hospital of respondent No.1 Dr. Maindarkar at Osmanabad by the appellant for treatment, as he had vomited during night and he had complained of non passing of gases and he had some ailments. Respondent No.1 Dr. Maindarkar attended Girish since latter was taken to him. Dr. Maindarkar has given details of that treatment in his written version. It is not disputed that Dr. Polawar (Respondent No.2) who was also one of the expert doctor was called by Dr. Maindarkar (Resp.No.1) and Dr. Polawar also examined and gave assistance for the treatment of Girish. It is not the specific case of the complainant that in the hospital of Respondent No.1 Dr. Maindarkar nobody attended him or timely treatment was not given to him. It is not pointed out by the complainant either in the complaint or in his affidavit as to what wrong treatment given to his son Girish caused his death. It is not disputed that deceased Girish died due to Cardio Respiratory Arrest due to Acute pancreatitis Septicemia with ARDS (adult respiratory distress syndrome) with D.M. (diabetic Mellitus). It is not the specific case of the complainant that deceased Girish suffered from Acute pancreatitis with Septisemia and ARDS due to the treatment given to him either in the hospital at Osmanabad or at Solapur or due to treatment given in those two hospitals.
22. Admittedly Dr. Maindarkar (Resp.No.1) after consulting Dr. Polawar (Resp.No.2) referred deceased Girish to higher Centre at Solapur for further investigation and treatment. It is also not the case of the complainant that act of referring of Girish to Solapur was improper or incorrect.
17 F.A.No.: 2400-0523. It is also not the case of the complainant that at Solapur in Ashwini Hospital the Respondent No.3 to 6 gave incorrect treatment to Girish. He simply stated that the respondent No.4 Dr. Rudrakshi did not attend Girish from 11.35 p.m. to 5.55 a.m. i.e. for about six hours though he was duty bound to attend Girish after getting knowledge and he gave instruction to respondent No.5 Dr. Garad and respondent No.6 Dr. Amol Malge on phone only for giving treatment to Girish. However besides these bare words of the complainant there is no evidence to prove that Girish was not promptly attended by competent doctor in Ashwini Hospital of Solapur. On the contrary, the affidavit of Dr. Rudrakshi (Resp.No.4) specifically shows that Dr. Kulkarni who was attached to that hospital had promptly attended Girish after he was admitted in that hospital and that he is also a competent doctor.
24. Dr. Khose in his affidavit (filed by appellant) stated that at Osmanabad doctor could not diagnose the disease promptly and renal function test was necessary to be done by Dr. Maindarkar as patient was in shock and it was necessary to find out cause of higher science and if proper diagnosis would have been earlier, measure would have been taken to save the said patient.
25. Dr. Maindarkar (Respondent No.1) in his additional affidavit stated that Dr. Khose has not read the case paper's properly and gave misleading opinion. He stated that Acute gastritis is not a final diagnosis made in regard to the patient but it is a differential diagnosis since first possibility was of suspected peptic perforation and second was of gastritis and so diagnosis is not wrong. He also stated in that affidavit that correct treatment was given for an acute abdominal emergency including "Acute Pancreatitis". He also stated that Dr. Khose, has not opined, how and what wrong treatment was given by Dr. Maindarkar. He also stated that, the patient's urine output was 1450 cc which reveals normal renal function, not warranting Renal Function Test. He also stated in his affidavit that patient was continuously observed and he got 95% relief, and patient was observed with the expectation for full recovery and he became 18 F.A.No.: 2400-05 drowsy later on, and hence patient was referred for Institutional Management to the Medical College and Hospital at Solapur. He further stated that after all efforts were made for the recovery of the patient, then only the patient was referred in a stable condition.
26. Dr. Sujit Jahagirdar who is M.D. D.M. (Gastro Interlogy) in his affidavit (filed by respondent) stated that there was correct diagnosis of deceased Girish at Solapur and in mild pancreatitis mortality is 30 % and in severe form, in spite of all care 60% and in presence of ARDS, morality increases upto 90%. He also stated that due to steroid, response of the patient is reduced.
It is the case of respondent that deceased Girish was given steroids prior to treatment at Osmanabad and Solapur. The said case is not denied by the complainant. It is also not denied by the complainant that due to steroid resistance power of patient get reduced.
27. Dr. S. B. Deshmukh in his affidavit ( filed by respondent) stated that he is M.B.B.S.M.S. (General Surgeon) and he reviewed 29 pages of case of Girish Vinayak Joshi. He further stated in his affidavit that treatment given to Girish at Osmanabad by Dr. Maindarkar was correct as "emergence management" and as patient was "steroid dependent", his treatment was difficult and he was correctly given treatment as per medical science. He also stated that, as deceased Girish was having severe attack of Pancreatitis, in such a case morality is about 50%, and therefore he was rightly referred to higher Centre in proper manner after stabilizing his condition.
28. Dr. Mukund Ganesh Zambre in his affidavit (filed by respondent) stated that, he is M.D. (Medicine) and that he is the Chairman and Head of Department of medicine at Siddheshwar Multispeciality Hospital at Solapur. He has stated in his affidavit that on perusal of entire case paper of deceased Girish he found that the opinion given by Dr. Khose is wrong. He has also stated that the proper treatment was given to deceased Girish as stated in detail in his affidavit. He also stated that there is no delay in using ventilator as stated by Dr. Khose and that as deceased 19 F.A.No.: 2400-05 was suffering from aforesaid ailment, he could not have been saved and in such cases there is high morality rate i.e. 80%.
29. Thus the aforesaid three doctors i.e. Dr. S. B. Deshmukh, Dr. Jahagirdar, Dr. Zambre in their respective affidavits have fully supported the aforesaid case put forth by the respondents. The complainant has not filed affidavit to rebut the evidentiary value of the opinion given in the aforesaid affidavits of the said three expert doctors. Therefore considering their said opinion given in the affidavits in the back ground of the aforesaid admitted facts and circumstances of the present case, we find that the opinion of Dr. Khose given in his affidavit is not acceptable to prove that there was negligence on the part of the doctors of aforesaid hospital of Osmanabad and Solapur who treated deceased Girish.
30. There is no evidence to prove that over dose of saline was given to deceased Girish and it was one of the causes for his death. Moreover, there is no cogent evidence to prove that the required pathological tests were not carried out at Osmanabad which could have been used for correct diagnosis at Osmanabad. Moreover, there is no reliable evidence to prove that there was no proper diagnosis in hospital of Resp.No.1 at Osmanabad and deceased Girish was treated by unqualified respondent Nos. 5 & 6 at Solapur. There is also no evidence to prove that deceased Girish was not given treatment promptly and on emergency basis at Osmanabad and Solapur. Therefore we do not agree with the aforesaid contentions raised by the advocate of the appellant in his arguments. Hence we hold that the District Forum has rightly observed that the complainant has not proved any deficiency on the part of Respondent Nos. 3 to 6.
31. Besides the bare words of complainant/appellant that he paid fee Rs.500/- to respondent No.1 Dr. Maindarkar, there is no document to prove the said fact. It is not disputed that the complainant/appellant is also a doctor and the defence of the respondent No.1 appears to be the natural and probable that he charged no fees to the complainant/appellant as he has got friendship relation with the appellant/complainant. As per provisions of Sec. 2 (1) (o) of Consumer 20 F.A.No.: 2400-05 Protection Act, "the term "Service" does not include a person rendering of any service free of charge. As per provision of Sec. 2 (1) (d) (ii) in order to fall a person under the definition of Consumer, he must have availed services of another person for a consideration. Thus it is crystal clear that in order to seek relief under Consumer protection Act by a Consumer defined under section 2 (1)
(d) of Consumer Protection Act, services must be hired or availed of for a consideration.
In the instant case, as it is not proved that the services from Respondent No. 1 & 2 were availed of for a consideration, the complaint filed as against them is not maintainable in law. This fact is thus rightly considered by the District Forum below in the impugned judgment and order.
32. It is clear from aforesaid case laws' cited by both the sides that, the medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Moreover neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires and the medical practitioner would be liable only where his conduct fell below that of standards of reasonable competent practitioner in his field. Moreover in case 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.
33. In the instant case as seen from the medical case papers and the affidavits discussed above that Respondent No. 1 to 4 & 6 used reasonable degree of skill, knowledge and care while treating the deceased Girish. Though there is a difference of opinion as discussed above as given by Dr. Khose and aforesaid three doctors, but that does not prove that the opinion of Dr. Khose given in favour of appellant is more reliable than that of the opinion of the doctors namely Dr. Jahagirdar, Dr. Zambare and Dr. Deshmukh given in support of the case of respondent. Thus we find that from the evidence brought on record it is not proved by the complainant that the respondents committed breach of any of 21 F.A.No.: 2400-05 the duties so far as taking all care in deciding what treatment was to be given and in administration of treatment. Therefore no negligence can be attributed to them. In the result, we hold that the aforesaid case law relied upon by advocate of the appellant is of no assistance to the appellant. We thus find that impugned judgment and order is legal, correct and proper and needs no interference. Accordingly appeal deserves to be dismissed.
-:: ORDER ::-
1. The appeal is dismissed.
2. Both parties shall bear their own cost.
3. Copies of the judgment and order be sent to both the parties.
(K. B. Gawali) (B. A. Shaikh)
Member Presiding Judicial Member
Kalyankar