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                         Mrs.S.P. Lale, Honble Member        Appearance :

Mr.Lalitkumar Jain, Advocate for the complainant.
                         
Mr.Y.C. Naidu, Advocate for the O.P.  
-: ORDER :-
 
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member             This complaint has been filed by Advocate Mr.Raghavendra Anantrai Mehta, who is Ex-Judicial Officer of the State of Maharashtra and has started practice after retirement of judicial service after attaining age of superannuation.  He was also working as Director of Judicial Officers Training Institute and was Chairperson of Debts Recovery Appellate Tribunal till the age of 65 years.  O.P./Dr.Darshan Jhala is Cardiologist and he has private clinic at Kumkum, Opp. Lali Bar and Restaurant, Near Topiwala Cinema, Goregaon (W), Mumbai.  Dr.Jhala was also attached to Lilavati Hospital and Jaslok Hospital, Mumbai.  According to the complainant O.P. performed two operations on the complainant for the same purpose at the same spot just below the collar bone for implantation of pace maker in Lilavati Hospital firstly on 21/06/2001 and secondly on 23/06/2001 and in performing operations he alleged that there was medical negligence on the part of O.P.  He pleaded that while going to the office on 20/06/2001 he felt giddiness and uneasiness and he straightway went to Dr.Baliga Nursing Home, Goregaon, where he was first examined by Dr.V.G. Nagvekar and secondly by O.P./Dr.Jhala who was summoned by Dr.Nagvekar.  O.P. advised him to get admitted for implantation of pace maker.  He stated that such permanent implantation is very common and within 3-4 days complainant would be in a position to pursue his normal duties and the cost would not exceed Rs.1,50,000/-.  He further informed the complainant that implantation requires very minor operation and it could be performed in the Hospital like Lilavati or Jaslok.  So, complainant went straightway to Lilavati Hospital where he was admitted as patient of O.P. on 20/06/2001. 
On the next day, O.P. with Dr.DSilva performed operation on the complainant for implantation of pace maker.  O.P. himself selected the pace maker and the final bill showed that pace maker costed Rs.1,50,000/-.  Inspite of operation and implantation of pace maker, complainant pleaded that he was not feeling normal.  When complained O.P. on 23/06/2001 informed the complainant that pace maker was not functioning properly and therefore, repositioning was required to be done.  Accordingly on 23/06/2001 repositioning was done.  Repositioning required removal of earlier stitches, operation, admission in ICU and the same procedure and same treatment.  Complainant pleaded that O.P. was well aware on 21/06/2001 itself that there was not only deficiency but gross negligence on the part of Dr.Jhala in performing first operation.  Normally, he would have been discharged on 23/06/2001 itself but, in view of complaints and reading on the monitor on 23/06/2001 complainant was not discharged, but was operated second time resulting into mental and physical agony besides additional burden of expenditure.  He enclosed copy of bill (Exhibit-A) in support of his case.  According to the complainant he was discharged from Lilavati Hospital on 27/06/2001 as per Discharge Certificate (Exhibit-B).
          He then contacted Dr.B.K. Goyal, Dean of Bombay Hospital on 03/07/2001.  On examination Dr.Goyal found that pace maker implanted and repositioned was not at all functioning and complainant was surviving on his own.  He informed the complainant that reposition on third time was inevitable and on his advice, he got admitted in Bombay Hospital on 04/07/2001 to set right the pace maker to reposition it and to prevent displacement of lead by means of an anchoring rod which cost Rs.20,000/-.  This operation was performed by Dr.Goyal and complainant was discharged on 11/07/2001.  Exhibit-D is the Discharge Certificate issued by Bombay Hospital.  According to the complainant, O.P. handled his case improperly and carelessly in the initial operation as well as in the subsequent operation and therefore, he was guilty of deficiency in service and gross negligence.  He had to suffer at the age of 67 mental torture and physical torture besides huge financial burden.  He asserted that initial negligence resulted into prolonged treatment and permanent injury.  He had therefore issued legal notice dated 14/12/2001 to the O.P. calling upon him to pay damages.  Exhibit-E is the said notice.  Notice was also issued to Dr.Vijay DSilva.  Dr.DSilva informed that he was simply intensivist standby during the procedure for Cardio Respiratory Monitoring and to deal with any emergent situation if any.  The complainant, therefore, filed consumer complaint only against Dr.Darshan Jhala and he has claimed damages of Rs.6,37,141/- as per particulars given in Exhibit-G.  He had filed affidavit and documents in support of his case.

investigations and monitoring that a definite diagnosis can be concluded.  Such investigations and monitoring is done in a well   equipped ICCU in an indoor setting.  Further at such stage medical treatment with cortico-steroids may be considered as a line of treatment          instead of resorting to invasive procedures like lead replacement.

 

          So, as against the sole affidavit of complainant/Shri Raghavendra Mehta, we have got affidavit of Dr.Jhala himself and further affidavit of expert i.e. Dr.Sushil Munsi, who has categorically ruled out the allegations of medical negligence on the part of Dr.Jhala.  Dr.Munsi has categorically stated that protocol and procedure adopted for implantation of pace maker by Dr.Jhala in the case of Shri Mehta was proper.  Pacing system was functioning properly at the time of first implantation as evidenced from the Device Tracking Registration From dated 21/06/2001.  He also in his affidavit stated that subsequent problem of pacing failure is accurately diagnosed and same required further investigation which was done by Dr.Jhala timely.  Decision to repositioning the same lead was appropriate and repositioning was rightly done and decision to re-programme the pace maker was proper and done in timely manner.  According to Dr.Munsi, sign of minor disturbance in heart rhythm which was detected on the cardiac monitor on 4th day post procedure was rightly diagnosed as indicative of capture failure either due to minor replacement of lead or acute rise in threshold.  In either situation, relevant lead has to be repositioned.  So, Dr.Munsi mentioned that advice given to the patient regarding admission to the hospital for examination at the time of detection of inadequate pacing for the second time was proper and in the best interest of patient.  It was only after appropriate investigations and monitoring that a definite diagnosis can be concluded.  Such investigations and monitoring is done in the well equipped ICCU in an indoor setting.  Further at such stage medical treatment with cortico-steroids may be considered as a line of treatment instead of resorting to invasive procedures like lead replacement.  According to Dr.Munsi, protocol followed by Dr.Jhala was proper and he had not exhibited any lack of medical professional skill in advising complainant to undergo one after another operation and he had not done anything wrong when he had suggested the complainant to get admitted in Jaslok Hospital for third operation for repositioning of PPM since he found that PPM was not capturing signals from the heart.  Dr.Jhala had suggested to admit in Jaslok Hospital ICCU on 03/07/2001 for repositioning (second time) of PPM.  This was the correct advice given to the complainant by Dr.Jhala looking to the facts and circumstances of the working of pace maker in not capturing signals from the heart.  For that purpose, repositioning operation was suggested when it was found to be inevitable.  The complainant was not satisfied with the suggestion given by Dr.Jhala.  Hence, he approached Dr.Goyal, Dean of Bombay Hospital, who on examination and consultation opined that second time repositioning operation was inevitable and ultimately on 07/076/2001 PPM was repositioned with the support of 4068 : Medtronic Capsure Lead and peel away introducer.  What we are finding that the opinion given by Dr.Jhala to the complainant that second time reposition of PPM was required to be done was the correct opinion given by Dr.Jhala to the complainant, but any how, complainant was not satisfied with the suggestion given by Dr.Jhala to him and he rushed to Dr.Goyal in Bombay Hospital, who also confirmed that PPM was required to be repositioned and accordingly on 07/07/2001 he had conducted operation on the complainant in Bombay Hospital and his PPM was repositioned with the support of 4068 :