Nandini Mahesh Sharma,

U/g of Mahesh Shyamsundar Sharma,

R/o Sillod, Tq.Sillod, Dist.Aurangabad. …COMPLAINANT

VERSUS

Dr.S.R.Totla,

R/o Totla Hospital, Venkatesh Colony,

Aurangabad. …RESPONDENT

CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.

Mrs.Uma S.Bora, Hon`ble Member.

Present : Adv.Shri.Padmakar Khekale for complainant,

Adv.Shri.Kishor Sant for respondent.


O R A L O R D E R

Per Shri.S.G.Deshmukh Hon`ble Presiding Judicial Member.

1. The present complaint is filed by Shri.Mahesh Sharma father and guardian of minor Nandini against respondent doctor for failure to exercise due care, skill and competency in doing work and providing service that may be expected of medical practitioner.



2. Complainant`s case before the Forum is that, his daughter Nandini is born on 18.6.1997. She was normal for one week. It is contended that then the child developed physiological jaundice and was treated with photo therapy by Dr.Khanapurkar at Bhusawal for one week. It is contended that her Serum Bilirubin level was increased upto 15 mg %. There was weight loss and hence child was taken to Dr.Ingle, Sr. Pedestrian at Aurangabad who checked her and advised to consult Dr.Mrs.Phadake at Sasoon Hosptial, Pune for investigation and her opinion. But unfortunately she refused to examine her because she was stated for foreign tour. Baby was brought at Aurangabad to Dr.Mrs.Ratnaparkhi at Hedgewar Hospital. She examined her and treated baby for sepsis. It is contended that on 3rd day baby developed distension of abdomen, non-billions vomitings and continuous cry. It is contended that result of flants tube were poor and there were visible intestinal loops with increased bowel sounds. X-ray of abdomen was done which was abnormal. Thereafter child was taken to Totla Hospital, Aurangabad on 31.8.97 and was admitted with c/o distended abdomen and some metabolic disorder. It is contended that patient was kept on conservative treatment for initial 10 days but there was no change in the condition. During treatment investigations were done and on 6.9.97 diagnosis was made by sonography abdomen i.e. E/o sub-acute intestinal obstruction. It is contended that respondent performed exploratory laparotomy operation on 8.9.97. It is contended that post operative condition of the patient was good, the wound healed properly. However general condition of the patient not being good, respondent advised to consult expert medical centres in Mumbai to rule out the paediatric medical disorder and referred the patient to J.J.Hospital,Mumbai. It is contended that Dr.Mrs.Kirtane and Dr.Rathod in the Dept. of Paediatric at Sir.J.J.Hopsital, Mumbai saw the case papers and admitted patient in paediatric ward. Patient was kept under observation for 15 days from 28.9.97 with the complaint of failure in weight, giving poor feeding etc. It is contended that relatives requested for D.A.M.A. discharges of patient as there was no improvement whatsoever in the health of patient, mainly because of totally unwarranted and wrong treatment coupled with unnecessary operation. It is contended that Dr.Gharpure, Paediatric Surgeon was consulted on 16.2.1998. He advised to take opinion of endocrinologist and he referred to Dr.Phatale who advised investigation T3, T4 TSH on 17.2.1998 which was found abnormal and values were realised. He therefore gave treatment for hypothyroidism. Patient thereafter indicated response to the treatment and improved well. When the patient gained weight upto 7.5 Kg. Dr.Gharpure planned surgery for stans colostomy because the report of rectal biopsy was absolute normal. He performed surgery on 25.6.98 for colostomy chosure. She was hospitalized from 25.6.1998 to 1.7.98. Now the baby is normal in health. It is contended that due to unnecessary and wrong operation and advise for taking patient to J.J.Group of Hospitals, Mumbai. The child and entire family had suffered heavily not only in financial aspects but also physically and mentally which can not be measured in terms of money. Complainant approached the Forum and demanded amount of Rs.1,75,000/-.



3. Respondent No.1 appeared and resisted the claim. It is contended that she has been wrongly impleaded in the complainant without any application of mind. She never examined the patient nor she treated the patient or performed any operation. Complainant was never patient of the respondent nor was the respondent at all concerned with the treatment of the complainant. She had been ophthalmic surgeon and therefore Eye surgeon. She never treated the complainant and there was no case at all of any negligence or providing wrong medical treatment by her. It is contended that the entire proceeding have been filed against her with malicious motive to harm and damage her repute and her good name in medical service. She requested for dismissal of complaint.



4. Respondent No.2 & 3 have been subsequently jointed in the complaint. It is contended that respondent No.3 is not legal entity nor a judicial person. Complaint against respondent No.3 as such is an abuse of the process of law. It is contended that complainant is not born in the hospital of respondent. She was born at Bhusawal and immediately after her birth, she was under the treatment of Dr.Khanapurkar at Bhusawal for a week. It is contended that complainant has not stated the examination and treatment of Dr.Khanapurkar. She has also not stated what was investigation report of Dr.Ingle. She had not ventured to state and put before the Commission the reports and opinion of Dr. Khanapurkar, Dr.Ingle and Dr.Phadke. It is contended that observation, investigation and report are required in the ends of justice. Complainant did not bring on record the report and opinion and treatment of Dr.Ratnaparkhi which was also prior to the complainant being brought to the respondent. It is contended that complainant was examined and investigated upon and treatment given by at least 4 doctors who are not parties before the Forum. Respondent is not at dispute that patient was admitted in their hospital on 31.8.1997 with the disorders i.e. distended abdomen and some metabolic disorder. Patient was kept on conservative treatment of initial 10 days for accurate observation. There was no change in the condition of the patient. It is contended that during the course of treatment, investigation were done. And on 6.9.97 diagnosis was made by sonography and x-ray abdomen. On the basis of report respondent No.2 performed exploratory laparatomy operation on 8.9.97. Post operative condition of the patient was good and wound healed properly. It showed that there was nothing wrong in the operation done. In the interest of the patient since general condition was not improving, respondent advised to consult expert medical centres at Mumbai to rule out the paediatric medical disorder and indicated that the patient could be examined and consulted at J.J.Group of Hospitals. It is contended that patient was kept under observation for 15 days from 28.9.97 with the complaint failure in gaining weight and poor feeding. Complainant of his own without any medical expert opinion formed opinion which is totally unfounded and conjectural that there was no improvement in the health of the patient mainly because of alleged unwarranted and wrong treatment complied with alleged unnecessary operation at the initial stage by respondent No.2. It is contended that complainant did not consider the diagnosis, investigation treatment and report by at least six expert doctors. It is contended that when Dr.Gharpure was consulted he referred the patient to Dr.Phatale. It only showed that each doctor at every stage wanted to ascertain the exact cause and line of treatment by consulting other experts rather than thrusting his own opinion. It is contended that Dr.Phatale advised him investigation T3, T4, TSH on 17.2.1998 which was found abnormal and values were realized. It is contended that biopsy report fully supports the treatment and operation done by respondent No.2. The biopsy indicates that Ganglion cells were absent. It is not normal condition. It is abnormal. The said Ganglion cells are required and must be present. Because of absence of the said Ganglion cells the operation was must to save the patient. The said factor has been overlooked and misunderstood by the complainant. He denied that he performed unnecessary or wrong operation or that he wrongly advised the patient to be examined at expert centre at Mumbai. It is contended that as patient was not showing any improvement inspite of post operative conditions being satisfactory he advised medical centre in Mumbai may be consulted. It is contended that at J.J.Hospital the experts also examined the patient for 15 days but never opined that diagnosis and operation made by respondent were wrong. It is contended that opinion formed diagnosis reached treatment decided and operation performed were all in the best interest of the patient to save her life.



5. Complainant also filed rejoinder. Complainant contended that the child was required to be treated by respondents with due care, and proper examination in order to treat for the ailment. It is contended that it was necessary for the respondents to conduct Barium enema test, Anorectal Manomentry, Rectal biopsy. It is further contended that it was wrongly assumed that the child suffers from Hirsch Sprung`s. It is contended that patient was considered to be victim of Hirsch Sprung`s in order to conduct the avoidable and unnecessary operation. It is also contended that even after conducting surgery the child did not improve, respondent referred the child to Mumbai and Pune hospital.



6. Complainant filed affidavit of Shri.Shyamsunder R.Sharma the power of attorney of guardian of minor and affidavit of Dr.Vivek Gharpure. Dr.Gharpure has stated in his affidavit that child was examined by him on 16.2.1998 in his hospital. He suspected to be suffering from hypothyroidism and therefore he referred patient to paediatrician and endocrinologist. She was found to be hypothyroid by investigation. He performed rectal biopsy on 17th Feb.1998. He performed operation of colostomy closure on 26th June 1998. Complainant also produced the prescription of Totla Hospital, discharge summary, lab report of Samrat Endocrinology Lab, report of Patil Pathology laboratory, report of Kamalnayan Bajaj Hospital, report of pathology Bombay Hospital Trust, discharge summary of Dr.Gharpure hospital. Respondent filed his own affidavit, record of Hedgewar Hospital, copy of indoor case sheet, copy of discharge summary, copies of consent forms, copy of report of Dr.Hemant Fatale, copy of complaint made to Medical Council, copies of depositions before medical council, copies of medical references from various judgments.

7. Points for our consideration are; Finding.



i) Whether respondent failed to exercised due care

skill, competence in doing work or providing

Service that may be reasonably expected of medical

practioners?. …No.



ii) Whether complainant is entitled for compensation

and damages? If yes, to what extent? …No.

8. We heard learned counsel Shri.Khekale for complainant and learned counsel Shri.Kishore sant for respondent No.2 & 3. Learned counsel Shri.Khekale submitted that child was referred to hospital of respondent No.2 & 3 by Hedgewar Hospital, Aurangabad. There was no improvement in her health. Under circumstances respondent insisted upon the conduction of operation, in fact it was no required. Learned counsel further submitted that complainant should have obtained the second opinion of other experts. But this was not done as operation was necessary to hike his bill. He submitted that child was treated on trial and error basis. Learned counsel submitted that it was necessary for respondent to conduct Barium enema test, so also Anorectal Manomentry. He further submitted that before surgery it was necessary for respondent to conduct rectal biopsy which was also not done. Learned counsel submitted that respondent confused hypothyroidism with Hirsch sprung`s. He had not obtained any report from expert laboratory. Learned counsel further submitted that as the operation conducted by him proved to be fatal, respondent unnecessary suggested to shift baby at J.J.Hospital. Learned counsel submitted that patient was admitted in the hospital of Dr.Gharpure, he gave correct treatment after getting report of Dr.Fatale and child had started improving. According to him respondent wrongly assumed that patient was suffering from Hirsch Sprung`s and not hypothyroidism.



9. On the other hand, learned counsel Shri.Sant submitted that complainant did not bring on record any material to suggest that line of action adopted by respondent was incorrect at any stage of treatment. He submitted that complainant did not bring on record the evidence of expert to prove his own case. According to him in the absence of expert evidence no negligence or deficiency in service can be found against doctor. Learned counsel submitted that operation was conducted only when it was felt necessary. Child was examined by various experts in the field from Aurangabad. According to him barium enema test was not done as it was not advisable when the patient was too tender, sick and too critical. He also submitted that as per respondent rectal biopsy was not possible in the child of two months. He submitted that biopsy report supports the treatment, operation done by respondent. Biopsy report indicates Ganglion cells absent which was not normal condition. He submitted that respondent had advised opinion of Sr.Paediatric, Mumbai to rule out associated paediatric medical metabolic terms. He also submitted that there is nothing to show that patient became deaf and dumb due to medicines given by the respondent. Learned counsel also submitted that Dr.Gharpure did not opine that operation by respondent was unnecessary. Learned counsel relied on ;

i) ‘Jacob Mathew –Vs- State of Punjab and another’ 2005 AIR SCW page 3685,



ii) ‘ Charan Singh –Vs- Healing Touch Hospital and Others’ , S.C. & National Commission Consumer Law cases(1996-2000), page 619,



iii) ‘Kiran Bala Raut –Vs- Christian Medical College and Hospital and others’ S.C. & National Commission Consumer Law cases(1996-2000), page 674.



10. We perused the papers and gave our anxious thoughts to the arguments advanced by both the counsels. It is apparent from the above that the complainant simply relies on affidavit of power of attorney and affidavit of Dr.Gharpure and report submitted by him. Respondent filed his own affidavit, respondent has affirmed that he is M.B.B.S., M.S.(Gen.Surgery), M.Ch.(Paediatric Surgery), D.N.B.(Paediatric Surgery), F.A.I.S. He conducted thousands of operations. He was associated with Government Medical College Hospital, Aurangabad for considerable time. It has come in his affidavit that he never insisted upon conduction of operation of the child. It has also come in his affidavit that child was examined by various experts in the field from Aurangabad. Thereafter operation was conducted. The child was brought to his hospital for the first time on 18th August 1997. She was examined by him thoroughly. After examination of the child he felt that child had some metabolic problem. It has also come in his affidavit that patient was referred to Hedgewar Hospital where Dr.Smt.Ratnaparakhi and Dr.Vyawahare examined the child. Patient was also examined by Dr.Ingle Ex.Professor and Head of the Department of Paediatrics Government Medical College and Hospital, Aurangabad. On 28th August 1997 the child was brought to him when condition of the child was critical. His affidavit also shows that on 30th August 1997 patient was admitted in Hedgewar Hospital and examined by doctors. The abdomen of child was distended, visible loops of intestine and visible peristalsis. Child was continuously crying and irritable vomiting. There was history of loose motions prior to two days of distension and motion was not passing. He has affirmed that these indications are suggestive of enterocolitis. Result of flatus tube was poor. X-ray erects abdomen suggestive of intestinal obstruction. Dr.Rajendra Vaidya eminent paediatrician of the town was called to see the child who also opined that conservative line of treatment be continued. It has also come in affidavit on 3rd of Sept.1997 the case was reviewed by Dr.Ratnaparkhi and Dr.Vyawahare in his hospital. The repeat x-ray abdomen was also better than before. On 6th September 1997 Dr.Ratnaparakhi and Dr.Vyawahare examined the child and advised to explore the abdomen to relieve the intestinal obstruction. So it was a well considered decision to explore the abdomen. Thus he decided to explore the abdomen and to relieve the intestinal obstruction. It has also come in his affidavit that Barium test was not conducted since it would have led perforation of the intestine. It has also come in his affidavit that parents of the child were given idea about condition of the child. On 7th September 1997 condition of the child was deteriorated, further abdominal distension increased. The abdominal wall appeared shiny and inflamed, visible loops of intestine were seen. Child was not able to breathe properly because of the distension, ryles tubes aspiration was bilious and child looked very septic and critical. It has also come in his affidavit that renowned paediatricians and intensivist Dr.Sham Khandelwal was called. He examined the child. He did arterial blood was study and after studying the same advised that the child is facing difficulty in breathing due to distension of abdomen and same has led to respiratory acidosis and metabolic alkalosis. Dr.Khandelwal advised to relieve obstruction to save the life of child. It appears that the case was discussed with various paediatricians concerned and thereafter respondent took decision to conduct exploratory laparotomy to save the life of child with consent of father of child.



11. Surgery was conducted on 8th September 1997. Operation of exploratory laparotomy was done under anaesthesia. Witness stated that after exploring the abdomen the colon was found toxic and inflamed. The colon was seen right upto caecum. Due to zone of coning formed at rectosigmoid junction as the stool was not being passed further from the intestine at rectosigmoid junction. The rectum was seen nondilated and spastic. There was no other surgical ailment, therefore colostomy was done. The object of conducting the colostomy was to give a safety valve through which the stool can pass which was need of hour. It has also come in affidavit that operation is by way of temporary measure and is reversible and it can be reunited in due course of time after thorough investigation and patient is improved. It has also come in affidavit that after surgery there is no respiratory distress and grunt. The abdomen deflated fully and the child started tolerating feeds. According to respondent operation was necessary to save life of child. The child was given conservative treatment for one complete week before the operation. The statement made by respondent in his affidavit has been supported by copy of indoor care sheet which has been brought on record by respondent. It has also come in evidence that rectal biopsy was not possible in the child of two months old.



12. It has also come on record that complainant had approached Maharashtra Medical Council by filing complaint. Maharashtra Medical Council after conducting detail enquiry in complaint, exonerated the respondent from all the charges levelled against him.



13. In ‘Dr.Laxman Balkrishna Joshi –Vs- Dr.Trimbak Bapu Goldbole & Anr.’ reported in AIR 1969 SC 128. Hon`ble Apex Court held that, “The petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. 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”.



14. In A****rao Haribhau Khodwa & Ors –Vs- State of Maharashtra & Ors., reported in 1996(II) Supreme Court cases 634, Hon`ble Apex Court held that, “The skill of medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of the doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient but as long as doctors acts in a manner which is accepted to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffer a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence”.



15. In Smt.Vinita Ashok –Vs- Laxmi Hospital & others, reported in 2001 AIR SCW 3881 the Hon`ble Apex Court held that “ A doctor will not be guilty of the negligence if he has acted in accordance with practice accepted as proper by responsible body of medical men skilled in that particular art and if he has acted in accordance with such practise merely because there is a body of opinion that takes as contrary view will not make him liable for negligence. This is the standard of care required by the doctor”.



16. In Jacab Mathew –Vs- State of Punjab reported in (2005)6 SCC 1, the Hon`ble Apex court observed that “a simple lack of care or error of judgment or an accident does not constitute negligence. Similarly, availability of better alternative course or method of treatment was available but not adopted or that doctor did not possess highest level of expertise or skills in that branch in which he practices does not constitute negligence. Thus, if there is breach or failure in taking that reasonable care in treatment of the patient as is expected by normal standards of practice it constitutes negligence”.



17. In ‘Martin F.D’Souza –Vs- Mohd.Ishfaq’ reported in II(2009) SLT page 20 the Hon`ble Apex Court observed that;



(ii) Medical Negligence-Complaint-Matter should be referred to competent doctor/committee of doctors, specialized in field relating to which medical negligence attributed-Notice should be issued to concern doctor/hospital, only if there is prima facie case of medical negligence as per doctor/committee report-Police officers warned not to arrest/harass doctors unless facts clearly come within parameters laid down in Jacob Mathew`s case, otherwise, legal action to be faced by policemen.

(iii) Medical Negligence-General principles-Medical practitioner not liable for negligence, 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-Standard of care has to be judged in light of knowledge available at time of incident, not at date of trial-Charge of negligence regarding failure to use particular equipment would fail, if equipment not generally available at that point of time-Simply because patient not favourably responded to treatment given by doctor or surgery failed, doctor cannot be held straightway liable for medical negligence by applying doctrine of res ipsa loquitur.



18. It is apparent from the above citations that complainant has to allege as to which action of the doctor was not as per medical practice. What was required to be done and what was not required to be done, same has to be proved by expert evidence and medical literature on the subject. Thus the burden to prove negligence of doctor is always on the person who alleges the same. Negligence in relation to medical profession covers diagnosis, advise, medical treatment and post operative treatment. It is failure to exercise that care which circumstances demand. What amounts to the negligence depends upon the facts of each particular case. The true test for establishing negligence in diagnosis or treatment on the part of doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty with reasonable care. It is also apparent that mistaken diagnosis is not necessarily a negligent diagnosis.



19. In the instant case complainant did not adduce any sort of expert evidence. Neither the complainant produced medical literature in that respect. It was necessary for the complainant to prove that which action of the doctor was not as per medical practice which was not required to be done by him, the same was required to be proved by complainant by adducing expert evidence or medical literature on the subject. The entire statement of the respondent on oath has gone unchallenged. Complainant is not cross examined, no evidence of expert has been adduced by the complainant to rebut the evidence adduced by respondent by way of affidavit. Complainant has filed affidavit of Dr.Gharpure who had examined the patient on 16th February 1998 and who had performed operation of colostomy closure on 26th. It is to be noted in the entire affidavit, Dr.Gharpure did not opine that operation by Dr.Totla was unnecessary and was uncalled for. The patient was admitted in J.J.Hospital for 15 days. She was kept under observation. There is nothing on record to show that operation done by respondent was uncalled for and was unnecessary. It also reveals that since the birth child has been under investigation and treatment of doctors one after another. Child was examined by several consultant pediatricians and neonatologist. The child was also examined by pediatricians and pediatric surgeons at J.J.Hospital, Mumbai. It appears that in the interest and for the benefit of the patient the line of treatment was decided and even before surgical treatment conservative line of treatment was given. Respondent exercised reasonable skill and care expected from competent practitioner of his class. It appears that child was treated in accordance with medical science and medical textology. It appears that to save child from complication of disease surgical line of treatment was performed and proper treatment was given by respondent. It appears that as exact cause of disease was not known therefore conservative line of treatment was given. However after thorough check up and various medical report, nature of disease of the patient diagnosis was made by respondent by sonography abdomen and decided to operate the child and accordingly he performed exporatory laparotomy operation on 8.9.97. Complainant himself has stated that post operative condition of the patient was good. Wound healed properly. Biopsy report indicates Ganglion cells were absent which is not in normal condition. Because of absence of Ganglion cells respondent thought operation was must to save patient. His priority was to tackle the distensions of abdomen and to save the life of child. The condition of child was critical. There was abdominal distensions and child was toxic and had respiratory distress. There was bilious aspirate from Ryles tube. All this was in favour of diagnosis of intestinal obstruction. It also appears that child was not responding the medical line of treatment. Under these circumstances respondent felt that surgical exploration was the only possibility. None of the doctors from J.J.hospital opined that operation done by respondent was unnecessary. It also appears that respondent had obtained consent of father of child and relatives were made aware about risk.



20. We have mentioned that complainant had approached Maharashtra Medical Council by filing complaint against respondent. Maharashtra Medical Council conducted detailed enquiry in the complaint in question and exonerated the respondent on the charges levelled against him. Maharashtra Medical Council observed in para 18 & 19 of their order;

18. On going through the Medical literature on Congenital Primary Hypothyroidism. This condition means absence of thyroxin hormone in blood since birth. The clinical features of this condition show that the child feed poorly, child is less active, sleep most of the time, there is noisy breathing and nasal obstruction, physiological jaundice persists for a longer period, babies are constipated and abdomen is large due to hypotonia. This condition is difficult to diagnose in early neonatal period. Gastrointestinal complications of hypothyroidism are well documented and include constipation, and abdominal distention as well as ileus, pseudo-obstruction and megacolon. Necrotizing enterocolitis is also described in cases of congenital hypothyroidism. In Congenital Hypothyroidism, mental development depends on the degree of thyroid hypo function, the age of appearance of clinical manifestations and initiation of treatment. In early onset, hypothyroidism the outlook for mental development is not good.

19. This is rarest of rare case of congenital primary hypothyroidism which presented as pseudo-obstruction and mega colon.

Since initial presenting features of this case were of pseudo-obstruction the diagnosis of primary condition(congenital primary hypothyroidism) could not be made from 18.6.97 to 17.2.98.

The clinical history of child shows that since birth the child has been under investigation and treatment of doctors one after the other. Child was examined by several consultant pediatricians and neonatologist in Aurangabad. Child was also examined by pediatricians and pediatric surgeons at Sir J.J.Hospital, Mumbai. Complainant was rightly advised to consult specialized medical centers in Mumbai. The reports, observation and opinions of none of these consultants indicate any possibility of diagnosis of congenital primary hypothyroidism. Since this condition is difficult to diagnosis in early neonatal period not only Dr.Totla missed the diagnosis but it was missed by all the consultants who have examined the child. This child presented primarily with gastrointestinal complications of hypothyroidism and ( as per the statements of several associated consultants) at that particular time operation was the only choice of treatment. In the best interest and for the benefit of the patient the line of treatment was decided and even before surgical treatment, conservative line of treatment was given. Dr.Totla has exercised reasonable skill and care expected from competent practitioner of his class. A mistaken diagnosis is not necessarily a negligent diagnosis.



21. Maharashtra Medical Council has observed that child was treated in accordance with medical science and medical textology. It also observed that to save child from the complication of disease surgical line of treatment was performed and proper line of treatment was given to save child.



22. We have mentioned that all the possible investigations were carried out by the respondent to arrive just and proper conclusion and gave best possible treatment with utmost care. He acted with due care and caution required for medical profession. There is no evidence to show that the treatment given by respondent was palpably wrong. We also mentioned that Dr.Gharpure did not opine that operation done by Dr.Totla was unnecessary. None of the doctors of J.J.Hospital where patient was kept in observation for 15 days mentions that operation done by respondent was uncalled for or was unnecessary. Maharashtra Medical Council also observed “that this is the rarest of rare case of congenital primary hypothyroidism which presented as pseudo-obstruction and mega colon”. The patient was treated not only by the respondent but was also treated by various medical practitioners in the Government Hospital and various paediatric hospital. None of them concluded that operation done by respondent was uncalled for or was unnecessary. The evidence adduced by complainant does not point any sort of lacuna or lack of management or negligence on the part of respondent. Negligence can not be presumed merely because complainant alleges, same is required to be proved by adducing evidence of expert or producing medical literature on the subject. In view of aforesaid discussion we answer the points in ‘negative’. We pass the following order.

O R D E R

1. Complaint is dismissed.

2. No order as to cost.

3. Copies of the order be sent to both the parties.