CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



First Appeal no. 2384/2006 Date of Filing: 13/11/2006

Consumer Complaint No.102/1999

District Consumer Forum: NashiK Date of Order: 27/07/2009



1. Shri Dnyaeshwar Govind Kulkarni, Appellants

R/at- Hanumannagar Adgaon Road, (Org.Complainants)

Panchavati, Nashik.

2. Kum Sujata Dyaneshwar Kulkarni,

Ra/t- Hanumannagar Adgaon Road,

Panchavati Nashik.

3. Kum Tanuja Dyaneshwar Kulkarni

R/at- Hanumannagar Adgaon Road,

Panchavati Nashik.

4. Master Paresh Dyaneshwar Kulkarni

Minor Guardian Father Shri Dyneshwar Govind Kulkarni

R/at- Hanumannagar Adgaon Road,

Panchavati Nashik.

V/S.

1. Dr.Kanchan Narayan Wanere, Respondents

R/at- 1, Kavita Apartments, Plot No.56,

Mahatmanagar Nashik.

2. Rushikesh Hospital

3. Dr.Shirish Deo,

4. Dr.Jawale,

5. Dr.Ramesh Patil,

6. Dr.Manoj Chopda,

7. Dr.Manoj Gulhane,

8. Vithai Hospital- Dr Bhahusaheb More,

Makhamalabad Naka,

Panchavatti,

Nashik.

All respondents 2 to 8

At C/o- Rushikesh Hospital,

New Pandit Colony Corner,

Gangapur Road,

Nashik.



And







First Appeal no. 2432/2006 Date of Filing: 16/11/2006

Consumer Complaint No.102/1999

District Consumer Forum: NashiK Date of Order: 27/07/2009



1. Vithai Hospital, Appellants

Makhamalbad Naka, Panchavati (Org.Opp.Parties)

Nashik through Dr.Bhaurao Morey

2. Rushikesh Hospital,

Pandit Colony Corner,

Gangapur Road, Nashik.

V/s.

1. Shri Dnyaneshwar Govind Kulkarni, Respondents

2. Kum.Sujata Dnyaneshwar Kulkarni, (Org.Complainants)

3. Kum.Tanuja Dnyanehswar Kulkarni

4. Kum.Paresh Dnyaneshwar Kulkarni.

All at Hanumannagar Adgaon Road,

Panchavati Nashik.

5. Dr.Kanchan Narayan Wanere (Org.Opp.Parties)

R/at- Kavita Apartment, Plot No.56,

Mahatma Nagar, Nashik.

6. Dr.Shirish Deo,

7. Dr.Jawale

8. Dr.Ramesh Patil,

9. Dr.Manoj Chopda,

10. Dr.Manoj Gulhane,

At C/o- Rushikesh Hospital,

New Pandit Colony Corner,

Gangapur Road,

Nashik.



Corum : Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member.

Smt.S.P.Lale, Hon’ble Member.



Present: Adv.Shri G.P.Chavan for org.Complainant.

Adv.Shri Anand Patwardhan @ Adv.Smt.Anita Marathe

for Org. Opposite party nos.2 to 8.

None for opposite party no.1.



:- ORDER :-

Per Mr.S.P.Lale, Hon’ble Presiding Judicial Member:

This appeal bearing no.2432/2006 filed by org.opp.party no.8/Vithai Hospital is directed against the order dated 13/10/2006 passed by District Forum, Pune in consumer complaint no.102/1999, whereby the Forum below directed org.opp.party no.8 to pay Rs.1,000/- to the complainant no.1 towards legal proceedings and mental agony and also directed to pay Rs.30,000/- to each dependent nos.2,3 and 4 within period of 30 days. Being aggrieved by the said order org.opp.party no.8 has filed the present appeal.

Appeal bearing no. 2384/2006 is filed against the same order passed in consumer complaint no.102/1999 being dissatisfied by the quantum of compensation awarded by the Forum below by the complainants themselves.

Since both the appeals arise out of common judgement and award, we propose to dispose of these two appeals by this common order.

The brief facts giving rise to these appeals are as under:

The complainant no.1-husband and deceased Bharati had two daughters and son. They decided to terminate the pregnancy and therefore, visited opp.party no.8/Vithai hospital and met opposite party no.1 on 14/03/1997. Opposite party no.1/Dr.Kanchan Wanere, Gynecologist performed a curetting on Mrs.Bharati on same day between 11.30a.m. to 12.50p.m. Thereafter, Mrs.Bharati complained about severe pain in the abdomen. Opposite partyno.1 told her that it is due to curetting and advised medicines and tablets and discharged her at about 5.00 p.m. As the pains continue on the next day Mrs.Bharati was taken back to opp.party no.1. Opp.party no.1 advised for sonography and x-ray. On examination of x-ray report, opp.aprty no.1 told them about Ectopic pregnancy and formation of gas. Thereafter, opp.party no.1 advised them for another surgical intervention to remove foetus. Accordingly, as directed by opp.party no.1, the complainant went to Rushikesh hospital at 8.00p.m. and Mrs.Bhararti was taken to operation theatre at 9.00a.m. In the midnight, at 2.00p.m. of 16/03/1997 Mrs.Bharati was brought out of the operation theatre and shifted to I.C.U. in unconscious stage. Opp.party no.1 Doctor told the complainant no.1 that there was a rupture to large intestine and thereby faeces drifted in peritoneum cavity existed. Hence, it has created gases resulting in pains. Opp.party no.1 corrected the said rupture but avoided family planning operation. Mrs.Bharati was feeling uneasy and lot of discomfort was experienced. Opp.Party no.1 advised not to provide any liquid/water to the Mrs.Bharati. On 17/03/1997 at 2.00 at a.m. the condition of Mrs.Bharati had deteriorated. She was unable to breathe. Therefore, medical officer on duty called opp.party no.1/Doctor, who on examination declared Mrs.Bharati dead. Therefore, according to complainant, earlier operation was performed negligently ad thereby, large intestine was ruptured. The complications had caused death of Mrs. Bharati. Opp.party nos. 2 to 7 has assisted opp.party no.1 and therefore, complainant filed consumer complaint before the Forum below for deficiency in service rendered on the part of opp.party nos. 1 to 8.

Opp.party no.1 filed its written statement and contested the claim of the complainant. It stated that claim of the complainant is totally time barred. It pleaded that when complainant no.1 brought his wife to opp.party no.8/Vithai hospital, it did not provide infrastructure and another surgery was done at opp.party no.2/Rushikesh Hospital with the help of opp.party no.5/Mr.Ramesh Patil. It further pleaded that opp.party nos. 3, 4, 6 & 7 had assisted during the operation and curetting operation which was held on 14/03/4997 was done with due care. There was no negligence on the part of opp.party no.1. As the pain continued on next day, exploratory laporatomy was decided. Since Mrs.Bharati was bulky and her general condition was not good therefore, probable complications were explained to the complainant no.1. The rupture of large intestine was closed. The drifted faeces were removed and peritoneum cavity was cleaned and due care was taken by opp.party no.1. There was no negligence on part of opp.party no.1. It was totally was an accident. The large intestine was not ruptured during the curetting but it is due to Ulcer and hence, the complaint is not tenable and finally prayed for dismissal of the complaint. Opp.party nos. 2 to 8 also filed the joint written statement and denied the allegations made against them. It pleaded that opp.party nos.2 to 8 did not carry any responsibility as no services were rendered by them to Mrs. Bharati. They further pleaded that in order to overcome the complications opp.party no.2 to 8 were involved and corrective surgery was undertaken. The patient died due to complications i.e. infection was due to rupture of large intestine. During curetting the rupture to large intestine could be caused and therefore, faeces matters drifted in peritoneum cavity, and causes, septicaemia. Therefore, opp.party nos. 2 to 8 had tried to correct the complications and hence, there is no negligence on their part and hence, there is no liability, and finally prayed for dismissal of complaint.

We heard Adv.Shri G.P.Chavan for org.Complainant, Adv.Shri Anand Patwardhan @ Adv.Smt.Anita Marathe for Org. Opposite party nos.2 to 8. None for opposite party no.1. Perused the record.

The evidence brought on record as well as defence makes it clear that second surgical intervention was a correction measure and it was not a second operation for removal of ectopic pregnancy. Opposite party no.5 admitted in evidence that when the abdomen of Mrs. Bharati was opened, a large intestine was found ruptured and fiecal matters in peritoneum cavity and it was found smelling foul. He had closed the rupture of large intestine, cleaned the peritoneum cavity. However, postmortem does not show any perforation to uterus. However, Civil Surgeon, Nashik had opined that there was no negligence and there are other medical causes of internal perforation. The opposite party initially thought that there might be ectopic pregnancy, but has taken precaution of taking x-ray which show gases under diaphragm, as a differential view. Exploratory laporatomy showed that there was perforation to intestine. Dr. Ramesh Patil, Surgeon told in the cross-examination that perforation of the uterus can be automatically sealed but show a scar for sometime and postmortem report did not mention such scar. The criminal case judgments also say there was no relation between perforation and MTP. However, the complainant did not examine any expert: (a) Gynecologist, (b) Surgeon, (c) Endoscope Surgeon, etc. Thus, the record does not prove that there was a tear caused to uterus wall during MTP. The operating doctor had enough skills, qualifications and her attendance from beginning to end did not prove that she deliberately was negligent. Postmortem report says that it was Cardio Respiratory Failure due to septicemia due to peritonitis and the second operation was in respect of closing of rupture to large intestine, cleaning of peritoneum cavity are not at dispute. Mere presumption or hypothetical analysis not withstanding the events or without opinion of expert Gynecologist, Endoscopic surgeon, the opposite party no.1 cannot be held as medically negligent. However, the Forum below observed in its findings that appellant/Vithai Hospital, Nashik has failed to discharge the duties as a service provider to the patient. They failed to furnish necessary record such as admission card, discharge card, operation notes etc. In the instant case the complainant had not placed on record any expert opinion to substantiate the case and to levy serious charge of medical negligence against the Doctor. We therefore, inclined to dismiss the appeal filed by the complainant bearing no. 2384/2006 for enhancement of compensation. However, the Forum below directed op.party no.8 to pay Rs. 30,000/- to each of the complainants and observed in its finding that appellant/hospital has failed to discharge its duties as service provider to the patient. They failed to furnish the necessary records and also failed to give proper medical treatment. It is pertinent to note that opposite party no.8 has not treated its patient and nor the patient has asked any compensation from opposite party no.8. In fact, Dr.Babusaheb More is the owner of the appellant no.1/Vitahi Hospital & appellant no.2/Rushikesh Hospital. The complainant alleged that both the appellants are guilty for deficiency in service rendered by them since they failed to discharge the duties as service provider to the patient. However, the complainant has failed to provide any expert opinion in support of his allegation. The appellant no.1/ Vithai Hospital have not perforated the patient’s uterus. The patient was discharged and was readmitted and then shifted to Rishikesh hospital. Neither Dr.Kanchan Wanere nor patient has submitted a single word about the role of Vithai hospital in providing deficient services. Therefore, Forum has drawn a wrong conclusion about deficiency in service performed by Vithai hospital. Ulcer was detected and it can be caused due to colitis, gastro enteritis, ulcerative colitis etc. The large intestine was not ruptured during curetting but it is due to Ulcer. Therefore, it was an inherent complication, which occurs normally and spontaneously in 7/2 to 1% of such cases. What is expected of doctor is duty of care for treating such a complication. Such a complication of perforation was treated by standard line of treatment by appellant no.1 & 2 as per textbook norms.

Hon’ble Supreme Court has delivered a judgment in Civil Appeal no.3541/2002 decided on February 17, 2009 in case of Martin F.D’souza V/s. Mohd.Ishfaq (2009) 3 Supreme Court Cases 1. However, ruling of Martin D’souza is squarely applicable to the present case.

Hence, in absence of cogent and reliable evidence, the hospital cannot be held guilty of medical negligence. Charges are not substantiated by any proof. We are therefore, inclined to allow appeal no. 2432/2006 filed by the appellant i.e. opposite party no.8. In the result, we pass the following order:-



:-ORDER-:



1. F.A.No.2384/2006 filed by the org.complainant stands dismissed.

2. F.A.No. 2432/2006 filed by opposite party no. 2 and 8 is allowed.

3. Impugned order dated 13/1/2006 passed by the Forum below stands quashed and set aside as appellant/original opposite party no.8/Vithai Hospital/ Dr.Babusaheb More

5. No order as to costs.

6. Copies of the order herein be furnished to the parties.





(S.P.Lale) (S.R.Khanzode)

Member Presiding Judicial Member



Nbh