CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE





FIRST APPEAL NO.1438/2007 Date of Filing:-05/11/2007

IN CONSUMER COMPLAINT NO.180/1996 Date of Order:-01/06/2009

DISTRICT CONSUMER FORUM, MUMBAI SUBURBAN





Shri Vijay Vasant Gajare,

B-136/4, Government Colony,

Bandra (East),

Mumbai-400 051 ... Appellant (Org. Complainant)

-Versus –



1) Dr.Agarwal Children’s Hospital,

63, Gandhi Nagar, Near Samaj Mandir Hall,

Bandra (East),

Mumbai-400 051



2) Dr.Parul Agarwal,

C/o Dr. Agarwal Children’s Hospital,

63, Gandhi Nagar, Near Samaj Mandir Hall,

Bandra (East),

Mumbai-400 051 ... Respondents (Org. Opponents)





Corum :- Mr.Justice B.B.Vagyani, Hon’ble President,

Mr.P.N.Kashalkar, Hon’ble Judicial Member,

Smt.S.P.Lale, Hon’ble Member.



Present :- Mr.R.B.Paranjape, with Mr.P.B.Kadam, Adv.

for the Appellant.

Mr.V.N.Sagare, Adv. for the Respondents.



O R D E R



Per Mr.P.N.Kashalkar,Hon’ble Judicial Member



1) Being aggrieved by the judgment of dismissal of complaint passed in Consumer Complaint No.180/1996 decided on 4/10/2007 by District Consumer Forum Mumbai Suburban, Bandra, the original complainant has filed this appeal.



2) Facts to the extent material may be stated as under :



3) The complainant is working as an Assistant in the Mumbai High Court. He was having psychiatric problem and was under treatment of O.P. No.2 Dr.Parul Agarwal who was having Dr.Agarwal Children’s Hospital at Bandra (East). One day a call was given by wife of the complainant that complainant was unwell hence Dr.Agarwal attended the call and went to the house of the complainant. It was found that complainant was very angry, agitated and talking continuously and banging his fist on the bed. He did not attend duty since last 15 days and he has stopped taking meal and had spent sleepless nights. He needed urgent hospitalization. Hence, Dr.Agarwal asked complainant to get admitted in her hospital at Bandra. On his admission on 26/5/1995, he was administered intravenous injectables calmpose to calm him down. Blood pressure was low and O.P. started treating him with intravenous injectables. On 27/5/1995, in the morning, it was found that the three medial figures of his right hand was showing bluish discolouration. Hence, I.V. was discontinued and ointment was applied. Since that treatment did not improve the condition of the complainant, the O.P. No.2 advised that complainant should be taken to K.E.M. Hospital and she gave referral note accordingly. Immediately, complainant was admitted in K.E.M. Hospital and on early hours on 28/5/1995 he was operated at K.E.M. Hospital. Thereafter second operation was performed on 21/6/1995 and his fingers and part of palm was amputed because they were affected by gangrene. According to the complainant, the O.P.No.2 and her hospital staff was negligent while giving intravenous injectables. In the process artery got punctured and led to vasospasm then the said portion suffered nechrosis and consequently, it led to gangrene thereby complainant was rendered permanently disabled to the extent of 21%. Hence, he filed consumer complaint against O.P.No.1 Agarwal Children’s Hospital and O.P.No.2 Dr.Parul Agarwal claiming total compensation of Rs.4,90,000/- besides cost of Rs.8,000/- and also claimed interest at the rate of 18% per annum. The complainant filed affidavits and certain documents in support of his complaint.



4) The O.P. filed written statement and resisted the complaint being false and frivolous. According to O.P.No.2, she is psychiatrist and psychotherapist for the last nine years. She pleaded that complainant had been her patient since July-1992. He was suffering from major psychiatric illness having episodes predominantly irritable, angry expensive mood with continuous talking and irrelevant illogical thinking exhibiting belligerent and assault behaviour to the extent of causing injuries to self and others commonly known as Manic Syndrome. Disorder is called Bipolar Disorder. He was chronic smoker and was alcoholic. He had poor prognosis. O.P. No.2 pleaded that she had treated him and had done family counseling for three to four years and had enjoyed confidence of his family. On the call received from his wife he went to the house of complainant on 26/5/1995 at 4.00 p.m. She then suggested that complainant should be admitted in her hospital. On admission, she had given Insyste I.V. Cannula on his right hand. 5% Dextrose drips with anti psychotic drugs and Calmpose were started. He became restless and aggressive. He pulled out I.V. line in anger and would say that he did not need any treatment. Thereafter, I.V. line was restarted at another side. Residence doctor was in constant touch with her. The drip continued till 5 a.m. Resident doctor noticed swelling (edema) at I.V. side. It was discontinued and ointment Thrombophob was applied locally. When she went for round in the morning complainant was drowsy. Hence, his mental status could not be evaluated. His right hand was edematous. She removed IV Cannula immediately and advised to continue application of Thrombophob locally. She also started glycerin magnesium sulphate by local application. According to her at IV side is seen practically in all cases especially where patient is rowdy and uncooperative.



5) She pleaded that there was no negligence on her part during her treatment. She had decided to transfer complainant to the hospital having all facilities in the best of the interest of patient. The complainant preferred to go to K.E.M. Hospital. She had followed him up at K.E.M. Hospital but when complainant started blaming her she had stopped going to K.E.M. Hospital to look after the complainant. She asserted that there was nothing in the treatment given to the complainant at K.E.M. Hospital which would show that she was guilty of medical negligence. She therefore prayed that complaint should be dismissed with cost.



6) The complainant filed rejoinder and affidavit of Dr.Gajanan Ekbote, and affidavit of his relative-Shri Anand Naigaonkar. The O.P. filed affidavit of Dr.Shrirang K. Purohit and Dr.Sameer Kumtha.



7) On considering documents and affidavits and on hearing rival counsels, the Forum below found that there was no negligence on the part of O.P./Doctor in giving treatment to the complainant and there was no evidence to show that because of treatment given by O.P. the complainant had developed Nechrosis/gangrene which ultimately resulted in the amputation of his medial fingers. According to the learned District Forum, in every medical treatment, there is inherent risk and there is every chance of accident. In the instant case, according to the learned District Forum, it was mere an accident and therefore the Forum below was pleased to dismiss the complainant. Aggrieved thereby, the original complainant has filed this appeal.

8) We heard submissions of Mr.R.B.Paranjape, with Mr.P.B.Kadam, Adv. for the appellant and Mr.V.N.Sagare, Adv. for the respondents.



9) We are finding that the appellant has failed to prove that there was any medical negligence on the part of Respondent No.2. Appellant was suffering from Bipolar Disorder. He was the known case of that disease and Dr.Parul Agarwal/Respondent No.2 was family doctor treating complainant for the past three to four years. When she found that complainant had become restless, unmanageable and required constant monitoring and hospitalization, she advised complainant to get admitted in her hospital Dr.Agarwal Children’s Hospital/Respondent No.1. In the hospital, she had given intravenous injectables and the patient used to bang his hand every now and then and therefore in the process, he might have hurt the artery passing through the vein on his right hand where intravenous fluid was given. So, edema had developed. It was rightly noticed by Dr.Agarwal. She had advised local application Thrombophob ointment which normally is applied in such cases and when she found that the condition of complainant was not improving to her expectation, she immediately advised that he should go to a hospital having better facilities. When he was admitted in K.E.M. Hospital there was bluish discolor of nail beds of LR, MF, RF and hand movements preserved. No stretch pain. At this stage Dr.Agarwal ordered urgent transfer of the complainant to the bigger hospital and as suggested by wife of the complainant he was transferred to K.E.M. Hospital. Further treatment was undertaken by the complainant at K.E.M. Hospital. In K.E.M. Hospital, the patient was treated and his three middle fingers were amputed. There was an acute ischemic change of ulnar 3 fingers and he was advised to go in for plastic surgery as there was no major vessel problem. Four doctors examined the complainant in casualty. Neither of them reported in their finding a presence of haematoma (presence of collection of extravasated blood at the site) where the ulnar artery was allegedly punctured. The complainant was admitted in K.E.M. Hospital on 28/5/1995 and complainant developed gangrene approximately after 26 days and his three ulnar fingers had to be partially amputed on 21/6/1995. The discharge summary annexed to the complaint by complainant issued by K.E.M. Hospital clearly mentioned that complainant was having problem as “? pre gangrene due to intra-arterial injection of drug” question mark would mean that doctor was not sure that diagnosis was correct one even at the time of discharge from K.E.M. Hospital.



10) What is pertinent to note is the fact that the complainant filed his own affidavit and affidavit of Shri Anand Naigaonkar, and opinion of Dr.Gajanan Ekbote who after seeing the papers of the complainant opined that because of negligence on the part of supervisory doctors and nursing staff, complications developed to the complainant. The supervisory doctors and staff should have taken abundant precautions to see that I.V. line is patent and there is no extra vacation of blood. Dr.Ekbote filed affidavit on 10th day of June, 2001. He is residence of Pune and he has given opinion in favour of complainant. However, Dr.Ekbote did not make available himself for cross-examination by O.Ps. So, the Forum below rightly rejected his opinion since it could not be tested on the touchtone of cross examination. Whereas respondents filed affidavit of Dr.Kumtha and Dr. Shrirang Purohit. They have clearly stated in their affidavit that there could not have been an intra arterial puncture and there was no expanding haematoma found on or along the path of ulnar artery. Moreover, intravenous catheters are least traumatic to the veins. Extravasation is common side effect when patient is given I.V. injectables. Such side effect is not under control of treating physicians. Dr.Sameer Kumtha therefore clearly opined in his affidavit that after noticing bluish discoloration of fingers on his right hand the treating doctor stopped treatment and when she stops treatment complainant’s arterial pulsation were well felt movements and sensations of the right hand were normal. The bluish discolouration of fingers nails and fingers could be due to variety of reasons venous phlebitis and extravasations of I.V. fluids can also lead to bluish discolouration. He therefore opined that intra arterial injection was highly unlikely. Extravasation is the known complication in the patients whose behaviour is not under control. The management of extravasation was adequate in the circumstances. He also relied upon certain text books. We need not reproduce the same for the sake of brevity.



11) Dr.Shrirang Purohit is another expert who has given affidavit in support of Respondent No.2. He claimed that she was not negligent in treating the complainant and complainant suffered the problem because his own behaviour was unruly, uncontrollable. He was aggressive, uncooperative, pulling of drips again and again and that behavioural pattern increased the chances of extravasation of fluids from the vein. He also clearly opined that from the papers there was no evidence to support allegation of the complainant that there was an intra arterial puncture. He opined that had there been arterial puncture it would have been clearly visible and same would have been mentioned at the K.E.M. Hospital on 28/5/1995 when exploration of ulnar artery was undertaken. Question mark mentioned on discharge card clearly negatived the allegation of arterial puncture. In the principles of Harison’s Principles of Internal Medicine, it has been mentioned that cigarette smoking is a major risk factor for arteriosclerosis obliterans (see.Chap.266) and thromboangiitis obliterans (see Chap.269). It also aggravates peripheral ischemia and may adversely affect peripheral bypass grafts. It was the main contention of the appellant that doctors at Agarwal Hospital gave INTRA ARTERIAL injection and as a result the artery most probably ulnar artery was punctured and there was a bluish discoloration of the appellant’s right hand. This puncturing of the artery led to spasm nechrosis and consequent gangrene of the appellant’s right hand which ultimately lead amputation of the three medial fingers of his right hand hereby making him permanently disabled to the extent of 21% as certified by the K.E.M. Hospital. However, this contention is not finding support from the affidavits of the two doctors tendered by the Respondent No.2. The affidavit of Dr.Ekbote tried to support complainant has to be discarded for the simple reason that Dr.Ekbote did not make himself for cross examination by O.Ps and testimony of such witness can not be relied upon when two doctors of O.P. subjected themselves to cross examination by the complainant’s counsel. In any view of the matter on the material placed on record, it is very difficult to hold that complainant suffered amputation of three fingers as a direct result of medical negligence on the part of Respondent No.2 In fact, as per letter at page 25 written to K.E.M. Hospital on 27/5/1995 referring complainant to K.E.M. Hospital Dr.Agarwal clearly mentioned that Shri Gajre was her patient. He was being treated for Bipolar Disorder. He was admitted in the hospital urgently for violent behaviour. It was noticed that there was bluish discoloration of his three fingers of right hand hence I.V. was immediately removed and ointment Thrombophob was applied and he required urgent attention and therefore she was referring the patient to K.E.M. Hospital. This letter would itself prevail that Dr.Agarwal was taking good amount of care. She exhibited medical alertness in treating the patient and when she found that the complainant was violent, he was unruly, she directed that he should be admitted at K.E.M. Hospital for further treatment. The complainant had taken treatment for 20 to 25 days in K.E.M. Hospital where ultimately his three fingers were required to be amputed. That does not mean that the line of treatment given by Dr.Agarwal at her hospital was erroneous, improper and that she had not taken good amount of care and caution, which the doctors in her standing in this particular stream would have taken. So, applying the Bolam test, we hold that the appeal is appearing to be devoid of any substance. The complainant had not adduced evidence of medical expert from the field to nail down respondent No.2 to prove that she was guilty of medical negligence. Mere allegation of medical negligence per se is not sufficient to prove the case of medical negligence. In this view of the matter, we are of the considered view that the Forum below rightly dismissed the complaint since there was no proof that Dr.Agarwal had not taken due and proper precaution in treating complainant/appellant. As such, there is no merit in the appeal filed by the aggrieved complainant. Hence, we pass following order.



O R D E R

1) Appeal stands dismissed.

2) Parties are left to bear their own costs.

3) Copies of this order be sent to the parties free of cost.





( Smt.S.P.Lale ) (P.N.Kashalkar ) (B.B.Vagyani)

Member Judicial Member President