CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE, MUMBAI



First Appeal no.1470/2008 Date of Filing: 21/11/2008

@M.A.No.2077/2008- Delay

Consumer Complaint No.117/2006

District Consumer Forum: Thane Date of Order: 19/03/2009



Smt.Shardaben H. Kanabar, Appellant

Diwan Apartment, Flat No. E/325, (Org.Complainant)

BNavgahr Road,

Vasai(E), Thane.

V/S

1. Dr.Kanekar Shree Surgical Respondents

and General Hospital, (Org.Opp.Parties)

2, Kuber Apartment, Ambadi Road,

Vasai (W), Thane.

2. Dr.S.R.Kanekar,

Kuber Apartment,

Ambadi Road,

Vasai (W), Thane.

3. Dr.G.B.Kale,

Stella Apartment,

Manikpur, Vasai (W), Thane.



Corum : Justice Mr.B.B.Vagyani, Hon'ble President

Mr.S.R.Khanzode, Hon’ble Judicial Member.



Present: Appellant in person.

Adv.Shri Shrishail Kittad for respondents.



:- ORDER :-

Per Justice Mr.B.B.Vagyani, Hon’ble President:

We heard appellant in person and Adv.Shri Shrishail Kittad for respondents.

There is delay in filing the appeal. Therefore, application for condonation of delay is filed. There is delay of 117 days in filing the appeal. Applicant is widow. The delay though inordinate is not deliberate or intentional. We are therefore, inclined to condone the delay. Accordingly, delay is condoned. Misc.Application No.2077/2008 stands allowed.

We examined correctness of the dismissal order in the light of material placed on record. On 19/01/2004 husband of the appellant brought to the hospital of Dr.S.R.Kanekar. Shri Purav Ashwin Shah, who had knocked down the husband of the appellant brought injured to the hospital. Husband of the appellant has fracture in his left forearm. The Orthopedic Surgeon/Dr.G.B.Kale was called. He examined the husband of the appellant. The husband of appellant had a simple fracture in his left forearm. Husband of appellant was also examined by Dr.G.N.Yadav-Diabetologist and by Dr.Nitin More-Chest Physician.

Both of them after taking into consideration the condition of the husband of the appellant advised not to perform the operation under general anesthesia but it should be done only under regional anesthesia since condition of Appellant’s husband’s lungs was bad and it would not be advisable in such condition to conduct the operation under general anesthesia. Other tests were also carried out. Operation was fixed on 22/1/2004. Dr.G.B.Kale is M.S.(Ortho) from Bombay University. He has performed more than ten thousand surgeries involving various parts of body like spine, lungs, arms, joints etc.


He performed operation on 22/01/2004 with Dr.Raut acting as an Anesthetist. In an operation nail was used to set the left radius fracture while a plate was used to set the Ulna bone. Thickness of said nail was about 2mm thick. The nail had not bent that time. The operation was smooth and uneventful. On 24/01/2004 the husband of the appellant not in a fit condition and therefore, he was discharged from the hospital with instructions. As per advice, husband of the appellant came for check-up on 30/01/2004. Dr.Kanekar examined husband of the appellant. He changed the dressing of the wound. Husband of the appellant did not complain of any pain or discomfort on the operated left arm. The x-ray showed good alignment of the fracture with implants in proper position. Everything was in order. The appellant was advised to take pain killers and was asked to come for further follow up about a week thereafter. The husband of the appellant visited the hospital on 06/02/2004. The wound was found healed. All sutures were removed. The husband of the appellant did not complain of any pain or discomfort. Dr.S.R.Kanenkar had personally seen and examined the patient. The patient was again asked to come for further follow up.

The husband of the appellant was asked to see Dr.G.B.Kale. However, husband of the appellant did not see Dr.G.B.Kale. The husband of the appellant had been to Dr.Kanekar on 20/02/2004. The husband of the appellant did not complain of any pain or discomfort. Therefore, pain killers were not advised. The patient was asked to see Dr.G.B.Kale. However, husband of the appellant refused to see Dr.Kale. Thereafter, husband of the appellant never visited Dr.Kalekar and Dr.G.B.Kale.

Husband of the appellant was admitted in J.J.Hospital on 09/03/2004. Dr.S.A.Jagtap performed operation on 11/03/2004. Husband of the appellant died on 17/03/2004. The appellant has made a grievance that first operation performed by Dr.Kale was improper. Therefore, consumer complaint was filed.

It is tried to be submitted on behalf of the appellant that Dr.Jagtap had told that first operation was not properly performed and therefore, second operation was required to be performed. Dr.Jagap filed his affidavit. Dr.Jagtap nowhere stated that treatment given by Dr.Kanekar and Dr.G.B.Kae was improper. Dr.Jagtp has not made any adverse comments on the operation performed by Dr.G.B.Kale. Dr.Jagtap did not attribute any kind of negligence to Dr.Kale and Dr.Kanekar. There was absolutely no evidence placed on record to show alleged medical negligence. Charge of medical negligence is a serious charge. Burden lies on the complainant to show that operating surgeon acted negligently while performing operation. This primary burden is not at all discharged by the appellant. For want of evidence the District Forum has observed that complainant has miserably failed to establish charge of medical negligence. District Forum further held that the complaint is devoid of merits. Consequently, District Forum dismissed the complaint for want of evidence. Dismissal order does not suffer from illegality. No interference is called. In the result, we pass following order:-











:-ORDER-:



1. Appeal stands dismissed.

2. No order as to costs.

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



(S.R.Khanzode) (B.B.Vagyani)

Judicial Member President