Mr. Imran Ilahi Baksh Attar, )
R/at :- Survey No.427, Indira Nagar, )
Gultekdi, PUNE – 411 037. )… COMPLAINANT

-: VERSUS : -

1. Chitale Clinic Pvt. Ltd., )
2. Dr. Vinayak R. Chitale, )
3. Dr. Mrs. M. V. Chitale, )

Nos.1 to 3 having address at:- )
165-D, Railway Lines, SOLAPUR. )

4. Pune Adventist Hospital, )
5. Dr. Rohini Virathan, )
6. Dr. Philip Virathan, )

Nos.4 to 6 having address at:- )
Post Box No.1405, Market Yard Post, )
Salisbury Park, PUNE – 411 037. )… OPPOSITE PARTIES

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Per :- Mr. Gaikwad, President Place : PUNE

JUDGMENT

This is a case of medical negligence. The allegations leveled against the Opposite Parties are that they had failed to treat deceased Amina properly. The relevant facts are as under:-

[2] Deceased Amina was the wife of Mr. Imran – the Complainant herein. At the relevant time, she was in advanced stage of pregnancy. She was admitted in the hospital of the Opposite Parties Nos.1 to 3 at Solapur at 06:00 p.m. on 3/1/2004. She delivered a male child at about 07:50 p.m. by ‘lower segment caesarean’ operation. She was an indoor patient till 10/1/2004. She was discharged and was requested to take the treatment on OPD basis. The Complainant submits that he used to take deceased Amina in the hospital of the Opposite Parties Nos.1 to 3 during the period from 11/1/2004 to 19/1/2004. Deceased Amina got infected with septic due to very unhygienic condition of the operation theatre of the Opposite Parties Nos.1 to 3. The said operation was carried out in an undue haste. Proper care & cleanliness was not observed. The injury aggravated. On 19/1/2004, deceased Amina was again admitted in the hospital. On couple of occasions, the operations were performed. Those operations were performed on 24/1/2004 and 3/2/2004. During the course of operation, certain injuries were also caused to deceased Amina. Damaged flesh was removed from the injured portion. Deceased Amina was kept in the hospital, as an indoor patient, till 10/2/2004.

[3] The Complainant was not satisfied with the treatment given to the deceased in the hospital of the Opposite Parties Nos.1 to 3. The injury did not heal and the injuries continued to expand. The Complainant alleges that deceased Amina was detained, as an indoor patient in that hospital solely with an intention to extract money.

[4] On 10/2/2004, the Complainant had brought deceased Amina from Solapur to Pune. She was admitted in the hospital of the Opposite Parties Nos.4 to 6 on that very day. She was an indoor patient in that hospital from 10/2/2004 to 29/2/2004. The Complainant submits that the Opposite Parties Nos.4 to 6 did not carry out investigations from the laboratory. Most of the doctors were on stand-by duty. They gave the instructions on telephone to the nurses. The condition of deceased Amina deteriorated. She became critical. The Opposite Parties Nos.4 to 6 did not disclose the condition of deceased Amina and the Complainant was kept in dark. While deceased Amina was an indoor patient in the hospital of the Opposite Parties Nos.4 to 6, she expired at about 01:30 a.m. on 29/2/2004. The cause of death was recorded as ‘cardio respiratory failure’. The Complainant states that the electro-cardiogram (ECG) of the patient was already taken on 11/2/2004, and therefore, the cause of death given by the Opposite Parties Nos.4 to 6 is improbable. The Complainant states that all the Opposite Parties have treated deceased Amina negligently. The Complainant, therefore, prays that the medical expenses incurred by him, be reimbursed to him together with compensation & costs at Rs.11 Lacs & odd be awarded to him. He may be awarded interest on the said amount from the Opposite Parties, jointly & severally.

[5] The Opposite Parties Nos.1 to 3 have filed their written version. Earlier, they had raised an objection as regards the territorial jurisdiction of this Forum. A reply dtd.11/4/2008, on that application, was obtained. After hearing the submissions advanced before the Forum, by an order dtd.29/4/2008, the application was rejected.

[6] The Opposite Parties Nos.1 to 3 have thereafter filed their written version on 22/5/2008. They have reiterated their plea of lack of jurisdiction. The written version is of denial simplicitor. It is alleged that the Complainant has suppressed material facts. There are complicated questions of law & fact involved in the case as such, it would be appropriate to direct the Complainant to approach the Civil Court. It is then, pleaded that the Opposite Parties Nos.1 to 3 have been running their hospital at Solapur since the year 1973. It is a very reputed hospital. It is denied that the operation was performed hurriedly, negligently, carelessly and in an unhygienic operation theatre. It is further denied that the said operation was hurriedly performed so that the doctors could attend the other patients. It is then, pleaded that after the delivery, deceased Amina was discharged on 10/1/2004. She was instructed to take the treatment on OPD basis from 14/1/2004 onwards. The condition of newly born baby boy and deceased Amina was good. She was, therefore, discharged on 10/1/2004. On 14/1/2004, when the deceased was examined by the doctors, it was suspected that there was some induration i.e. thickness at the left corner of the wound. It was suspected to be a case of ‘Necrotizing Fasciitis’. She was advised to get herself admitted. Deceased Amina however, got herself admitted only on 19/1/2004. By then, the injury had aggravated. Operations were found necessary for removal of the damaged flesh. Accordingly, on two occasions i.e. 24/1/2004 & 3/2/2004, the operations were performed. Antibiotics were administered to the patient so as to prevent the spread of infection. Blood transfusion was also necessary. Medication to stop the spread of infection was also given to deceased Amina. The entire treatment given to deceased Amina is mentioned in the case-papers. It is, therefore, denied that there was any negligent act on the part of the Opposite Parties Nos.1 to 3, while performing any of these operations.

[7] The Opposite Parties Nos.4 to 6 have filed their separate written version. Obviously, they have no comment to offer as far as treatment given to deceased Amina till she was admitted to their hospital on 10/2/2004. They submit that the deceased Amina was admitted to their hospital on 10/2/2004 at about 12:00 noon in a very critical condition. She was immediately attended to by the doctors. There was a massive open wound found in the lower abdomen of deceased Amina. It was locally infected and had ‘septicemia’. She was, therefore, referred to a specialist surgeon namely – Dr. Timothy Jonahs. It is, therefore, denied that stand-by doctors had given the instructions to the nurses and on those instructions, treatment was given to deceased Amina. The record of the hospital clearly indicates that ECG was taken. Cardiologist - Dr. Umesh Akkalkotkar, was consulted. He had opined that there was ‘sinuous tachycardia’ and the treatment was to be continued. Thus, it is pleaded that all the allegations leveled against the Opposite Parties Nos.4 to 6 are false. It is also pleaded that having regard to the financial condition of the Complainant, at his behest, a certificate was issued to the Complainant stating inter-alia that the patient had developed severe infection of the abdominal wall and that she was still toxic. She needed extensive treatment and her recovery was uncertain. The aforesaid certificate was given so as to enable the Complainant to raise the funds from his community and the public at large.

[8] We have heard the learned advocates who appeared before us on behalf of the Opposite Parties. On number of occasions, an opportunity was given to the Complainant to advance his oral submissions. However, these opportunities had not been availed on behalf of the Complainant. On the other hand, written notes of arguments had been filed on behalf of the Complainant without there being any such direction to that effect. Written notes of arguments are taken on the record. We have perused the same.

[9] In a case of such nature, it is quite rudimental that it is for the Complainant to discharge the initial burden. Unless & until the Complainant discharges the initial burden, which is upon him, said burden never shifts upon the Opposite Parties and that they are not liable to prove the negative facts. Having regard to this basic principle, we have perused the complaint in very minute details. At the risk of repetition, it may be observed that as far as the Opposite Parties Nos.1 to 3 are concerned, it is pleaded that the ‘lower segment caesarean operation’ performed by the hospital at about 07:50 p.m. on 3/1/2004 was in a very unhygienic condition. It was performed with an undue haste & hurry. Proper care was not taken. These are general type of allegations without there being any particulars on the record. As against that the Opposite Parties Nos.1 to 3 have specifically pleaded that their hospital is one of the reputed hospitals from Solapur. It is in existence since the year 1973. Necessary cleanliness is punctually observed in the operation theatre. These and such other pleadings have been made by the Opposite Parties Nos.1 to 3. Now, the onus prima-facie had not been shifted upon the Opposite Parties Nos.1 to 3. We have seen earlier that the allegations are bare & simple without there being any particulars. Consequently, therefore, when there is word against word, we find that the said initial burden had not been discharged by the Complainant.

[10] Chances of deceased Amina being infected with septic were at the time of her three operations in the hospital of the Opposite Parties Nos.1 to 3. These three operations were performed on 3/1/2004, 24/1/2004 & 3/2/2004. On all these occasions, these are the aforesaid statements which are pressed in aid by the Complainant in order to show that these operations had been performed in an unhygienic condition. We find that no separate reasoning is necessary to discard the same.

[11] Deceased Amina came to the hospital of the Opposite Parties Nos.1 to 3 on 14/1/2004. She was examined by the doctors. Certain ‘induration’ viz. thickness at the left corner of the wound was noticed by the doctors. She was suspected to be a patient of ‘Necrotizing Fasciitis’. She was advised to get herself admitted. On 14/1/2004, deceased Amina did not get herself admitted. She came to the hospital on 19/1/2004 and got herself admitted. After a passage of 05 to 06 days, obviously the injury on her person had aggravated. It was only at that time on 19/1/2004, the operations were found necessary for removal of the damaged flesh. These operations were accordingly performed on 24/1/2004 & 3/2/2004. If, we appreciate the allegations made in the complaint vis-à-vis the case-papers filed by the Opposite Parties Nos.1 to 3, we find that utmost care & caution was exercised by the Opposite Parties Nos.1 to 3. The treatment that was given to deceased Amina has been stated in details in those case-papers. Reference to those case-papers is dispensed with having regard to the peculiar allegations made in the complaint. First of all, the onus is not discharged, and therefore, the Opposite Parties are not liable to prove certain facts, which they have alleged in their respective written versions.

[12] So far as allegations leveled as against the Opposite Parties Nos.4 to 6 are concerned, the same process of reasoning can very well be adopted. Apparently, deceased Amina was not operated upon in the hospital of the Opposite Parties Nos.4 to 6. She was admitted in that hospital in a very critical condition on 10/2/2004. There was a massive open wound in her lower abdomen. The same was locally infected. She was suffering from ‘septicemia’. As such, she was referred to an expert surgeon. His opinion was obtained. Patient’s ECG was taken and the opinion of an expert cardiologist was also obtained. Every possible care & caution that was expected to be taken by the hospital had been taken. There is no case made out by the Complainant that for treating the patient suffering from ‘Necrotizing Fasciitis’, any deviation from the normal treatment was made. The documents produced on the record by the Opposite Parties would speak for themselves.

[13] The other allegation is about the cause of death being ‘cardio respiratory failure’. According to the Complainant, ECG of deceased Amina was taken on 11/2/2004. She was aged about 20 years. It was, therefore, improbable that she would suffer from heart disease. That allegation has been denied by the Opposite Parties Nos.4 to 6, contending inter-alia that when her ECG was taken, it was found that there was ‘sinuous tachycardia’. She was examined by Dr. Umesh Akkalkotkar, an expert cardiologist. On account of infection, the possibility of the Complainant’s wife suffering from heart ailment cannot be ruled out in its entirety.

[14] In the result, therefore, we are inclined to hold that the allegations leveled by the Complainant are insufficient to show that the doctors had negligently attended deceased Amina. It is not brought on the record that the normal line of treatment to the patient suffering from ‘Necrotizing Fasciitis’, was deviated by any of the doctors. The treatment that was given to the deceased was in accordance to the standard procedure & practice. The allegations made in the complaint are not substantiated. As such, we have no other alternative but to dismiss the complaint.

Hence, we proceed to pass the following order:-

ORDER

The complaint stands dismissed.
No order as to costs.