Per Shashikant A.Kulkarni, Presiding Judicial Member
This is a complaint under Sec.17 of the Consumer Protection Act, 1986 [hereinafter to be referred to as ‘CP Act’].
[1] Complainant is a practising advocate and consumer whereas opponent no.1 is nursing home and opponent no.2 is a treating doctor [Urologist]. Both opponents are service providers within the meaning of CP Act.
[2] Since 19/08/1999, complainant suffered from an ailment of passing blood through urine. It became alarming and painful by 23/08/1999. With a pathology report, the complainant approached Dr.Balani on 24/08/1999. Dr.Balani suggested certain tests to diagnose his ailment of bleeding and pain in abdomen probably because of kidney stone. Sonography did not show stone in kidney. Dr.Balani told the complainant that IVP test will clarify the position about location of the stone. On 25/08/1999 at about 8.15 a.m., the complainant approached Dr.R.M.Shah Memorial Centre, Bandra West for performing IVP test. Since there was a waiting time and complainant was in severe unbearable pains, he became extremely restlessness.
[3] Complainant allegedly at the request of opponent no.1 contacted opponent no.2, Urologist. It is alleged that the opponent no.2 told the complainant that cause of pain was only due to kidney stone and he did not required the IVP to be performed. The removal of stone requires surgery. Complainant then rushed to opponent no.1 hospital. Opponent no.2 commenced treatment for left ureteric calculus. He performed surgery and discharged the complainant on 25/08/2015 from hospital in the morning.
After the complainant returned home, he felt restlessness and breathless. On intimation to the opponent no.2, he persuaded the complainant not to worry about this, because the bleeding through urine will stop but the complainant’s restlessness continued. Family members took him to cardiologist at 3.00 p.m. on 25/08/1999 itself. Dr.Gokhale, Cardiologist started treatment on complainant. He required to take him inside the ICCU for the treatment of suspected angina. The complainant was suggested innumerable tests like ECG, sonography. He was also required to be given four blood bottles. For recovery, he took three months’ time. He suffered tremendous and unbearable pain and trauma.
Complainant therefore alleges that without performing IVP test, opponent no.2, working with opponent no.1, committed deficiency in service directly treating the complainant thereby his health condition worsen requiring treatment for heart ailment from cardiologist. The complainant has claimed compensation quantified to Rs.20 lac from the opponents jointly and severally.
Complainant relied upon the documents, medical papers and affidavit.
[4] Opponent no.1 has sworn the affidavit of written version on 19/10/2001 to deny the liability on the ground that there no role was performed by the opponent no.1 in the treatment of the complainant. Opponent no.2 took rooms in the hospital premises on Leave and Licence basis. There was no contract of service between the opponent no.1 and 2. Opponent no.1 has attached a copy of Leave and License agreement to the written version.
[5] Opponent no.2 filed written version cum affidavit on 19/10/2001. It is submitted that he is a qualified Neurologist practising in Mumbai for last several years. He is M.S.(Surgery)(Bom), MCh (Uro)(Bom) etc. His tract record is excellent. He successfully managed 1st Lithotripsy Centre of India . He expressly denied any deficiency on his part although he has treated the complainant almost as outdoor patient on 24/08/1999 to 25/08/1999 on emergency basis.
Dr.Shoukat Shaikh, a common friend of the complainant and opponent no.2, referred the complainant with information that Dr.Balani diagnosed a kidney stone. The complainant was suffering from unbearable pains requiring immediate expertise treatment through urologist like opponent no.2. He found that the complainant was suffering from left ureteric calculus which was apparent on his equipment installed in the hospital. It was not, therefore, necessary to have IVP report. Therefore, on 29/08/1999, opponent no.2 removed the stone through surgery.
Opponent no.2 had a latest and most advanced Lithotriptor of West Germany of Dornier Company, the only unit of its kind in city of Mumbai. Unlike other Lithortriptor, it works on Electro Magnetic Shockwaves which break the stone in fine granules which subsequently passes through urine. This machine has built in fluroscopy mechanism unit which gives the live image of the organ of kidney, ureter bladder etc.
On 24/08/1999, on complainant’ admission in opponent no.1’s hospital, diagnosis was done with the help of the aforesaid lithotriptor. The complainant was having agonistic/pain due to stone obstructions he could not stand IVP test as alleged by him. Therefore, on the blood report test, lithotripsy was performed. Stone was located in ureter. Hence the kidney was not subjected to treatment. Uretetic stone can be treated with low hemoglobin. IVP test prior to stone breakage on fluroscopic image is available on our lithotripsy machine.
Opponent no.2 injected dye and live picture was demonstrated on the screen which confirms the stone obstruction in the ureter. He carried out treatment was carried out in a proper scientific way. Complainant was discharged on 25/08/1999 in the morning that time was free from any symptoms. Even thereafter, the opponent attended the complainant several times at Nursing Home, discussed progress with Dr.Gokhale, opponent no.2 was satisfied about his clinical management for heart ailment. Statement about complications arose due to negligent insertion of D.J.Stent is mischievous and false statement. So also, statement regarding formation of stone in the right kidney was required to be removed after two months is not correct statement. By the time, complainant was totally free from symptoms. Complaint is filed with ulterior motive and deserves to be dismissed.
Opponent no.2 relied on affidavit, medical papers.
[6] We have heard learned authorized representative Mr.J.B.Gai for the complainant and learned counsel Mr.S.B.Prabhawalkar for the opponents.
Mr.J.B.Gai submitted that presence of kidney/urether stone can only be confirmed by a diagonstic test known as intravenous pyelogram [IVP], which is mandatory. Complainant therefore urges to hold the opponent no.2 guilty of deficiency in service and to grant compensation. However, he fairly concedes that the compensation amount claimed seems to be excessive.
On behalf of the opponent no.2, Mr.S.B.Prabhawalkar vehemently submitted that pre-diagnostic consultations do not necessarily involve IVP, sonography and MRI tests. Opponent no.2 had a machinery unit with himself to locate the stone for proper procedure even in absence of IVP. The affidavit to that effect submitted by the opponent no.2 has not been challenged. There is no adverse expert’s evidence even complaint filed affidavit re-joinder, just by simple denianls.
[7] After having considered the rival contentions, following points arise for our consideration, we record our findings thereto as follows:-
i. Whether IVP test before commencing of any procedure for lithotripsy was mandatory procedure as alleged in the facts of this case? No
ii. Whether opponent no.2 is guilty of negligence and therefore committed deficiency in service? No
[8] Opponent no.1 cannot shirk its liability, if it is to be imposed on the basis mutual lease agreement of leave and license unknown to the patients between opponent no.1 and 2. Agreement, per se, does not have any bounden effect on the third party. Moreover, opponent no.2 accepts that under any contract of service, complainant was treated as indoor patient in the hospital of the opponent no.2 for a day i.e. 24/08/1999 to 25/08/1999 till 11 a.m.
[9] Core question is about the bounden effect of IVP or MRI tests or sonography before start of procedure even the patient was treated on emergent basis? Undisputedly in this case, the complainant was to be treated on emergent basis. He was suffering from unbearable agnostic/pain.
Next question crops in is, was there any deficiency in the manner of performance in relation of service rendered by opponent no.2 ?
It is not to be forgotten that the procedure undergone on emergent basis was in the year 1999, precisely on 24/08/1999. On oath, opponent no.2, as the urologist made a statement that surgeon requested to treat complainant on emergent basis. Therefore, he treated the complainant on priority. He had the most advanced lithotripter from West Germany of Dornier Company-the only unit of its kind in city of Mumbai that time. The machine was built in fluroscopy mechanism unit which gives the live image of the organ of kidney. On 24/08/1999, on complainant’s admission, diagnosis was done, with the help of lithotriptor machine. Since the complainant was having agnostic/ pain due to stone obstruction he could not stand IVP test as alleged by him.
Even the complainant rejoined the written statement of the opponent no.2 by rejoinder dated 01/08/2002. He has not placed any expert’s view except mere denial of the statement of the opponent no.2. The above statements of opponent no.2 based on his expert knowledge as urologist have gone unchallenged. We agree, therefore, with the submission of Mr.Prabhawalkar made in that respect.
[10] There is presumption in medical negligence case that the complainant, as sufferer, automatically discharges the burden of proof of facts stated by him thereby onus shifted on the opponent doctor to rebut such presumption. Such presumption may be raised only in case where there is clear evidence. Prima-facie to indicate that things as have happened are so clear as broad light,in other words the case based on the principle res ispa loquitur
Initial consultation in this case was x-ray or CT scan (intravenous pyelogram) IVP, sonogram or MRI. Dr.Balani and referring Dr.Shoukat Shaikh on their basis their expertise and prelimary tests and from clinical examination diagnosed complainant suffering from kidney stone from the images of aforesaid machine lithotriptor. Opponent no.2, however, located the stone in the left ureter tube and found it to be left ureteric calculus to break into pieces.
There is niether evidence nor expert’s evidence which the complainant ought to have been produced, to establish opponent no.2’s negligence. In fact, within 24 hours, the complainant was discharged. There is no report as to the complainant was having low hemoglobin on record. Even otherwise, the complainant has utterly failed to prove the nexus between the surgery performed by opponent no.2 with the help of lithotriptor and angina caused to him on 25/08/1999 at evening.
[11] Complainant is an advocate. We are of the view that it cannot be believed that he does not know the consequences of unnecessarily dragging a person into a litigation for years together. Without being any proof of facts alleged about shortcoming imperfection culminating into deficiency due to alleged negligence at the hands of the opponent no.2, the complainant tried to claim huge compensation of Rs.20 lac to exert pressure on opponents without there being any statement of claim on different heads. In support of arguments, Mr.Gai relied the judgment of the Hon. National Commission in case of – D.H.Kumari & Ors. Vs. Nizam Institute of Medical Science, I (2013) CPJ 520 (NC). In the case decided, the patient was suffering from breast cancer. She was expected to prove negligence for not undergoing certain tests. Initial burden on her never shifted. In the instant case at hand, complainant failed to discharge initial burden that IVP test was mandatory. The facts in the case relied on and fact in the case on hand are different. Therefore, with great respect, it does not come to the help of the complainant.
For above discussed reasons, we are of the view that the complaint deserves to be dismissed vis-à-vis the complainant shall be saddled with compensatory costs payable to the opponent no.2. Hence,
ORDER
1. Consumer complaint stands dismissed with litigation costs quantified to Rs.25,000/- [Rs.Twenty Five Thousand only] and compensatory costs of Rs.50,000/- [Rs.Fifty Thousand only] payable to the opponent no.2 by the complainant.
2. One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
3. Copies of the order be furnished to the parties free of cost forthwith.
Pronounced
Dated 1st July, 2015.
