1.       Heard Mr. Amol Acharya, Advocate, for the appellants and Mr. V.B. Srivastava, Advocate, for the respondent. 

2.       The office has submitted report that the appeal has been filed with delay of 89 days. The appellant has filed IA/10465/2016 for condoning the delay in filing the appeal. In this IA, the appellant has stated that certified copy of the impugned order was received on 10.06.2016. Thereafter, the appellants searched an advocate in Delhi for filing the appeal. The records of State Commission were in Hindi as such it took time in translating in English. The appeal was filed on 07.10.2016. For the reasons given in the IA, we condoned the delay in filing the appeal. IA/10465/2016 is allowed.

3.       Dr. R.K. Agarwal and others (the opposite parties) have filed above appeal from the order of Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench, Kota dated 30.05.2016 passed in CC/20/2007, allowing the complaint and directing the appellants (the OPs) to pay Rs.10/- lacs as compensation and Rs.51000/- as litigation cost to the complainant. 

4.       Sumit Srivastava (the respondent) filed CC/20/2007 for directing the appellants to pay (i) Rs.3230334/- as compensation; (ii) litigation costs; and (ii) any other relief, which is deemed fit and proper in the facts and circumstances of the case. The complainant stated that Smt. Asha Srivastava (the patient) was his mother. She suffered from insect bite, due to which, there was redness in her leg. She went, walking on her feet without any help, to Sudha Hospital & Medical Research Centre Private Limited (for short ‘the hospital’) on 13.08.2006 at 9:45 hours. 13.08.2006 was Sunday and the OPD was closed. The receptionist of the hospital asked the patient to go to Emergency, where doctor was available. The patient went to the Emergency, where Dr. Hasendra Singh (OP-3) examined her and told that she was suffering from “cellulitis and septicaemia” and her leg had to be amputated and asked the staff to admit the patient and bring her in ‘Operation Theatre’ at 13:00 hours, when it would be free. The patient along with the complainant went to ‘Operation Theatre’, where she was examined by Dr. Sharad Bhargava, who told that there was slight swelling in the leg, due to insect bite and it would be cured from medicine. After dressing on redness, the patient was asked to go to her home. As soon as the patient and the complainant came out from ‘Operation Theatre’, Dr. Hasendra Singh (OP-3) again came and told that this was symptoms of ‘cellulitis’ and amputation of the leg was extremely urgent. The complainant informed that Dr. Sharad Bhargava had examined her and told that this was not ‘cellulitis’ then he told that Dr. Sharad Bhargava knows nothing. Everything would become clear after blood test. Dr. Hasendra Singh (OP-3) took them in his clutches and after discussing with Dr. R.K. Agarwal, admitted the patient in a half constructed room stating that Emergency/Private/General wards were fully occupied. On his prescription, the hospital staff took blood samples for tests of HIV, TLC, DLC, Urea, Creatinine, prompt Blood Sugar Test, complete Urine, X-ray chest and L.F.T. and sent for investigation in the laboratory of the hospital. Before coming the test report, OP-3 gave some anti-biotic to the patient due to which, headache and dizziness was started and she became restless. When the patient complained about headache and dizziness to OP-3, then he told that if any medicine for dizziness is given then there was chance of heart attack and paralysis due to its effect. After X-ray, he would start drips and medicine through it would be given. She was sent for chest X-ray in condition of headache and dizziness in evening. Test reports came in evening on 13.08.2006, which showed as:-

Urine: Within normal range including diabetes well under control, urinary  

           tract infection was curable with medicines.

Hb:  11.4 gm, confirmed her fitness.

Sugar Random: 9.30 mg/dl within normal value.

Serum Creatinine: 1.4 mg/dl, indicate kidney and renal status were normal.

Urea: Slightly higher, due to hot weather and less intake of water.

T.L.C.: 9800, normal and no indication of septicaemia and cellulitis.

D.LC. : normal limits

L.F.T.: normal limits.

  After, X-ray, the patient was started infusion of drip on 13.08.2006 in evening @4 ml per hour, with assurance that till next morning the patient would become normal. Even after starting drip, the patient was screaming with headache and dizziness whole night. The complainant asked the compounder to call the doctor and give some medicines for headache and dizziness but the request was unheard and ignored. On 14.08.2006 at 6:00 hours due to increased headache, crumbling of the breathe was started. The complainant again insisted the compounder to call the doctor to attend the patient immediately. Although, the compounder assured to call the doctor but OP-3 came at 9:30 hours at the time of round in the ward. After looking to the patient, he shouted that the patient had septicaemia and asked the staff to shift her in the ICU immediately. The patient was shifted to ICU Bed No.5 at 11:00 hours on 14.08.2006 and fresh test for serum creatinine and serum potassium were prescribed. Thereafter, OP-3 attended the patient at 19:30 hours and after looking to the patient, stated that she was looking better but urine out-put was less. Her kidney was damaged therefore dialysis had to be done. Dr. Y. Gautam (OP-4) attended the patient on 14.08.2006 at 20:00 hours and told that due to less urine out-put, dialysis had to be done and thereafter everything would become normal. OP-4 again came to the ward in round in morning on 15.08.2006 then the complainant showed sonography/colour Doppler report of the patient dated 08.03.2006 told that all the reports of the patient were normal. Then OP4 told that the kidney was completely damaged and if you want to save the patient, then dialysis had to be done. OP-3 and 4 without taking any opinion from nephrologist and ignoring the test reports of the patient did dialysis of the patient on 15.08.2006. After dialysis, Hospital Record noting were as: (i) No improvement in parameters and blood; (ii) Clinical condition of the patient deteriorated as (a) Hypo Tonia; (b) Altered sensorium, the patient not responded verbal command; (c) Facial puffiness increased; (d) Blood pressure became high; (e) Upper G.I. bleeding and (f) Patient developed severe complications which is life threatening. OP-3 prescribed ‘Lizolid’ and other medicine, for which, the complainant had to deposit Rs.2550/- on 15.08.2006 separately. When OP-4 started plating the drip of ‘Lizolid’ to the patient, the complainant found that the bottle of the medicine was fully covered with fungus and objected in transfusing this bottle. This bottle was taken in possession by the complainant. The OPs again did dialysis of the patient and obtained Blood test reports on 16.08.2016 in which again nothing abnormal was noticed. The OPs did ultrasound of the whole abdomen on 17.08.2006, in which, every organs including kidney were normal but on the dictation of the OPs, radiologist has noted ‘Medical Renal disease’ in the report. Creatinine was 1.4 mg/dl on 13.08.2006, 3.0 mg/dl on 15.08.2006, 3.0 mg/dl on 16.08.2006 and 2.8 mg/dl on 22.08.2006. All the parameters of the patient were normal on 13.08.2006 and the dialysis were done without consulting with nephrologist only to extract money. Dialysis of the patient was done on 15.08.2006, 16.08.2006, 22.08.2006 and 25.08.2006 without noticing any improvement. OP-3 gave high dose antibiotic to the patient without any septicaemia or cellulitis, due to which, her condition was deteriorated day by day. Ultimately, the patient was discharged on 24.08.2006 noting as “discharge on request’. The complainant became helpless and finding no other option, took the patient to his house on 24.05.2006. The condition of the patient was further deteriorated then the complainant contacted the OPs on telephone, who asked to bring the patient tomorrow. The complainant brought the patient to the hospital again on 25.08.2006, where OP-4 again did dialysis of the patient. Thereafter, OP-4 prescribed for test of urea, creatinine and electro-light. The complainant took the patient to Gupta Diagnostic & Research Centre, Kota for her blood test. After giving the blood sample, the complainant brought the patient to his house, where she expired on 26.08.2006 at 14:00 hours. The patient was getting family pension and on its basis, she was bringing out her 2 nice and 2 nephews. After her death, they became helpless. Normally she would have survived for 15 years and there was loss of pension for 15 years. The family of the complainant was deprived from her love and affection. The patient suffered from physical pain due to wrong medication by the OPs and entire family suffered from suffered from mental agony. The hospital charged Rs.18476/-, for admission, doctors and bed charges. Rs.41858/- was incurred for test reports, medicine and Rs.70000/- was incurred towards travelling expenses and expenses after death of the patient. The complainant gave a legal notice dated 23.09.2006 to the OPs, calling them to pay compensation. In spite of service of the notice, the OPs did not respond. Alleging medical negligence on the part of the OPs, the complaint was filed on 12.07.2007. 

5.       The appellants filed their written reply stating that Dr. Hasendra Singh (OP-3) was MD (Medicine) and had been in medical profession since 1997. Dr. Y. Gautam (OP-4) was MD (Medicine) and had been in medical profession since 1984. He had worked for a period of 5 months in Mooljibhai Patel, Kideney Hospital, Gujarat. He had successfully done dialysis of more than three thousand patient and had vast experience. The patient Smt. Asha Srivastava had long history of diabetes and hypertension. The patient came to the hospital on 13.08.2006 with complaint of few days old insect bite on her left leg, which caused injury with swelling in surrounding area and pus was oozing from it. Dr. Hasendra Singh (OP-3) examined the patient in Emergency and noticed swelling on her face and her blood pressure was recorded as 200/120. He diagnosed cellulitis skin infection and septicaemia had developed to the patient due to diabetes. The patient was admitted in the hospital. Blood samples were taken for various tests. However, looking to the serious condition of the patient, the medicines were prescribed as test report would take at least six hours and the complainant was advised to show the test reports to Dr. R.K. Agarwal. OP-3 never frightened the complainant and the patient. The complainant did not provide necessary medicines as prescribed by OP-3 and showed the patient to Dr. Sharad Bharadwaj, who was a Specialist Plastic Surgeon. He also diagnosed cellulitis and suggested to continue on-going treatment. All the tests were promptly conducted, giving special attention. Haematology Investigation showed Neutrophils 87% (reference value 40-70%), Lymphocytes 19% (reference value 30-50%), Urea 53.70 mg/dl (reference value 14-45) and Alkaline Phosphatase 828.5 (reference value 100-304) Serum Creatinine 3.0 mg (reference value 0.5 to 1.5 mg) which confirmed acute infection. In order to provide immediate relief to the patient, the medicines were prescribed and diet chart was prepared to control diabetes. It has been denied that after admission of the patient, she was kept in a half constructed room. She was admitted in Sterilized Ward with complete nursing care. Headache was due to hypertension, for which, necessary medicines was given. Due to dizziness, transfusion of nitro-glycerine @4 ml per hour was started. Due to proper medication, Serum T3 was reduced to 47.94 (from 201.80) and Serum T4 was reduced to 1.54 on 14.08.2006. Blood Urea, Serum Creatinine and Serum Phosphatase of the patient were extremely high and urine out-put was very low which showed abnormal kidney function of the patient. The patient was on medication of diabetes and hypertension from long time as such there was situation of oliguria and acute renal failure. Dr. Hashendra Singh (OP-3) and Dr. Y. Gautam (OP-4) were qualified doctors. But before start of dialysis, they consulted with Dr. Aloke Jain, Nephrologist, who was a visiting doctor of the hospital. The complainant sign ‘informed consent’ form for dialysis after reading it on 15.08.2006. Ultrasound report dated 17.08.2006, showed stomach with full of water, urinary bladder was empty, in kidney-Parenchymal echogenicity was increased which showed that there was no urine formation to the patient and confirmed acute renal failure. Repeated dialysis were done to save the patient due physical condition, blood test reports and low out-put of urine. In spite of best effort, the condition of the patient could not be improved then the complainant asked to discharge of the patient on 23.08.2006 and the patient was discharged on 24.08.2006. It has denied that wrong medication was given to the patient due to which her condition was deteriorated. The patient was treated as per standard medical protocol. Alleged dependants of the patient have not been impleaded as the complainant. Exorbitant claim has been made without any basis. The complaint has been malafide filed to extract money from the OPs and is liable to be dismissed cost. 

7.       The complainant filed Rejoinder, Affidavit of Evidence of Sumit Srivastava, Prabha Tandon, Satyendra Kumar Sharma, Dilip Sharma, Chandra Prakash Nagar and documentary evidence. The opposite parties filed Affidavits of Evidence of Dr. Hashendra Singh, Dr. Y. Gautam, Dr. Pankaj Kasat, Nephrologist and documentary evidence. Both the parties filed their written arguments. State Commission, after hearing the parties, by the impugned order found that on the date of admission of the patient in hospital on 13.08.2006, her serum creatinine was 1.40 mg/dl, random blood sugar was 90.30 mg/dl. She came to the hospital with complaint of insect bite in her left leg. She was put on antibiotic and insulin. Her serum T3, serum T4, serum THS were found normal and serum creatinine was 2.20 mg/dl as per report (Ex.-2) on 14.08.2006. On 14.08.2006, the OPs observed that the patient had abdominal dissension, pharynal airway edema, poor oral intake. On 20.08.2006, serum Creatinine was 2.8 mg/dl and on 21.08.2006, serum Creatinine was 3.08 mg/dl. Sonography report Ex-6 dated 17.08.2006 showed her both kidneys were normal. Parenchymal echogenicity is increased and corticomedullary differentiation is normal. Parenchymal is the functional part of an organ. Echogenicity means ability to produce an echo. There was no obstruction either in kidney or in urinary tract. Medical literature shows that on the basis of increased Parenchymal echogenicity renal failure cannot be diagnosed. In any case dialysis was started on 15.08.2006 without having any report in this respect. As such, the OPs have committed medical negligence. On these findings the complaint was partly allowed and order as stated above was passed. Hence this appeal has been filed. 

8.       We have considered the arguments of the parties and examined the record. The patient visited the hospital on 13.08.2006 with complaint of redness due to insect bite. Dr. Hasendra Singh (OP-3) examined the patient in Emergency and noted in prescription sheet “insect bite in the left foot, serious discharge from the foot, Swelling of face”, BP-200/120, Pulse-96. He prescribed medicines (i) Inj. Tazar 4.5 mg TDS, (ii) Inj. Lizolid 600 mg BD, (iii) Inj. Metrogyl 100 ml, (iv) Inj. Rantac 1 mg TDS, (v) Inj. HAI according to blood sugar level every 6 hourly, (v) Tab. Amlong 5 mg OD. He prescribed test reports. He admitted the patient in general ward. Blood test report dated 13.08.2006 showed that blood sugar random- 90.30 mg/dl. (reference range 70.00-150 mg/dl.) Urea-53.70 mg/dl (reference 14-45.00), Serum Creatinine -1.4 mg/dl (reference 0.50-1.50). Liver Function Test was normal. Although in first noting in the prescription sheet dated 13.08.2006, long history of diabetes and hypertension has not mentioned but in second noting “complaint of cellulitis ankle left, DM, HT” have been mentioned.  On its basis, the appellants took plea that the patient had long history of diabetes and hypertension. The complainant has stated that blood pressure level was wrongly recorded, in order to admit the patient in hospital. In test report dated 13.08.2006, blood sugar of the patient was normal and there was no prescription for test of cholesterol. If blood pressure was 200/120, there could be no reason for testing cholesterol of the patient.        

9.       The appellants took plea that Haematology Investigation showed Neutrophils 78% (reference value 40-70%), Lymphocytes 19% (reference value 30-50%), Urea 53.70 mg/dl (reference value 14-45) and Alkaline Phosphatase 828.5 (reference value 100-304) Serum Creatinine 3.0 mg (reference value 0.5 to 1.5 mg) which confirmed acute infection. In written reply the appellant stated that Dr. Hasendra Singh (OP-3) had diagnosed cellulitis skin infection and septicaemia had developed to the patient due to diabetes. In written arguments filed in the appeal, the appellants stated that the patient was suffering from cellulitis and septicaemia- an infection cause due to invasion of bacteria into bloodstream, which can be life threatening.  

Increase of Alkaline Phosphatase is indicative of liver or gall bladder disorder, bone condition. But Liver Function Test was normal. Increase of Alkaline Phosphatase is not indicative of acute infection. But Dr. Hasendra Singh (OP-3) started very high dose antibiotic from 13.08.2006, even before coming blood test reports. Prescription slip dated 15.08.2006 showed that the patient had upper GI bleeding. The appellants are totally silent in this respect in their written reply and the appeal.

10.     Dialysis of the patient was started from 15.08.2006. The appellants have stated that before start of dialysis, they consulted with Dr. Aloke Jain, Nephrologist, who was a visiting doctor of the hospital. The prescription slip dated 15.08.2006 or prior to it does not indicate that Dr. Aloke Jain, Nephrologist was consulted. State Commission found that dialysis was started on 15.08.2006 without having any report in this respect. Sonography report Ex-6 dated 17.08.2006 showed her both kidneys were normal. Parenchymal echogenicity is increased and corticomedullary differentiation is normal. Parenchymal is the functional part of an organ. Echogenicity means ability to produce an echo. There was no obstruction either in kidney or in urinary tract. Medical literature shows that on the basis of increased Parenchymal echogenicity renal failure cannot be diagnosed. The appellants started high dose antibiotic since 13.08.2006 although blood test reports do not indicate infection was at very high level. High dose antibiotic resulted reaction. Upper G.I. Bleeding occurred on 15.08.2006.  Findings of State Commission in this respect do not suffer from any illegality. Compensation awarded by State Commission is reasonable. The counsel for the appellants relies upon M.A. Biviji Vs. Sunita (2024) 2 SCC 242, in which, the patient suffered from serious accident and during treatment Nasotracheal intubation was done for supply oxygen and it was held that it was not negligence. This case has no application in present case.

11.     So far as the arguments that no expert evidence has been produced by the complainant is concerned, Supreme Court in V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513, held that this Court however makes it clear that before the Consumer Fora if any of the parties wants to adduce expert evidence, the members of the Fora by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of the Fora especially when retired Judges of the Supreme Court and the High Courts are appointed to head the National Commission and the State Commissions respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or straitjacket approach that each and every case must be referred to experts for evidence. When the Fora finds that expert evidence is required, the Fora must keep in mind that an expert witness in a given case normally discharges two functions. The first duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioners or the hospital constitute negligence. In doing so, the expert can throw considerable light on the current state of knowledge in medical science at the time when the patient was treated. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. Although in many cases the opinion of the expert witness may assist the Fora to decide the controversy one way or the other.

ORDER

In view of aforesaid discussions, the appeal has no merit and is dismissed.