ALTAF AMIN BHAGAD vs DHANSUKH B.SHAH

COMPLAINANT who is son of the deceased Roshan Bhagat (deceased for short) has filed this complaint against the opponent, a surgeon, for recovery of compensation of Rs. 14,07,500/- on the ground that the deceased died on account of negligence of the opponent.

THE deceased suffered from Thyroid goitre for more than 5 years. She was under treatment of Dr. Mahesh Tandel, a physician for hyper thyrodism for about 4 years. It is the case of the complainant that he wanted to find out alternative was to cure thyroid of his mother and he, therefore, sought advice of Dr. Tandel. Dr. Tandel suggested three ways of treatment viz. medicines, radio therapy and surgical operation. THE complainant and his father were not willing to subject the deceased to radio therapy as it was dangerous. Dr. Tandel suggested to consult opponent for surgical treatment. THE deceased was, therefore, taken to the opponent''s surgical nursing home for consultation on March 29, 1994. THE opponent, after examining the deceased, was of the opinion that she should undergo pre-operative evaluation. THEreafter certain laboratory tests were made and opinion of Dr. Tandel was taken. Dr. Tandel opined that the deceased might be taken for operation subject to calculated risk of ''Left Bundle Branch Blockade'' (L.B.B.B.) THE opponent again examined the deceased and perused the reports of laboratory test and the opinion of Dr. Tandel before advising that the deceased may undergo operation. THE deceased was admitted to the opponent''s nursing home on April 4, 1994 at 9 a.m. and sum of Rs. 5,000/-was paid in cash to the opponent. THE deceased was given treatment by administering medicines, injections etc. as prescribed by the opponent. THE operation was to be performed on April 6, 1994. THE deceased was taken to operation theatre at about 8.45 a.m. on April 6,1994. Dr. L.F. D''Souza was called to administer anaesthesia to the deceased during operation. It is the case of the complainant that at about 9.30 a.m., the opponent informed him and other relatives of the deceased that the deceased had died on account of cardiac failure. Dr. Bhutra and Dr. M.R. Syed, both heart specialists, were called but both declared that the deceased was beyond help. In the background of the above facts, it is alleged that the opponent was negligent in giving medical treatment to the deceased. It is alleged that the opponent had undertaken to operate the deceased only to extract money from the complainant and other relatives of the complainant. Having regard to the fact that risk to the life of the deceased was involved, the opponent ought not to have undertaken to operate the deceased. On the above grounds, the complainant has prayed for recovery of compensation as stated above and costs from the opponent. The opponent has contested the complaint by his written statement Exh. 8. Besides raising technical objection that service rendered by a doctor to a patient is not covered by. the provisions of Consumer Protection Act, the opponent has denied the allegation made by the complainant that there was negligence in giving treatment to the deceased. It is submitted that the deceased was suffering from thyroid goitre or hyperthyroidism for many years and she was under treatment of Dr. Mahesh Tandel. She was aged 50 and she came to consult the opponent on March 29, 1994 with complaint of swelling in neck. On examination the opponent found that the deceased was suffering from multinodular toxic Thyroid. The toxicity of the deceased was not under control with medical treatment and thyroid was increasing in size. According to the opponent, the deceased had developed multiple nodules in Thyroid which was toxic. It was, therefore, that Dr. Tandel had advised her to consult a surgeon. After examining the deceased, the opponent advised her for operation for thyroid after pre-operative evaluation by Dr. Tandel. Dr. Tandel did pre-operative evaluation and her E.C.G. was also taken. E.C.G. disclosed L.B.B.B. The opponent also had telephonic discussion with Dr. Tandel on April 4, 1994. Dr. Tandel informed the opponent that deceased was asymptomatic (i.e. without any cardiac complaint). She was prescribed Tablet Dilgem 30 mg. one tablet twice a day. Dr. Tandel further informed the opponents that the deceased had not complained of anything which was suggestive of any cardiac disease and that she had no other abnormality in E.C.G. In the opinion of Dr. Tandel, the deceased could be taken for operation with calculated risk of L.B.B.B. Dr. Tandel further informed the opponent that he had informed the relatives of the deceased about heart condition and the risk involved in the surgery. The note written by Dr. Tandel is at Annexure D to the complaint. The deceased was admitted to the hospital for surgical operation. It is admitted that deposit of Rs. 5,000/-was received from the relatives of the deceased. However, the said amount was returned to the relatives of the deceased after her death.

According to the opponent, on April 6, 1994 at about 8.15 a.m. deceased was taken to the operation theatre. Her pulse was monitored and found regular. Her blood pressure was also found to be 140/90. Cardioscope monitor was attached by Dr. D''Souza, Anaesthetist. Monitor showed that cardiac range was 120/-min. regular with regular cardiac activity. Anaesthesia was introduced at about 8.45 a.m. After the deceased was anaesthetised, neck part was made sterile and drapped with sterile towel and skin incision was made over thyroid region at about 9 a.m. It is submitted by opponent that while legating bleeding point it was noticed on monitor that the cardiac rate has accelerated to 270 per minute and pulse was found feeble on palpitation. At 9.01 a.m. pulse rate was 120/-minute regular feeble. Anaesthesia was discontinued and only oxygen was administered by I.P. Surgery was discontinued and treatment as stated in para 15(x) was given. It is submitted that at about 9.04 a.m. pulse was not palpable. Therefore, external cardiac massage was started and all efforts for resuscitation was made. However, there was no response. The relatives of the deceased were, therefore, informed regarding the gravity of the situation. Injection Adrinalin 1 amp. was given intracardiac. However, there was no response. Call was sent to Dr. Tandel at about 9.15 a.m. The relatives of the deceased were informed about her passing away. At about 10 a.m. Dr. Bhutra examined the deceased. At about 11 a.m. Dr. Syed examined the patient. During all these time resuscitation efforts continued at the request of the relatives of the deceased. Relatives of the deceased thereafter took away the body of the deceased. On the above facts it is submitted by the opponent that he was not in any way negligent in giving medical treatment to the deceased nor was there any mala fide intention or ulterior motive in operating the deceased as alleged by the complainant. There was thus no deficiency of service on the part of the opponent which would entitle the complainant to claim any compensation. On the above grounds, the opponent has prayed for dismissal of the complaint.

THE complainant has not examined any expert to prove the allegation of negligence made against the opponent. Dr. Tandel under whose treatment the deceased was for about 4 years has not been examined. He was the best person to depose about the condition of the deceased and whether or not surgical intervention was necessary. It further appears that it was on the advice given by Dr. Tandel that the deceased was sent for consultation to the opponent. Dr. Tandel again examined the deceased for pre-operative evaluation as suggested by opponent. It is true that Dr. Tandel did opine that the deceased might be operated with the risk of L.B.B.B. However, this does not mean that this opinion was against surgical operation. On the other hand, there is no reason to disbelieve the statements made by the opponent in his written statement which have gone unchallenged. It was having regard to the condition of the deceased that it was decided to operate the deceased with the risk involved. THEre is also no reason to disbelieve the statement of the opponent that the relatives of the deceased were informed about the risk involved. It would appear that all necessary precautions were taken by the opponent before deciding to operate the deceased. Unfortunately, the deceased died when the operation had just been commenced. Skin incision made by the opponent would not result in death of the deceased. In absence of any evidence to the contrary, there is no reason to disbelieve the statements which are made by the opponent in regard to the steps taken before the operation and during operation. It would appear that for some unknown reason the heart of the deceased stopped functioning and it was not possible to revive heart inspit of efforts made by opponent. THEre is absolutely no evidence on record to show that the opponent had not followed the standard medical practice or that on account of his failure to follow the standard medical practice that the deceased had died. As already observed above, it is unfortunate that the deceased died on operation table but the complainant should have been slow in making allegation of negligence on the part of the opponent without any basis or evidence. Mere fact that the deceased died in operation theatre is not enough to establish negligence on the part of the opponent. In our opinion the complainant having failed to establish negligence on the part of the opponent this complaint deserves to be dismissed. In the result, this complaint is dismissed. The complainant shall pay to the opponent cost of Rs. 5,000/-. Complaint dismissed with costs.