BABANRAO YADAV vs LION TARACHAND BAPPA HOSPITAL

THE complainant is the father of the deceased patient Shri Ashok Babanrao Yadav, who has filed this complaint, claiming compensation of Rs. 10,75,000/- for deficiency in service in providing proper medical treatment on the part of the O.P. i.e. Lion Tarachand Bappa Hospital of Sion in Mumbai (hereinafter referred to as Hospital).

IT is a case of the complainant, that his son was admitted in the hospital on 4.4.1995, for Kidney related disease. The complainant states that his son was given dialysis treatment initially everyday and subsequently on alternate days and that he was discharged when he felt better. On 23.6.1995, deceased was again examined by a Cardiac specialist, who suggested heart surgery.

On 25.6.1995, deceased was put on dialysis at 7.00 a.m. At 9.00 a.m. his condition became serious and the complainant, requested the nurse and the doctor present to contact Dr. Hemant Mehta, who was attending to him. However, according to the complainant, Dr. Mehta was not contacted. Instead, the doctor attached to the Hospital on duty gave him two injections, after which within five to ten minutes the patient died. It is the grievance of the complainant, that had Dr. Hemant Mehta been contacted and called in time, his son would have survived.

IN reply to the complaint the opposite party filed a written statement refuting the allegations of deficiency in service in giving medical treatment on their part. Opposite party has submitted that ample care, caution and diligence were taken at every state of treatment of the deceased and there were no lapses whatsoever on the part of the Hospital in providing proper medical services to the deceased. The opposite party is a Public Charitable Trust under the Bombay Public Trust Act and manages the hospital rendering services to the poor and needy. It is further asserted that the complaint discloses no cause of action against them and that the complaint is vague, unsubstantiated and without any basis. According to the opposite party, the complainant''s son was suffering from "chronic renal failure end stage renal disease" meaning that both the kidneys of the patient had failed and a natural function of purification of the blood was not possible, with the result the patient''s other vital organs would have got affected and shut down resulting in death and as such it was risky.

THE opposite party has also stated that the condition of the patient was aggravated by cardiac complications viz. enlargement of the heart and peri cardial affusion. THE opposite party states that in such condition there are only two alternatives of treatment before the patient i.e. (i) Kidney transplant, and (ii) lifelong dialysis, both of which are risky and have a high mortality rate. The opposite party says that the patient was properly and correctly looked after and treated during his entire period of treatment. The opposite party further maintains that Dr. Hemant Mehta was informed about the seriousness of the condition of the patient on 25.6.1995 at 9.00 a.m., who approved of the line of emergency medical treatment given to the patient and who reached the hospital at 9.55 a.m., since the said Doctor was a visiting Doctor of the hospital. It is stated that due to the peculiar condition of the health of the patient, he could not survive in spite of the best possible treatment provided by the hospital. The complainant filed a rejoinder in the form of the affidavit which contains denials in a general manner. He has however no allegations or grievance to make against Dr. Hemant Mehta. In view of the complainant''s case following points would arise for considera-tion : (1) Whether the complainant is a ''consumer'' under the Consumer Protection Act ? (2) Does the complainant prove deficiency in service in extending proper medical treatment, resulting in death of the patient, by opposite party ? (3) Whether the complainant is entitled to recover compensation ? (4) What relief ?

Our findings on the above points are as under : Point No. 1 - Yes Point No. 2 - No Point No. 3 - No Point No. 4 - Does not arise. Point No. 1 : Yes.

THE answer is in the affirmative though the contention of the lawyer of the opposite party is that the hospital is run by a charitable trust giving free medical treatment to the needy and the poor. THE complainant has produced supporting vouchers and receipts of payments made to the opposite party from time to time for the services/treatment rendered by them. This brings the complainant within the definition of the ''Consumer'' as laid down in Section 2(1)(d) of the Consumer Protection Act. Point No. 2 : No.

THE focus of the grievance of the complainant is non-communication of the serious condition of the patient to Dr. Hemant Mehta in time at a critical juncture when the patient was breathing his last, with the result that Dr. Mehta could not effectively extend emergency treatment to the patient when it was most badly needed. According to the complainant, the presence of Dr. Mehta at this time could have saved the life of the patient. The Advocate for the opposite party stated that the patient was given proper and necessary medical treatment including emergency treatment during the entire period of his hospitalisation i.e. 30.5.1995 to 25.6.1995, strictly as recommended/prescribed by Dr. Mehta. He also stated that Dr. Mehta was informed well in time about the serious condition of the patient and the line of emergency treatment given to the patient was as per his suggestions and guidance. This was also substantiated by a statement on oath by Dr. Hemant Mehta, who stated that even if he were present at the time of emergent critical condition on 25.6.1995, he could not have prevented the death of the patient.

We have carefully examined the complaint and averments of the parties and perused through the medical record of the hospital as well as the case-laws cited by the opposite party and we are of the view that there is nothing to establish that there was deficiency in service or negligence on the part of the opposite party in providing proper medical treatment or taking reasonable care, judging from the established standards of medical profession at the time of the treatment.

IT is further pertinent to note that Dr. Mehta, against whom the complainant has no grievance has clearly stated that his presence would not have retrieved the situation. Further, the case of the O.P. that the deceased was given treatment as was prescribed by Dr. Mehta, has not been challenged. Dr. Mehta, who was examined, has stated that treatment given was under his instruction and guidance, which, on the other hand, lends support to the defence of the O.P. The learned Advocate of the opposite party has rightly cited the judgment of the Hon''ble National Commission, namely Subhashis Dhir & Anr. v. Smt. Sanjukta Sengupta & Ors. and Damodar Valley Corporation & Anr. v. Smt. Sanjukta Sengupta & Ors., III (1999) CPJ 29 (NC)=1986-99 Consumer 5050 (NS), where a Commission has observed that, "Even if it assumed that the appellants had erred in their judgment, it cannot be held straightaway that there was medical negligence or deficiency in service". No expert medical opinion was brought to our notice to establish that the treatment given was wrong or negligent. The onus to prove this lies clearly on the complainant. Thus there is no satisfactory evidence before us of any deficiency in service or medical negligence on the part of the opposite party. Point No. 3 : No. In the light of our answer to Point No. 2, the complainant is not entitled to any relief in the form of compensation.

THE learned Counsel for the complainant appealed to this Commission to be sympathetic in the matter, considering the fact that the deceased victim was a younger son of the complainant, who died and award of compensation would serve some relief to the bereaved father of the victim. However in view of our findings as herein above and particularly when the same pertains to the negligence sought to be attributed to the hospital, it will not be appropriate to get swayed on such consideration. In this respect we wish to make reference to the judgment of the Hon''ble National Commission in the case of Life Insurance Corporation of India & Anr. v. Smt. Shashi Gupta, II (1994) CPJ 45 (NC)=1986-94 Consumer 660 (NS), when in the matter of such nature Commission responded. ORDER 1. THE complaint stands dismissed. 2. No order as to costs. 3. Office shall furnish copies of the order herein to the parties.

Complaint dismissed.