CONSUMER EDUCATION RESEARCH SOCIETY vs ROTILAL B. PATEL

THIS complaint has been filed by Consumer Education and Research Society, complainant No. 1 and Gunvantsingh Ratansingh Chauhan, complainant No. 2 against General Practitioner, Surgeon and Anaesthetist, [for the sake of convenience, we will mention as complainant only]. The case was decided on a preliminary issue and thereafter the complainant made a revision and the case having been remanded is heard again and both the parties have tendered oral evidence also and that is why it has taken little long time. The grievance of the complainant as it appears from the complaint is that he went to the opponent No. 1- General Practitioner Dr. Ratilal B. Patel on 18.7.87 since he was suffering from fever etc. His relative Kishoresinh took him to the dispensary of opponent No. 1 since he was not his regular patient. After examining the complainant, opponent No. 1 suggested a course of injection since Jaundice epidemic was prevailing in the city. That the complainant requested to use disposable syringe and needle. According to the complainant the opponent No. 1 administered the injections through intramuscular route in the gluteal region on 18.7.87 and prescribed some medicines and course of three injections. A copy of the prescription given has been produced at Ann. A. Thereafter two injections were given on 20th and 21st July 87 and the last one was given on 27.7.87 and according to the allegation of the complainant the glass syringe and metal needle was hardly boiled. The complainant alleged that he complained of pain in the right upper arm on 23.7.87 where mild swelling developed at the site of injection. Therefore Kishoresinh, his relative took the complainant to the opponent No. 1 on 24.7.87 in the evening and informed of pain and swelling to the opponent No. 1 who examined the site of swelling and dispensed some tablets for oral use and asked him to report next day morning. The complainant was taken to the opponent No. 1 on 25.7.87 and some ointment tube for local use was prescribed. However, the swelling in right upper arm increased in the evening of 25th and the complainant therefore was taken to the dispensary of the opponent No. 1 again in the evening on 25.7.87 with alleged hyperpyrexia and severe pain in the right upper arm with huge swelling. The opponent No. 1 examined the swollen right upper arm and confirmed that an abscess had developed at the site of injection and advised that an incision and drainage (minor operation) was required to be done which was the line of treatment of abscess of such a degree. Mr. Kishoresinh wanted the opponent No. 1 to do the incision and drainage as early as possible and requested the opponent to do the needful. However, the opponent No. 1 told complainant to go to his dispensary on 27.7.87 in the morning so that he can make necessary arrangements with his relative one Dr. A.R. Desai in Civil Hospital, Ahmedabad. The complainant was taken to the opponent No. 1 in the morning of 27.7.87at 8.30 a.m. and the opponent No. 1 talked to Dr. Desai but he was busy with his examination and was unable to do the incision and drainage and the opponent No. 1 proposed to the complainant the name of the opponent No. 2 Surgeon Dr. Pavinbhai Togadia and was taken to him at 9 a.m. on 27.7.87. It is alleged that Dr. Togadia informed the complainant that there was nothing to be worried about. Incision and drainage was a routine operation and everything will be alright and that there was no need of laboratory investigation or testing blood group etc. and advised him not to take anything through mouth from 10 p.m. (must be 10 a.m.) onwards and was admitted in the hospital. Operation was to start at 3 p.m. The complainant was taken to the operation theatre at 3 p.m. and the opponent No. 3 Dr. D.K. Bhuva gave anaesthesia and the complainant became unconscious. The opponent No. 2 informed the relatives that the operation was successful and the complainant will gain consciousness within half an hour and it is further alleged that he left the hospital without waiting to see that the complainant regained consciousness and according to the complainant he was left to the mercy of the nurse for the post operative care.

IT is further alleged that the complainant all of a sudden started developing chill and rigours with pyrexia at 4 p.m. He was still unconscious. The nurse on duty administered an injection and told Kishoresinh that chill, rigours and pyrexia would be brought under control within 15 minutes. Chill and rigours were reduced but the body temperature of the complainant went on increasing. Therefore one more injection was administered at 4.15 p.m. whereas the relative of the complainant insited that the said nurse should inform and call a Dr. Togadia and Anaesthetist immediately since the complainant had not regained consciousness and his body temperature was raising. The nurse telephoned the opponent No. 2 Surgeon who arrived at the hospital at about 5 p.m. examined the complainant, checked his blood pressure which was alleged to be too low and, therefore, he started drip of 5% dextrose. The opponent No. 2 informed the relatives in attendance that it was necessary to remove the complainant to a bigger hospital. The opponent No. 1-General Practitioner was also immediately called. The complainant was transferred to the Civil Hospital at about 6.30 p.m. on July 27,87 who was accompanied by the opponents No. 1 and 2. He was admitted as an indoor patient in the emergency Ward of Civil Hospital. Drip of dextrose and supply of oxygen was immediately started. Having stated above facts, the complainant has alleged that the opponent No. 2 has mislead the complainant and his relatives that the complainant has regained consciousness at 3.30 p.m. and thereafter all of a sudden he had become unconscious. The opponent No. 2 also furnished wrong statements to the Civil Hospital Doctors that he had left his hospital only after the complainant regained consciousness. The Doctors of the Civil Hospital informed the relatives of the complainant that the condition of the complainant was very serious and Doctors started further treatment and after extensive treatment by Doctors of the Civil Hospital the complainant regained consciousness on 29.7.87 at about 9 p.m. and he was kept in the hospital upto 8.8.87 and was discharged on 8.8.87. According to the diagnosis of the Civil Hospital the complainant had developed septicemia + peripheral circulatory failure + ceribral annoxia + U.T.I. There is another allegation that after consulting the orthopaedic surgeon it was found that the complainant had mild Spasticity of all the four limbs and he is orthopaedically and physically handicapped following a pyrexial convulsion. In para 22 of the complaint the complainant has alleged that he has paid Rs.45/-as fees to the opponent No. 1 on 25.7.87 for hiring his services. He has also promised opponent No. 2 that fees charges would be given later on and has paid Rs. 50/- to the opponent No. 3 Anaesthetist in cash. However, opponent Nos. 1 and 3 have not issued any receipt thereof. In short, his allegation is that he had paid Rs. 45/- to opponent No. 1 and Rs. 50/- to opponent No. 3 in cash and had promised to pay the fees to the opponent No. 2 though he has not been able to produce any receipt of the payment made by him. He has further alleged that it was the duty of the opponent No. 1 to take proper care and to use disposable syringe and needle for administering injection. Mr. Kishoresinh has insisted the opponent No. 1 to properly boil the glass syringe and metal needles for prescribed period of 15 minutes to ensure proper sterilisation as a prophylactic to infection. However, the opponent No. 1 did not use disposable syringe and needle on 22.7.87 or did not care to sterilise the glass syringe and metal needle properly etc. This is alleged to be an act of negligence. Again, he has alleged that though the opponent No. 1 diagnosed abscess on 25.7.87 he advised for incision and drainage after 1 days after the diagnosis which also amounts to negligence. Similarly the opponent No. 2 being a highly qualified and experienced surgeon of long standing, a great responsibility developed on the part of opponent No. 2 in this type of case. The opponent No. 2 failed to exercise standard of care which a well qualified surgeon should have taken. The opponent No. 2 was callous and careless and had not taken adequate precaution in doing incision and drainage on the complainant. Opponent No. 2 had not taken proper and sufficient care during the operation as a result of which infection spread through the blood stream and he had left before the complainant had regained consciousness. So far as opponent No. 3 is concerned, he has also failed to exercise the standard care which a well qualified Anaesthetist like opponent No. 3 should have taken which is also a case of callousness and carelessness which has caused serious complications to the complainant. He has given a list of the amount spent by him totalling to Rs.1178/- and also has given a list of loss of earning, medical expenses incurred etc. and has claimed Rs.190,625/- as total damages as mentioned in para 36 of the complaint with interest and cost.

The opponents have filed their version and additional reply after the case was remanded. They have denied most of the averments of the complainant and has asserted that they had given proper treatment. In para 6 of the additional written statement the opponent No. 1 has mentioned that the complainant had fever atleast for several days prior to the coming and consulting him and since he is not personally aware and, therefore, does not know whose treatment the complainant No. 2 was undergoing at that time. He remembers that Kishoresinh, grandfather of the complainant had told that he was treated by some Doctors at Naroda and as fever did not come down, they had come for the treatment of the opponent No. 1. It is further stated in the written statement that since fever was not coming down, they insisted that injection also be administered so that fever can come down quickly. The opponent No. 1 was told that earlier pathology report was not available with them. The opponents asserted that disposable needles were used in all unjustness and the syringe was always properly sterilised. The complainant as well as the opponents have filed the affidavits. The complainant has called Dr. Mahendra A. Parikh with some records of Civil Hospital which the witness has brought with him. On examining the said records as has stated that the complainant was examined by Dr. Mahesh Trivedi on 10.8.93 and by Dr. Dipak Patel on 13.8.93 i.e. after 5 to 6 years from the date of the incident which appears to be for the purpose of proving some disability. He also stated that X-Rays have been taken of vertebral column (cervical spine) and X-Ray report was in the file which has been produced. On examining the report, the witness stated that the odontoid process is not visible in No. 2 vertebra but on seeing this no definite opinion can be given. He was told to get admitted in the hospital. From perusing the records the witness stated that he had not got himself admitted. The witness has further opined that this type of deficiency can arise in 90 to 95 per cent cases by birth and also on account of some minor injuries. The Advocate for the complainant drew the attention of the witness at page 143 wherein the following noting dated 8.8.87 has been made. "Septicemia + Peripheral circulatory failure + cerebral annoxia + U.T.I. (Urinary Tract Infection) which was the diagnosis at that time. The witness''s attention was also drawn to the date which was not clearly visible but opined that it might be 1.3.88 when the case had come to his O.P.D. but that was a case for the Neurophysician and, therefore, the same was sent to Neurophysician because I am Neurosurgeon. The attention of the witness was drawn to page 145 where it was mentioned that there was no deficit to the patient and it is written in English "G.C. better. No complaint". The meaning is general condition has improved and there was no complaint. Moreover it is written that the patient was better and N.A.D. (nothing abnormal detected) and only vitamin and iron tablets were prescribed. The aforesaid noting is made in the year 1987. He also agreed that when the patient was admitted on 27.7.87 and discharged on 8.8.87at that time the diagnosis was "Septicemia + Peripheral Circulatory failure + Cerebral Annoxia + UTI". When he was discharged he had improved and "N.A.D.'' remarks has been given. As questioned by Dr. Saraf the witness explained that Septicemia means infection on different parts of the body which is generally circulated through blood circulation which brings down the blood pressure which is known as peripheral circulatory failure. When B.P. falls down the brain gets less oxygen and on that account cerebral annoxia is created. In cross-examination the witness has stated that the present disease of the complainant has no direct relation with the difficulties of 1987 and in re-examination of Dr. Saraf, the witness has stated that the patient was prescribed vitamins at the time of discharge and no other medicine was prescribed. The learned Advocate of the complainant has not asked any question regarding giving injection by opponent No. 1, regarding swelling, regarding operation done by opponent No. 2 or anaesthesia given by opponent No. 3, or the condition of the patient and the treatment given by respective Doctors alleging the negligence. Even though Dr. Parikh was highly qualified Neurosurgeon, he was possessing Masters Degree and the relevant question could have been asked by the complainant. The complainant has only asked the question regarding the health of the complainant in the year 1993 to which also the Doctor has categorically stated that it has no relation with the difficulties of the patient or his treatment in the year 1987. In any view of the matter, this oral evidence is not related to the incident happened in 1987 except to show that the patient was admitted in the hospital, discharged from the hospital, the diagnosis made and the treatment given to him. We are writing this because the burden to prove that the treatment was not a standard treatment and/or the Doctors have acted negligently is required to be proved by the complainant and the complainant is not a qualified medical person to give any opinion.

AFTER the rejoinder-in-affidavits were filed, at the request of the Advocate for the complainant, the complainant was examined on 27.12.93. The complainant has stated that he was taken to Dr. Togadia, opponent No. 2 by Dr. Ratilal Patel, opponent No. 1 and he had told him that he (complainant) will have to pay the fees to Dr. Togadia and that the complainant told him that he will give. He has further stated that he went to Dr. Parikh because he had some difficulty in his health viz. he felt difficulty in walking, he was not able to stand properly nor he was able to lift weight and his difficulty increased in winter. In cross-examination by Mr.Mehta, the complainant has stated that prior to going to Dr. Ratilal, he was not sick and as far as he remembers he had gone to Dr. Ratilal on 18.7.87 because he had fever. However, in the next breath he told that he had taken medical report on 14th July because he had some fever and had gone to Dr. M.C. Trivedi and thereafter he had gone to Dr. Ratilal. He had also to admit that he had medicines for two days from Dr. Trivedi. To a question whether injection was given by disposable needle, he stated that he was given injection after boiling the needle. He has also stated that it is not correct that Dr. Togadia was not given any money. Having reproduced the case of the parties in details and oral evidence, we will now consider as to whether the complainant was able to prove that the treatment given by the opponents was not a standard treatment given for the alleged disease and (2) whether any of the opponents has acted negligently in treating the complainant. Before we come to any conclusion regarding the aforesaid two issues, we shall have to decide whether the complainant had taken any treatment of any Doctor prior to the treatment of Dr. Ratilal and whether this fact was disclosed by the complainant or his relatives to the Doctors. On perusing the complaint, the affidavits and examination-in-chief, the complainant has denied of having any fever prior to 18.7.87 or having taken any treatment. Subsequently, he had produced a Pathology report dated 14.7.87 and a specific averment was made that he had taken treatment of some other Doctor and he had fever prior to 18.7.87 and this fact was not disclosed to the opponent. Generally, a person will not go for a pathology laboratory for blood testing. The very fact that there is a pathology report which has been produced by the complainant himself clearly shows that he had some doubt regarding some infection especially when there was an epidemic in Ahmedabad. The report itself shows that he had malarial parasites and the witness had to admit in his deposition given on 27.12.93 where he first stated that he was not sick prior to 18.7.87 and thereafter in cross-examination he was admitted that he had done pathology test because he was suffering from fever and as fever persisted, he had gone to Dr. M.C. Trivedi and thereafter he had gone to Dr. Ratilal. He had also to admit that he had taken medicines of Dr. M.C. Trivedi and thereafter he had gone to Dr. Ratilal. It is, therefore, clear that the witness neither disclosed his previous fever nor the blood report to Dr. Ratilal. We do not know since how long he must be suffering from fever and he may be much weak on account of fever since this has some relevance in view of the Honorable National Commission''s judgment in case of Miss Gurpreet Kaur (Minor) v. Dr. R.K. Bhutani III (1993) CPJ 355 (NC)=1993 (3) CPR 409. The case put forward by the complainant in the complaint petition was that the she took her daughter Miss Gurpreet Kaur to clinic of the respondent for treatment of some eye disease for the first time on 8.4.1989 and that on preliminary examination, the respondent advised her to admit her daughter in his clinic, on the same day as the left eye of the patient required immediate operation. The eye was required to be removed and, therefore, the complainant in that complaint claimed the damages. The honourable National Commission dismissed the appeal. One of the reasons for dismissing the appeal was that the complainant had put up a false plea and also suppressed material facts such as those relating to the prior operation at Dr. Rajendra Prasad Centre for Opthalmic Sciences, All India Institute of Medical Sciences, New Delhi. To our opinion it is very relevant for a patient to give the previous history of his disease and the treatment received by him especially when such disease was immediately prior to be approaching the opponent No. 1. If he had taken a long treatment, he may have suffered weakness and if the Doctor had known what medicine was given to him it would help the other Doctor to prescribe proper treatment. We do not therefore say that merely because there was no disclosure the complaint should be dismissed. It has some consideration and relevance only. In the instant case, the complainant though called a Doctor and had full opportunity to examine other Doctors also who had given treatment or who could have given definite version as to the condition of the patient when he was admitted in the Civil Hospital has not examined other Doctors. The complainant was represented by a well conversant voluntary consumer association and by a competent Advocate but no material has been produced before us to show that the treatment which has been given by the opponents were not standard treatment and we are not convinced that either the opponent No. 1 Dr. Ratilal Patel or Dr. Pavinbhai Togadia (opponent No. 2) or Dr. D.K. Bhuva (Opponent No. 3) was negligent. On the contrary, the opponent No. 1 having known that the patient required even a minor operation has taken him to Dr. Togadia who appears to be associated with him. It also cannot be disputed that Dr. Togadia has taken any fees. Generally, a Doctor recovers the fees prior to the operation but in this case even if we come to the conclusion that the complainant had to pay the fees, the fees was not taken in advance. It is possible that on account of the relation with the opponent No. 1 who might be seeking the advice of opponent No. 2, the opponent No. 2 may not charge any fees if the opponent No. 1 is in difficulty. The very fact that the opponent No. 1 took the patient to a surgeon of repute, it cannot be said that he was negligent. That some drugs are known for occasional abscess if the same is administered by injection. In this case four injections have been given. The patient was suffering from fever even prior to 18.7.87 and unfortunately the abscess formed. The complainant has mainly relied upon the third injection which was alleged to have been given without proper sterilisation but the complainant is not able to show that the prior two injections were not given by disposable needle, in Ahmedabad there was jaundice epidemic and particularly hepatitis B virus. When the opponent No. 1 had given two injections by disposable needle, there was no reason to give the third injection without using the disposable needle. We have to believe him that when he had taken this much care of the patient, he would not be so negligent to use unsterilised needle when he had used disposable needle two times prior to the third time. The complainant is, therefore, not able to establish that the 3rd injection was given by unsterilised needle. The opponent No. 1 has also admitted that he had taken fees of Rs.45/- though the complainant was not able to produce the receipt. Similarly the opponent No. 3 Anaesthetist has also admitted that he had received the fees of Rs.50/-though receipt has not been produced. Both could have said that they not received any consideration and that Dr. Togadia says that he has not received any fees, which is also supported by the complainant. His only case was that he had promised to give the fees. Dr. Togadia has also produced the case papers which show as to how he had treated the patient.

THE main emphasis regarding the carelessness of the Doctor given by the complainant is that when he had not come to senses, the Doctor had left the hospital whereas the Doctor has specifically stated that the patient had come to senses. Generally, when anaesthesia and other medicines are given, the patient comes to senses and goes to sleep and whether he has come to senses can only be asserted by his response to stimuli. THE opponent has in terms stated that the patient responded properly. Both the opponent No. 2 and the Anaesthetist had seen him and being satisfied left the hospital for lunch and on receipt of the telephone he had immediately gone to the hospital and started treating the complainant. It may not be forgotten that the operation was very minor operation of pus drainage. If the complainant had not come to senses, how Dr. Togadia (opponent No. 2) can be blamed when the anaesthesia was given by the opponent No. 3 and there is no serious allegation against the opponent No. 3 about negligence. It is an everyday experience that with the same diagnosis and treatment, different patients react differently. THE only question therefore raises is whether the treatment which was given standard or not and in this case after considering the affidavits of the opponents and the treatment given by Dr. Togadia (opponent No.2) as shown in his case papers, the complainant is not able to point out that any of the steps taken by him was not a standard step. THE treatment given by the opponent No. 1 of giving injection of which prescription has been given to the complainant cannot be said to be non standard treatment. If the complainant was suffering from fever since long and when there is an epidemic giving of intra muscular injection cannot be said to be a non standard treatment. THEre are various reasons for infection. It is possible that it may be present when the treatment was given by Dr. Trivedi because infection was noticed on 25.7.87. It may be of origin of 10 days or origin of 4 days also but unless we know what treatment was given by Dr. Trivedi, we cannot jump to the conclusion that Septicemia was the result of the injection given by the opponent No. 1. In any view of the matter, the heavy burden is cast upon the complainant to prove that Septicemia was the result of either non standard treatment or negligence of the opponents and to our opinion the complainant has failed to establish this fact even though the qualified Doctor was called as witness to whom this question could have been asked by the complainant. It may not be forgotten that Dr. Ratilal Patel (opponent No. 1) personally accompanied the complainant to the Surgeon (opponent No. 2) for operation. He also went to the Civil Hospital with the opponent No. 2. The opponent No. 2 himself took the patient to the Civil Hospital and attended till he was removed to the medical ward though he had not received any fees and was only promised according to the complainant. We do not find therefore any negligence on the part of either of the opponents in treating the complainant. It should also be remembered that every person cannot be cured by a Doctor. There is no magic involved in it. The recovery of the patient depends upon many considerations including the body reaction, previous state of health, patient''s adherence to the treatment suggested by the Doctor, post operative treatment and lastly response of the patient. Doctors can be held responsible only if they were negligent or for not giving standard and proper treatment and the burden is upon the complainant to prove his case based upon negligence or want of proper treatment. We are aware that the complainant has suffered but merely because a patient suffers, in all cases the attending Doctors cannot be blamed otherwise a very unfortunate situation will arise which may ultimately destroy the social balance. ORDER The complaint is dismissed. In the circumstances there will be no order as to costs. Pronounced this on the 4th day of February, 1994. Complaint dismissed.