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Judgment
APPELLANT B.E. John Martin was provided assistance of Amicus Curiae at the commencement of the proceedings in this appeal. Subsequently, on 17.7.2007 another Amicus Curiae was appointed, but later, when the matter was finally heard on 27.7.2011, the complainant chose to present his case on his own. His appeal is against the order of A.P. State Consumer Disputes Redressal Commission in CD No.69 of 2002. The two complainants before the State Commission are the parents of one Dr. B. S. Dayanidhi, who was treated, for some time, by the OPs between 10.09.1998 and 23.8.2000, the day he died. According to the complainant, OP-1, who was a consultant nephrologist, performed a dialysis on the deceased and discharged him on 17.10.1998 advising that he needed frequent CADP (Continuous Ambulatory Peritoneal Dialysis) and would not be required to go for kidney transplant. Thereafter, the patient underwent monthly dialysis and his condition improved.
NEARLY two years later, he was again hospitalised on 16.8.2000 and was under the treatment of OP-1/Dr. Ammanna. Chest x-ray, according to the appellant, showed that his son was suffering from asthma. The complainant alleges that OP-1 and OP-3 both confirmed that the patient had no serious respiratory problems. However, he was kept under oxygen but with no paramedical staff for exclusive monitoring of his condition. On 17.8.2000, his condition suddenly became very bad and his heart stopped beating. Allegedly, it was due to failure of the oxygen cylinder and negligence of the staff. He was revived and shifted to OP-4 hospital. Eventually, he died in OP-4 hospital of acute respiratory failure on 23.8.2000. The complainant alleged that the deterioration in the condition of his son and his death was due to the negligence of OP-1 and OP-2 in diagnosis as well as treatment. Countering the allegations of the complainants, OPs 1 and 2 had a very different story to tell. The patient was brought to them on 10.9.1998 by his wife, in critical condition. A few months before that, he was under treatment in Guntur and in Vijaywada. He however, chose to be treated by OP-1 and remained under his treatment for 37 days, till his condition stabilized. According to OP-1, the deceased was a heavy smoker and addicted to drugs. When his wife brought him again on 16.8.2000, he was found to be suffering from chronic renal failure (CRF), end stage renal disease (ESRD), enlargement of heart and deterioration in the nervous system. According to the OPs, the patient had undergone a renal biopsy in 1994 at Apollo Hospital, Chennai, which showed that he was suffering from AMYLOIDOSIS, which is a very rare disease. He was on CADP and received blood transfusion every two months. All clinical parameters of the patient were below normal. After observing his condition for a day, OPs advised to shift him to a hospital where he could be given support of a mechanical ventilator.
The State Commission has noted that medical negligence is alleged against OPs 1 to 3. But, no relief is claimed against OPs 4 to 8. They are treated as pro-forma parties. The State Commission dismissed the complaint, holding that the complainants had failed to establish medical negligence or deficiency of service on the part of OPs 1 to 3.
WE have heard the complainant, Mr. Martin and the counsel for OPs 1 to 3. The first ground raised in the appeal, against the above order, is that the State Commission did not give the complainants an opportunity to cross-examine Mrs. Jayashyamala, wife of the deceased. It is however, admitted that a copy of her affidavit was made available to the complainants by the opposite counsel on 26.10.2005. There is no explanation whether such an opportunity was sought and if yes, whether the application was rejected by the State Commission. On his inability to produce evidence of medical negligence or deficiency of service, the appeal petition says" "Since no post mortem was conducted after the death of the deceased, it is not possible to prove with any physical evidence regarding the negligence of opposite party no. 1 & 2 " (ground No. 4). In the absence of evidence, he has apparently, tried to rely on his assumptions.
AN important assumption made by the appellant is in relation to the affidavit of the wife of the deceased viz. that" "The State Commission had purely depended on this invalid affidavit and considered it as true but the letter given by Jayashyamala Ex A 20 given voluntarily and which was marked by the complainants was ignored """(Ground No. 27). Here, the appellant has failed to appreciate that the decision of the State Commission is based on his inability to prove the allegations and not solely on the affidavit of Mrs. Jayashyamala. The facts, as emerging from the impugned order of the State Commission are that" a. The death could not have been due to non-supply of oxygen at OP-2 as the patient actually died in OP-4 hospital, nearly 24 hours later. The complainants have no grievance against OP-4. b. According to the death certificate issued by OP-4, he died of acute respiratory failure. c. According to the complainant, the deceased was never admitted in Apollo Hospital for treatment (as per his letter of 7.9.2001). But, OP-6/Apollo Hospital confirmed (letter of 17.10.2001) that he was admitted on 24.1.1994 for renal biopsy which showed he had AMYLOIDOSIS. He was discharged on 26.1.1994. d. The patient was brought to OP-2 Hospital by Mrs Jayashyamala, wife of the deceased. But, she was not joined as a complainant. e. The complainant did not produce any expert evidence in support of his allegation.
The State Commission dismissed the complaint, holding that the complainants had failed to establish medical negligence or deficiency of service on the part of OPs 1 to 3.
WE have heard the complainant, Mr. Martin and the counsel for OPs 1 to 3. In the arguments before us, the appellant did not point to any specific evidence on record in support of his allegations against OPs 1 to 3.
IN his written arguments submitted on 20.4.2010, the appellant/complainant states" "Dr. Amanna himself had admitted in his affidavit, statement of events and in cross examination that "Dayanidhi was leading a normal life on account of usage of C.A.P.D. for the past 2 years". Hence it is evident that Dayanidhi did not died on account of PRIMARY AMYLODOCIS @ ESRD. Dayanidhi himself had written that he is leading a normal life in his letter date: 04-07-2000 EX A 16 page 170. Then what will be the other diseases that lead to the death of Dayanidhi? None as per O.P.D. upto 26/27/7-2000. Then how Dayanidhi died when he was normal even upto 27-07-2000 as per OPD card?"
It is clear from the argument above, that the complainant is seeking a roving inquiry as a substitute for production for concrete evidence of medical negligence, which cannot be permitted. The law on the subject, as laid down in a number of decisions of the Supreme Court of India, does not permit it. The Apex Court, in the landmark decision in MARTIN F D"SOUZA Vs. MOHD. ISHFAQ (2009) 3 SCC 1 has laid down that" "34. A medical practitioner is not to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standard of a reasonably competent practitioner in his field. 35. There is a tendency to confuse a reasonable person with an error-free person. An error of judgment may or may not be negligent. It depends on the nature of the error."
In the light of the above, we agree with the conclusions reached in the impugned order. The appeal is accordingly dismissed and the order of the State Commission confirmed. There are no orders as to costs.