Gurudas S. Morajkar vs Seema Kharangate-Opposite party

THIS complaint has been filed by Shri Gurudas S. Morajkar alleging negligence and deficiency in service rendered by the opposite party Nos. 1 and 2 resulting in the death of his wife Smt. Sunita G. Morajkar. The complainant claimed compensation of Rs. 6,00,000/- on account of deprivation of earnings as well as mental agony.

BRIEFLY stated facts as stated in the complaint are as under : (a) Late Smt. Sunita was getting bleeding from the uterus and approached the opposite party No. 1 for treatment. A urine test done in the month of November, 2000 showed that late Sunita was also afflicted with high blood sugar. Late Sunita was admitted in the opposite party No. 2-Hospital on 5.12.2000, on the advice of the opposite party No. 1 that a major surgery of Abdominal Hysterectomy needed to be performed. (b) The O.P. No. 1 commenced treatment to reduce the blood sugar in preparation for the surgery. (c) Late Sunita was taken to the Operation Theatre on 8.12.2000 at 8.30 a.m. and was brought out at 11 a.m. in an unconscious state. The opposite party No. 1 informed that late Sunita had suffered a Cardiac arrest during surgery and that she had been revived after administering Cardiac massage. She further informed the complainant that late Sunita would have to be shifted to G.M.C. Hospital, Bambolim for further treatment since the opposite party No. 2-Hospital was incapable of managing the critical condition. (d) Acting upon the advice of the opposite party No. 1, the complainant shifted late Sunita to G.M.C. Hospital, Bambolim on 8.12.2000 at 5.30 p.m. Late Sunita never came out of her coma during her hospitalisation, at Bambolim and expired on 13.12.2000. (e) The complainant alleged absolute negligence, non-professional attitude and carelessness on the part of the opposite party No. 1.

Upon being noticed, the opposite party Nos. 1 and 2 filed their reply along with Annexure of case papers. The opposite party No. 3 filed its reply through its Senior Divisional Manager.

The opposite party Nos. 1 and 2 resisted the complaint and denied the allegations made by the complainant. They denied that late Sunita Morajkar was earning salary of Rs. 5,000/- per month. It is their case that late Sunita was suffering from an ailment medically termed as "Menorrhagia". She did not respond to the treatment adopted by opposite party No. 1 and her problem continued intermittently. In October, 2000 the opposite party No. 1 carried out the D & C procedure on late Sunita, however, in spite of the said procedure late Sunita again reported persistence of irregular and excessive bleeding per vagina for 6 to 7 days during the next menstruation. The opposite party No. 1 thereafter advised the patient to get ultrasound scan of her uterus, which she got done and produced the report to her. As per the Ultrasound Scan Report, late Sunita had a fibroid tumor in her uterus, and the opposite party No. 1 found it necessary to conduct a major operation of "Abdominal Hysterectomy" for removal of the uterus. The blood analysis report showed that late Sunita was a diabetic having Fasting Blood Sugar level of 173 mgs./dl. against the normal range 70-100 mgs./dl. In order to get her blood sugar controlled before the major operation, she was referred to a cardiologist Dr. Venkatesh Molia who also found that the patient was suffering from mild hypertension. The patient''s blood analysis was repeated ten days later and it was found that she still maintained high fasting blood sugar level in spite of diabetic controls, as a consequence of which she was put on anti-diabetic medicines by Doctor Venkatesh Molia. The patient''s blood analysis was repeated a week later and it was found that her fasting blood sugar level had come down to 136 mg./dl. Dr. Venkatesh Molia opined that such fasting blood sugar level was within normal range and certified that the patient was fit to undergo operation and that the medicines prescribed by him should be continued. Dr. Venkatesh Molia also took E.C.G. of late Sunita to rule out cardiac complications. The opposite parties asserted that the date of the operation was fixed only after clearance was given by Dr. Venkatesh Molia and that the instructions given by Dr. Molia was strictly followed.

THE opposite party stated that the patient was admitted in the hospital on 5.12.2000 and her condition was closely monitored by the opposite party No. 1, Dr. Molia and the anaesthetic Doctor, Dr. Vijay Khandeparkar. As a matter of abundant caution, the opposite party No. 1 availed the services of another well known Gynaecologist Dr. Prabhudesai to assist during the operation. The opposite party submitted that after the uterus was successfully removed and the external abdominal sutures were being put for closing the abdomen, the anaesthetist reported sudden cardiac arrest and that no pulse of the patient was felt, thereafter, external cardiac massage procedure was carried out for reviving heart beats and the patient was also given necessary life saving drugs and was also duly ventilated. The patient was successfully revived but was found unconscious. Dr. Molia who was called for emergency visit, opined that the patient must have developed "Cerebral Odema" during the cardiac arrest and advised need for hyper ventilation in addition to the medical line of treatment. There was a consensus among all the doctors present that the best facilities for such treatment were available at G.M.C. and the complainant and his family members who were present outside the Operation Theatre were informed of the complication and of the opinion to shift the patient to G.M.C. Hospital. The opposite party No. 1 accompanied the patient along with all reports and briefed the doctors of G.M.C. Hospital on the history and condition of the patient at the time of admission. The opposite party No. 1 also visited the G.M.C. Hospital to monitor the progress of the patient.

THE opposite party No. 1 submitted that she was holding the degree of M.D. (Obstetrics & Gynaecology) from Goa University issued in the year 1991 and the assisting doctor, Dr. B. Prabhudessai was also holding M.D. degree in the same field issued in the year 1983. Complainant and opposite party No. 3 filed affidavits in evidence. The opposite party No. 1 Dr. Seema Kharangate expired on 7.7.2002 during the pendency of the complaint, and this Commission by an order dated 22.1.2003 directed that the proceeding against the said opposite party stood abated. It may be noted that the complainant did not take any steps to bring the legal representative of the deceased on record. Heard lengthy arguments advanced by Counsel for the parties. learned Adv. E.O. Mendes submitted that the case papers had been manipulated, took us through the documents annexed to the opposite party''s written version and those submitted to the Police. He pointed out that the surgery was conducted despite the fact that fasting blood sugar level was above normal limits and that no blood analysis was done on the day of surgery. He submitted that spinal anaesthesia ought not to have been administered to a patient having high fasting blood sugar level and high blood pressure, and that the surgery was fixed on 8.12.2000 in haste when when the condition of late Sunita did not warrant an emergency operation. He pointed out the post-mortem report had shown fracture of ribs of the patient and attributed this to the negligence of the opposite party. He submitted that the hospital was liable for the negligence of its staff and in support of his contention he cited Krishna Behari Agarwal v. Bombay Hospital, 1998 (1) Bom.CR (CONSUMER) 60.

LEARNED Adv. S. Usgaoncar strenuously argued that in cases of medical negligence, cause of action does not survive against the estate or legal heirs of the deceased doctor and that the maxim "Actio personalis moutur cum persona" applied.

HE submitted that opposite party No. 1 Dr. Seema Kharangate had expired during the pendency of the complaint and that her death brought to an end the cause of action and the right to sue. In support, he cited Balbir Singh Makol v. Chairman, Gangaram Hospital, I (2001) CPJ 45 (NC)=2001 NCJ 172 (NC) and G. Jayaprakash v. State of Andhra Pradesh, AIR 1977 AP 20. He next took us through the evidence produced by the complainant and submitted that there was no evidence whatsoever to establish negligence on the part of the opposite parties. He submitted that neither the complaint nor the supporting affidavit made any allegation of negligence against the opposite party No. 2-Hospital. He submitted that the opposite party Nos. 1 and 2 had followed and approved medical line of treatment and that the surgery had been performed only after due clearance was given by the consultant Cardiologist Dr. Molia. He submitted that the allegations of negligence were not established by acceptable evidence and cited S.B. Kadkol v. N. Chandrashekar, 2000 (1) CPR 131 (Kar).

Learned Adv. J.F. Mello submitted on behalf of opposite party No. 3 that no cause of action survived against the opposite party No. 1 and that the complaint ought to be dismissed. He brought to our notice Puran Singh v. State of Punjab, (1996) 2 SCC 205.

CONSEQUENT to the death of opposite party No. 1 Dr. Seema Kharangate, the only issue that survives is whether the complainant proves that the opposite party No. 2-Hospital was guilty of negligence and deficiency of service. It is evident from the averments made in the complaint that the complaint was primarily directed against the alleged negligence of the opposite party No. 1. At para 9 of the complaint, the complainant listed out the alleged acts of negligence and carelessness on the part of the opposite party No. 1. There is no mention of any negligence or lack of nursing care on the part of the opposite party No. 2. In the affidavit-in-evidence of the complainant, other than a vague reference to the fact that the opposite party No. 2-Hospital was a concern started by the opposite party No. 1 and that, therefore, the services of the two are intermingled, there is no allegation of either lack of service or negligence of nursing care on the part of opposite party No. 2. In Balbir Singh Makol''s case (supra), the Hon''ble N.C. opined that no liability can accrue against the Hospital when there is no allegation of lack of service or negligence in nursing care by the hospital. The facts of Krishna Behari Agarwal''s case (supra), by the Counsel for the complainants do not apply to the facts and circumstances of the present case. In the cited case, the State Commission, Maharashtra recorded a finding that the hospital staff was negligent in the administration of insulin for a period of about 12 hrs. after admission on the diabetic lady patient treated for cardiac arrest. The State Commission found that "Diabetics millitus" caused by lack of insulin was one of the principal reasons which brought about the death of the patient. Medical literature was also produced in the said case. In the case before us, there is no specific allegation of negligence against the opposite party No. 2.

IN the light of the above, we find that the complainant has failed to prove any act of negligence or deficiency of service on the part of the opposite party No. 2-Hospital and we, therefore, find the issue in the negative. Further, consequent to death and abatement of the complaint against the opposite party No. 1, nothing survives against the opposite party No. 3-Insurance Company, and the said party is accordingly discharged. In view of what is stated above, this complaint is dismissed. In the circumstances, parties shall bear their own costs. Complaint dismissed.