PRASANNKUMAR DIGAMBARDAS vs HARDASBHAI G. PATEL

-BY way of this complaint, the complainant has prayed for compensation in the sum of Rs. 15 lakhs on following brief allegations of facts. The complainant, a Diploma Tools Engineer had the first occasion to go to the opponent doctor on 31.10.1990 with complaint of fever and headache. The opponent doctor gave treatment for the said ailment and instructed him to take medicines regularly. Same happened on 6.11.1990 when complainant went for check up. The complainant again visited the opponent doctor on 7.3.1991 and informed him that he was not getting well with the medicines prescribed by the opponent doctor. He informed the complainant that regular treatment will have to be taken for a longer period. The complainant again visited the opponent on 6.7.1991 with the complaint of vomiting. The opponent informed that the complainant has sustained extensive weakness suggesting treatment for a long period. Complainant continued with the treatment. Once again, as his health further deteriorated, he consulted the opponent doctor on 9.9.1994. The opponent doctor prescribed medicines on that occasion also. That was repeated on 19.9.1994. Once again he had an occasion to visit opponent doctor on 11.11.1995 on further deterioration in the health. The opponent examined the complainant and asked him to continue the treatment. In spite of the fact that the complainant reposed faith in the opponent, he did not find any improvement in his health and, therefore, on 24.6.1997, 27.8.1997, 7.2.1998 and 12.2.1998 he once again consulted the opponent for medical check up and the opponent continued to prescribe medicines which the complainant went on taking for a long period.

THE complainant''s health deteriorated very much and he became serious on 7.3.1998. He was taken to opponent''s hospital and on that occasion the opponent referred the complainant to Dr. Sudhir V. Shah for medical check up and to get further tests done as advised by the opponent. THE complainant reported back to the opponent doctor on which occasion the opponent doctor informed the complainant''s father that complainant''s both kidneys had failed and he should be admitted to the kidney hospital. In the aforesaid circumstances, the complainant was admitted to the Civil Hospital where his kidney/s was/were transplanted. It has, therefore, been alleged by the complainant that on account of medical negligence on the part of the opponent in making incorrect diagnosis and in prescribing medicines, his both kidneys went into failure. He has, therefore, prayed for compensation as stated above.

It is not in dispute that the complainant filed criminal case against the opponent doctor and it has been reported to this Commission that the said criminal case was summarily rejected. The opponent doctor has filed written statement at Exh. 5 on affidavit. According to him he passed MBBS in 1983 and MD in 1987. He started a hospital in the name and style of ''Vasudhara Medical Hospital'' in Bapunagar from 1988. The complainant consulted him on 31.10.1990 with complaint of fever with rigor associated with headache and nausea since 3-4 days. The opponent diagnosed suspected case of malaria on the basis of history and clinical examination and prescribed medicines. He also advised blood test. According to report dated 1.11.1990 complainant''s ailment was diagnosed to be P.F. Malaria. The patient was, therefore, admitted to the hospital and treated as indoor patient till 3.11.1990. Upon his recovery, he was discharged from the hospital. He was feeling well on 6.11.1990 when he consulted the opponent for follow up treatment. The opponent examined the patient and advised treatment for Prophylactic Malaria for 10 ways. The complainant consulted the opponent doctor on 7.3.1991 with different ailment of common cold associated with running nose and fever without rigor. The opponent examined him and diagnosed his ailment to be seasonal common cold. Medicines were prescribed for that ailment for five days. The complainant went to opponent on 6.7.1991 with other ailment of burning pain in epigastria without vomiting. On clinical examination, that was diagnosed as suspected case of Gastritis and treatment was given with instruction to follow up if symptoms did not improve. On 9.9.1995 the complainant approached the opponent with complaint of bodyache and weakness associated with insomnia. Blood test and urine test were advised and medicines prescribed. The patient went to opponent doctor on 19.9.1995 with blood report and urine report and complained of fever with rigor associated with body ache. The opponent clinically examined the patient and relying upon the reports prescribed medicines for five days. Once again, the complainant went to the opponent on 11.11.1995 with complaint of burning pain in epigastria with occasional vomiting without fever. That was clinically diagnosed to be suspected case of Gastritis and gestroscopy was advised. The patient did not turn up thereafter.

AFTER 1 years, on 24.6.1997, the complainant consulted the opponent with complaint of burning pain in epigastria region with nausea without vomiting since 4 days. AFTER clinical examination, the patient was advised gestroscopy. The ailment was diagnosed as acid-peplic disease after reviewing the report of gestroscopy. Treatment for a period of 1 months was given. Once again the patient went to the opponent on 14.7.1997 with persistent complaint of pain in epigastria region with occasional vomiting and insomnia and anxiety. The opponent examined the complainant clinically and advised to have blood report. The complainant did not turn up with the report but went to the opponent doctor 1 months thereafter on 27.8.1997 with the complaint of headache, insomnia, decrease appetite and weakness. It was diagnosed as a suspected case of depression and treatment accordingly was given with an advice to have opinion of Psychiatrist. But the patient did not turn up thereafter. About six months thereafter the complainant consulted the opponent on 7.2.1998 with complaint of nausea and headache. Once again opinion of Psychiatrist was recommended and symptomatic treatment was given. On 7.3.1998 the complainant went to the opponent with complaint of vomiting, severe headache, dizziness and weakness. AFTER clinical examination, he was found dehydrated and anemic. He was admitted to the hospital and treatment was started. Blood report and opinion of Neurophysician were advised. Opponent found out on the same day after seeing the blood report that the patient was in Uremia. He, therefore, explained the condition of the patient and his disease as also the prognosis to his father. He was accordingly shifted to the Civil Hospital for further management. Under the aforesaid circumstances, it is the case of the opponent doctor that he had treated the complainant for long 8 years for different ailments as per the medical expertise he had at his command and none of the diagnosis or treatment given by him could ever be correlated with the kidney failure alleged by the complainant.

THE complainant has filed affidavit-in-rejoinder reiterating his grievances broadly noted herein above. He has produced xerox copies of National Trade Certificate to show his qualifications about having passed the prescribed trade test in the trade of tool and die Maker, xerox copy of reference note given by the opponent doctor for the complainant to consult Dr. Sudhir V. Shah, consultant Neurophysician in March, 1998, xerox copy of the prescription note of Dr. S.V. Shah given on 7.3.1998, xerox copy of report of Adarsh Pathology Laboratory and Voluntary Blood Bank dated 7.3.1998, xerox copy of reference note of complainant for admitting the complainant to the Civil Hospital (Kidney Department of the Civil Hospital) on a suspected case of acute renal failure [ARF] and chronic renal failure [CRF] and xerox copy of the notice given on behalf of the complainant. THE complainant has been cross-examined at Exh. 12. On his behalf Dr. Tejanshu Shah who had the occasion to transplant complainant''s kidney has been examined on 26.8.2002. With list Exh. 16, the complainant has produced xerox copy of certificate of Sahyog Textiles and the list of medical expenses from 7.3.1998 to 26.3.1998 and xerox copy of the passbook for showing the expenses incurred by the complainant. On his behalf written arguments have been submitted at Exh. 18. We have heard the learned Advocates for the parties. We have also gone through the pleading of the parties and the material placed on record of this case. First question that arises in the complaint is whether the transplantation of kidney(s) of the complainant was necessitated on account of either wrong diagnosis or wrong treatment given by the opponent doctor on any of the occasions noted herein above. It might be noted from the above facts that the complainant had different ailments on different occasions throughout the long period of 8 years and he had the occasions to consult opponent doctor. He has not produced any prescription notes given by the opponent doctor on each of the occasions. However, it has been submitted on behalf of the opponent doctor that he had an occasion to go through the copies of the documents produced by the complainant in the criminal case and from such documents, he could bring out detailed facts with regard to the ailments suffered by the complainant from time-to-time and the treatment given by him. The complainant has not consulted any doctor for the purpose of obtaining information with regard to whether at any point of time prior to 7.3.1998 there was any scope for making diagnosis about renal failure and that the opponent doctor failed to make such a diagnosis. The complainant has also failed to obtain expert opinion with regard to the medicines prescribed by the opponent doctor having reacted on the kidneys of the complainant. Thus, prima facie complainant''s case appears to be devoid of any evidence in the form of expert evidence to show that the opponent doctor made a wrong diagnosis or prescribed wrong medicine on any of the occasions referred to by the complainant resulting into renal failure.

THE complainant has been cross-examined at Exh. 12 on 7.1.2002. He has deposed that he had an occasion to consult the opponent doctor for fever in the year 1990 but he did not remember as to when he had further occasions to consult the opponent doctor till 7.3.1998 when he went to opponent doctor. He deposed that he remembered what were the instructions the opponent doctor gave to him. He admitted that he did not show the medical prescription notes which the opponent doctor gave to him and he did not obtain any expert opinion in that regard. On 7.3.2002 Dr. Tejanshu Shah, Urologist of Civil Hospital appeared in response to the summons issued by this Commission. As no one was present to attend to the said doctor witness, a note was made to the effect that the doctor had operated the complainant for kidney transplantation. THE witness got the hospital case papers with him. He gave particulars about the date and time of operation (midnight between 2.4.1998 and 3.4.1998. He stated before this Commission that the patient was discharged on 22.4.1998. As no one was present on behalf of the complainant, the matter was postponed to 12.7.2002. With this note made by the Commission about what Dr. Tejanshu Shah had to say, he was once again called and he accordingly reported on 26.8.2003 when he was questioned by the Commission and cross-examined. In his examination-in-chief he has deposed that the complainant''s kidney was transplanted as per the aforesaid particulars. He had chronic renal failure and, therefore, one of the kidneys was transplanted. According to his opinion both the kidneys failed since long. He explained this statement by deposing that it was not necessarily a kidney failure of long duration but it might be a kidney failure which could not be corrected. According to his opinion, a patient whose kidney has been transplanted would need medicines worth Rs. 5,000/- to Rs. 10,000/- as his resistance would be very low. On verifying the case papers he deposed that the reason for chronic renal failure was stated to be Glomerulo Nephritis. Other reason that was given was hypertension. It was also noted in the case papers that the complainant had undergone minor operation of renal organ. No other history was given by the patient. THEre was one piece of paper indicating that the complainant was admitted to the hospital on 14.3.1998 and he was given blood transfusion. He has deposed that once the patient''s kidney would become normal and give normal work change of season would not affect him. In his cross-examination he deposed that the patient was first examined by Nephrologist and not by him.

THE evidence so given by Dr. Tejanshu does not indicate any cause which could be attributed to the opponent doctor. THE complainant or complainant''s relatives did not have any occasion to give history which would give out the reason or cause attributable to the opponent doctor. Thus, even from the evidence which has been given by Dr. Tejanshu Shah from the Civil Hospital the complainant has not been able to bring home any causal connection with the treatment given by the opponent on different occasions for different ailments and the failure of the complainant''s kidneys. Thus, in absence of any evidence to support the complainant''s case, it is not possible to find that the opponent doctor was deficient in rendition of medical services as alleged by the complainant. In view of above finding that the complainant has not proved his case with regard to alleged medical negligence, he would not be entitled to claim compensation from the opponent doctor. According to the opinion of Dr. Tejanshu Shah, upon transplantation of the kidney, the complainant''s ailment was cured. Had the complainant been entitled to compensation from the opponent doctor, bearing in mind the long lasting pain and suffering undergone by the complainant and huge expenses incurred by him we would have awarded lump-sum compensation in the sum of Rs. 5,00,000/-.

In the result, we pass following order. ORDER This complaint is dismissed, with no order as to costs. Complaint dismissed.