Vasant Kumar Purshottam Jog (Dr.) vs Shashikant Kisan Vichare & Ors.

This revision petition has been filed by the Petitioner against the order dated 13.3.2013 passed by the State Consumer Disputes Redressal Commission, Maharashtra (in short, ''the State Commission'') in Appeal No. A/11/942, Dr. Sujata Rathod v. Shashikant Kisan Vichare & Ors. by which, appeal was dismissed. 2. Brief facts of the case are that deceased Shashikant Kisan Vichare wife of Complainant No. 1, mother of Complainant No. 2 and daughter-in-law of Complainant No. 3 approached OP No. 1 /Respondent No. 2. On 14.4.2003, she was pregnant after a gap of 10 years of marriage. She again visited OP for check-up on 27.5.2003, 7.6,2003, 23.6.2003 and 26.6.2003. She again came on 30.6.2003 and apprised that she was suffering from cold and fever. OP No. 1 examined her on 7.7.2003 and after making examination told that there is danger to her life and to the life of child and it is necessary to carry out operation of caesarean immediately. The complainant No. 1/ respondent No. 1 relied on it and hence gave consent for caesarean section. The OP No. 1 carried out operation of caesarean section. The OP No. 2/Petitioner gave Anaesthesia. The operation was carried out in the hospital of OP No. 3/Respondent No. 3. On the next day the patient made complaint of pain in chest. The OP No. 4/Respondent No. 4 was called for examination. On 9.7.2003 after examination, OP No. 4 told that caesarean was made without any reason and Anaesthesia was wrongly administered hence there is accumulation of phlegm in the chest. To remove the phlegm from the chest the required machinery is wife the OP No. 5/Respondent No. 5. It is necessary to admit the patient to fee hospital of OP No. 5 otherwise there is danger to life. The OP No. 4 told that she will be in hospital for 2 days and expenses will be at the most Rs. 15,000. Accordingly, she was admitted in the hospital of OP No. 5. The OP No. 4 gave treatment for about a month. On 9.8.2003 at 10 a.m. in the morning she succumbed to death. Alleging deficiency on the part of OPs, complainants filed complaint before District Forum. 3. OP No. 1 resisted complaint and admitted delivery of child. It was further submitted that on 30.6.2003, she apprised that she was having cold and fever for last two days for which medicines were given. She delivered a child in the operation theatre by operation and further submitted that OP No. 2 was present at that time. Denying any deficiency on her part, prayed for dismissal of complaint. OP No. 2 resisted complaint and submitted that he was informed about the caesarean operation on 7.7.2003. The Opponent No. 1 told him that there is a Foetal Distress and caesarean is immediately required. As an anaesthetist he examined the deceased, the blood pressure was normal, the deceased was not having a problem of diabetes, high blood pressure and asthma. He had seen the medical treatment papers and found that the deceased was fit for administering anaesthesia. The Opponent No. 2 further stated that the caesarean was successful and the new born child as well as deceased was in good condition. There was no problem or complications during caesarean operation. Denying any deficiency on his part, prayed for dismissal of complaint. OP No. 3 resisted complaint and submitted that hospital has the facility of maternity and nursing home and x-ray and the Opponent No. 2 is the owner of the hospital. The Opponent No. 3 further stated that the hospital is in existence since 1986 having all facilities and on the instructions of the physician Opponent No. 4 the deceased was shifted to Opponent No. 5 hospital. Denying any deficiency on his part, prayed for dismissal of complaint. OP No. 4 resisted complaint and submitted that deceased was admitted for Bilateral Pneumonia with impending adult/acute Respiratory Distress Syndrome (ARDS). He further stated that in such cases percentage of death is 70%. He further stated hat the treatment given to the deceased is recorded in the case papers. He further stated that during her treatment he had called Dr. Aikesh Shah, Dr. Nandita Palekar, Dr. S. Raju and Dr. Suchetra Kelkar. He had also called one Dr. Stephen Alfred and Dr. Mahashur of Hinduja Hospital. He had given best treatment as per protocol. However, on 9.8.2003 her blood pressure came down, and ultimately she died on 9.8.2003 at 10.45 p.m. and the diagnosis is ARDS (Acute Respiratory Distress Syndrome). Denying any deficiency on his part, prayed for dismissal of complaint. OP No. 5 resisted complaint and submitted that in their hospital ail the medical facilities are available and the strength of the hospital is 50 beds. They are having specialist Doctors for the treatment and the trained employees. Denying any deficiency on his part, prayed for dismissal of complaint. Learned District Forum after hearing parties allowed complaint against OP Nos. 1 and 2 and directed OP No. 1 to pay compensation of Rs. 1 lakh with cost of Rs. 10,000 and directed OP No. 2 to pay compensation of Rs. 5 lakh with cost of Rs, 10,000 and dismissed complaint against OP Nos. 3 to 5. Appeal filed by OP Nos. 1 and 2 was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed by OP No. 2. 4. Respondent Nos, 2 to 4 did not appear even after service of notice; so, they were proceeded ex-parte. Respondent No. 5 was deleted by petitioner. 5. Heard learned Counsel for the petitioner and Respondent No. 1 and perused record. 6. Learned Counsel for petitioner submitted that in spite of petitioner possessing necessary qualifications as anaesthetist and in spite of no deficiency on his part in administering anaesthesia, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set-aside. On the other hand, learned Counsel for the Respondent No. 1 submitted that as petitioner was not possessing requisite qualifications as anaesthetist and was deficient in administering general anaesthesia, learned State Commission rightly dismissed appeal and order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed 7. Perusal of impugned order reveals that learned State Commission dismissed appeal on the ground that petitioner was not educationally qualified to administer anaesthesia and as per Expert Committee Report, petitioner failed to consider health of patient and administered general anaesthesia instead of spinal anaesthesia and observed as under: "The Expert Committee in its report has observed that: It cannot be said that pre anaesthetist evaluation was properly carried out and everything was normal. This is so because when the patient had told the history of fever and cough since 10 days any prudent doctor would have investigated the patient for the same and would mentioned the findings in the anaesthesia record. However, this important aspect related to health of patient was completely ignored and all the systems were shown as normal in the records." The Committee further observed that: "when patient had respiratory tract infection and when it is a standard practise to administer spinal anaesthesia to minimize the complications, still general anaesthesia was administered." 8. Perusal of report given by three members of Department of Forensic Medicines, Grant Medical College placed at Pgs. 903 to 909 in the paper book reveals that aforesaid observations recorded by State Commission in impugned order does not find place in Expert Committee Report and in such circumstances, impugned order which is based on alleged observations not finding place in Expert Committee Report is liable to set-aside. 9. Expert Committee in its opinion in para a(ii) observed that there were no investigations regarding the complaints of cough and fever and in Clause (vi) further observed that when the patient had respiratory tract infection and when it is a standard practise to administer spinal anaesthesia to minimize the complications, still General Anaesthesia was administered. Again in para (d)(i) of the opinion it was further observed that the immediate cause of death is not mentioned and in para d(vii) it was further observed that the immediate cause of death was a consequence of Pneumonia with ARDS. 10. Even if it is presumed that no investigations regarding complaints of cough and fever were prescribed by petitioner, no liability can be fastened on the petitioner as he was only anaesthetist and these investigations were required to be got done by OP No. 1 who performed caesarean operation. Expert Committee Report in Clause g(iii) observed that "general anaesthesia was administered when the choice of spinal anaesthesia was present" which makes it clear that petitioner had choice either to administer general anaesthesia or to administer spinal anaesthesia and it appears that looking to the circumstances of the case, petitioner preferred to administer general anaesthesia. 11. Hon''ble Apex Court in I (2010) CPJ 29 (SC)=II (2010) SLT 73, Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre & Ors. in para 94 (7) observed that "94(7) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. which makes it crystal clear that even if petitioner has chosen to administer general anaesthesia instead of spinal anaesthesia which was acceptable to the medical profession, petitioner cannot be held negligent in administering general anaesthesia. 12. Even if it is presumed that petitioner should have administered spinal anaesthesia instead of general anaesthesia, Expert Committee Report does not reveal that on account of administering general anaesthesia complications occurred and patient died. Perusal of record reveals that general anaesthesia was administered on 7.7.2003 and patient was shifted to another hospital on 9.7.2003 and patient collapsed on 9.8.2003, i.e., after more than a month of administering general anaesthesia and in such circumstances, it cannot be said that on account of administering general anaesthesia Pneumonia with ARDS developed in the patient. Even if it is presumed that on account of general anaesthesia, these problems developed, these could have easily been controlled as patient survived for a month after administering general anaesthesia and was treated in other hospital where OP Nos. 3 to 5 treated patient and when complaint has been dismissed against them, petitioner cannot be held liable for any negligence for administering spinal anaesthesia and in such circumstances, impugned order is liable to be set aside. 13. Perusal of impugned order reveals that petitioner gave interrogatories to all the doctors who prepared expert report and out of three experts, only one expert Dr. R.S. Bengal replied to the interrogatories. Thus, it becomes it clear that other two expert members of the Committee have not replied to the interrogatories and in absence of reply to interrogatories, aforesaid Expert Committee Report cannot be read against petitioner and on the basis of that report, learned State Commission has committed error in dismissing appeal. 14. Learned Counsel for the respondent vehemently argued that petitioner was not possessing requisite qualifications for administering anaesthesia as per Indian Medical Counsel Act, 1956. On the other hand, learned Counsel for the respondent has drawn my attention towards petitioner''s qualification and petitioner was declared Graduate of Faculty of Ayurvedic Medicine in 1962 and in the year 1972 he was given licence to practise medicine, surgery and Obstetrics and Gynaecology and obtained degree of Bachelor of Medicines and Bachelor of Surgery in October, 1976. Documents further revealed that he had undergone training course in Anaesthesia at Grant Medical College at Bombay for a period of 3 months from 12.2.1965 to 11.5.1965 and Government of Maharashtra appointed him as Medical Officer in the year 1963 and in certificate dated 25.7.1966 it was mentioned that he was declared as Medical Officer and Anaesthetist for surgical camps held at Latur, etc. Thus, in such circumstances, it cannot be said that petitioner was raw hand or totally unaware about anaesthesia. In the summary proceedings, we are not required to decide and no t supposed to decide whether petitioner was possessing necessary qualifications of anaesthetist, but prima facie, petitioner was having sufficient knowledge to administer anaesthesia. 15. In the light of aforesaid discussion, it becomes clear that learned District Forum committed error in allowing comp laint against petitioner and learned State Commission further committed error in dismissing his appeal and impugned order is liable to set-aside to this extent. 16. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 13.3.2013 passed by the learned State Commission in Appeal No. A/11/942-Dr. Sujata Rathod v. Shashikant Kisan Vichare & Ors. and order of District Forum dated 10.10.2011 in CC No. 49/2004, Sashikant Kisan Vichare v. Dr. Sujata Rathod & Ors. is partly set aside to the extent of petitioner and complaint stands dismissed against petitioner. Parties to bear their costs. Revision Petition Allowed.