VINAYAK Vs DR. VIJAY KUMAR HARIRAM NAINDERKAR & 8 ORS LTD..

The brief facts are that the complainant, Mr.Vinayak Joshi''s son Mr. Girish (since deceased referred as "Patient") about 29 years'' of age, suffered vomiting and was admitted in the Mrutunjaya Hospital of Dr. Vijay Kumar Mainderkar (OP-1) at 9.30 a.m. on 24.01.2004. After doing the x-ray and lab investigations, the OP-1 started treatment and told the complainant that, there was nothing serious in the case. The complainant paid Rs. 500/- for which no receipt was issued. On the same day, five bottles of DNS, injection Wymesone and Efcorlin were administered to the patient. In the afternoon, at 3.30 p.m., again, x-ray was taken and Dr. Ganesh Polawar (OP-2) examined the patient. It was suspected small ulcer in the stomach, but OP-1 and 2 continued the same treatment. Thereafter, at 3.30 p.m., patient felt uneasy a tube was inserted through his nose and reddish watery fluid was drained out. The OP-1 said that dirt of intestine was being removed, thereafter, the patient would feel better. In the night, at about 8.00 p.m., the OP-1 and OP-2 discussed the issue and decided to send the patient to higher centre at Solapur for further investigations. The complainant took the patient to Ashwini Hospital, Solapur (OP-3) at 1 am, along with nephew of OP-1. The patient was made to lie on a stretcher for about 1 1/2 hours, saline, injections and oxygen was given. Despite several requests, Dr. Rudrakshi (OP-4) did not attend to the patient, but telephonically instructed for the ECG and other treatment. The ECG was taken at about 2.45 a.m., urine acetone shown to be 1+. OP-4 attended the patient at 5.55 a.m. and informed about serious condition of patient. OP-4 advised for 40% insulin injections without testing blood sugar or urine sugar of the patient. After injections of insulin, the patient''s condition further deteriorated with breathing problems. Hence, the patient was given ventilator support and finally at 8.00 p.m., the patient died at Ashwini Hospital, Solapur. Hence, alleging medical negligence against OP-1 to 6, that patient was not treated properly, also the OP-4 did not attend to the patient, within time, no proper treatment was given in ICU, led to the death of the patient. Hence, the complainant filed the Complaint No. 93 of 2004 before the District Consumer Disputes Redressal Forum, Osmanabad (in short District Forum) on 02.07.2004 and prayed for the total compensation of Rs. 20 lacs.

The District Forum dismissed the complaint on 27.10.2005 and thereafter, first appeal no. 2400 of 2005 was preferred by the complainant before the Maharasthra State Consumer Dispute Redressal Commission, Mumbai, Circuit Bench at Aurangabad, which was also dismissed by the impugned order dated 22.11.2012.

Aggrieved by the impugned order, the complainant / petitioner filed this revision petition before this Commission on 04.03.2013.

We have heard the learned counsel for the parties. The petitioner was represented by Adv. Mr. Mahaling Pandarge. OP- 1 & 2 were represented by Adv. Dr. R. R. Deshpande, the OP-1 Dr. Vijay Kumar Mainderkar was also present in person. On behalf of OP-3 to OP-6, Adv. Mr. G.H. Kulkarni and Dr. Santosh Kakde, Authorised Representative, were present. For the insurance company, (OP-7 and OP-9) Advocate Mr. Shami was present.

Counsel for complainant denied, that patient was in serious condition. He vehemently argued that, there was negligence on the part of all the OPs i.e. initially OP-1 and OP-2 gave wrong treatment; hence, patient''s condition went on deteriorating. Thereafter, the treatment at Ashwini Hospital, Solapur also was not as per standards of practice. The patient was kept outside, in the casualty, for more than 1 1/2 hours. No proper investigations were performed before treating the patient. The counsel denied that, the patient was taken to General Hospital, Solapur, prior to admission in the OP-3 hospital.

The counsel for OP-1 and OP-2 argued that the patient was brought to the hospital in serious condition. The OP-1 informed the complainant about serious condition of patient and about the need to shift to Solapur. Thereafter, patient was investigated properly and treated with proper medication. There was no negligence on the part of OP-1 and OP-2. The patient was already suffering from skin disease (eczema) and was under-treatment of steroids for long time. The patient was son of OP-1''s friend; hence, he was not charged any fee. As the patient''s condition deteriorated after 8.00 p.m., therefore, at 10 PM, the OP-1 and OP-2 took the decision to refer him to a higher centre i.e. Ashwini Hospital, Solapur. During the proceedings, on 27.11.2014, we have directed the OP-1 and OP-2 to produce OPD or IPD record from Civil Hospital, Solapur.

During the arguments the counsel brought our attention towards the extract of the said OPD register. We have noted that it was from OPD no.8 marked as "emergency" maintained during night shift. At serial no. 1174 dated 24.01.2004, wherein the name of Girish Joshi was mentioned. Therefore, it is clear that, from Osmanabad, the patient first approached General Hospital, Solapur and thereafter, went to Ashwini Hospital, Solapur, at 1 am.

The counsel for OP-3 to 6 Mr. G.H. Kulkarni submitted that, the patient was admitted at 1.06 a.m. on 25.01.2004 in critical condition. The patient was admitted in the ICU and detailed investigations were advised. The blood sugar was 450 mg and blood pressure was low. The attending doctors were treating the patient as per instructions of Dr. D.N. Kulkarni and Dr. Rudrakshi (OP-4). The reports of various investigations received at 4.00 a.m., by which OP-4 diagnosed it as a case of acute pancreatitis. The reports revealed that patient''s liver, kidney and lungs were badly affected. The patient was put on I.V. fluids, CVP, ventilator and proper antibiotic therapy. The critical condition of the patient was informed to the complainant. The patient was checked from time to time. The patient had sudden cardiac arrest at around 7.00 a.m., which was treated by cardiac massage and resuscitation, but unfortunately, the patient died at 8.10 a.m., despite the all life saving measures. The cause of death given was cardio respiratory arrest due to pancreatitis with ARDS with diabetes. The post-mortem was advised, but the complainant/petitioner refused for the post-mortem.

We have perused the medical records maintained by the OP-1 at his hospital (Annexure -2) and OP-3 Ashwini Hospital (Annexure P-3). As per Annexure 2, initially, the patient was admitted at 9.30 am on 24.1.2004 under OP-1, with C/o Vomiting and Giddiness. On examination, patient was in shock, the seriousness was informed to the relatives. Therefore, necessary IV fluids RL 3 and DNS 1 and other medications were given. The follow up notes revealed that the patient was continuously monitored, every 1/2 to 1 hourly. The OP-1 took help of OP-2 also. For distension of abdomen OP-1 and 2 performed R.T. aspiration. It is pertinent to note that, the OP-1 informed the seriousness of patient in the morning itself and also in the evening. The patient was drowsy in the evening, therefore OP-1 and 2 took decision to shift the patient to Civil Hospital, Solapur for further diagnosis and treatment. Therefore, we are of considered view that, there was no fault in the treatment given by OP-1 and 2; also they have referred the patient at proper time.

The medical records, Annexure P-3 from Ashwini Hospital reveal, that the patient was admitted at 1.06 AM on 25/1/2004. The patient''s blood glucose was done by Glucometer, it was 450 mg. It was confirmed as 440 mg by the venous blood; hence 22 unit insulin was given to him at 2:10 a.m. only. The patient was drowsy and was suffering from breathlessness since beginning, hence patient was continuously monitored in ICU, ventilator support was given and graded insulin doses were advised. The follow-up and ICU records reveal about the proper treatment, the sudden cardiac arrest was managed by Inj Atropine, Dopamine etc and by proper resuscitative methods.

In this context, OP 3 and 4 produced one Expert report from Dr. Sudhir Deshmukh. Some part of the expert report is reproduced as below:- "I have perused papers of deceased Girish Vinayak Joshi. There was conceal diagnosis that patient was suffering from "Pancreatitis" and so also treatment was given at Osmanabad at Maindarkars Hospital was correct as "Emergency Management" and patient was "Steroid Dependent" hence treatment was difficult but was correctly given as per "Medical Science". Patient has severe attacks of Pancreatitis hence in such cases the mortality is about 50% for which patient requires Intensive Care Units Management for which patient was referred to Higher Centre at proper time and in proper manner after stabilizing the patient in Osmanabad."

Whereas, the counsel for complainant submitted one Expert opinion from Dr. Khose, who has served as one year lecturer and seven years as medical officer at Civil Hospital, Beed and thereafter, engaged in private practice. His opinion contradicts with the opinion of Dr. Sudhir Deshmukh. According to Dr.Khose the treatment given by OP-1 was wrong and also mentioned that acute pancreatitis mortality is 10%. He also opined that there was delay in treatment at the referral hospital i.e. OP-3.

In furtherance, we have perused other two expert opinions, who commented about the treatment given at Ashwini Hospital. One from Dr. Mukund Zambare, Head of Department of Medicine at Siddheshwar Multi Specialty Hospital at Solapur, who opined that, there was no delay in giving treatment to the patient. The other expert opinion was from Dr. Jahargirdar, Gastroenterologist, who also opined it was a case of severe pancreatitis and the treatment given by OP-4 Dr.Rudrakshi was correct in such emergency situation.

Therefore, we strongly feel that, Dr. Khose''s opinion was a biased one. It is also surprising to note that, the affidavit was notarised on 07.05.2005, whereas, Dr. Khose had signed the said affidavit on 08.10.2005. Thus, the affidavit itself is doubtful. Dr. Khose has contended that, there was delay in attending the patient by the Specialist in the OP-3 hospital, but he has not uttered a single word about the treatment given by the attending doctors from 1 AM. Therefore, we accept the opinion of Dr. Sudhir Deshmukh because he is a Professor in Surgery, having 16 years'' of academic experience i.e. more than Dr. Khose''s experience and expertise. It is the fact that, Medical experts do not execute the responsibilities for an expert witness very well. The "expert" witness has a privileged position in investigations into misconduct and negligence, and by not executing their responsibility they can sway the court to the extent that an innocent physician will be found guilty.

The severe acute pancreatitis is fatal one. Thus, to know more about Pancreatitis, we have perused the Harrison''s Internal Medicine medical text book; and few research articles submitted by Dr. Santosh Kakade, namely

i) Severe Acute Pancreatitis: Impact of Organ failure on mortality, Indian J. of Gastroenterology 2006: 25

The medical literature revealed that, Severe Acute Pancreatitis (SAP) is a surgical emergency (acute abdomen), and is characterized by a highly dangerous course with many complications (multi-organ failure) and a high mortality.

The counsel for OP relied upon various judgments of Hon''ble Supreme Court namely, Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors., 2010 ACJ 1444, Jacob Mathew Vs. State of Punjab & Anr., 2005 (3) CPR 70 (SC) and judgments of this Commission in case titled as Mrs. Noni Singh Vs. Dr. P.K. Talwar, 2010 (1) CPR 303 (NC) and Maningegalai (Smt.) & Ors. Vs. Steel Authority of India Ltd. 2011 (1) CPR 66 (NC).

We place reliance from various judgments of Hon''ble Apex Court. In the case " Martin F. D'' souza vs. Mohd. Ishfaq ", 2009 CTJ 352 (Supreme Court) (CP) in which the Hon''ble Supreme Court was pleased to observe as under:-

" 41. A medical practitioner is not liable 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."

" 49. when a patient dies of suffers some mishap; there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."

Since the present case is based upon an allegation of deviation from ordinary professional practice; it is worth to refer to Lord President Clyde in Scottish''s case Hunter v Hanley 1955 SC 200 , wherein it has laid down the following requirements to be established by the patient to fasten liability in case of negligence committed by a doctor:

"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course, the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on the pursuer to establish these three facts, and without all three, his case will fail."

In the case Achutrao Haribhau Khodwa and Ors. v State of Maharashtra and Ors. (1996) 2 SCC 634, the Hon''ble Supreme Court, held that:

"in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. 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 ."

Kusum Sharma Vs. Batra Hospital (2010) 3 SCC 480: 1 CPJ 29 (SC), laid down that, Negligence cannot be attributed to a doctor so long as he performs his duties with a 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.

Therefore, in the entirety of our discussion, the relevant reference from medical books, articles, and on the basis of various decisions of Hon''ble Apex Court, we are of considered view that, in the instant case, the OP doctors were qualified and they have treated the patient as per standard skill, with duty of care. Hence, we do not see any negligence in the treatment of patient. The patient suffered a fatal acute Pancreatitis leading to multi organ failure, despite every treatment and care the patient could not be saved. There was no deficiency in services of any doctor.

Therefore, we don''t see any reason to interfere the orders of the lower fora. As the revision petition is lame of strength and without any merit, hence dismissed. There shall be no order as to costs.