Back
2010(2) CPR 305
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MUMBAI
P.N. Kashalkar, Presiding Judicial Member and Mr. S.P. Lale, Member
Balkrishna Mahadev Kare —Complainant
versus
Dr. P.N. Nagpal & Anr. —Opp. Parties
Consumer Complaint No. 220 of 1995
Decided on 21.10.2009
Counsel for the Parties:
For the Complainant:Mr. U.E. Wavikar, Advocate.
For the Opp. Party No. 1:Mr. Chetan Patil, Advocate i/b Mr. Amit Karkhanis, Advocate.
For the Opp. Party No. 2:Mr. Rabindra Hazari, Advocate.
IMPORTANT POINT
If particular protocol or procedure is established or followed in other Hospitals, even if, something goes wrong in treatment Doctors cannot be held liable for medical negligence.
Headnote:(i) Consumer Protection Act, 1986—Section 2(1)(d)—Complaint—Maintainability—When layman is filing consumer complaint some latitude has to be given to him—He is not well-versed in art of drafting complaints and pleadings—If some falsity has crept in his pleading in drafting complaint if will have to be excused—Objection should not be taken that complainant has filed consumer complaint making some false statement or he suppressed any material facts in complaint. (Para 12)
(ii) Consumer Protection Act, 1986—Sections 2(1)(g) and 17—Medical negligence—Loss of eyesight—Consumer Forum can obtain experts’ opinion to decide medical negligence cases—Complainant has not adduced any expert evidence—Doctors of Hospital tried to solve problem of Complainant to best of their capacity—They had used their expertise to give relief to complainant—Commission cannot give verdict in favour of complainant that complainant lost his eye because of medical negligence exhibited by OPs—Complainant was suffering from T.B. due to which Silicon oil injected in eye of appellant not proved helpful—If particular protocol or procedure is established or followed in another Hospitals, even if something goes wrong in treatment doctors cannot be held liable for medical negligence—OPs not guilty of deficiency in service or medical negligence—Complaint dismissed. (Paras 12 to 16)
P.N. Kashalkar, Presiding Judicial Member—Complainant Shri Balkrishna Mahadev Kare, a resident of Chinchwad, Pune, filed this consumer complaint against the Opposite Party No. 1 Dr. P. N. Nagpal of Ahmedabad and also against K.E.M. Hospital, Rashta Peth, Pune-Opposite Party No.2 alleging negligence in the services rendered by both the Opposite Parties.
2. He pleaded that he received one letter from Dr. P.N. Nagpal on 6.5.1995 and acting upon the said letter and other annexures he was approaching this Commission for redressal of his grievances. He mentioned in Para No. 2 of the complaint that from the facts and circumstances as disclosed in the synopsis and list of dates, it is clear that he had taken all the treatment, had undergone of the operations, took medicines prescribed as per advice of doctors and committed no mistake in taking treatment and in spite of the treatment his right eye is lost due to improper treatment and negligence of the Doctors. They recovered lot of money from him for giving services like treatment and operations, but while giving services they were negligent. He listed his grievance as under:
(i) ATT treatment started by Dr. Sarpotdar of KEM Hospital without giving any pre-intimation about its reaction/ side effects of loss of eye in the future.
(Dr. P.N. Nagpal stated in his letter dated nil received on 6.5.1995 attached herewith as Annex. “ A-28”)
(ii) Stitching of Retina was not done properly at the time of first operation i.e. on 27.11.1993. (As stated by KEM as per Anne-x. “A-19”)
(iii) Silicon Oil used at the time or second operation for fixing of Retina is of low standard or having fungus so that it is reacted badly.
(As per Dr. Nagpal’s letter he has tested silicon oil from a Lab, this means that he knows that he has used a silicon oil which is not of standard or might be it is having fungus so that he has taken a report of lab to safeguard his side)
or
(iii) Silicon oil is used without any test for reaction.
(iv) Silicon oil is removed within 3 days due to which retina fall down immediately.
(v) Stitches were removed after 6-7 months after the second operation.
(vi) Dr. Nagpal relieved/discharged me from his hospital with swelling on my right eye, headache and pus is being developed.
Please refer Annex. “A-24” I have immediately admitted in KEM Hospital after reaching at Pune Rly Station on 25.1.1994, due to headache, etc.)
(vii) Proper idea/advice not given before each treatment and before each operation are the instances of negligence in the services rendered by both the Opposite Parties.
3. He further relied upon Dr. Nagpal’s letter dated 6.5.1995 to plead that, that letter by Dr. Nagpal offered for giving free services for his left eye which was itself a proof of his negligence in performing the operations. He pleaded that due to negligence he lost his right eye and by his right eye he was unable to do any work on any machine which was part of his job and, therefore, he could not get promotions or he may lose job though he is ITI (machinist trade holder). He has therefore prayed that he should be awarded damages of Rs. 9,30,000 as particularised in prayer clause. In the synopsis which is appended to the complaint he has mentioned that he has passed ITI machinist in July, 1986 and he got in 1987 Central Government job in the workshop of R and DE(E), since then he has been working on machines like lathe machine, grinding machine, drilling machine, etc. On 29.5.1992, a particle of dust went in the right eye while working on the grinding machine. He went to the dispensary of his establishment and got removed dust particle. Doctor advised him to approach eye specialist within 2/3 days. Hence, on 1.6.1992 he went to KEM Hospital OPD where Dr. Deshmukh attended him and presented 10 days medicines. On that day vision of his both eyes was, 6/9 of left eye and 6/9 of right eye. On 6.6.1992 he went to KEM Hospital because there was pain in the right eye, Dr. Deshmukh referred him to Dr. Mrs. N.
