Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
J.M. Malik, Presiding Member, Dr. S.M. Kantikar, Member
Dr. Hemen S. Kulkarni —Appellant
versus
Dhanashri Dhananjay Savardekar & Anr. —Respondents
First Appeal No.791 of 2015
(Against the Order dated 14/08/2015 in Complaint No. 330/2002 of the State Commission Maharashtra)
Decided on 5.4.2016

Advocates:
Counsel for the Parties:
For the Appellant:Mr. Yogesh C. Naidu, Advocate with Mr. Gurdeep Singh Sachar, Advocate
For the Respondent No.1:Mr. Jay Savla, Advocate with Ms. Shilpi Chowdhary, Advocate
For the Respondent No.2:Mr. S.B. Prabhavalkar, Advocate

IMPORTANT POINT
Doctors in complicated cases have to take chance even if rate of survival is low.

Headnote:Consumer Protection Act, 1986—Sections 17, 19 and 21—Medical services—Medical negligence—Death of patient after operation for removal of abdominal stone—State Commission partly allowed complaint and directed OP 1 to pay Rs.10,00,000/- to complainant with 9% interest with costs quantified at Rs.25,000/-—OP1 is a Surgeon M.S. (General Surgery), worked as Associate Professor of Surgery and one Unit Head at KEM Hospital—He has been practising as a Consultant Surgeon and GI surgeon for past two decades—He performed emergency open surgery of patient for removal of basket and stone as surgery was necessary to avoid complications like septicaemia and to save life of patient—OP1 himself accompanied patient to ensure easy admission procedures at KEM—OP-1 performed his duty as per standard norms—Requisite elements of proof in a medical negligence action are that there must be a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of patient’s injury—OP-1 has not deviated from accepted medical practice whereas act of OP was not at all a proximate cause of patient’s injury—It was not a case of medical negligence—Doctors in complicated cases have to take chance even if rate of survival is low—Order passed by State Commission set aside and complaint dismissed. (Paras 9, 13, 18 and 19)
Result: Appeal allowed.

ORDER

Dr. S.M. Kantikar, Member—On 5.11.2001, the complainant, Smt. Dhanashri Dhananjay Savardekar, took her mother, Smt. Geeta (herein referred as “patient”) as she was suffering from abdominal pain, to Dr. Hemant Kulkarni, the OP-1, at Tushar Maternity and Surgical Nursing Home. The OP-1/appellant admitted the patient, started treatment by I.V. fluids, antibiotics and pain killers. On 07.11.2001, he performed ultrasonography (USG) of abdomen. Thereafter, OP-1 referred patient to Dr. Naresh Singh (OP-2), at Apollo Endoscopy Centre for ERCP (Endoscopic Retrograde Cholangio Pancreatography). On 08.11.2001, OP-2 performed ERCP. As per ERCP report, during procedure, the Dormia basket (instrument used to extract the stone) broke and got impacted. Therefore, OP-2 sent the patient back to OP-1, for open surgical removal of the stone and broken basket. On the same day, OP-1 performed open surgery, but he could not remove the stone/basket. After two days, i.e., on 10.11.2001, patient developed biliary leak around the T-tube. Therefore, it was careless treatment and negligence on the part of OP-1 and 2. Hence, the OP-1 himself admitted the patient to KEM hospital (in short KEM) at 10 PM. At KEM, patient underwent operations, on 14.11.2001 and 22.11.2001. According to the KEM reports, it is clear that, OP-1 and 2 lack necessary skill and knowledge, the OPs treated the patient negligently, the nursing home was ill equipped.

2. Therefore, the complainant’s main allegation that, OP-1 failed to remove stone by open surgery. The Nursing Home of OP-1 was ill-equipped to carry out emergency operation. OP-1, on knowing it to be a complicated case, should have referred the patient to KEM Hospital instead of operating at his private nursing home. Therefore, patient’s condition deteriorated further and later she was referred to KEM in a serious condition. It was due to incomplete medical treatment done by both the OPs, the patient died on 27.11.2001. The complainant further alleged that because of complications and precarious condition of the patient, her father suffered mental shock and died on 25/11/2001. Therefore, the complainant alleging medical negligence against the OPs, filed the complaint before State Commission, Mumbai claiming a sum of Rs.15 lacs, together with costs.

3. The State Commission partly allowed the complaint and directed OP 1 to pay Rs.10,00,000 to the complainant, with interest @9% per annum, from the date of complaint, within a period of sixty days with costs quantified at Rs.25,000/-.

4. Aggrieved by the order of the State Commission, the OP1 filed first appeal before this Commission.

5. We have heard the learned counsel for both the parties. The Appellant/OP-1 was present with his counsel Mr. K. C. Naidu. The counsel vehemently argued that, the Appellant/OP1 treated the patient, as per standard norms. The patient was admitted on 5.11.2001, to Tushar Hospital, for complaints of abdominal pain. Therefore, patient was treated conservatively, by I.V. fluids, antibiotics, with pain killer injection. She was advised to take liquids only. On next day, vomitings continued. On 07.11.2001, patient showed guarding and tenderness in the right upper abdomen, a repeat ultrasound (USG) was carried out by Dr. Daptardar to rule out any complications. It revealed a large stone 1.1 x 0.8 cm at the ampulla (lower end of the common bile duct-CBD), dilated bile duct 12 mm (normally 7 mm). Therefore, the patient was advised to undergo an ERCP for endoscopic extraction of stone in CBD, by Dr. Naresh Singhi (OP-2).

6. On 08.11.2001, ERCP was carried out by OP2; however, since the stone was big, hard, and located at the ampulla, OP2 performed mechanical lithotripsy. During the procedure, the Dormia basket got impacted and broke, but the stone could not be removed. Therefore, OP 2 sent back the patient to OP-1, for an open surgical removal of basket and stone.

7. We have perused the medical record of OP-1 hospital. It transpired from the clinical notes a

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IMPORTANT POINTDoctors in complicated cases have to take chance even if rate of survival is low.

Cases Referred (2)

IMPORTANT POINT
Doctors in complicated cases have to take chance even if rate of survival is low.