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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and M. Shreesha, Member
Pankaj R. Toprani and Ors. —Appellants
versus
Bombay Hospital and
Research and Medical and Ors. —Respondents
First Appeal No.101 of 2016
(Against the Order dated 27/11/2015 in Complaint No. 87/2006 of the State Commission Maharashtra)
Decided on 4.7.2019
For the Appellants: Mr. Janak Toprani and Mr. Pankaj Toprani, Appellants in person
For the Respondents:Mr. Abhinay Sharma and Mr. Arjun Sharma, Advocates
For the Respondent No.1:Ms. Neha Khandelwal, Advocate
For the Respondent No.2:Mr. Rohan Ganpathy, Advocate
For the Respondent No.3:Mr. S.B. Prabhavalkar, Advocate
IMPORTANT POINT
Duty of Care does not end with the Surgery.
Headnote:
Consumer Protection Act, 1986—Section 19—First Appeal—Medical negligence—Patient was 73 years old and died during the pendency of the Complaint—Patient was under medication since the past 20 years—Patient complained of throat pain, breathlessness and of a chocking sensation—Family members of the Patient were helpless seeing their father continuing to have convulsions—Gross negligence in the diagnosis and the treatment of the Patient—Family members of the Patient suffered loss of fatherly love and affection and seeing their father in a vegetative state for two years—It is specifically mentioned in the complaint that the operation was successful and after operation, patient was all right and he has talked with his relatives—Bradycardia means slow pumping of heart—Complainant did not lead any expert evidence to support the contention that there was medical negligence on the part of opponents while treating the patient after operation—Complainant has mentioned in the complaint itself that there was no heart problem to the complainant even after 19 months since he was discharged from the hospital—Patient was in the Hospital for a period of 8 months; in a coma for a period of almost three years—Bills filed towards medical expenses amounting to Rs.16,93,010.00—There is negligence in the treatment rendered to the Patient with respect to the time and manner in which the Patient was shifted from the 3rd floor ICU to the 12th floor ICU, the unexplained cause for Bradycardia—Mental agony suffered by the Patient’s family—Duty of Care does not end with the Surgery—Held that, awarding an amount of Rs.30,00,000- (Thirty Lakhs) to be paid by the Hospital would meet the ends of justice with cost of One Lac. [Paras 9, 20, 21, 22, 23, 26 and 27]
Result: Appeal allowed.
ORDER
M. Shreesha, Member—Aggrieved by the order in CC0687 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short “the State Commission”), the Complainants namely, Mr. Pankaj R. Toprani, Smt. Vasant Ranjit Toprani, Mr. Janak Ranjit Toprani and Mrs. Kalpana H. Lilani have preferred this First Appeal under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”). By the impugned order, the State Commission has dismissed the Complaint holding that there was no medical negligence on behalf of the Opposite Parties.
2. The Bombay Hospital and Medical Research Centre of the Bombay Hospital Trust arrayed as the first Opposite Party (is hereinafter referred to as “the Hospital”), Dr. P.B. Desai arrayed as the second Opposite Party (is hereinafter referred to as “Dr. Desai”), and Dr. Sanjay Wagle arrayed as the third Opposite Party (is hereinafter referred to as ‘Dr. Wagle’).
3. Mr. Ranjit Toprani (hereinafter referred to as “the Patient”), was operated in the Hospital by Dr. Desai. The Patient was 73 years old and died during the pendency of the Complaint. He was admitted in the Hospital on 26.06.2004 and operated for Carcinoma of the Sigmoid Colon. It is averred that the Patient was recommended to Dr. Desai by Dr. J.C. Kothari, who is attached to the Hospital. The Patient was certified fit for Surgery by the In-House Intensivists of the Hospital and Physician Dr. Wagle , who went through the Patient’s history, which include urticaria, glaucoma tension in the eyes, chronic depression, for which the Patient was under medication since the past 20 years. The ECG report showed that there was an old septical MI and the 2D ECHO displayed 60% pumping heart rate. It is averred that Dr. Wagle went through all the medications and prescriptions of the Patient and certified him fit for the Surgery scheduled to be performed on 28.06.2004 by Dr. Desai. After the Surgery, the attendants and the Patient were informed by Dr. Desai that the Operation was successful and that the Patient would be transferred to the ward.
4. It is averred that while the Patient and his family members were waiting for the personnel to shift the Patient to the ward, to their shock, the Patient was shifted to the post-operative ICU, which is situated on the third floor of the Hospital building. It was informed to the Complainant and his family members that the shifting was being done to keep the Patient under observation. It is stated that the daily notes of the Anaesthetist showed that the Patient was supposed to be shifted to the ward. But Dr. Desai in his report noted that the Patient be shifted to the post-operative ICU, though he had earlier informed the Patient and his family Members that he would be shifted to the ward. The Patient was awake and was mentally disturbed and questioned as to why he was brought there. On the next date, i.e. 29.06.2004 the Patient complained of lack of sleep and pain in the abdomen and requested for a pain killer. At 8.45a.m., the Patient complained of throat pain, breathlessness and of a chocking sensation.
5. While the Patient’s attendant, waited outside the ICU, unaware of the Patient’s condition, suddenly there was a commotion inside the ICU and they saw the Patient having convulsions and was being helped to breathe with the help of an Ambu bag. The attending Doctor, who is the assistant of Dr. Desai informed the attendants that the Patient had suffered a Bradycardia Attack and had to be resuscitated. The Ambu bag was replaced with the ventilator, the only one available in the ICU. The Patient’s family members were worried and requested the attending Doctor to call for the Cardiologist immediately and administer necessary treatment but they were informed that he would have to wait for the Intensivists i.e. Dr. Wagle to call for a Cardiologist. But Dr. Wagle was not available and did not tu
