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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Ashok Bhan, President, Vineeta Rai and Dr. S.M. Kantikar, Members
WILFRED D`MELLO - Appellant
Versus
DR. MANOJ K. DHRUVE AND ANR. - Respondents
First Appeal No. 32 of 2003 from Order dated 14.5.1996 in Complaint No. 88 of 1993 of State Commission, Maharashtra
Decided on : 18-04-2013
Mr. Rahul Joshi, Mr. Brij Kishor Shah and Mr. Abdulrahiman Tamboli, Advocates, for the Appellant; Mr. Vinod Kumar, Advocate, for the Respondent
The central legal point established in the judgment is the determination of medical negligence and the standard of practice expected of doctors in cases of medical treatment.
Headnote:
Medical Negligence - Medical Negligence - [Consumer Protection Act, 1986 - Section 21, Indian Penal Code - Section 304A, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 - Regulation 7] - The court discussed the medical negligence on the part of the respondents and the necessity of a CT Scan and referral to a Neurosurgeon. The court highlighted the principles of medical negligence and the standard of practice expected of doctors, ultimately influencing the decision to set aside the State Commission's order and award compensation to the appellant.
Fact of the Case:
The appellant's son sustained a head injury and was treated by the respondents. The State Commission dismissed the complaint of medical negligence and deficiency in service.
Finding of the Court:
The court found medical negligence on the part of the respondents, leading to the death of the appellant's son. The State Commission erred in ignoring vital evidence and failed to appreciate the negligence and deficiency in service of the respondents.
Issues: The main issue was whether there was medical negligence on the part of the respondents in the treatment and care of the young patient.
Ratio Decidendi: The court applied the principles of medical negligence and the standard of practice expected of doctors to determine the negligence on the part of the respondents.
Final Decision: The first appeal was allowed, and the order of the State Commission was set aside. The respondents were directed to pay the appellant compensation and costs.
ORDER
Dr. S.M. Kantikar, Member - The instant Appeal has been filed challenging the impugned order dated 14.5.1996 passed in complaint No. 88/93 by State Consumer Disputes Redressal Commission, Maharashtra (hereinafter referred to as State Commission), that there was no negligence on the part of both respondents and the complaint was dismissed.
2. The Appellant herein was a complainant and the Respondents herein were Respondents in the complaint which was filed before State Commission, Maharashtra.
3. The facts of the case in a nutshell are as under:
4. On 28.4.1992 at 7.00 p.m. the Appellant's son (hereinafter referred to as patient), aged about 8 years fell down and sustained an injury on the left side of his head with bleeding from left ear and vomiting. He was taken to his family doctor Dr. Manoj K. Druve the first Respondent herein who advised for admission in Sanjeevini Nursing Home, Andheri instead of referring patient to a Neurosurgeon as desired by the complainant. Subsequently, patient was examined and treated by second Respondent who is purported to be ENT surgeon and who diagnosed the case as CSF otorrhea which means leakage of cerebrospinal fluid through the ear and started treatment for the same. Appellant was insisting for referring the patient to a Neurosurgeon for conducting a CT-Scan. But Respondent considered that CT scan was not necessary. However, he did an X-ray of the skull which indicated a crack. The patient was discharged on 9.5.1992 with an advice that he should report back in case of persistent vomiting, high grade fever, severe headache, etc. On 21.5.1992, the patient complained of severe headache and giddiness and was therefore rushed to Respondent No-1 who advised to go to another clinic and he then visited Respondent No 2. But, it was only thereafter that the patient went to a Neurosurgeon by name Dr. K.C. Shah, and a CT Scan was conducted. Dr. K.C. Shah admitted the patient to Bombay Hospital where the patient was under treatment till his last breath i.e., till 26.6.1992. Therefore, the appellant filed a complaint before the State Commission on the grounds of medical negligence and deficiency in service and requested State Commission to direct the respondents to jointly and severally pay a sum of Rs. 8,00,000 as compensation along with Rs. 50,000 as cost.
5. Respondents on being served filed a detailed reply denying the allegations of medical negligence and deficiency in service. Appellant was given treatment by both the respondents as per their best professional judgment based on proper clinical and diagnostic tests of the patient.
6. The State Commission after hearing the parties and on the basis of evidence produced before it dismissed the complaint by observing as follows:
After hearing the parties and after going through the papers we find that the allegations made against the opposite party No. 1 are that he was negligent in wrongly referring the patient to the ENT doctor even though asked for referring to Neurosurgeon by the complainant. This allegation of the complainant could not be substantiated. In case there was any lapse on the part of opposite party No. 1 then definitely the complainant would not have approached him on the second occasion i.e. 23.5.1992. The reference made by the opposite party No. 1 Sanjivani Hospital was properly looked into by Dr. Kale who referred the patient to Dr. Dhaval Shah. From the records, it appears that the opposite party No. 1 referred the case to opposite party No. 2. Therefore, there was no negligence on the part of the opposite party No. 1 as alleged by the complainant. The opposite party No. 2 was appointed by Sanjivani Hospital for the treatment of this patient. It also appears that the opposite party No. 2 has treated the patient with all precaution which can be seen from the case papers placed on record. We are fully convinced that the conduct of the opposite party No. 2 in treating the patient was perfectly right and in consonance with the medical p
