The main legal point established in the judgment is the application of the 4 legal elements (4 D's) of medical negligence and the absence of medical negligence by the doctors in the surgical treatment of the deceased.

ORDER

Dr. S.M. Kantikar, Member -The Petitioner preferred the present Revision Petition against the common impugned order dated 29.9.2011 passed by the Maharashtra State Consumer Disputes Redressal Commission, (in short, 'state Commission') Mumbai, Circuit Bench at Aurangabad in First Appeal Nos. 2567/2005, 2613/2005 and 101/2006 wherein the State Commission partly allowed the appeal filed by the Petitioner and directed him to pay Rs. 50,000 with 9% interest to the Complainant from 23.7.2004 till its realization.

2. Facts in brief: Ganesh, son of Complainants Sh. Gangadhar Mitkari and Smt. Kamblabai Mitkari who was suffering from piles was operated on 5.6.2003, by the petitioner/OP-1 Dr. Birajdar, at his Sanjivini Hospital, Udgir. It was alleged that OP-1, prescribed Injection Voveron for the pain, which was given by an untrained compounder. Thereafter, at 2.00 p.m. Ganesh complained about non-urination. At 6.00 p.m., as there was no movement of Ganesh, the OP-1 was called, but he did not attend. Again, at 11.00 p.m., Complainant called the OP-1 and his compounder but no avail. On 6.6.2003, early in the morning, at 6.00 a.m., the OP-1 referred the patient to Vivekanand Hospital (OP-2) at Latur. It was alleged that, prior to the operation, the pathological tests were not conducted by OP-1. It was also alleged that immediately after the operation, the patient complained of pain and suffered from convulsion and vomiting and non-urinal, but OP-1 did not examine the patient, did not take proper precautions and that there was a delay in referring the patient to OP-2. The OP-1 instead of referring the case to Nero Surgeon, the operation was carried out by M.S. Surgeon at Vivekanand Hospital (OP-2). The Complainant contended that the deceased was a strong and healthy young boy, who has received a call for recruitment in police force. He was running a grocery shop and Complainants were dependent on him. Therefore, both OP-1, Dr. Birajdar and OP-2 Vivekanand Hospital are liable for medical negligence and deficiency in service.

3. Hence, a complaint was filed before the District Consumer Disputes Redressal Forum (in short, District Forum ) and claimed compensation of Rs. 10,00,000 with 12% interest, from the date of complaint, and Rs. 50,000 for mental agony.

4. The District Forum directed OP No. 1 and 3 to pay Rs. 50,000 + Rs. 29,457 with 9% p.a. interest from the date of complaint i.e. 23.7.2004, till its realization. District Forum also directed the Opponent Nos. 1 and 3 to pay Rs. 2,000 towards the cost of the complaint. Opponent No. 2 was exonerated by the order.

5. Dissatisfied with order of District Forum, the Complainants filed an appeal (FA/2567/2005) before State Commission for enhancement of compensation, Opponent Nos. 1 and 3 filed the appeals for quashing and setting aside the order of District Forum.

6. The State Commission dismissed the appeal filed by the Complainant and the appeal filed by OP-1 was partly allowed and the appeal No 101/2006 filed by Insurance Co. (OP-3) was allowed.

7. We have heard the Counsel for both the parties and perused the records. The Counsel for the petitioner vehemently argued and denied any negligence in performing piles operation. The OP-1 performed Surgery for piles on 5.6.2003 and kept the patient Ganesh under observation. On the same evening, patient had developed signs of convulsions and vomiting, which was diagnosed as a Cerebro-Vascular Accident (CVA), hence the OP-1 advised to shift the patient to Vivekanand Hospital (OP-2) at Latur, for further management of CVA, but the complainant delayed in shifting to 6.6.2003. At OP-2 hospital, the patient was admitted in ICU and after MRI study, the patient was diagnosed as "Hyper-acute Cerebral Infarction at Left Frontopertaining to Left ICA territory with cerebral edema with occlusion of Left ICA. On emergency basis, doctors at OP-2 conducted operation for Decompression hemi-craniotomy, kept the patient under observation in ICU, who died on 9.6.2003.