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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member and
Binoy Kumar, Member
Dr. Dilip Amonkar and Ors. – Appellants
versus
Michael Rodrigues and Ors. – Respondents
First Appeal Nos.186, 200 and 209 of 2014
Decided on 6.4.2023
Consumer Protection Act, 1986 – S.19 [Consumer Protection Act, 2019 – S.51] – Appeal - Services – Medical Negligence – At the time of discharge – Patient stable – No Medical Negligence attributable - Disciplinary Committee of the Goa Medical Council did not find any negligence and accepted the treatment of appendectomy was correct methods of diagnosis and treatment skills differ from doctor to doctor – On merits, at the time of discharge from Pai Hospital, the patient was stable, no signs of any complications. Therefore, for the symptoms developed after a week, have no nexus with appendectomy - The negligence cannot be attributed to the act of OP-3 - . It is pertinent to note that after 7 days of operation (5 days after discharge), the patient developed signs of distension of abdomen and breathlessness. If there was any injury to vessel or any perforation caused during appendectomy, the patient would have developed signs within 24 hours. Thus by any stretch of imagination the hemorrhage seen during 2nd operation at GMC was not due to appendectomy. Therefore, the appendectomy was not a proximate cause of abdominal hemorrhage and death of the patient – Also, it is not enough to prove that harm occurred; the Complainant/ patient must also prove that the doctors failure to follow protocol was the direct cause of said injuries. It is pertinent to note that since patient had symptoms of pain and tenderness in right iliac fossa, after abdominal examination OP-1diagnosed it as acute appendicitis. No symptoms were suggestive of left ovarian pathology, and there was no need for detailed examination on left side. Appendicitis and left ovarian hemorrhagic cyst are distinct and separate entities – On facts, that the doctors OP-1 to 3 have performed their duties with reasonable skill and competence in the interest of the patient, they deserve protection from such litigation. The Complainants apart from filing complaint in Consumer Commission have tried to exercise their legal remedy through Goa Medical Council, the Chief Minister of Goa and filing criminal complaint – Therefore, they failed to prove the negligence of treating doctors - The Order passed by the State Commission is set aside and the appeals are allowed. [Paras 10 to 26].
Result: Appeal allowed.
ORDER
Dr. S.M. Kantikar, Presiding Member—The complex nature of medical negligence underlines the need for the complainant must demonstrate existence of four specific elements. The four Ds of medical negligence are duty, dereliction, direct causation, and damages. All four of these elements must be proven to succeed in medical negligence claim.
This common Order shall decide the above three Appeals arising from the impugned order dated 27.02.2014 passed by the State Commission, Goa in the Consumer Complaint No. 9/2012 preferred by the complainant Michael Rodrigues & Anr.
2. For the convenience the facts are drawn from F.A. No. 186 of 2014. All the parties are referred to be as placed in the Complaint No.9/2012. The Complainants are the parents of the deceased and the Opposite parties are the treating doctors as Dr. Shantaram N. Surme (OP-1), Dr. Sudhakar Raghuram Pai (OP-2), Dr. Dilip Amonkar (OP-3) and the Pai Hospital as OP-4.
3. On 26.06.2010, Ms. Ravina Rodrigues, the daughter of Complainants about 17yrs of age (since deceased, for short, the ‘patient’) for her abdominal pain consulted her family physician Dr. Shantaram N. Surme- OP-3 (for short ‘Dr. Surme’) at his clinic. Provisional diagnosis of Appendicitis was made and prescribed medicines for 5 days. On 02.07.2010, the Complainants admitted their daughter at Pai Hospital, Goa (‘OP-4- Hospital’) under the care of OP-1. It was alleged that on 03.07.2010, at the request of OP-1, Appendectomy surgery was negligently performed by Dr. Dilip Amonkar (OP-3) and the patient was discharged on 05.07.2010. Thereafter, the patient was re-admitted at OP-4 Hospital on 09.07.2010 for the complaints of abdominal pain, distension, vomiting and breathlessness. Dr. Shridhar Raghuvir Pai OP-2 (for short ‘Dr. Pai’) the owner of hospital advised Ultra-Solography (USG) on 10.07.2010 and asked to shift the patient immediately to Goa Medical College (GMC) at Bambolim. On the same day evening at 7.30 pm, the patient was shifted to GMC and emergency surgery was performed at 9.30 pm. On 15.07.2010, the patient suffered abdominal pain, breathlessness and she was shifted to ICU and kept on ventilator till 29.07.2010, but she expired. Being aggrieved by the alleged gross medical negligence of the three OP doctors at OP-4 hospital causing death of their daughter in the OP-4 hospital, the Complainants filed the Consumer Complaint before the State Commission, Goa to claim compensation of Rs. 60 lakhs and other reliefs.
4. The opposite parties filed their respective replies and denied any negligence during treatment. Their submissions are as below:—
4.1 Reply from Dr. Shantaram N. Surme (OP-1):
The OP-1 submitted that the patient was brought to his clinic only on 20.06.2010. He examined the patient who had pain in the right lower abdomen and maximum tenderness at Macburney’s point, therefore suspected as a case of acute appendicitis. She was given necessary medicines for 5 days and advised for blood tests, X ray and USG of abdomen. Also gave referral note for 2nd opinion of surgeon Dr. Shekhar Salkar. He further submitted that the mother of the patient was refusing to get USG and blood investigations done, which caused delay. He further submitted that the patient was admitted under his care in Pai Hospital (OP-4) at about 9.30 pm. Dr. Pai (OP-2) though he was surgeon and owner of hospital, had stopped operating patients due to his high diabetic status and doing only small procedures. Therefore, on 03.07.2010, Dr. Amonkar (OP-3) was called and he performed emergency appendectomy. The specimen of appendix was kept in formalin and given by the attending nurse to mother of patient for histopath investigation. The patient was discharged on 05.07.2010 in stable condition. The patient was brought again on 09.07.2010 to OP-4 for abdominal, pain distension, breathlessness. Based on the USG and clinical findings, the OP-2 referred her to GMC on 10.07.2010. On the same day, the 2nd emergency operation took place at
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