Judgment:
Per Shri P. N. Kashalkar, Honble Presiding Judicial Member.
(1) This complaint has been filed by Complainant â Mrs. Kalyani Raut, alleging medical negligence on the Part of the Opposite Parties who are Doctors by profession.
(2) Stated briefly, the case of the Complainant is as under:
According to Complainant, her husband Bharat Raut was suffering from some illness. He had approached Opposite Party No.3 â Dr. Mahale on 19.04.2003 with complaints of swelling above medial aspect of right elbow joint. Opposite Party No.3- Dr. Mahale advised him to undergo operation in Millennium Hospital. Opposite Party No.3 falsely assured Complainant that Millennium Hospital is well equipped to perform major surgeries and to handle any complications and there are well qualified doctors in Millennium Hospital for performing surgery. As advised, her husband Mr. Raut got admitted in Millennium Hospital on 21.04.2003 at 11.00 p.m. Mr. Raut was taken to the operation theatre at 08.00 a.m. on 22.04.2003. The diagnosis of the patient was not known to any of the Doctors before he was taken for operation. Opposite Party No.2 â Dr. Hitesh Bafana - Anesthetist, gave axillary block to Mr. Raut, her husband. At 08.30 a.m., Opposite Party No.4 â Dr. Dheeraj Mahangade with Opposite Party No.1 â Dr. Manish Motwani, started the operation and excised the swelling. According to Complainant, even after surgery any of the Opposite Parties still did not know the diagnosis of swelling, whether it was signet cell tumor or a shwanoma or myoma or organized hematoma. The Opposite Parties were inclined in not sending the excised mass of tissue for histopathological examination for confirmation. That due to carelessness and casual approach of all the Opposite Parties/Doctors, Mr. Raut went into cardiac arrest and expired within half an hour of starting the surgery. The incision was closed and dressed. Thereafter, the sequence of events happened inside the operation theatre, but, most of them were not recorded in the indoor and operative case notes. In sudden death of the patient in operation theatre only negligent attitude and lack of emergency drugs, equipments and lack of experience of Opposite Parties Doctors was responsible. According to Complainant sudden death of the patient in operation theatre is itself sufficient to prove negligence of all the four Doctors and principle of âres ipsa loquitarâ (the thing speaks for itself) is applicable and Opposite Parties should be directed to prove their innocence rather than Complainant having to prove their guilt. After the death of Mr. Raut in operation theatre, the Opposite Parties did not disclose this fact to the Complainant. They shifted the patient to Chetana Hospital keeping the Complainant under the belief that her husband was still alive. In Chetana Critical Care Unit, when her husband was taken, it was clearly declared that patient was dead on admission.
According to Complainant, Opposite Parties had neither expertise nor the hospital well equipped which was owned by Homeopathic Doctor (Opposite Party No.3 â Dr. Dheeraj Mahanagade). They did not disclose death of Mr. Raut immediately after surgery. The Medico Legal Post Mortem Report mentions cause of death as âComplications following intra operative procedureâ. According to Complainant, Opposite Parties Doctors negligently managed her husband Mr. Raut in Millennium Hospital, who are clearly responsible for death of her husband. Because all Doctors were grossly negligent, careless in attitude and utterly careless in giving treatment given to her husband.
Complainant had sent legal notice through Advocate â Shri P.N. Chavan on 18.05.2004 to all the Opposite Parties, but, none of them bothered to give reply. According to Complainant, Opposite Parties owe dues to the Complainant. They committed breach of their professional duties and Complainant suffered damage. The proximate cause of damage was the breach of duty by Opposite Parties. Hence, she has stated that she is entitled to get damages from all the Doctors, since her husband is no more and he was only earning member in their family. The Complainant has to look after her daughters and in-law and she is not having any employment.
According to Complainant, Opposite Party Nos. 1, 2 and 4 proceeded with the operation without undertaking any investigation and without first confirming the diagnosis. They did not send the excised mass of tissue from the deceased patient to histopathological examination as per standard practice of surgery. They negligently managed the whole operative procedure which resulted in the death of Mr. Raut. They did not disclose Mr. Rauts death to the Complainant, but, shifted him to the Chetana Hospital in an attempt to make Complainant believe that her husband was still alive.
Complainant has listed grievances against Opposite Party No.2 Doctor â Dr. Hitesh Bafana â Anesthetist, by stating that Opposite Party No.2 proceeded her operation without undertaking any investigation and without first confirming diagnosis. He did not decide nature of anesthesia to be given to Mr. Raut till last minute. She has a grievance against Opposite Party No.3 â Dr. Bipin Mahale, on the ground that he is simply Homeopathic Doctor, having no knowledge of allopathic modality of treatment and still he examined Mr. Raut and directed Mr. Raut to undergo surgery without any investigation. He falsely assured Mr. and Mrs. Raut that his hospital was well equipped to perform major surgeries and to handle any complications. According to Complainant, he runs Millennium Hospital and treats the patients in Allopathic system of medicine when he is neither authorised nor having requisite skill to do so. The Complainant in his prayer clause pleaded that by applying the principle of âres ipsa loquitarâ, The Opposite Party should be directed to prove their innocence rather than the Complainant having to prove their guilt of negligence and deficiency in service and they should be directed to pay to the Complainant an amount of Rs.2,00,000/- per year jointly and severally for 24 years. She prayed that amount of Rs.48 lac should be paid to her as compensation since her husband died at the age of 46 and life expectancy of Mr. Raut was 70 years. She also claimed amount of Rs.1,00,000/- towards cost of treatment, amount of Rs.1,00,000/- towards cost of this complaint. She filed Affidavit in support of her claim, she also filed Affidavit of Dr. Ajay V. Patil, who is M.D. in Forensic Medicine.
(3) Opposite Party No.1 â Dr. Manish Motwani, filed Written Statement and took objection that Complainant is not a consumer since she had not paid any consideration. Her husband was treated ex-gratia and therefore, she cannot be a consumer. He also took objection to the maintainability of this complaint stating that the Complainant has made several false statements to suit her purpose to secure favourable order. According to him, patient was having tumor admeasuring 8 cm x 5 cm, which was major illness. The said mass was diagnosed as signet cell tumour. According to Opposite Party No.1, provisional diagnosis was arrived at before surgery and thereafter surgery was performed and on the table of operation diagnosis was made and the mass was old Hamatoma. Hamatoma was not sent for histopathological diagnosis. Third objection taken is that complaint has been filed to extract monies from the Opposite Parties. Before filing of this complaint, Complainant had given 13 phone calls and used pressure tactics. According to Opposite Party No.1, the complaint is totally frivolous and vexatious, and she should be penalized by imposing heavy penalty U/sec. 26 of Consumer Protection Act. Opposite Party No.1 further pleaded that Millennium Hospital is owned by Dr. Mrs. Ratan Savla, M.D; D.G.O. and is being conducted by Dr. Bipin K. Mahale (Opposite Party No.3) since 1st January, 2003 till date. Hospital has been inspected by Health Officers from Thane Municipal Corporation and they found that the hospital was fit to carry on medical, surgical and maternity activities. The Hospital registration in the form of number has been issued by TMC. According to Opposite Party No.1, Millennium Hospital Maternity and Nursing is one of the best equipped Hospitals in Thane. It has Consulting Room, one female General ward with 3 beds; 1 Male General Ward with 2 beds and 1 Private room with attached toilet. The hospital is having operation theatre. The Air-conditioned operation theatre has a hydraulic operation table with shadow-less lamps and it is fully equipped to perform any kind of major and supra major surgery. The operation theatre has got latest medical equipments which have got all drugs and stock of emergency medicines and staff is well experienced. Hospital is manned by most experienced Medical Officers. Hospital has got consultant Surgeon, Physician and cardiologist, Gynecologist, paediatrician, E.N.T. Surgeon and Ophthalmogist. Opposite Party No.1 claimed that, he passed M.S. in general surgery in 2000 from Bharati Vidyapeeth Medical College and took Diploma in Basic Laparoscopic Surgery Hyderabad in 2001. He then took another Diploma from Advanced Diploma in Laparoscopic Surgery from Coimbatore. He worked in renowned hospitals like Jaslok Hospital, Kurla Bhabha Hospital and Veer Savarkar Municipal Hospital. He pleaded that Opposite Party No.3 is the owner of the Hospital and Opposite Party No.1 was the operating surgeon who was assisted by Opposite Party No.4. Anesthesia was given by Opposite Party No.2. None of the Opposite Parties were in the employment of Opposite Party No.3. He admitted that Mr. Bharat Raut was admitted on 21.04.2003 with swelling on the right upper limb since last 4-5 years. Patient gave history of said swelling. The swelling was kept for excision on 22.04.2003. Pre-operatively Mr. Bharat Raut was thoroughly investigated and preoperative anesthesia check-up was also done by way of abundant precautions. Written consent was taken and patient was advised starvation. The operation was to be performed at 08.00 a.m. on 22.04.2003. Surgery was undertaken under brachial block given through axillary approach by Opposite Party No.4 â Dr. Hitesh Bafana, the Anesthetist. After the regional block was given, surgical procedure was started and performed with the help of Dr. Dheeraj Mahangade, by Opposite Party No.1 â Dr. Manish Motwani. Surgery was over at 09.00 a.m. At the same time, the patient had a cardiac arrest for which anesthesiologist with Opposite Party No.1s help did everything to resuscitate the patient. Patient was transferred to Chetna Hospital for ICU management. Patient succumbed at 10.30 a.m. and was then declared dead. The detailed treatment is mentioned in indoor papers.
(4) According to Opposite Party No.1, he was neither deficient nor negligent in giving service to Complainants husband. He was not guilty of adopting unfair trade practice. Whatever he did, was in the best interest of patient. He did with bonafide intention to see that patient gets the best treatment. He denied that he was in any way negligent in treating late Mr. Bharat Raut. Patient had approached him with the complaint of swelling which was having tumour mass on the right arm medial aspect since long. The clinical diagnosis of tumor mass was Signet Cell Tumour. Such tumours need excision as they have an element of malignancy in them. Patient himself wanted it excised for fear of cancer. Opposite Party No.1 denied that Opposite Party No.3 had advised the removal of tumour at Millennium Hospital. The tumour mass was of 8 cm x 5 cm and to remove the said mass they had made clinical diagnosis as Signet Cell tumour and only then they took patient for surgery after doing all the requisite investigations preoperatively. X-ray of the elbow joint was done pre-operatively. Urine and blood investigations were done preoperatively. Anesthesia treatment was also obtained. Final diagnosis on opening the mass was found to be organized hematoma. Such a variation or error in diagnosis cannot be said to be deficient service or negligence on the part of the Doctors. Opposite Party No.1 pleaded that, on the operation table diagnosis was certain that it was an organized hemotoma. There was cardiac arrest on the operation theatre. Opposite Party No.1 pleaded that, this was unfortunate and not because of negligence of any Opposite Parties. Cardiac arrest is the known risk factor in any kind of surgical anesthesia procedure. So, simply because there was cardiac arrest of the patient that does not mean, Opposite Parties were negligent or deficient in service. He pleaded that cardiac arrest took place after surgery was over and the incision was closed in due course of surgery and everything that happened in operation theatre was well documented. He denied that patient was dead before admission in Chetna Hospital. The patient was put on ventilator. Patient was put on pace maker. Patient was treated from 10.00 a.m. to 10.30 a.m. with life saving drugs, resuscitation procedures which conclusively prove that when patient was taken to Chetna Hospital he was not dead as alleged by the Complainant. He asserted that pacing is not done in already dead patients. He denied that the Millennium Hospital was not fully equipped to tackle any kind of surgery or complications. But, in the instant case, patient needed ICU management for which patient was referred to Chetna Hospital. According to Opposite Party No.1, untoward effects or complications can occur in the best of the hands anywhere in the world without there being negligence on the part of the Doctors. Negligence must be proved by Complainant himself conclusively against the Doctors. Opposite Party No.1 pleaded that they had given reply to the Complainants notice through Advocate Bape. Opposite Party pleaded that blood clot collected from tissues is never sent for histopathological examination. He asserted that all the Opposite Parties had taken all the care and caution while treating the patient. He denied that patient was shifted dead in Chetna Hospital as alleged by the Complainant. On the contrary he asserted that with the consent of patient he was referred to Chetna Hospitl. He asserted that treatment procedure was rightly followed and in the instant case death of Complainants husband was simply a pure accident and therefore, neither he nor other Opposite Parties can be held guilty for negligence or for rendering deficient service. He therefore prayed that complaint should be dismissed with costs.
(5) Opposite Party No.2 filed Written Statement and pleaded that Complainant has already filed police complaint with Wagle Estate Police station and Police had referred the case to the Civil Surgeon and after going through entire case, Civil Surgeon reported that there was no negligence on the part of the Opposite Parties. He also pleaded that case involves complicated questions of facts and law and the complaint should be dismissed because consumer complaint is decided under Consumer Protection Act in a summary trial and this case should be tried before the Civil Court only. He also pleaded that Complainant has no locus standi to file consumer complaint and he should file the same by bringing all the legal heirs on record. On this ground he stated that complaint should be dismissed. He also pleaded that no fee was paid by the complainant and therefore, she is not a consumer under the Consumer Protection Act. Opposite Party No.2 pleaded that the complaint is full of falsehood and Complainant has resorted to falsehood to obtain favourable order and on this ground alone the complaint should be dismissed. Opposite Party No.2 pleaded that he has passed M.D. in Anaesthesiology in the year 2001 from prestigious K.E.M. Hospital, Mumbai and worked as an Anesthetist in Sion Hospital and B.P.T. Hospital. Opposite Party No.3 is the owner of the hospital where patient was operated. Operating surgeon was Opposite Party No.1, assisted by Opposite Party No.4 and Anesthesia was given by Opposite Party No.2. Opposite Party No.3 pleaded that patient â late Shri Bharat Raut was admitted on 21.04.2003 with swelling of the right upper limb since last 4-5 years. Swelling was kept for excision on 22.04.2003. Mr. Bharat Raut was thoroughly investigated preoperatively and test for preoperative anesthesia was done. Written consent of the patient was taken. On 22.04.2003, Bharat Raut was posted for hematoma evacuation at around 08.00 a.m. The surgery was undertaken under brachial block given through axillary approach by Dr. Manish Motwani, who was assisted by Orthopedician Dr. Dheeraj Mahangade. Before surgery, preoperative assessment was done by Opposite Party No.2 at 08.00 a.m. on 22.04.2003. There was no history of hypertension, diabetes mellitus, TB, jaundice, convulsions cardiac illness etc. O/E GC was fair, pulse was 80/min, BP was 120/80. Preoperative investigations were reviewed on operation theatre. Patient was given anesthesia and patient was monitored by pulse oxymeter. Axillary block was given by 22 G BD needle superiorly above axillary artery. After the regional block was given, surgical procedure was started and performed by Opposite Party No.1 â Dr. Manish Motwani and assisted by Dr. Dheeraj Mahangade at around 08.30 a.m. Surgery was over at around 09.00 a.m. and approximately at the same time patient had a cardiac arrest and with the help of Opposite Party No.2, Dr. Motwani did everything to resuscitate the patient. Around 09.00 a.m. patient stopped responding pulse showed brady cardia, BP was not recordable major pulses were not palpable, some injections were given, ventilation and cardiac massage continued. Dr. Manisha Ghosh and Dr. Bhavesh Nanda, were immediately called. Intensivist Dr. Balbir also saw the patient. At about 09.10 a.m. the patient was immediately shifted to Chetna Critical Care in the Ambulance for better management. Dr. Motwani and Dr. Bafana accompanied the patient to Chetna Critical Care and CPRC was continued. Patient was put on ventilator, some injections were given. Around 10.05 a.m. pace maker in the right subclavian vein was introduced and temporary pacing was done. Various injections were given and around 10.30 a.m. in spite of the entire resuscitation measures patient was declared dead. Mulund Police Station was informed for post mortem. At 04.00 p.m. body was sent for post mortem to Rajawadi Hospital. Opposite Party No.2 pleaded that they were not guilty of medical negligence of any kind. The cardiac arrest was responsible for the death of Mr. Bharat Raut, it was unfortunate. He pleaded that surgical and anesthesia procedure has its own inherent risk factors and a cardiac arrest is one of the known risk factors and just because patient dies of cardiac arrest that does not mean that they were negligent in treating the patient. He has denied that Mr. Bharat Raut had died even before he was admitted to Chetna Hospital. In Chetna Hospital, patient was put on ventilator, Pace maker was put on patient and was treated from 10.00 a.m. to 10.30 a.m. with life saving drugs. Resuscitation procedure was followed. All these facts would prove that patient was not dead in OT of Millennium Hospital as claimed by the Complainant. Opposite Party No.2 pleaded that complicated and untoward effects can occur in the best of the hands anywhere in the world without there being any negligence on the part of the operating surgeon. Opposite Party No.2 pleaded that only one blood clot were removed from the patient and when there was no tumour tissue there was no question of sending the same for histopathological examination. He asserted that there was no negligence in the management of the case and therefore, he prayed that complaint should be dismissed with costs. Opposite Party No.2 also filed Affidavit in support of his contentions.
(6) Opposite Party No.3 pleaded that he does not own Millenium Hospital. He is simply Conductor of the Hospital. He denied that he did not perform any preoperative tests on Mr. Bharat Raut. Preoperative testes were performed like Sonography, X-ray, blood, urine reports and the preoperative anesthesia assessment was done. He denied that operation theatre of Millennium Hospital lacked facilities. He pleaded that he passed D.H.M.S. (Mum) in 1986 and he is currently practicing medicine for the last 16 years at Shraddha Clinic, Road No.28, Wagle Estate, Kailash Nagar, Thane 400 604. He asserted that he is conductor of the Hospital, where patient was operated. Operating Surgeon was Opposite Party No.1, assisted by Opposite Party No.4 and anesthesia was given by Opposite Party No.2. He adopted the Written Statements of Opposite Party Nos. 1, 2 and 4. His written statement is similar to one filed by Opposite Party Nos. 1 and 2 and he prayed that complaint should be dismissed with costs. He has also filed Affidavit in support of his Written Statement.
(7) Opposite Party No.4 also filed Written Statement and took up the pleas like one taken by Opposite Party Nos. 1, 2 and 3. He pleaded that there was no negligence on his part in treating the Complainant. Patient was properly taken care of, history of patient was taken, he was thoroughly examined, all necessary investigations were done. Diagnosis was arrived at and surgery was must because there was possibility of malignancy in the growth. Opposite party No.4 asserted that he is highly qualified person who assisted Opposite Party No.1 at the surgery. All preoperative investigations were undertaken before operation. The treatment procedure was duly followed. He also admitted that after surgery no histopathological examination was necessary because only one blood clot was removed and there was no tumour tissue as diagnosed earlier provisionally. He asserted that blood clots are never sent for histopathological examination. He stated that this was a pure case of accident and in any sort of surgical procedure there is inherent risk involved. The patient died because of cardiac arrest on operation theatre without any negligence on the part of any of the four Doctors who participated with the surgical operations. He therefore prayed that the complaint is devoid of any substance and it should be dismissed. In support of his Written Statement, he has filed Affidavit.
(8) The parties placed on record of Affidavits and documents. We heard submissions of Advocate â Mr. Rajiv Thakur, along with Advocate Ms. Shilpa Ovalekar for the Complainant and Dr. Shenoy, Authorised Representative for the Opposite Parties. Upon hearing them following issues arise for our consideration:
(i) Whether this case involves complicated questions of facts and law entailing the trial of the case by Civil Court?
No.
(ii) Whether the complaint should be dismissed only on the ground that Complainant is not a consumer since she has not paid anything to the Opposite Parties?
No.
(iii) Whether the complaint involves total falsehood or suppression of material facts?
No.
(iv) Whether Complainant proves that there has been medical negligence on the part of Opposite Parties in treating her deceased husband â Mr. Bharat Raut?
Yes.
(v) What amount of compensation should be awarded to the Complainant?
As per final order.
R E A S O N S:
Issue No.1
(9) It has been contended by Opposite Parties that the case involves medical negligence and detailed evidence is required to be taken which involves complicated questions of facts and law and therefore, in the summary jurisdiction this Commission should not entertain and decide the complaint and Complainant should be directed to approach Civil Court. However, now virtually all the cases are required to be decided even by the Civil Court on Affidavits. We are of the view that this consumer complaint does not involve any question of law and facts as argued by the Counsel of the Opposite Parties. This case involves medical negligence on the Part of Four Doctors â Opposite Parties. Medical negligence cases can be well decided by Consumer Fora under Consumer Protection Act in its summary jurisdiction. Of-Course, we give good amount of latitude to both the parties to file Affidavits to interrogate witnesses and to elicit information helpful to decide the consumer complaint in the right perspective. So, in this process there cannot be any prejudice caused to the parties. It is held by the Honble Apex Court and the Honble National Commission in number of cases that medical negligence cases can be decided by the Consumer Forums and therefore, in our view, there is no necessity to refer the complaint to the Civil Court. So, the objection taken by the Opposite Parties for entertaining of this consumer complaint is devoid of any substance. This case can be rightly and properly decided by this Commission under the Consumer Protection Act. We, therefore, record our finding on this issue in the negative.
Issue No.2:
(10) What is important to note is the fact that Complainants husband died in Millennium Hospital while on operation theatre when Opposite Parties were treating him. It is the allegation of the Opposite Parties that because of cardiac arrest patient died and patient died in Chetna Hospital where patient was referred in critical condition to save his life. It is possible that because of death of patient Millennium Hospitals Doctors might not have taken any charges from the widow of the patient, but, then they had never told Complainant that they would not charge anything. In fact, when any patient is taken on operation theatre, Doctors and Hospitals are taking some amount in deposit before patient is admitted and before any tests are commenced in any hospital. It is not the case of Opposite Parties that Millennium Hospital has provided free services to the husband of the Complainant. On earlier day, he was admitted and on 22.04.2003 he was operated in OT of Millennium Hospital. Unless it is a positive case of Opposite Parties that Mr. Bharat Raut was being treated ex-gratia or that hospital was not charging the said Bharat Raut or treating Bharat Raut free of charge, mere non-payment of fees by the Complainant or non production of any receipt by the Complainant about payment made to the hospital does not mean that patient was being treated ex-gratia. The Opposite Parties are taking advantage of the fact that Complainant had not produced on record receipt for the payment of fees to Millennium Hospital, but, payment or no payment unless Doctors and Hospital involved in this case proves positively that Bharat Raut was their free patient and he was being treated free of cost or ex-gratia, the Opposite Parties cannot be permitted to say that widow of the deceased patient is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. There can be deferred payment made by the Consumer and merely because payment is not accepted by the hospital and Doctors that does not mean that widow of the deceased patient is not a consumer U/sec. 2(1)(d) of the Consumer Protection Act. So, even this objection as taken by the Opposite Parties is not tenable in law. We brush aside the objection taken by the Opposite Parties and hold that widow of the husband Mr. Bharat Raut, is a consumer even though she has not proved to have paid certain amount to the Millennium Hospital run by Opposite Party No.3, where while in operation theatre he had died. We therefore record our finding of Issue No.2 in negative.
Issue No.3:
(11) In a common refrain the Four Opposite Parties in the Written Statements raised a point that consumer complaint is full of falsehood and untrue statement. We have not come across anything to suggest that consumer complaint as filed by the Complainant (widow of the deceased patient) is full of falsehood and untrue statement. This allegation is nothing, but, appearing to be a figment of imagination by the Opposite Parties to take defense. They had mentioned that the Complainant had made false statement, but, there is no ring of truth in the point raised by the Opposite Parties in this behalf. The consumer complaint is appearing to be truthful and widow of the Complainant has stated all the facts as are known to her. So, consumer complaint as filed by the widow cannot be thrown out of court simply on the ground that it contains false statement or untrue statement. The Opposite Parties have not shown what sort of untrue statement has been made by the Complainant. We are therefore not inclined to hold that complaint is required to be dismissed on the ground that it contains false and untrue statement as alleged by the Opposite Parties. We therefore record our findings on Issue no.3 in the negative.
Issue No.4:
(12) Normally burden is on the Complainant to establish medical negligence against the Opposite Parties, more particularly from Doctors who attended the patient on 21st and 22nd April, 2003. Admittedly, Bharat Raut, husband of Complainant was being treated by four Doctors on 21.04.2003, who was admitted in the hospital for some surgical procedure. He was allegedly having signet cell tumour. Dr. Mahale â Opposite Party No.3 advised him to undergo surgery. On 21.04.2003, patient was admitted in the Millennium Hospital and his consent was allegedly taken. On 22.04.2003, preoperative assessment was made by Dr. Bafana â Anesthetist and patient was allegedly found fit for anesthesia. On 22.04.2003, patient was operated by Opposite Party No.1 â Dr. Manish Motwani, General Surgeon, assisted by Opposite Party No.4 â Dr. Dheeraj Mahangade, Orthopedic Surgeon. Surgery was undertaken under brachial block given through axilary approach by Opposite Party No.4 - Dr. Hitesh Bafana. By 09.00 a.m. surgery ended and patient got cardiac arrest. Immediately Opposite Party No.3 â Dr. Mahale, called Dr. Manisha Ghosh and Dr. Bhavesh Nanda, Anesthetist who immediately came to the help of Opposite Party Nos. 1 and 2. Patient was transferred to Chetna Critical Care Centre in a Cardiac Ambulance under the supervision of Dr. Balbir. Dr. Manish Motwani and Dr. Hitesh Bafana accompanied the patient. Patient reached Chetna Critical Centre and was treated with drugs, pacemaker and injections and it is alleged that patient succumbed and was declared dead at 10.30 a.m. on the same day. At 04.00 p.m. body was sent for post mortem at Rajawadi Hospital. When patient was admitted in Millennium Hospital his condition was stable. He was quite alright except the fact that he was having tumours growth. It was sort of soft tissue mass above elbow region or schwanoma or myoma. Hence, he was advised to get admitted in Millennium Hospital on 21.04.2003 and on next day at 08.00 a.m., operation was performed after giving anesthesia by Opposite Party No.2 â Dr. Bafana and by 09.00 a.m. when operation was over, he is alleged to have had heart stroke (Cardiac arrest) hence, immediately, he was referred to Chetna Hospital, where within half an hour he was declared dead. It is important to note that when patient was brought at Chetna Hospital, Mulund on 22.04.2003 at 10.00 a.m., hospital authorities mentioned following notes:
b) No Heart sounds
c) No pulse
d) No BP
e) No Respiration
f) Patient not responding to stimulus
g) Pupils Bilaterally dilated and fixed
h) Dolls Eye Negative
i) Hypotonia in all 4 limbs.
The above picture indicates that the patient was already dead before he was admitted in Chetna Hospital.
It means that when patient was brought in Chetna Hospital he was virtually dead, still he was admitted in Chetna Hospital, just to make a show that he was alive and Chetna Hospital was taking critical care of the patient. Chetna Hospitals letter Exhibit-F to P.S.I. of Mulund (West) Police Station dated 22.04.2003, time as 10.00 a.m. clearly mentions the following facts:
âThis is to inform you that Mr. Bharat Raut 47 yr old male was brought in critical condition with no pulse, no respiration from Millennium hospital. The patient is dead. Kindly make note of the same and arrange for post mortem.â
The letter written by Chetna Hospital to Mulund (West) Police Station, makes it very clear that when patient was brought in Chetna Hospital he was virtually dead. If we see the papers of Millennium Hospital, we are finding that at one point of time on one sheet it was mentioned that on 21.04.2003 patient was admitted for operation. It is mentioned that tomorrow morning at 08.00 a.m., i.e. on 22.04.2003 the patient be taken-up for excision of signet cell tumour right arm and Axillary Block at 08.30 a.m. Then the next entry on 22.04.2003 is at 09.30 a.m., which is OT notes, right arm swelling (hematoma), excision by Dr. Manish Motwani and Dr. Dheeraj Mahanagade, axillary block and Sedection by Dr. Hitesh Bafana. Operative findings mention that 8.5cm arms hematoma, no bleeding, at 09.00 a.m. Patient went into cardiac respiratory arrest, closure and dressing done, intubation done at 09.01 a.m., CPCR instituted immediately, patient shifted to Chetna Hospital I.C.C.U. for dressing for management of cardiac respiratory arrest. Another sheet on page No.30 gives preoperative notes in detail from 08.00 a.m. So, in our view, these case papers of Millennium Hospital are managed one and Doctors went on just to save the skin of the operating surgeon and other Doctors whoever present at the time of surgery. These entries are not worthy of any reliance.
(13) On admission at Chetna Hospital, no heart bits found, no pulse found, patient was put on ventilator. Since patient died in Chetna Critical Care unit at Mulund, Chetna Hospital wrote immediately a letter to P.S.I. on duty at Mulund (West) Police Station at 10.00 a.m. and informed the Police of Mulund (West) Police Station that Mr. Bharat Raut, 47 years, male, was brought in critical condition with no pulse, no respiration from Millennium Hospital, patient is dead. Kindly take note of the same and arrange for post mortem. This letter itself exposes entries taken by Millennium Hospital and Chetna Critical Care Unit, Mulund. Subsequently on 22.04.2003 the entries on the case papers made by these both hospitals are false and frivolous which is clear from Exhibit-F, letter sent by Chetna Critical Care unit to P.S.I. on Duty, Mulund West, Mumbai at 10.00 a.m., where it was clearly mentioned by Chetna Hospital that patient â Bharat Raut was brought in critical condition with no pulse, no respiration from Millennium Hospital and patient is dead. This letter âExhibit-F sent by Chetna Critical Care Unit is very important letter, sent at 10.00 a.m. on 22.04.2003, it means that when patient was brought in Chetna Hospital, he was already dead and case papers prepared by both these hospitals are such that according to those papers patient died at 10.30 a.m. in Chetna Hospital on 22.04.2003. These papers were so prepared to save the skin of operating surgeons or those assisted in operation in Millennium Hospital on 22.04.2003. Why this letter should not be acted upon is not commented upon by the Opposite Parties. According to Opposite Parties, this was purely an accident and patient died because of cardiac arrest.
(14) Whether or not, Doctors are negligent is not for us to comment, but, it is experts who can comment on the lapses committed by operating surgeons or every Doctors who assisted when the operation was performed on Mr. Bharat Raut on 22.04.2003 at Millennium Hospital. Fortunately, we have post mortem report, post mortem report clearly mentions the opinion as to cause of death. It records as under:
âAfter seeing so and histopathology report that patient died due to complications following intra operative procedure.â
Post Mortem was performed by Dr. B.P. Bhramhand and Dr. S.V. Kachare. In the post mortem notes they have clearly held that patient died due to intra operative procedure, which means that according to Autopsy Surgeon, during the course of operation complications arose, resulting in the death of the patient. Opinion of Civil Surgeon, Thane, was sought by the Senior P.I. â Wagle Estate Police Station vide A.D. No.37/2003. In the Opinion dated 06.03.2004, the Civil Surgeon, Civil Hospital, Thane, stated that in Millennium Hospital, when Mr. Bharat Raut was admitted, preoperative tests were conducted, then operation was performed and at the end of the operation, there were some complications, in the process patient got cardiac arrest and he died. From the Post Mortem Report, it was not clear what sort of complications were found by the Autopsy Surgeon and therefore, Civil Surgeon reported that specific information cannot be given that there was negligence on the part of the Operating Surgeon, in respect of present case. But, he mentioned that after perusal of case papers when complications arose, the Doctors attending the patient tried their level best to save the patient.
(15) Not satisfied with the report of Civil Surgeon, police approached J.J. Hospital, Mumbai. J.J. Hospital, Mumbai, formed the committee of experts and opined that, P.M. Report, HP report, C.A. report of blood do not specify exact cause of death. However, possible cause of death appears to cardiac arrest secondary to cardia toxicity of local anesthesia drugs used in combination for axillary block, but, committee opined that preoperative and post operative management was proper. No Doctor is directly responsible for the death of patient. They opined that operation has not resulted into death of patient and there was no negligence of the Doctors directly responsible for the death of the patient. The matter was taken by Police to Director of Health Services, Maharashtra State. Director of Health services formed Committee of Dr. N.D. Mate, Additional Director of Health Services, Dr. S.M. Mohanty â Member and Dr. S.M. Patil, Police Surgeon. After hearing of concerned persons, the committee noted following lapses on the part of the individual Doctors, who assisted in the operation of deceased Bharat Raut. The lapses of Dr.B.D. Mahale are as under:
a) Not a qualified allopathic doctor.
b) Acting as a promoter soliciting patients and in this case he has fixed the operation of the case, which was not seen and examined by the Surgeon or Anaesthetist.
c) Prescribing allopathic drugs.
d) Informing the relatives that patient has become serious because of his B.P. which is false and was a lie.
e) Informations given to relatives were misleading.
Lapses of Dr. Motwani are as under:
a) Saw the patient for the first time in O.T. on 22.04.2003.
b) Operation was fixed without clinical examination an diagnosis.
c) Getting orthopaedician to assist him means he has no idea about the real problem of the patient.
d) Before operation, all communications were done telephonically.
e) After operation, whatever material was removed should have been preserved for further diagnosis in laboratory, which was not done.
Lapses of Dr. Hitesh Bafana are as under:
a) No pre-anaesthetic check up before the day of operation.
b) Saw the patient only in O.T.
c) Adrenaline injection was not given at the time of administering anaesthesia for axillary block.
d) Sensitivity test was not done for the anaesthetic agent.
e) Toxic effects of anaesthetic agent are manifested in the form of convulsions or atleast twitching of muscles hypotension and cardiac arrest but they have not been noted.
f) Patient expired on operation table itself, shifting patient to Chetna hospital and treatments given were all postmortem and amounts to cheating.
(16) They have also examined Dr. Joshi and his team of Chetna Hospital, had specifically mentioned that treatment given at Chetna Hospital are posthumous. Police was also informed about death of patient at 10.00 a.m., which means, patient was received dead. It is further commented by the expert committee on the post mortem report performed by Dr. Brahmne and Dr. Kachre. According to Committee opinion in the Post Mortem Report that cause of death due to complications of operation is a casual opinion without any basis. The very purpose of post mortem examination to know the truth is defeated. So, the last report is given by Committee of experts which included Addl. Director of Health services â Dr. N.D. Mate, Another Dr. A.C. Mohanty and third Member Dr. S.M. Patil, Police Surgeon. This opinion of Experts Committee is clearly pointing out of lapses of Dr. Motwani â Opposite Party No.1, Dr. Bafana â Opposite Party No.2, Dr. Mahale â Opposite Party No.3 in following preoperational and post operational protocol before taking the patient for operation on 22.04.2003 at Millennium Hospital. No doubt, even this Expert Committee Report tried to give clean chit by giving answers to queries raised by Senior Police Inspector Wagle Estate Police station, Thane. But, the fact remains that patient had died in Millennium Hospital at 10.00 a.m. as per information received by this expert committee and despite this fact â Mr. Bharat Raut was sent in Cardiac Ambulance to Chetna Hospital, Mulund, for further treatment in ICU and Chetna Hospital in one letter âExhibitâF, sent to Police Station mentioned that patient was brought dead in their hospital and police could arrange for post mortem of the dead body. All these facts cumulatively establish the collective guilt and medical negligence on the part of Doctors â Mr. Manish Motwani, Opposite Party No.1, Dr. Hitesh Bafana â Opposie Party No.2 and Dr. Bipin Mahale â Opposite Party No.3. This committee has not found Dr. Dheraj Mahangade guilty of any lapses, because Dr. Mahanagade simply helped Dr. Manish Motwani â Opposite Party No.1, the operating surgeon in the hospital. If we peruse the lapses listed in respect of these three Doctors, it would leave us in no doubt that all the three Opposite Parties, viz. Opposite Party Nos. 1 to 3 are to be blamed for the utter medical negligence shown to the patient and for preparing clinical notes and documents to mislead patient and deceased patients relatives. They also permitted Chetna Hospital to prepare clinical notes and ICU papers, so as to try to prove that Bharat Raut died in Chetna Hospital at 10.30 a.m., whereas, he had died in Millennium Hospital at 10.00 a.m. on 22.04.2003. When Committee of Senior Doctors has given opinion about the lapses on the part of Opposite Party Nos. 1, 2 and 3, we find no need further to give our own opinion that these doctors are guilty of medical negligence. Lapses on the part of the Operating Surgeon and two others (all Opposite Party Nos. 1 to 3) per se amounts to medical negligence and it is clearly established from the report of Expert Committee formed by Director of Health services, Maharashtra State.
(17) When three reports are there, one of Civil Surgeon, other by Doctors of J.J. Hospital and third by Experts appointed by Director of Health Services, Maharashtra State, we are of the view that on the basis of reports of expert appointed by Director of Health Services and on perusal of Post Mortem notes, it is apparent and very clear that deceased died on operation table at Millennium Hospital itself on 22.04.2003 at 10.00 a.m. and he was shifted after his death to Chetna Critical Care unit by these Doctors to save their skin. On behalf of Opposite Parties, Authorised Representative Dr. Shenoy sought permission of this commission to interrogate post mortem surgeon â Dr. Kachre. Interrogatories were delivered and reply was sought on Affidavit. Interrogatories were so delivered that Doctor answering interrogatories was supposed to say only Yes or No and nothing else. What is pertinent to note is the fact that this Doctor was delivered interrogatories despite the fact that he had not filed Affidavit in support of Complainant. Post Mortem Report clearly mentions that patient died because of complications following intra operative procedure. This report is clearly pointing out accusing fingers against the Doctor who had operated Bharat Raut in Millennium Hospital in whose operation theatre immediately at the end of the operation said Bharat Raut allegedly died of cardiac arrest. He was cross-examined deliberately on the Post Mortem Report to elicit favourable answers in the defense of all Opposite Parties and they succeeded in it. But, question is, why should we read answers given on interrogatories by Dr. Kachare when Dr. Kachare had not filed evidence on affidavit in favour of the Complainant. It was inadvertent mistake on our part that we permitted delivery of interrogatories to Dr. Kachre who was simply autopsy surgeon and whose post mortem report was placed on record by the Complainant. This doctor lavishly gave replies in favour of Opposite Parties in answer to interrogatories without there being Affidavit in favour of the Complainant, such a doctor cannot be trusted at all. His cross examination was uncalled for. We permitted delivery of interrogatories only with a view to dispose of case as early as possible than to reject application and allow this case is to be taken in revision before the Honble National Commission. So, in any way, the answers given by Dr. Kachre, Autopsy Surgeon are answers sought by Opposite Parties in their defense. That is why he was asked only to say yes/no in answering the interrogatories. We do not want to get sway dawn by the answers given by Dr. Kachre, which are surely in favour of Opposite Parties.
(18) We therefore find that expert opinion given by Expert Committee appointed by Director of Health Services has listed lapses on the Part of Opposite Party Nos. 1, 2 and 3 in details. We see no reason to discard their opinion.
(19) Dr. Mahale is running the hospital. He is not qualified Allopathic Doctor. He is acting as a promoter soliciting patients and in this case he had fixed operation of the case which was not seen or examined by the Surgeon or anesthetist. He is a homeopathy Doctor and conducting Millennium Hospital at Thane and fixing surgeries and giving allopathic treatment to all who visit Millennium Hospital. He had prescribed allopathic drugs. He had not informed that patient had been serious because of his BP and his statement that he was so informed is false and it was a lie. He had given intimation to the relatives which was misleading. A person having homeopathic degree cannot be permitted to run hospital like this and to fix surgeries in Millennium Hospital and this is a greatest lapse on the part of Dr. Mahale â Opposite Party No.3, who conducted the Millennium Hospital, though the Hospital was registered in the name of Dr. Savla. As regards Dr. Mowani, Surgeon, Committee opined that he saw the patient first time on the O.T. on 22.04.2003. Operation was fixed without clinical examinations and diagnosis. Getting orthopaedician to assist him, means he had no idea about the real problem of the patient. Before operation, all communications were done on telephone. After operation whatever material was removed should have been preserved for further diagnosis in laboratory, which was not done. So, these are major lapses on the part of Dr. Motwani, Operating Surgeon, as per expert committee appointed by Director of Health services.
(20) The Committee has also listed lapses on the part of Doctor Hitesh Bafana, Anesthetist, they are as under:
a) No pre-anaesthetic check up before the day of operation.
b) Saw the patient only in O.T.
c) Adrenaline injection was not given at the time of administering anaesthesia for axillary block.
d) Sensitivity test was not done for the anaesthetic agent.
e) Toxic effects of anaesthetic agent are manifested in the form of convulsions or atleast twitching of muscles hypotension and cardiac arrest but they have not been noted.
f) Patient expired on operation table itself, shifting patient to Chetna hospital and treatments given were all postmortem and amounts to cheating.
(21) The Committee also mentioned that records created by him were not trustworthy as ECG showing evidence of life at Millennium Hospital is not forthcoming. As regards Dr. Kachres Post Mortem Report Committee found that âcause of death was due to complications of operationâ was a casual opinion given by two Doctors, viz. Dr. Brahmne and Dr. Kachre without any basis and very purpose of Post Mortem to know truth is defeated. This report of expert committee clearly proved beyond doubt that Opposite Party No.1 â Dr. Motwani, Opposite Party No.2 â Dr. Bafana and Opposite Party No.3 â Dr. Mahale, exhibited lapses of unpardonable and inexcusable nature in operating deceased patient â Bharat Raut, who was husband of Complainant â Kalyani Raut. So, this evidence itself is sufficient to prove that Opposite Party Nos. 1, 2 and 3 are surely guilty of medical negligence and it is because of their negligence the patient had expired on operation theatre. It is also established that patient died on O.T. in Millennium Hospital, Thane, itself on 22.04.2003 at 10.00 a.m., but, he was tried to be shifted to Chetna Critical Care Unit at Mulund in the Cardiac Ambulance by these Doctors to save their skin and to make a show that patient was still breathing and it was tried to be shown that he died in the Chetna hospital at 10.30 a.m. on the same day.
(22) All these facts as discussed above leave us in no doubt that Opposite Party Nos. 1, 2 and 3 are squarely responsible for the medical negligence exhibited by them in treating or operating Mr. Bharat Raut, the deceased husband of Complainant. She had been rendered orphan because, Mr. Bharat Raut was only earning hand in her family and because of medical negligence of opposite Party Nos.1, 2 and 3 she lost her husband. We, therefore, record our findings on Issue No.4 in the affirmative.
Issue No.(v):
(23) Thus, looking to the facts and circumstances, since Complainant has lost her earning hand, her husband and father of the children, the compensation must be adequate and commensurate with the guilt of the Opposite Party Nos. 1, 2 and 3. Complainant has asked for Rs.2,00,000/- per year for 24 years and also has asked for Rs.48,00,000/- as compensation. Looking to the fact that Complainant has lost her earning husband and she has to feed her children, we are inclined to grant compensation adequate to support her children and to herself after the sad demise of her husband. We are of the view that an amount of Rs.15,00,000/- would be the adequate compensation which would go to help the Complainant to maintain herself and her children, if that amount is deposited in any nationalized Bank in fixed deposit and on the interest accrued she can maintain herself and her children. Thus we direct that this amount of Rs.15 lac shall be payable jointly and severally by Opposite Party Nos. 1, 2 and 3. Opposite Party No.4 â Dr. Dheeraj Mahangade, is exonerated from the charge of medical negligence for want of appropriate proof. The complainant is also entitled to get some amount towards cost.
(24) In the result, we are inclined to allow this complaint partly. Hence, we pass the following order:
Order:
(i) Complaint is partly allowed.
(ii) Opposite Party Nos.1, 2 and 3 are jointly and severally directed to pay a sum of Rs.15,00,000/- to the Complainant by way of compensation for the loss of her husband while operating him in Millennium Hospital, with interest @ 6% per annum thereon from the date of filing of the complaint till realization of the entire award amount.
(iii) Opposite Party Nos.1, 2 and 3 are jointly and severally directed to pay Rs.30,000/- towards cost of the complaint to the Complainant.
(iv) Copies of this order be sent to all the parties and also to Chief Health Officer of Municipal Corporation of Greater Mumbai and also of the Municipal Corporation of Thane for taking suitable action against Chetna Hospital, Mulund and Millennium Hospital, Wagle Estate, Thane.
(v) Copy of this order be sent to Maharashtra Medical Council for taking appropriate action against erring doctors.
(vi) This order shall be complied with within one month from the date of receipt of the order by the Opposite Party Doctors.