Per Shri P.N. Kashalkar, Honble Presiding Judicial Member
1. Complainant- Manik alias Gangajirao Zugara More has filed this complaint against Rajasthani and Gujrathi Charitable Foundations Poona Hospital and Research Centre-O.P.No.1 and also against Port Trust Hospital, Wadala, Mumbai-O.P.No.2 alleging medical negligence on their part in respect of treatment given by both hospitals to his son-Mahendra More.
2. According to the complainant, Mahendra slipped off his motorcycle on Sinhagad Road at about 10.30 p.m. on 23/02/1997. One passerby took him to Madhukar Hospital on Sinhagad Road and since his son has having head injury, he was brought to Poona Hospital/O.P.No.1 and admitted in the said hospital. He was admitted in Intensive Care Unit (I.C.U.) of O.P.No.1 and necessary treatment was given. According to the complainant, his relative used to wait day and night outside I.C.U. to monitor the health of Mahendra. Necessary medicines, injections and equipments were brought. His son was on endotracheal tube, which was inserted as he was in respiratory distress. Endotracheal tube was replaced by tracheostomy on 26/02/1997. C.T. Scan of the brain was taken. X-ray of cervical spine was taken. Cathedral was used for urine passage. According to the complainant, it was an obligation on the part O.P.No.1-Poona Hospital to recognize Mahendra as a patient at risk since he was immobile and unconscious. Chest physiotherapy was must since Mahendra had undergone Tracheostomy. The physician-in-charge should have encouraged family participation in giving exercises and body repositioning and should have asked for male orderly to attend Mahendra at any cost. The physician-in-charge should have informed them about formation of bedsores and muscle contractures developing into rigidity. The neurosurgeon should have recommended MRI and should have acquainted complainant with his impression of brain stem injury. The neurosurgeon should have given him discharge summary when Mahendra was discharged so as to enable him to consult eminent Neurosurgeon about brain stem injury. The Neurosurgeon should have come with him to Port Trust Hospital/O.P.No.2 or should have sent his assistant to estimate the progress. Nursing staff never made attempts in repositioning of Mahendra body while lying in the bed. He was never made to sleep on right or left side or in prone position. The physiotherapist came with interns only once or twice and tried traction only once. He never attempted movements of fixed joints. The nurses never gave him passive range of movements. Mahendra did not receive physiotherapy for his upper limbs. Only once during his 37 days stay in O.P.No.1-Poona Hospital traction to his lower limbs was applied. But, it was immediately removed when Mahendra showed signs of great pains. They were never shown his bedsores or muscle contractures even on the day of discharge. Whenever bedcovers were changed or cleaning of the body was carried out, they were never allowed to remain inside in the I.C.U. Patient having diseases like Asthma, Gangrene and Rabies were in the vicinity of Mahendra in I.C.U. The nurses were not dutiful during night time.
3. Complainant alleged that though his son was immobile and unconscious and lying in supine position day and night, his body positioning was not done regularly and he developed four bone deep bedsores. He also developed complete rigidity of joints and multiple contractures in all his four limbs. If proper care should have been taken, this complication would not have developed alarming proportions. Treat and prevention was the duty of hospital staff. Hospital never acquainted them with these complications. They came to know all these bedsores and contractures in the Port Trust Hospital on the day of his admission in Port Trust Hospital, Mumbai on 03/04/1997. Mahendras physical condition, immobility and incontinence were prone to the formation of bedsores and muscle contractures. Preventive measures should have been taken by the physician attending him. Physician should have given strict instructions to the nursing staff and physiotherapist about bedsores formation and muscle contractures and family members should have been acquainted with these complications. Due to bedsores and muscle contractures, future rehabilitation of Mahendra was not possible. He could not be given actual physiotherapy due to bone-deep bedsores. It resulted in severe contractures and Mahendras rehabilitation programme totally failed because of deficient services on the part of O.P.No.1-Poona Hospital. Mahendrea bed was in the vicinity of other patients suffering from Asthma, Rabies and Gangrene. Viral infection must have aggravated the severity of ulcers. He asserted that most effective method of preventing bedsores is regular turning of the patient body at 2 hourly intervals. Formation of bedsores and muscle contractures is regarded as the emblem of bad nursing. Their onset could have been delayed if patient received proper nursing and attention, but Mahendra never received regular turning day and night. Family participation was never suggested on this count. In not taking proper care in two hourly changing body position by the hospital staff was per se negligence on the part of Poona Hospital. Skin flaps was done on all the bedsores in Pune Institute of Neurology on 15/05/1997. Three times in a day daily flaps were cleaned and dressed till December 1997 i.e. for more than 7 months. The healed sinuses look like craters making Mahendras buttocks look very ugly which clearly shows extensive damage done due to negligence of Poona Hospital. Deficiency in service lies in the fact that Poona Hospital did not understand the problem faced by Mahendra which led to complications. Repositioning of the body was not done to prevent bedsores formation. Mahendra did not receive exercises of joints at any point of time while he was staying in I.C.U. He was always lying on his back. Only on 37th day of his stay he was given prolonged stretch to his legs by applying load, but it was immediately discontinued since Mahendra shown signs of extreme pain. The physiotherapist was negligent in not supervising and treating both fixed and flaccid joints. Mahendras final diagnosis confirmed that he was having âmild post traumatic diffuse cerebral oedema and fractured right lateral wall of right orbit. Follow up of C.T. Scan study on 28/02/1997 showed that there was some patchy cerebral oedema with better visualized basal cistern and ventricular system. The small area of cerebral contusion was seen deep in the left temporal region. This was the final diagnosis when Mahendra was discharged from Poona Hospital on 03/04/1997. According to the complainant, Mahendras legs had became weak as muscles were cut to release contractures. Because of deviated pelvic girdle, his hip joints were distorted. Therefore, he cannot maintain erect posture. Cause of deformity originated and culminated in Poona Hospital itself. Contractures in both hands could not be released due to rigid muscles. Physiotherapy and massaging has helped him in movement of hands.
4. According to the complainant, Mahendra was shifted to Port Trust Hospital, Mumbai on 03/04/1997 as advised by Dr.Sushil Patkar for Hyperbaric Oxygen Therapy. When he was discharged from Poona Hospital, he was conscious, recognized relatives, obeyed simple commands. He had 4 deep bedsores and multiple muscle contractures in all his four limbs. Bone joints were swollen, hands were bent in elbow joints and legs in knee joints. Mahendra was given conservative hyperbaric oxygen treatment for 21 days in Port Trust Hospital. He was to be put in a closed chamber from 7.00 a.m. to 9.00 a.m. everyday. After a week of treatment, Mahendra began to talk irrelevantly. He could not recognize even close relatives and showed signs of restlessness. Dr.Panchal, Neurosurgeon suggested Mahendra should be admitted in Sion Hospital, Mumbai. But, Dr.Sushil Patkar in Poona Hospital had insisted that H.B.O. treatment should be completed and therefore, that treatment was taken first. According to the complainant, Mahendra had absolutely no signs and conditions which would warrant treatment of H.B.O. but, still was advised to do so. According to the complainant Hyperbaric Oxygen is used to combat carbon monoxide poisoning, vascular disease, thrombosis, embolism to increase tumour sensitivity to radiotherapy hypoxia, Hypotension of traumatic shock, pulmonary oedema. The complainant asserts that Mahendras case was not fit for advising him H.B.O. therapy. So, Dr.Sushil Patkars decision to refer him to Port Trust Hospital was hasty, unfounded and detrimental to Mahendra. The complainant asserts that Hyperbaric Oxygen treatment has dangerous effects. It disturbs central nervous system function by direct toxicity by oxygen. There is diminished cerebral blood flow. At the end of treatment in Port Trust Hospital, Mahendra became extremely confused, lost his orientation and failed to recognise close relatives and became irritable and talked irrelevantly and progress achieved in Poona Hospital was not only lost but was worst after H.B.O. treatment. The complainant has alleged that Port Trust Hospital should have given Mahendra passive and active physiotherapy for the upper limits. The attending doctors told him that H.B.O. treatment would heal bedsores. Therefore, Mahendras bedsores were dressed only 9 times in 21 days. Four bone deep and foul smelling bedsores remained neglected upto 24/04/1997 i.e. two months after the accident. No physiotherapist ever visited in Port Trust Hospital. The Port Trust Hospital showed extreme apathy in their communication. After discharge from Port Trust Hospital, Mahendra was admitted in Pune Institute of Neurology, Hardikar Hospital on 24/05/1997. He was mainly admitted for treatment of bedsores and muscles contractures. His bedsores were cleaned and dressed twice a day. His body position was changed after every hour and exercise was welcomed in Pune Institute of Neurology. Mahendra was given physiotherapy twice a day. After one week, his body posiions were changed every hour. Mahendra was almost normal in recalling past incidents, fully conscious and co-operative in June 1997. He was discharged on 14/07/1997. Even after discharge, complainant has engaged private physiotherapist. Again on 30/07/1997 Mahendra was admitted in Pune Institute of Neurology for non-healing of bedsores. He was finally discharged on 11/08/1997. The last bedsores healed at the end of December 1997. Mahendra was also examined by Dr.Bhagali, M.S. (ortho.) in first week of September 1998. He was operated upon for correcting ankle deformity and he was discharged on 21/09/1998. It was now clear that Mahendra lost his normal life of past and he has to use crutches in all his life. He had pleaded that harm is caused to his son by specialized hospital. The staff has been guilty of negligence and there is injury to body, mind and life. Mahendra further suffered brain damage, developed neurological disorders due to long H.B.O. treatment. Muscle contractures led to severe rigidity muscles of the two extremities. Mahendra had played cricket on every ground in India, twice went to England. Mahendra is suffering from consequences of negligence for the rest of his life. According to complainant, negligence in diagnosis and treatment on the part of doctors caused for this condition of complainants son-Mahendra. Therefore, complainant has filed this complaint praying for grant of hospital charges, medical expenses, etc. as under:-
1. Hospital charges, medical bills and miscellaneous Rs.3,81,439.00 expenses.
2. Other expenses already paid Rs.37,200.00
3. Losses suffered during hospitalization Rs.82,037.00
4. Future expenses Rs.5,04,700.00
5. Loss of income and compensation for Rs.9,90,000.00 disability
6. Expenses of filing complaint Rs.4600.00
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Total : Rs.19,99,976.00
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5. O.P.No.1 has filed written statement and contested the complaint. According to O.P.No.1-Poona Hospital, complainant is not a beneficiary of O.P.No.1. The Bank of India had hired the services of Poona Hospital and they had provided best services to patient-Mahendra More. They committed no medical negligence in giving treatment and nursing care to the patient during stay in Poona Hospital. Claim of the complainant is very high and exorbitant. O.P.No.1/Poona Hospital pleaded that its insurance company-United India Insurance Company was necessary party and should be made as party to this complaint. O.P.No.1 pleaded that Mahendra More took treatment in O.P.No.1-Poona Hospital for head injury from 24/02/1997 to 03/04/1997. Subsequently, he took treatment in other hospitals. The complaint is mainly regarding bedsores and muscle contractures which worsened after discharge on 03/04/1997 from O.P.No.1-Poona hospital. So, those other hospitals and doctors who treated should have been made party to this complaint. O.P.No.1 admitted that Mahendra More was admitted in its hospital on 24/02/1997 and he was discharged on 03/04/1997. He was under medical treatment under Dr.Sushil Patkar. He was in I.C.U. in Ward-H, on Bed-112 during his stay in the hospital. O.P.No.1 pleaded that complainant, father of patient never visited patient during his stay in Poona Hospital. He visited the patient only on the day of discharge i.e. on 03/04/1997. He has expressed satisfaction for the services rendered by Poona Hospital in the Suggestion Book in âH Ward where his son was admitted. The appreciation note was written by the complainant himself in his own writing on 03/04/1997 and it was duly signed by the complainant. Therefore, present complaint is nothing but an after thought. O.P.No.1/Poona Hospital admitted that patients with head injury are always considered as high risk patients and they are treated in I.C.U. Mahendra More was therefore kept in I.C.U. The treatment was given as per treating consultant. His body position was changed after every two hours and was given physiotherapy. Those instructions were scrupulously followed as per the hospital record. The tracheostomy did not any way affect the physiotherapy given to the patient. Necessary chest physiotherapy was given to the patient daily as per hospital record. The relatives were also taught how to give chest therapy and passive exercises to the patient and how to change body position of the patient periodically. The nursing staff and physiotherapist were repositioning the patient after every two hours and chest physiotherapy and limb exercise was given to the patient regularly. Bedsores were first noticed on 15/03/1997 and necessary treatment was given to the patient till the day of discharge. The surgical treatment of bedsores was performed on 31/03/1997. This was done with the consent of Mores mother. On 19/03/1997 it was noticed that patient was developed stiffness in lower limbs, which is common occurrence after severe brain stem injury. Therefore, from 19/03/1997 aggressive physiotherapy was started. Dr.Suresh Shinde , Senior Consultant Physician involved in I.C.U. started the patient on medication from 25/03/1997 to reduce stiffness in the muscles. In spite of all aggressive measures to prevent contractures, the patient developed contractures in both knee joints and was referred to Dr.Rajiv Arora, Sr.Orthopaedic Surgeon for his advice. As per his advice, simple vissco skin traction was promptly started on 01/04/1997 and continued till the day of discharge i.e. 03/04/1997. The Neurosurgeon was confident that the MRI examination was not necessary as brain stem injury was confirmed. Diagnosis of brain stem injury is a clinical diagnosis. After C.T. Scanning, MRI was not necessary. Subsequently, the diagnosis has been proved to be correct. The patient was given duly completed written discharge summary from Poona Hospital on 03/04/1997. The complainant was free to consult any other Neurosurgeon. Dr.Patkar has given some names of Neurosurgeon of Mumbai out of which complainant did consult Dr.Panchal. O.P.No.1 pleaded that it was not obligatory on the part of Neurosurgeon to go to another hospital in another city after discharge of patient on 03/04/1997.
6. O.P.No.1 asserted that there is hospital record to show that body repositioning was done regularly. Physiotherapist regularly carried out physiotherapy. Traction was given. Relatives were also taught to give passive exercise and since he was in I.C.U. patient was attended by Registrars and nurses on duty 24 hours a day. So, necessary attention and care was given to the patient. The treatment for bedsores and muscle contractures were given from the day it was detected till the patient was discharged.
7. O.P.No.1/Poona Hospital denied that patients having diseases like asthma, gangrene and rabies were kept in the vicinity of Mahendra More. It denied that nurses were sleeping during night duty. It pleaded that staff working in I.C.U. is always alert and careful. So, allegation of the complainant is absolutely baseless. On the contrary, the complainant had given written appreciation for the staff on duty. It denied that there was any deficiency in service provided by O.P.No.1. It also denied that any negligence was committed by O.P.No.1. It denied that for 40 days complainants son was kept in supine position all throughout. It pleaded that he was repositioning frequently from left side to right side. Body positioning was changed after every 2 hours and physiotherapy was given on chest and limbs. When his condition improved, wheel chair ambulation was also started. It pleaded that at the time of discharge, complainants son bedsores were healing, clean and non-smelling. There was no foul smelling discharge from the bedsores. Proper and necessary nursing care was taken from day the bedsores were visible till the date of discharge i.e. 15/03/1997 to 03/04/1997. The debridement of bedsores was done on 31/03/1997 by Dr.V. Keskar. The Poona Hospital asserted that due to diligent nursing care, the onset of bedsores was delayed to nearly 19 days. The bedsores are known to occur within few hours if due and proper care is not taken. Poona Hospital asserted that on the day of discharge, there was no bedsore. On the contrary, there was healing condition and one was superficial. O.P.No.1/Poona Hospital asserted that relatives were acquainted daily regarding the condition of the patient including the onset of bedsores, physiotherapy, etc. The complainant never visited the patient. So, question of acquainting him about the patients condition did not arise. According to O.P.No.1 muscle contractures and rigidity of joints did not occur in the upper limbs during his stay. Muscle contractures of the knee joints were detected on 19/03/1997. Consultant in-charge referred the patient to Dr.Rajiv Arora, Orthopaedic Surgeon. Dr.Arora examined the patient on 01/04/1997 did not advise surgery but, advised starting of vissco traction. The prescribed treatment of vissco traction was carried out on 01/04/1997, 02/04/1997 and 03/04/1997 but, patient left this treatment. The prolonged treatment is to be given for three weeks or more. The patient left the Poona Hospital on 03/04/1997. In discharge summary, it was advised to the patient to carry on with skin traction to the lower limbs. The Poona Hospital pleaded that in spite of best physiotherapy and nursing care, muscle contractures do to occur. That itself speaks for the diligent physiotherapy and nursing care given to the patient by O.P.No.1. The Poona Hospital pleaded that relatives of the patient requested the treating consultant to refer the patient for Hyperbaric Oxygen Therapy for brain stem injury. This treatment was not available in Pune city. It was available in Port Trust hospital, Wadala, Mumbai. Therefore, at the behest of patients relatives, he was referred to Port Trust Hospital, Wadala for Hyperbaric Oxygen Therapy. The Hyperbaric Oxygen Therapy has no adverse effect on muscle contractures. It pleaded that the patient left Poona Hospital and since discharge, the patient never came back to O.P.No.1 for consulting Dr.Sushil Patkar. What happened to the patient after 03/04/1997 was not known to O.P.No.1. O.P.No.1 pleaded that the allegation of the complainant that patient became disabled due to deficiency in service of O.P.No.1 is absolutely false. No damage or injury was caused to the patient due to the treatment given to the patient in its hospital. O.P.No.1 pleaded that affidavit of complainant is absolutely false and he is not beneficiary of the services provided by O.P.No.1. Mahendra More had no grievance about the hospital service of O.P.No.1. The complainant himself appreciated the services of O.P.No.1 and he wrote appreciation note on the day of discharge. O.P.No.1 pleaded that because of greed of money, complainant has filed this false complaint and has claimed virtually Rs.20 Lakhs by filing complaint. O.P.No.1 denied allegation of negligence or deficiency in service and therefore, pleaded that complaint should be dismissed with cost. In fact they asked for compensatory cost to be awarded by this Commission to them.
8. O.P.No.2 filed its written statement and pleaded that the complaint filed against it is absolutely false, frivolous and should be dismissed as such. It denied that O.P.No.2 is guilty of deficiency in service or negligent in giving treatment to the patient. It pleaded that O.P.No.2 rendered most appropriate treatment required by patient for which he was sent. Therefore, there was no question of giving compensation to the complainant. O.P.No.2 pleaded that when patient was taking treatment in Port Trust Hospital, neither complainant nor the patient complained to the Hospital. Therefore, allegation of complainant is nothing but an afterthought, made with ulterior motive. O.P.No.2 pleaded that Mahendra More was referred to Port Trust Hospital for Hyperbaric Oxygen Therapy by Dr. Patkar, Neurosurgeon, consultant of Poona Hospital and that treatment was given to the patient in their hospital. The patient developed bedsores in March 1997 and shifted to Port Trust Hospital on 03/04/1997. This fact is mentioned by complainant himself in his rejoinder. While admitting the patient in the Port Trust Hospital, Medical Officer clearly mentioned about bedsores in the clinical history. O.P.No.2 pleaded that the patient had suffered head injury. He was admitted in Poona Hospital for 40 days and subsequently transferred to Port Trust Hospital with bedsores. O.P.No.2 pleaded that it is well known that in head injury case where patient is bed ridden, bedsores are bound to occur. According to O.P.No.2 specialised major dressings requiring dislougings were done 9 times in Minor Operation Theater. Such type of dressings are done only on alternate days and minor dressings are done in Ward daily. O.P.No.2 pleaded change of position is important part which relatives of the patient are supposed to carry out. The patients relatives were always sitting with the patient at his bedside and they were supposed to change the position of the patient. From the nurses note, it is revealed that position of the patient was frequently changed and waterbed was provided which is useful for bedsores. O.P.No.2 pleaded that it had not given exercise or traction in the upper limbs. The patient was primarily brought in its hospital for HBO Therapy and since, bedsores were detected they were treated with various modalities of treatment including visco-traction to knees for contractions. Skin traction was also given as per standard procedure to prevent contraction.
9. O.P.No.2 pleaded that at the time of discharge, complainant was provided with discharge summary which contained the line of treatment given to him during his stay in the hospital. He was also informed about line of treatment by hospital vide letter No.Hosp/R/NPT/3672 dated 8th July 1998 by the Chief Medical Officer, which was self-explanatory. O.P.No.2 pleaded that the patient was shifted from Port Trust Hospital after completion of course of 21 sitting as advised by Dr.Sushil Patkar, Consultant Neurosurgeon of O.P.No.1/Poona Hospital. For his entire stay of 21 days, O.P.No.2 charged him just Rs.6,790/-. Total charges recovered from the patient were quite reasonable and there is no question of reimbursing the said charges to the patient. O.P.No.2 pleaded that patient was non-Port Trust employee and for non-Port Trust employee, medicines available in the hospital are supplied and charged in the bill and if medicines are not available, the patient is required to purchase them from the market. This was practice followed in respect of complainants son. The complainant has falsely claimed charges for transferring the patient from Pune to Mumbai through ambulance. O.P.No.2 pleaded that such type of charges are not payable by the hospital. O.P.No.2 pleaded that complainant failed to make out any case against O.P.No.2. Therefore, this Commission should be pleased to dismiss the complaint.
10. We heard submissions of Mr.Prashant Patil, Advocate for complainant, Mrs.Sheetal Kulkarni, Advocate for O.P.No.1 and Mr.R.Y. Gaonkar, Advocate for O.P.No.2.
11. In view of pleadings and arguments advanced before us, following issues arise and our findings thereon are as under:-
ISSUES FINDINGS
1) Whether complaint as filed by father of the disabled Yes child as claimed by the complainant can file consumer complaint ?
2) Whether complainant proves that O.P.Nos.1and2 having No been guilty of medical negligence in treating his son Mahendra More ?
3) What order, if any Complaint stands dismissed.
REASONS
12. Issue No.1: The complainants son met with an accident and therefore, he was admitted in O.P.No.1/Poona Hospital where his son took treatment for about 40 days and thereafter, his son was transferred/referred to Port Trust Hospital, Wadala, Mumbai, where further treatment for HBO Therapy was taken and in giving treatment it has been asserted by the complainant that both hospitals and doctors and nurses working there under were negligent and deficient in services and therefore, he filed the present consumer complaint alleging medical negligence against both the O.Ps. The complaint normally should have been filed by Mahendra More since he was major at the time of admission in O.P.No.1/Poona Hospital. He was also major when he was referred for further treatment at Port Trust Hospital, Wadala, Mumbai, and therefore, normally complaint should have been filed by Mahendra More himself. But, complainant is the father of Mahendra More, victim of the accident and patient, who was treated by both the hospitals. He is disabled one. He cannot move and therefore, on behalf of Mahendra More, though he was major, his father filed consumer complaint. The complainant has relied upon jugement of the Supreme Court in the case of Spring Meadows Hospital V/s. Harjol Ahluwalia thru K.S. Ahluwalia, 1998(4) SCC-39 and contended that in view of said ruling of the Supreme Court, complaint can be filed by him on behalf of his son, who was disabled. The Consumer Protection Act, 1986 is a benevolent social legislature. Therefore, looking to the scope of Section 2(1)(d) and other relevant sections, we hold that even father of disabled child can be held to have legal competence to file consumer complaint on behalf of his son. In Spring Meadows case, mentioned supra, the Supreme Court had before it a complaint filed by father of the child. Since patient was the child and he was maltreated, it was held that father can surely file consumer complaint on behalf of his minor son. But, in the instant case, patient and victim of medical negligence as alleged is the major son. But, since he is rendered disabled allegedly because of these two hospitals, we hold that in such contingencies, the father can be treated as consumer within meaning of Section 2(1)(d)(ii) of Consumer Protection Act, 1986 and as such consumer complaint as filed by father must be held to be duly and properly filed on behalf of his son.
13. It was tried to be contended by O.P.No.1/Poona Hospital that payment was made by Bank of India, where son of the complainant was serving and therefore, it was contended that complainant having not paid any dues cannot be permitted to file consumer complaint. However, payment was made by the Bank of India because son of the complainant was employee and as per service conditions, Bank of India made reimbursement of the medical expenses incurred by its employee i.e. Mahendra More. Reimbursement of medical bill by the employer does not mean that Bank of India who made the payment should be complainant. Payment was made initially by the complainant, which was reimbursed by the Bank of India or as per mutual arrangement, Bank of India might have for the benefits of its employees made the payment directly to the O.P.No.1/Poona Hospital that does not mean that complainant paid nothing to the O.P.Nos.1and2. Services were availed by the complainant and his son and payment was made on behalf of complainant and his son and therefore, it cannot lie in the mouth of O.P.No.1 to say that complainant had not made any payment and therefore, he cannot be a consumer. He is a consumer. Ultimately, the Bank of India was under obligation to make reimbursement of the medical bills submitted by Mahendra More. So, despite this fact, it must be held that the consumer complaint as filed by the complainant is tenable in law. We therefore record our finding on Issue No.1 in the affirmative.
14. Issue No.2: Admittedly, Mahendra More met with an accident and he was admitted in O.P.No.1/Poona Hospital on 24/02/1997. Said Mahendra was treated in the Poona Hospital from 24/02/1997 to 03/04/1997. Thereafter, he took treatment at O.P.No.2/Port Trust Hospital, Wadala, Mumbai. Mahendras case was a case of accident. He was admitted on 24/02/1997 and was under medical care of Dr.Sushil Patkar, Neurosurgeon for the treatment of head injury. He was all the while kept in I.C.U. in âH Ward on Bed No.112 during his stay in Poona Hospital. According to the complainant, during the stay, patient developed bedsores and muscle contractures and this happened because of recklessness and carelessness and negligence in giving treatment to the patient. This is sum and substance of the allegations of complainant. The complainant has contended that Poona Hospital did not take proper care to create formation of bedsores and Poona Hospital did not give physiotherapy treatment to prevent contractures of the limbs. This allegation has been denied by Poona Hospital/O.P.No.1. What is pertinent to note is the fact that the complainant has given his own affidavit alleging medical negligence against both the hospitals, whereas O.P.No.1/Poona Hospital has given affidavit of Dr.Patkar, Neurosurgeon under whose care, son of the complainant was in Poona Hospital and it was Dr.Patkar who has given medical treatment to said Mahendra More. So, Dr.Patkar has filed affidavit on behalf of hospital whereas complainant has filed affidavit of no expert. He simply filed affidavit of one Dr.Patil, who is not expert from the field of neurology or neurosurgery, but he is expert in forensic medicine. A person who is expert in forensic medicine cannot possibly give correct opinion in respect of treatment given by neurosurgeon-Dr.Patkar and some others from Poona Hospital. It is also pertinent to note that O.P.No.1 has filed affidavit of physiotherapist Mrs.Kaumudi Sharad Limaye, affidavit of Dr.Anant Sinha, Plastic Surgeon, Dr.Rajiv Arora, Orthopaedic Surgeon, affidavit of Mrs.Anjali Anil Kulkarni, Assistant Matron of Poona Hospital, affidavit of Dr.(Ms.) J. Ravindranath, Director of Poona Hospital and affidavit of Dr.Keskar Vijaykumar Revansidha, Surgical Oncologist, who had treated Mahendra More while he was admitted in Poona Hospital. It is these surgeons and doctors who had looked after Mahendra More when he was admitted in Poona Hospital from 24/02/1997 to 03/04/1997 (i.e. date of discharge). Complainant has filed affidavit of Dr.Ajay V. Patil. In his affidavit he has stated that he is MD (Forensic Medicine) and obtained Diplomate of National Board (Legal Medicine) and was also having Diploma in Industrial Safety. He has read original complaint filed by the complainant and read the documents, case papers, nursing notes, physiotherapists notes maintained by Poona Hospital, Port Trust Hospital and Pune Institute of Neurology. He also read opinion given by various consultant attached to various hospitals and according to him there was negligence in diagnosis. Diagnosis of the patient was âCerebral Edemaâ. However, doctors of O.P.No.1 diagnosed as âAxonal Injuryâ on C.T. scan. But, according to him âAxonal Injury can only be diagnosed on MRI studies. There was no evidence of fracture of base of skull either clinically or on CT scan. There was clear fabrication of many documents as far as diagnosis of case is concerned. Dr.Patil also stated in his affidavit that it is a golden rule that patients who are unable to move by themselves should not be kept in the same lying down position for long. Nurses and staff are duty bound to change the position of the patient after every two hours. This patient was admitted in Poona Hospital for 39 days and case papers clearly revealed that change of position was done for only 10 days through out the hospital stay. The patient had severe bone deep bedsores at the pressure sites and which are due to negligent act of the doctors and nursing staff in not changing the body position as prescribed by medical literature. He also stated that at Port Trust Hospital, the bedsores dressings and application of traction was not done as per standard procedures. The care of tracheostomy in Poona Hospital was not done as it should have been done and it was found that tracheostomy tube was blocked on many occasions. Dr.Patil also testified that Hyperbaric Oxygen Therapy was prescribed when it was not at all indicated in the present case. He therefore commented that for the present condition of the patient, acts of Poona Hospital and Port Trust Hospital are responsible. He found that there was carelessness and willful negligence on the part of both the hospitals. There was negligence in nursing care, change of position, physiotherapy of patient and care of bedsores, which led to formation of bone deep bedsores and subsequent complications are responsible for the present condition of the patient which could have been avoided with proper patient care. Dr.Patil testified that negligent patient management led to formation of muscle contractures. It necessitated to release of these contractures as well as plastic surgery of the bedsores, which had led to the present disability to the patient. Dr.Patil also stated that there are many instances of fabrication of documents evident in the indoor case papers in both the hospitals.
15. What is important to note is the fact that complainant produced this affidavit of Dr.Ajay Patil, who is resident of Navi Mumbai on 15/04/2004 whereas, Poona Hospital had filed affidavits of above referred doctors much earlier. Those affidavits have been sworn on 24/08/2000, 30/04/2001 and 02/05/2001. This doctor was cross-examined on Commission on behalf of O.P.No.1/Poona Hospital. Doctor admitted in cross that he had seen the concerned patient in Poona Hospital in I.C.U. on 24/02/1997. When he saw him patient was conscious. He met him in the evening may be round 6.00 p.m. He asserted that he was having knowledge of neurology, but he had not treated patients having neurological problem. He was asked to rely upon any authoritative book as regards the diagnosis of cerebral edema without taking MRI. He answered that he was deposing the basic facts of medicines, he did not feel necessary to rely upon any reference book. He admitted that he had not explained about the alleged fabrication of documents as they are false. He also admitted that he has not explained in details the fabrication in the documents as they are many. He was asked whether he had treated any serious patient who is in I.C.U. since he was only MD in forensic medicine. He stated as he worked as Resident Medical Officer in Orthopaedics in Inlaks and Budhrani Hospital, Koregaon Park, Pune, in Department of Neurology under Dr.Wadia in Ruby Hall, Pune and as âAnesthesia Resident in Jagjiwan Ram Hospital (Western Railway) in Mumbai Central and had seen hundreds of critically ill patients and treated them. He produced five certificates which related to forensic medicine. His attention was drawn to the case papers of Poona Hospital dated 25/02/1997 and he was asked if the position of patient was changed frequently for a day throughout the stay as per the nurses notes filed on record. He disagreed. Even in the notes by nurses change of position and the frequency with which it is needed is not mentioned, otherwise the question of bone deep bedsores would not have arisen. He stated that he had seen case papers before filing his affidavit. He categorically stated that he himself has not treated the concerned patient. In answer to question that there was no permanent disability to the patient, doctor answered that patient is permanently disabled and this fact is certified by Disability Certificate of private and Government authorities. The patient cannot walk without crutches, cannot squat and has to be accompanied by some help assistance.
16. Affidavit of this witness is not helpful to prove medical negligence because he is not an expert in neurology. He is an expert in forensic medicine. Forensic medicine has nothing to do with the problem of neurology or neurosurgery. Moreover, he admitted that he did not treat the patient with neurological problem and he had given opinion by filing affidavit simply by perusing case papers without treating the concerned patient. He admits that he had seen the patient on first day i.e. 24/02/1997 when he was in I.C.U. in Poona Hospital and categorically admits that he knew the patient from his birth as he is his relative. Since this doctor is relative of the patient, he appears to be interested and therefore his testimony even otherwise cannot be acted upon to hold both the O.Ps. or their doctors, nursing staff were in any way negligent in treating son of the complainant. This sole affidavit produced much later in point of time by the complainant after written statements were filed by both the O.Ps. in which O.Ps. had taken exception to the complaint on the ground that complainant had not filed evidence of any expert witness. So, this affidavit was filed by the complainant as late as in the year 2004. Whereas, O.Ps. had filed affidavits in 2001 itself and therefore, this affidavit must be discarded in toto. Moreover, affidavit of an expert, who is MD in forensic medicine, cannot be acted upon even otherwise to hold O.Ps. guilty of medical negligence because this case was pertaining to neurosurgery, plastic surgery and disablement arising out of treatment given to Mahendra More when his bedsores and muscle contractures was not giving any relief to Mahendra More. Moreover, Dr.Patil stated that negligent patient management led to formation of muscle contractures. It necessitated release of these contractures as well as plastic surgery of the bedsores, which had led to permanent disability to the patient. So, basically permanent disability occurred to the patient not because of negligent patient management, but because of surgery undertaken to get released muscle contractures and plastic surgery done on bedsores of Mahendra More. So, it is subsequent surgeries that appears to be responsible for the disability ultimately suffered by son of the complainant. So, the doctors who performed operations on Mahendra More in respect of getting release of muscle contractures and doctors, who performed plastic surgery on the bedsores of complainants son, are probably responsible for the present disabled condition of the complainants son and not necessarily the doctors and nursing staff of Poona Hospital and Port Trust Hospital as alleged by the complainant. Other than Dr.Patils affidavit, no affidavit of any expert has been brought on record by the complainant. It appears that the complainant studied various literatures to file bulky complaint and has tried to project medical negligence on the part of O.P.Nos.1and2/Hospitals and their staff. But, then the medical literature itself cannot prove medical negligence on the part of Poona Hospital staff and its doctors and on the part of Port Trust Hospital staff and its doctors. What is required to be proved is the deficient service or negligence in respect of so many doctors who were attending Mahendra More while he was admitted in Poona Hospital or while he was admitted in Port Trust Hospital of Mumbai. There is no such clear-cut evidence on record. Shri G.Z. More who filed complaint is not an expert. He might have studied a lot out of interest, but he is not medically expert. He filed affidavit of Dr.Patil, who is his relative and Dr.Patil had never examined the patient and never saw the patient except on the first day i.e. 24/02/1997. Such a person cannot be said to be an expert in respect of Mahendra More, who was not seen by this near relative of the victim for the following days till he filed complaint. Even while filing affidavit he had simply seen papers and has given his opinion and even not examined his relative Mahendra More before filing this affidavit. So to oblige his relative he has filed this affidavit and it was so filed to oblige complainant and his son. As such no credence can be attached to the affidavit of Dr.Patil. Once affidavit of Dr.Patil is discarded on the grounds mentioned above, what remained is simply affidavit of complainant and the good deal of papers he has filed on record along with complaint. By pointing various day-to-day deficiencies, complainant has constructed the complaint in such a fashion to show that doctors and staff of both the hospitals were guilty of medical negligence.
17. As against this, we have affidavits of various doctors from Poona Hospital and their affidavits clearly revealed how the treatment was given to Mahendra More when he was admitted in Poona Hospital. They were the persons who treated the patient for 39 days from 24/02/1997 to 03/04/1997. It is also pertinent to note when the discharge was given to Mahendra More, complainant mentioned in the Suggestion Book of I.C.U. Ward âH that he was satisfied with the treatment given at Poona Hospital to his son. This appreciation by the complainant clearly disproved his claim made in the present complaint. We have gone through the affidavit of Ms.Kaumudi Limaye, Physiotherapist. We are satisfied that Mahendra More was looked after in the Poona Hospital by all the concerned very nicely, diligently and properly. Mrs.Anjaly Kulkarni, Assistant Matron clearly testified in Para 6 of her affidavit that back care was taken by cleaning with spirit dusting with talcum powder. Changed the position after every 2 hours. Patient was nursed on water mattress from 27/02/1997 to 04/03/1997 and on air mattress from 05/03/1997 to 03/04/1997. Daily physiotherapy by qualified physiotherapists was given to the patient for limb exercises and chest physiotherapy. She testified that as per record Mahendra Mores pressure sores was first detected on 15/03/1997 and subsequent to which, in addition to the above mentioned nursing care, daily dressings of the pressure sores were also done. Dr.Keskar, Surgical Oncologist, also testified that she did debridement for the bedsores on 31/03/1997 in the minor operation theatre. So, affidavits of these doctors and nursing staff and physiotherapist as produced by O.P.No.1/Poona Hospital leave us in no doubt that son of the complainant was properly taken care of by Poona Hospital when he was admitted in the Hospital in I.C.U.
18. It has come in the written statement of O.P.No.1/Poona Hospital that at the instance and suggestion of Shri G.Z. More, complainant they had referred Mahendra More to Port Trust Hospital at Wadala, Mumbai for HBO Therapy treatment and after he was discharged from Poona Hospital on 03/04/1997 he had not come back again with any complaint to Poona Hospital. Had there been any sort of complaint, diligent complainant like complainant herein would immediately rushed to Poona Hospital saying that doctors of Port Trust Hospital had not properly taken care of his son in the earlier hospital.
19. Contention of O.P.No.1/Poona Hospital that bedsores are the necessary complications of a person suffering from brain stem injury or head injury is appearing to be proper medical proposition. A person who is suffering from head injury is required to lie down on the bed throughout 24 hours and throughout 39 days stay, complainants son was admitted in I.C.U. So, every just and reasonable care was taken for 24 hours by the staff of O.P.No.1/Poona Hospital and bedsores or muscle contractures are complications of such a long treatment being given to the son of the complainant. In the absence of any medical expert evidence, we hold that there is no substance in the allegations of the complainant that doctors and nursing staff of Poona Hospital were negligent in treating his son Mahendra More when he was hospitalized in Poona Hospital for 39 days.
20. As regards charge against O.P.No.2, there is no expert evidence adduced by the complainant. Same Dr.Ajay V. Patil has given ominous affidavit alleging medical negligence on the part of Poona Hospital and Bombay Port Trust Hospital. According to Dr.Patil both the hospitals are responsible for the present condition of the patient. There were carelessness and willful negligence in diagnosing condition of the patient and prescribing medicine and treatment. Negligence in nursing care, change of position, physiotherapy of the patient led to the formation of bone deep bedsores. This is very ominous statement made by Dr.Patil against both the hospitals, but again no credit can be attached to the ominous statement coming from Dr.Patil who is relative of the complainant, who filed affidavit six years after complaint was filed in this Commission and about three years after 8to9 affidavits of experts were filed by the Poona Hospital.
21. As against this O.P.No.2 has filed affidavit of Dr.M.M. Kelkar, Assistant Chief Surgeon from Port Trust Hospital, Wadala, Mumbai. He has categorically stated that patient was admitted in his hospital only for HBO Therapy. As regards bedsores, O.P.No.2 stated that patient developed bedsores in the month of March 1997 and patient was shifted to Port Trust Hospital on 03/04/1997. He was already having bedsores. He stated that for 40 days patient had suffered head injury and was admitted in Poona Hospital and he was transferred to Port Trust Hospital with history of bedsores. It is well known fact that in head injury where patient is bed ridden, bedsores are bound to occur. Bedsores were dressed 9 times. He stated that specialized major dressing requiring dislouging were done 9 times in Minor Operation Theater. But such type of dressings are done only on alternate days and minor dressing was done in the ward daily whereas the patient has been charged for the major dressings done in Minor Operation Theatre for 9 times. So, it has come in the affidavit of Dr.M.M. Kelkar, Assistant Chief Surgeon of Port Trust Hospital that daily minor dressing was done in the ward itself and major dressings requiring dislouging were done 9 times in Minor Operation Theatre. So, bedsores were taken care of even in O.P.No.2/Port Trust Hospital where son of the complainant had primarily gone for HBO Therapy. Skin traction was also given as per standard procedure to prevent contractions. In the light of this affidavit of Dr.Kelkar, we can very well hold that O.P.No.2-Port Trust Hospital was not negligent in giving treatment to the patient because patient was admitted in their hospital for HBO Therapy treatment and not for any other ailment or disease. But, since they noticed bedsores they had treated bedsores as per standard procedure and protocol.
22. The complainant has produced on record certificate issued by Sassoon General Hospital, where the complainants son was examined by the Medical Board. Medical Board on 24/07/2006 issued certificate that Mahendra More was physically handicapped permanent due to âmultiple contracture of both hip joints along with spastu quariparena and his percent of disability is 80%. Even this certificate cannot be acted upon for the simple reason that the Board has given fitness certificate only for PH benefit. It is pertinent to note that the complainant in his rejoinder clearly stated that his son was working in Bank of India and he was still in service. If he is still able to perform his banking service, we fail to appreciate how Medical Board had given him certificate that the patient was 80% physically disabled. Pune Institute of Neurology has issued certificate dated 24/05/1997 in which it has been mentioned that Mahendra More had been admitted in their hospital on 24/04/1997 with history of road traffic accident on 23/02/1997 and had taken treatment in Poona Hospital and Port Trust Hospital, Mumbai and on admission he was conscious but memory and higher functions were grossly impaired. He was taking orally and his speech was irrelevant. He had multiple contractures and four very large bedsores and he was admitted in their hospital for nursing, rehabilitation and management of the same. Surgery for release of contractures under general anesthesia and skin grafting for bedsores was done on 16/05/1997 and surgery was uneventful. He is stable post operatively. He will need further hospitalization for minimum period of two months more. His chances of complete recovery are still unpredictable. On 05/12/1997 same Pune Institute of Neurology gave certificate that Mahendra More was treated in their Institute from 24/04/1997 to 14/07/1997 and from 30/07/1997 to 11/08/1997 for management of contractures and bedsores after head injury. He has still deviation of pelvic girdle from midline causing distortion of right hip joint. Muscle contractures still persists in both the hands, muscle atrophy cannot be released now. His both ankle joints will have to be operated for correcting erect posture. There is one residual effect of contracture release on both the feet. His bedsores nursing still continue. The chances of his recovery and chances of his recovery and further improvement in lower limbs are remote and it appears that he will remain handicapped for rest of his life. On 18/02/1998 Pune Institute of Neurology further gave certificate that Mahendra More has been examined on 18/02/1998 and it feels that he is fit to join duty with effect from 19/02/1998. He will need one attendant to accompany him to his office and back home as he still needs manual lifting from the vehicle. At present he can do light clerical jobs. His condition is expected to improve further over next few months, which will enable him to do his routine work. What is pertinent to note is the fact that Pune Institute of Neurology, no where mentioned that disablement of Mahendra More is the direct result of medical negligence exhibited by the doctors and nursing staff of Poona Hospital or doctors and nursing staff of Port Trust Hospital. In this view of the matter, allegation of medical negligence against both the hospital is appearing to be figment of imagination emanating from the mind of the complainant himself. In any view of the matter, we are finding that charge of medical negligence against both the hospitals and staff is appearing to be without any basis and substance. We, therefore, record our finding on issue No.2 in the negative. In the result, we pass the following order:-
Order:-
1. Complaint stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties free of cost.