Judgment:
Per Mr. P.N. Kashalkar, Honble Presiding Judicial Member
1) The complainant Shri Shankar M.Shetty, R/o Jawahar Nagar, Khar(East), Mumbai has filed this complaint of medical negligence against the Dean of K.E.M. Hospital of Municipal Corporation of Greater Mumbai, Parel and also against Dr.A.N.Supe attachted to K.E.M. Hospital itself.
2) Case of the complainant in short may be stated as under
3) Complainant had sustained a shoe bite injury to his left leg thumb on 7/2/1997. It was giving some pain on the following day. Hence, he approached his family doctor, Dr.Bhagwan Singh on 8/2/1997. Dr.Bhagwan Singh prescribed some ointment and tablets which complainant took. The injury however did not heal up and pain was increasing. On 16/2/1997, his family doctors diagnosed that gangrene was setting in, in the injury he has sustained on left leg thumb. Hence, he was referred to K.E.M.Hospital, Parel. On 17/2/1997, he approached K.E.M.Hospital and after preliminary tests he was admitted in Ward No.5 as indoor patient. Dr.A.N.Supe, O.P.No.2 assisted by Dr.Rakesh performed operation to ampute complainants left leg thumb. Even after operation he continued to be as indoor patient in surgical Ward No.5 of K.E.M.Hospital. O.P.No.2 Dr.Supe and his assistants kept informing him that said amputation was progressively healing. On 3/3/1997, however he was taken for debriding operation. The operation was carried out around midnight by Dr.Rakesh under guidance of Dr.Supe for which complainant was given anaesthesia. After operation, his pain increased considerably and there was swelling for three to four days. Puss started oozing out from the wound. However, he continued to have severe pain. After five days, Dr.Supe told him that gangrene had spread right upto knee and informed him that his left leg would have to be amputed from below the knee.
4) Complainant avers that he had simply sustained shoe bite injury on the left leg thumb and doctors at K.E.M.Hospital told him that it was simple injury and it would be taken care of. They had also told him that after thumb had been amputed wound would heal up progressively. But the complainants grievance is that after debriding operation the wound had aggravated because attending doctors headed by Dr.A.N.Supe were very callous and they did not bother about complainants assertion that his pain was increasing and something should be done. So, because of their callous attitude the gangrene spread right upto the knee and ultimately he was advised by Dr.Supe to ampute the left leg below knee. He therefore lost confidence of doctors of K.E.M.Hospital. It was on account of negligence of doctors of K.E.M.Hospital that he had further suffered gangrene which spread right upto the knee.
5) The complainant thereafter got himself admitted in Sai Diabetic Foot (Gangrene) Nursing Home, Andheri(East), Mumbai where he underwent a major amputation carried out by Dr.Padgaonkar. From 19/3/1997 to 31/3/1997 he remained in the hospital where after amputation of his left leg below knee the wound healed up by the proper and timely treatment given by the doctors of the said nursing home.
6) According to the complainant, because of negligence of doctors headed by Dr.A.N.Supe(O.P.No.2) he not only lost the use of left leg below knee but his amputation would have been avoided if doctors at K.E.M.Hospital would have taken good amount of care after amputation of his left leg thumb. He pleaded that he had to incurred expenses of Rs.65,000/- and he missed salary income of five months amounting to Rs.40,000/-. He pleaded that the O.P. doctors were deficient in service and because of their deficiency he suffered loss of Rs.11,05,000/- of which he mentioned that Rs.10,00,000/- was on account of loss of future earning capacity. The complainant pleaded that on account of disability caused to him he could not get appropriate advice and therefore there has been delay in filing the complaint. The said delay if any was caused by cause beyond his control and therefore he pleaded that delay should be condoned. He therefore, prayed that the O.P. should be directed to pay him a sum of Rs.11,05,000/- together with interest at the rate of 18% per annum from the date of filing of the complaint till realization and delay if any should be condoned.
7) Dr.A.N.Supe, filed written statement on behalf of both the O.Ps. He pleaded that the complaint as filed by the complainant is false, frivolous and vexatious and same has been filed with malafide intention to knock out handsome ransom form the O.Ps. He further pleaded that the complainant was treated free of cost. So, he availed services of K.E.M.Hospital without any consideration and therefore the complainant is not a consumer within a meaning of Sec.2(1)(d)(ii) of Consumer Protection Act and his complaint on that count should be dismissed.
8) The O.Ps also pleaded that the complainant was admitted to K.E.M.Hospital on 17/2/1997 in Ward No.5 as indoor patient and surgery was performed on his great toe of left foot and by operation the same was amputed. However, in alleging medical negligence on the part of O.Ps, the complainant has not adduced any independent medical evidence of the subject. As such, in view of catena of reported cases of Honble Supreme Court and National Commission the present complaint is not tenable in law and deserves to be dismissed with compensatory cost.
9) According to the O.Ps, the surgery on the complainant was performed in the K.E.M.Hospital in the month of February-March-1997 and complainant is alleging medical negligence in respect of surgery and post operative care. But complaint has been filed after July-1999. So, there has been delay of more than two months in filing the complaint and since complainant has not filed an application seeking condonation of delay as required U/s 24-A of Consumer Protection Act, the complaint as filed by the complainant will have to dismissed being barred by limitation. The O.Ps further pleaded that the complaint involves complicated question of facts and laws and such issues can not be decided by the Forums established under Consumer Protection Act and the remedy of the complainant was to approach Civil Court and on this count also the O.Ps pleaded that complainant should be directed to approach to Civil Court.
10) The O.Ps pleaded that in performing the operation on the complainant they had committed no negligence. The post operative care was properly taken but the very fact that the complainant had undergone major amputation surgery at Sai Diabetic Foot (Gangrene) Nursing Home at Andheri would mean that there was gangrene and gangrene was spreading in the injury of the complainant. They had amputed great toe of left foot and they had taken good post operative care and no negligence of any kind was involved in treating the complainant in K.E.M.Hospital. The O.Ps pleaded that complainant is guilty of suppressing and concealing material facts. The complainant suppressed the fact that he was a chronic patient of uncontrolled diabetes and was known alcoholic and at the time of his admission at K.E.M.Hospital his foot was inflamed (red and swollen) and the left great toe was gangrenous (black and dead) with foul smelling discharge. This was the condition of the patient at the time admission in K.E.M.Hospital. The complainant was given some medical advice when he was given discharge from K.E.M.Hospital which he took against medical advice. Then he approached Sai Diabetic Foot (Gangrene) Nursing Home at Andheri and ultimately he had to get his left leg amputed below knee because of gangrenous effect. The patient was told that such type of infections were likely to spread rapidly since his diabetes was uncontrolled and there was poor blood supply to that part. He was also further told that he may be required to have repeated operations and in the very first surgery everything would not be normal. So, first surgery, amputation of first left great toe and debriding as described earlier was made under general anaesthesia on 17/2/1997 at 8.00 P.M. after adequate control of blood sugars by means intravenous insulin and drip and fluids. The expert help of Department of Endocrinology (expert in treating diabetes) was taken. Necessary antibiotics was given to control and prevent spread of infection and drugs were also given to improve local blood supply and daily dressing of the wound and physiotherapy for mobilization of his limb was done.
11) They further pleaded that patient had a âbrittle diabetes mellitus which was revealed by a frequent fluctuations of blood sugar levels. Because of his diabetes, despite all the efforts to control the spread of infections, the patient required repeat debridement of the left foot on March 3, 1997 and was told that this was the last attempt to salvage his leg as any further spread of infection would otherwise endanger his life. He was further told categorically that due to his brittle diabetes, poor blood supply and non response to antibiotics he may be required to go in for an amputation (cutting of leg) at the level where there was distinctly good blood supply. According to the O.Ps wound after second surgery on 3/3/1997 did not show signs of improvement over the next ten days. In fact, on March 13, 1997 itself there were signs of impending spread of infection. The patient was told the need for another attempt at leg saving debridement. Patient was also told that if during debridement it was found that the infection has spread deep and upwards, it may be better of with cutting the leg (amputation) rather then losing the life. On March 13, 1997, the complainant refused to take treatment in the ward and decided to go home. Hence, against medical advice he was permitted to go home on March 13, 1997 at 3.30 P.M. The O.Ps pleaded that they had taken all the precautions when complaint was in their hospital. They had made perfect diagnosis of the ailment of the complainant. They had given him right treatment and because of high level diabetes the spread of gangrene could not be arrested and the complainant was told that ultimately he will have to ampute the foot when complainant did not respond debridement due to complicated nature of his illness. They pleaded that the medical literature available suggests the requirement of continued surgical debridements in the patients who are having high level of diabetes. This is required to be done to salvage the limb. The doctors pleaded that thus they had taken good amount of care of the complainant till he was admitted in K.E.M.Hospital and at the time of discharge he was told that his condition was such that he would be required to ampute his leg to save his life. The O.Ps pleaded that for all these reasons the complaint should be dismissed being without any substance.
12) We heard submissions of Mr.M.C.Hegde, Adv. @ Mrs.J.U.Pawar, for the Complainant and Mr.S.B.Prabhawalkar, Adv. @ Mr.D.B.Rathod, for the Opponents. Now, the following issues arise for our determination. The issues and our findings thereon are as under:
Sr.
No.
Issues
Findings
1) Whether the complainant can be held to be a consumer of O.P.No.1 Hospital?
No
2) Whether the complaint as filed by the complainant is barred by limitation?
Yes
3) Whether the complaint involves complicated questions of facts and laws so as to ask complainant to approach Civil Court?
No
4) Whether the complainant proves that there was negligence on the part of Dr.A.N.Supe and the staff working under him in treating the complainant?
No
5) What order if any?
Complaint stands dismissed.
REASONS
13) Issue No.1 :- It was contended by the counsel for the O.Ps that complainant can not be termed as a âconsumer within a meaning of Sec.2(1)(d)(ii) of Consumer Protection Act for the simple reason that he was given treatment in K.E.M.Hospital free of charge. So, treatment taken by the complainant was ex gratia and not for consideration and as such he is not a consumer vis a vis both the O.Ps. We are finding much substance in this submission of Mr.Prabhavalkar, Adv. for the O.Ps. The complainant had not produced any bill of the K.E.M.Hospital to show that he had paid certain charges for the treatment from K.E.M.Hospital. In fact alongwith the complaint, he simply filed list of documents relied upon by the complainant on 27/2/2003 but not a single document was produced on record which would include receipt of payment of bill of K.E.M.Hospital. When this specific defense has been raised by the O.Ps in the written statement it was the duty of the complainant to produce on record the proof about he having made payment of charges of K.E.M.Hospital for the treatment he had taken at the said hospital. No such receipts are produced on record. Therefore, it must be held that complainant was treated in the K.E.M.Hospital free of charge and as such he can not be termed as âconsumer within the meaning of Sec. 2(1)(d)(ii) of Consumer Protection Act. We, therefore, record our finding on issue no.1 in the negative.
14) Issue No.2 :- The O.Ps further raised an objection in written statement that the complaint is barred by limitation since within two years since complainant was discharged from K.E.M.Hospital, the complainant had not filed complaint in this Commission. According to the O.Ps, surgery on complainant was performed in K.E.M.Hospital in the month of February-March-1997 but the complaint has been filed in August-1999. No doubt complainant has mentioned in para 9 of the complaint that if there be any delay same has been caused by causes beyond his control and therefore the said delay if any should be condoned. This is not what is contemplated U/s 24-A of Consumer Protection Act. Under the said section, while filing the complaint, the complainant has to file separate application seeking condonation of delay supported by affidavit if complaint is being filed beyond the period of two years from the accrual of cause of action. So, when operation was performed in the Month of Februaruy-March-1997 and when complaint was being filed by the complainant after more than two years, it was the duty of the complainant to move a separate application seeking condonation of delay supported by an affidavit explaining just and sufficient cause therein for delayed filing of complaint. This was not been done by the complainant. He simply mentioned in para 9 in an omnibus manner that delay if any should be condoned. So, this is not in terms of requirement of Sec.24(A) of Consumer Protection Act. Thus, surely the complaint as filed by the complainant is barred by limitation and on this count alone the complaint will have to be dismissed. We, therefore, record our finding on issue no.2 in the affirmative.
15) Issue No.3 :- It was the contention of the O.Ps that this complaint involves complicated question of laws and facts and complainant should be directed to approach civil court and this matter is such that it should not be decided by this Commission having summary jurisdiction to decide complaints. However, we do not agree with this objection or defense raised by the O.Ps. In the catena of cases, the Honble Supreme Court has clearly laid down that Consumer Fora are competent to decide medical negligence cases and hence this objection will have to be turned down and we hold that this Commission is competent to decide even complicated issues involved in this complaint and there is no need to direct the complainant to approach civil court for the redressal of his grievances. We, therefore, record our finding on issue no.3 in the negative.
16) Issue No.4 :- Medical negligence on the part of hospital or its doctors is required to be proved by the person who alleges it by adducing sufficient evidence to that effect strictly pointing out the medical negligence on the part of doctors. In the instant case, the complainant was therefore required to adduce some sort of expert evidence from another leading doctor of the same stream. But, unfortunately the complainant has not adduced any evidence in terms of affidavit of expert from the field. In the list of documents he has mentioned that he was producing treatment card issued by Sai Diebetic Foot(Gangrene) Nursing Home dated 14/3/1997 and that he was also producing treatment card issued Unity Nursing Home and ICCU dated 18/3/1997 and medical certificate issued by Dr.Prabhakar Shetty. However, these documents are not on record though mentioned in the list documents relied upon by the complainant. Moreover, producing certificate issued by some doctor is not sufficient. His affidavit in support of complainants case should have been brought on record in support of complainants case of medical negligence against K.E.M.Hospital and Dr.Supe. In the absence of such affidavit of expert, it is not possible to record finding of medical negligence against O.P.No.1 and 2. Moreover, after going through the written statement of Dr.Supe, we are fully convinced that the complainant was treated at K.E.M.Hospital with due care as per established norms and he was in the hands of best qualified and experienced surgeon in K.E.M.Hospital. Since the complainant was patient of diabetes of high order there was inherent risk involved in the treatment and possibility of amputation of foot was the ultimate and only remedy for his great left toe ailment. This was told to the complainant very clearly and from time to time remedial measures were taken by resorting two debridgments operations. Had the complainant continued treatment in K.E.M.Hospital, we are sure he would have been recovered fully but against medical advice he took discharge from K.E.M.Hospital and approached another hospital where his condition deteriorated and ultimately he had to lose his left foot in terms of its amputation. While in K.E.M.Hospital, the complainants sugar level was properly monitored, he was given intravenous drips before operation of debridement. The complainants left foot below knee was ultimately amputed because of high level of diabetes mellitus. In a patient having diabetes mellitus there is poor vascular supply and neuropathy and therefore the patient is always in the pain. Complainant was alcoholic which added to his woes and suffering. It aggravated his sugar glucose and it is for this reason there was poor supply of blood at the site of the wound and that poor blood supply was the cause for his non response to the conservative line of treatment adopted by doctors of K.E.M.Hospital to salvage complainants leg. On March 13, 1997 itself there were signs of impending spread of infection and patient was clearly told that doctors would do another attempt of leg saving debridement. He was also told that if it was found that infection had spread upward and gone deep, it would be necessary to ampute his leg to save his life. This was all told to him and he was given treatment accordingly to keep blood sugar at the lowest level when he was being treated in K.E.M.Hospital. So, we are finding that Dr.Supe and his associates at K.E.M.Hospital did their best to treat complainant properly, adequately and cautiously. They did not take any chance and they gave best possible treatment to the complainant looking to the fact that he was the patient of high level diabetes mellitus. Chance of amputation of leg was told to him when he was being treated at K.E.M.Hospital. When he took discharge against medical advice, he thought that he would save his leg by approaching another hospital. But it was of no avail. In another hospital his leg was ultimately amputed to save his precious life. The same would have been done by Dr.Supe and his colleagues at K.E.M.Hospital had he continued to be in K.E.M.Hospital itself. In the circumstances, we are finding that there is no iota of proof on record produced by the complainant to prove how Dr.Supe and others at K.E.M.Hospital were guilty of medical negligence. Alleging medical negligence is one thing but proving medical negligence against doctors is an altogether different thing. Strong proof is required to show where treating doctors faulted. No such evidence of expert has been adduced by the complainant. On the other hand from the papers produced on record by the O.Ps, we are fully convinced that Dr.Supe and his teammates at K.E.M.Hospital resorted to expected protocol, they took conservative line of treatment in treating the complainant but their attempts were hampered by the fact that complainant was a patient of chronic diabetes mellitus. It is for this reason their treatment was not responding on expected lines and complainant abruptly decided to take discharge at his own risk from K.E.M.Hospital. Ultimately, the complainant was required to get his leg amputed from another hospital. In the circumstances, we are finding no negligence of any kind on the part of Dr.Supe of K.E.M.Hospital. Hence, we record our finding on issue no.4 in the negative and proceed to pass following order.
Order:
1) Complaint stands dismissed.
2) Parties are left to bear their own costs.
3) Copies of this order be sent to the parties free of cost.