THAKKAR BALDEVBHAI KESHAVLAL Vs. MOHANBHAI S PATEL

JUDGEMENT

(1.) IN this complaint under Section 2(l)(d)(ii)(o)(r)(g) read with Section 14(l)(d) of the Consumer Protection Act, 1986, complainant No. 1, husband of deceased Gitaben alleges deficiency in service/medical negligence and prays for Rs. 5,00,000 for loss of company of his wife who was aged about 30 years, complainant No. 2 prays for compensation of Rs. 3,00,000 for loss of care, love and affection of his mother; complainant No. 3 prays for compensation of Rs. 4,00,000 for loss of care, love and affection of her mother and complainant No. 4 prays for compensation of Rs. 5,00,000 for loss of care, love and affection of his mother and also Rs. 2,00,000 to the complainants for mental tension, agony and inconvenience caused to them due to death of deceased Gitaben and cost of Rs. 10,000.

(2.) IT is alleged in the complaint that complainant No. l (hereinafter referred to as the complainant) is engaged in the business of transportation; that complainant Nos. 2 to 4 are his minor children; opponent No. l is a doctor running his nursing home in the name Navjeevan Maternity Home at Patan (N.G.) and claims to be an expert in dealing with women s diseases; that opponent No. 2 is a surgeon; opponent No. 3 is a physician; opponent No. 4 is running a pathology laboratory and opponent No. 5 is running a medical store at Patan. It is stated that on 6.5.1997, complainant No. 1 accompanied his wife Gitaben from village Harij to Patan. They met opponent No. 1 for the purpose of medical check up and treatment of Gitaben as she was having irregular menstruation and pain in the uterus; that opponent No. 1 examined Gitaben and instructed the complainant to have sonography test of Gitaben; that the complainant carried out the instructions and brought the sonography report from Sarvoday X -ray and Sonography Clinic, Patan; that opponent No. 1 was told that Gitaben had pregnancy of three months and one day. Opponent No. 1 thereafter told the complainant and Gitaben that curetin (D&C) was required to be done whereupon opponent No. 1 was told to do whatsoever was necessary as a medical person and thereafter opponent No. 1 performed curetin on 6.5.1997; that he also prescribed medicines which were brought by complainant No. 1. After the operation was over at about 4 p.m., Gitaben felt pain in the uterus. She again felt severe pain at about 7 p.m. Both the times, Gitaben and complainant informed opponent No. 1 about the pain in uterus but opponent No. 1 said that there was no reason to worry and that such pain would always be there after this kind of operation. He also told them that every thing was normal and that the complainant may take his wife Gitaben to Harij. However, complainant and his wife remained at the nursing home till about 8.30 p.m. as Gitaben was not feeling ease. However, opponent No. 1 again told the complainant that Gitaben may be taken to Harij. The complainant and his wife remained at the nursing home till up to 8.30 p.m. as Gitaben was not feeling ease. On repeated assurance of opponent No. 1 that every thing was normal, complainant took his wife Gitaben back to Harij after making payment of Rs. 450 to opponent No. 1 towards fees; that on 7.5.1997 at about 3 a.m. in the early morning, Gitaben again felt pain and took tablets - pain killer. Since pain continued, they called local doctor Dr. Bhagwandas Patel in the morning. Dr. Patel, after examining, told the complainant that in fact uterus of Gitaben had been punctured and therefore it was necessary that she should be taken back to Patan to opponent No. 1 for proper treatment. Dr. Bhagwandas Patel also gave a chit addressed to opponent No. 1; that on 7.5.1997 in the early morning, Gitaben was taken to the nursing home of opponent No. l at Patan accompanied by her husband, complainant No. 1 and other relatives. Complainant met opponent No. 1 and informed him about the condition of Gitaben and that is why she has been brought back. Opponent No. 1 was also told about what Dr. Bhagwandas Patel of Harij had said. Opponent No. 1 examined Gitaben and prescribed medicines which the complainant promptly brought; complainant expressed his concern about the deteriorating health of Gitaben but opponent No. 1 continued to assure that everything was normal and there was no cause for worry. He also said that it was not necessary to take Gitaben to Ahmedabad for any expert medical treatment despite complainant s readiness to bear the expenses; that till evening no further action was taken by opponent No. 1 as regards health of Gitaben and Gitaben continued to remain as indoor patient in the nursing home of opponent No. 1. Gitaben s health continued to deteriorate and became serious. Opponent No. 1 had called, opponent Nos. 3 and 4 i.e. Dr. Shaileshbhai Patel and Dr. Hamidbhai Mansuri, who are also practising at Patan, for help. The complainant and his relatives were informed that it was necessary to perform an operation which was to last only for 10 minutes. Opponent No. 1 has also asked complainant to arrange for blood and asked to bring the medicines prescribed by him. Complainant arranged for blood bottles and medicines prescribed were brought. Opponent No. 1 then started the operation and the said operation lasted for 2 hrs. and thereafter Gitaben was taken to the ward. Opponent No. 1 also informed the complainant and relatives that the operation was successful; however complainant had by then became suspicious about the condition of Gitaben, looking to the fact that the operation had taken 2 hrs. and two doctors had been called by opponent No. 1 for his help. He, therefore, contacted Dr. Mansuri and point blank asked to come out with the truth as to what exactly was the problem whereupon Dr. Mansuri informed the complainant that the case was serious and condition of Gitaben was very serious. Complainant No. 1 therefore drew the attention of opponent No. 1 to what Dr. Mansuri had told whereupon opponent No. l told the complainant to have faith on him. On 8.5.1997 several relatives of complainant and Gitaben including elder brother of complainant Vasantkumar Thakkar were present at the nursing home of opponent No. 1. At that time there was no improvement in the condition of Gitaben despite assurance of opponent No. 1. Opponent No. 1 asked the complainant to bring additional two bottles of fresh blood for the purpose of recovery of the health of Gitaben, which was done; that on 9.5.1997 at about 12 O clock noon complainant asked Dr. Mansuri about the condition of Gitaben whereupon Dr. Mansuri informed that she was not likely to survive long and might not live beyond an hour or so. Even at this time opponent No. 1 when informed by complainant about the opinion of Dr. Mansuri but opponent No. 1 continued to maintain that Gitaben was not that serious and therefore no cause to worry; that Dr. Mansuri had told the complainant that no purpose would be served by shifting Gitaben to any other hospital or doing anything else as she was not likely to live beyond an hour or so; that ultimately Gitaben breathed her last and expired on 9.5.1997 at about 2 p.m. Opponent No. 1 thereafter told the complainant to take away the dead body of Gitaben to Harij as there remains nothing for him to do at Patan. It is stated that after about 15 days of death of Gitaben, he approached opponent No. 1 and requested him for giving him the case papers prepared by him regarding the treatment/operation of his wife Gitaben as he wanted to be satisfied as to whether Gitaben had died due to negligence on the part of the opponents or not; that opponent No. 1 refused to comply with the said request and has not supplied the case papers till the date of the complaint. The complainant also approached other opponents for the said purpose but of no avail. It is further stated that opponent is guilty of deficiency in service and negligence as he did not take sufficient care and caution while performing D&C operation and in the process punctured the uterus of deceased Gitaben; that opponent No. 1 did not bother to take proper care to stop bleeding and cure Gitaben before discharging her from the nursing home in the late evening on 6.5.1997 despite the knowledge that uterus of Gitaben had been punctured which was a serious matter and beeding had not totally stopped; that opponent No. 1 knew or ought to have known that condition of Gitaben would worsen but with a view to suppress his negligence he insisted upon complainant to take Gitaben to Harij which is a small village and quite far off from Patan. On these allegations, the complainants pray for the reliefs aforestated.

(3.) OPPONENT Nos. 1 and 2 filed reply vide Exh. 42 refuting the allegations of the complainants inter alia contending that Gitaben was brought to the nursing home of opponent No. 1 with complaint of and for treatment as she was having irregular bleeding and pain in uterus; that on examination it was found that she was pregnant by three months; that it was a case of threatened abortion; that opponent No. 1 did not inform the complainant and his wife that it was necessary to do D&C operation. It is also denied that D&C operation was performed; that as the patient did not want the pregnancy, she was given medical treatment to continue the same; that she was advised to stay in the hospital as indoor patient but she left the hospital without permission of opponent No. 1 and without even informing the staff of the hospital; that after she left the hospital she again came on 7.5.1997 at about 11.30 a.m. with a chit of her family doctor. She was examined by opponent No. 1 immediately and admitted to the hospital and further treatment was given to her; with consent of Baldevbhai (complainant), necessary investigations were asked for; that during her treatment there was further deterioration in her health and Laparatomy operation was performed with assistance of opponent No. 2 and written consent was also obtained. After the operation was performed all necessary care was taken and she was given all the treatment that was necessary; that the patient was improving but after some time on 3rd day again health of the patient deteriorated. Therefore, opponent No. 3 was also called for examining the patient on 9.5.1997 and necessary treatment was given to her, opponent No. 3 also felt that the condition of the patient was serious and therefore relatives of the patient were also told about the serious condition. Ultimately, the patient expired on 9.5.1997 at about 2 p.m. It is denied that uterus of Gitaben was punctured during the so -called D&C operation on 6.5.1997; that in fact D&C operation was never performed but on the earlier occasion she had threatened abortion and by the time the treatment was effective, she was taken away by her husband without the permission of the doctor and staff of the hospital. It is denied that the uterus was punctured as alleged and Dr. Bhagwandas of Harij has told about the same. It is admitted that on 7.5.1997 when she was brought again to the hospital of opponent No. 1 her condition was serious. Still however, opponent No. 1 with the consent of the complainant gave all the necessary treatment. It is admitted that opponent No. 2 was called for assistance. It was found necessary that operation should be performed; that thereafter she was operated; that after operation, her condition was improving. Opponent No. 3 was not called during or before operation but he was called on 9.5.1997 at 9 a.m. for expert Physician s opinion about her general condition only; that after her death, opponent No. 1 advised the complainant and other relatives to get the post -mortem of the body of Gitaben done so that real cause of death can be ascertained but they refused to get the post -mortem done. It is denied that Gitaben died due to negligence on the part of any of the opponents. It is also denied that any of the opponents was requested to give case papers to the complainant regarding the operation of Gitaben and they refused to do so; that as per the normal routine of hospital, her case papers were prepared, she was examined and told in the presence of the complainant that she would be required to stay in the hospital at least for 48 hours as indoor patient and therefore with the consent of the complainant, Gitaben was admitted as indoor patient after examining gave necessary medical treatment to her, opponent No. 1 as per his routine went to his house at about 8.30 p.m. Thereafter, the patient, without the consent of opponent No. 1 was taken away to Harij by the complainant. After the patient left the hospital and went home, her health deteriorated further and she came to hospital of opponent No. 1 on 7.5.1997 in the morning at 11.30 a.m. She was examined by opponent No. 1 immediately on emergency basis and she was given necessary treatment immediately and admitted to the hospital and further treatment was given to her with the consent of the complainant. During her treatment there was further deterioration in her health and necessary investigations were got done and reports carried out. Thereafter opponent No. 2 who is a surgeon was called for help. It was found necessary to operate Gitaben and therefore Laparatomy operation performed on emergency basis. Even during and after operation, all necessary care was taken and after operation there was marked improvement in her health and thereafter it was felt necessary to take the opinion of a physician and hence opponent No. 3 was called on 9.5.1997 for examining the patient. His opinion was taken. Necessary pathological investigations were got done on emergency basis and due care and caution were taken in her treatment. In spite of giving her best medical treatment by opponent Nos. 1, 2, 3 and 4, the patient expired on 9.5.1997; that none of the opponents is responsible for her death; that the opponents have taken all necessary care and treated the patient diligently, skillfully and she did not die on account of anything done or omitted to be done during her treatment. In fact she herself was negligent and careless in her treatment as she left the hospital on 6.5.1997 after 9.30 p.m. that after the death of Gitaben, complainant had never come to the hospital of opponent No. 1; that complainant and his relatives were fully satisfied with the treatment given to Gitaben but on the instigation of some other persons and with a view to take undue advantage notice was given to black mail opponent No. 1. In substance, opponent No. 1 has denied deficiency in service or negligence in the treatment given to deceased Gitaben.