ALTAF AMIN BHAGAD Vs. DHANSUKH B SHAH

JUDGEMENT

(1.) Complainant who is son of the deceased Roshan Bhagat (deceased for short) has filed this complaint against the opponent, a surgeon, for recovery of compensation of Rs.14,07,500/- on the ground that the deceased died on account of negligence of the opponent.

(2.) The deceased suffered from Thyroid goitre for more than 5 years. She was under treatment of Dr. Mahesh Tandel, a physician for hyper thyrodism for about 4 years. It is the case of the complainant that he wanted to find out alternative was to cure thyroid of his mother and he, therefore, sought advice of Dr. Tandel. Dr. Tandel suggested three ways of treatment viz. medicines, radio therapy and surgical operation. The complainant and his father were not willing to subject the deceased to radio therapy as it was dangerous. Dr. Tandel suggested to consult opponent for surgical treatment. The deceased was, therefore, taken to the opponent's surgical nursing home for consultation on March 29, 1994. The opponent, after examining the deceased, was of the opinion that she should undergo pre-operative evaluation. Thereafter certain laboratory tests were made and opinion of Dr. Tandel was taken. Dr. Tandel opined that the deceased might be taken for operation subject to calculated risk of 'left Bundle Branch Blockade' (L. B. B. B.) The opponent again examined the deceased and perused the reports of laboratory test and the opinion of Dr. Tandel before advising that the deceased may undergo operation. The deceased was admitted to the opponent's nursing home on April 4, 1994 at 9 a. m. and sum of Rs.5,000/-was paid in cash to the opponent. The deceased was given treatment by administering medicines, injections etc. as prescribed by the opponent. The operation was to be performed on April 6, 1994. The deceased was taken to operation theatre at about 8.45 a. m. on April 6,1994. Dr. L. F. D'souza was called to administer anaesthesia to the deceased during operation. It is the case of the complainant that at about 9.30 a. m. , the opponent informed him and other relatives of the deceased that the deceased had died on account of cardiac failure. Dr. Bhutra and Dr. M. R. Syed, both heart specialists, were called but both declared that the deceased was beyond help. In the background of the above facts, it is alleged that the opponent was negligent in giving medical treatment to the deceased. It is alleged that the opponent had undertaken to operate the deceased only to extract money from the complainant and other relatives of the complainant. Having regard to the fact that risk to the life of the deceased was involved, the opponent ought not to have undertaken to operate the deceased. On the above grounds, the complainant has prayed for recovery of compensation as stated above and costs from the opponent.

(3.) The opponent has contested the complaint by his written statement Exh.8. Besides raising technical objection that service rendered by a doctor to a patient is not covered by. the provisions of Consumer Protection Act, the opponent has denied the allegation made by the complainant that there was negligence in giving treatment to the deceased. It is submitted that the deceased was suffering from thyroid goitre or hyperthyroidism for many years and she was under treatment of Dr. Mahesh Tandel. She was aged 50 and she came to consult the opponent on March 29, 1994 with complaint of swelling in neck. On examination the opponent found that the deceased was suffering from multinodular toxic Thyroid. The toxicity of the deceased was not under control with medical treatment and thyroid was increasing in size. According to the opponent, the deceased had developed multiple nodules in Thyroid which was toxic. It was, therefore, that Dr. Tandel had advised her to consult a surgeon. After examining the deceased, the opponent advised her for operation for thyroid after pre-operative evaluation by Dr. Tandel. Dr. Tandel did pre-operative evaluation and her E. C. G. was also taken. E. C. G. disclosed L. B. B. B. The opponent also had telephonic discussion with Dr. Tandel on April 4, 1994. Dr. Tandel informed the opponent that deceased was asymptomatic (i. e. without any cardiac complaint ). She was prescribed Tablet Dilgem 30 mg. one tablet twice a day. Dr. Tandel further informed the opponents that the deceased had not complained of anything which was suggestive of any cardiac disease and that she had no other abnormality in E. C. G. In the opinion of Dr. Tandel, the deceased could be taken for operation with calculated risk of L. B. B. B. Dr. Tandel further informed the opponent that he had informed the relatives of the deceased about heart condition and the risk involved in the surgery. The note written by Dr. Tandel is at Annexure D to the complaint. The deceased was admitted to the hospital for surgical operation. It is admitted that deposit of Rs.5,000/-was received from the relatives of the deceased. However, the said amount was returned to the relatives of the deceased after her death.