KALYANI RAUT Vs. MANISH RAMESH MOTWANI

JUDGEMENT

(1.) THIS complaint has been filed by Complainant -Mrs. Kalyani Raut, alleging medical negligence on the part of the opposite parties who are Doctors by profession.

(2.) STATED briefly, the case of the complainant is as under:

(3.) OPPOSITE party No. 1 -Dr. Marish Motwani, filed Written Statement and took objection that complainant is not a consumer since she had not paid any consideration. Her husband was treated ex gratia and, therefore, she cannot be a consumer. He also took objection to the maintainability of this complaint stating that the complainant has made several false statements to suit her purpose to secure favourable order. According to him, patient was having tumour admeasuring 8 cm x 5 cm, which was major illness. The said mass was diagnosed as signet cell tumour. According to opposite party No. 1, provisional diagnosis was arrived at before surgery and thereafter surgery was performed and on the table of operation diagnosis was made and the mass was old Hamatoma. Hamatoma was not sent for histopathological diagnosis. Third objection taken is that complaint has been filed to extract monies from the opposite parties. Before filing of this complaint, Complainant had given 13 phone calls and used pressure tactics. According to opposite party No. 1, the complaint is totally frivolous and vexatious and she should be penalized by imposing heavy penalty under Section 6 of Consumer Protection Act. Opposite party No. 1 further pleaded that Millennium Hospital is owned by Dr. Mrs. Ratan Savla, M.D; D.G.O. and is being conducted by Dr.Bipin .K.Mahale (Opposite Party No. 3) since 1st January, 2003 till date. Hospital has been inspected by Health Officers from Thane Municipal Corporation and they found that the hospital was fit to carry on medical, surgical and maternity activities. The Hospital registration in the form of number has been issued by TMC. According to opposite party No. 1, Millennium Hospital Maternity and Nursing is one of the best equipped Hospitals in Thane. It has Consulting Room, one female General Ward with 3 beds; 1 Male General Ward with 2 beds and 1 Private Room with attached toilet. The hospital is having operation theatre. The Air -conditioned operation theatre has a hydraulic operation table with shadowless lamps and it is fully equipped to perform any kind of major andmajor surgery. The operation theatre has got latest medical equipments which have got all drugs and stock of emergency medicines and staff is well experienced. Hospital is manned by most experienced Medical Officers. Hospital has got Consultant Surgeon, Physician and Cardiologist, Gynaecologist, Paediatrician, E.N.T. Surgeon and Ophthalmogist. Opposite party No. 1 claimed that, he passed M.S. in general surgery in 2000 from Bharati Vidyapeeth Medical College and took Diploma in Basic Laparoscopic Surgery, Hyderabad in 2001. He then took another Diploma from Advanced Diploma in Laparoscopic Surgery from Coimbatore. He worked in renowned hospitals like Jaslok Hospital, Kurla Bhabha Hospital and Veer Savarkar Municipal Hospital. He pleaded that opposite party No. 3 is the owner of the Hospital and opposite party No. 1 was the operating surgeon who was assisted by opposite party No. 4. Anaesthesia was given by opposite party No. 2. None of the opposite parties were in the employment of opposite party No. 3. He admitted that Mr. Bharat Raut was admitted on 21.4.2003 with swelling on the right upper limb since last 4 -5 years. Patient gave history of said swelling. The swelling was kept for excision on 22.4.2003. Pre -operatively Mr. Bharat Raut was thoroughly investigated and preoperative anaesthesia check -up was also done by way of abundant precautions. Written consent was taken and patient was advised starvation. The operation was to be performed at 8.00 a.m. on 22.4.2003. Surgery was undertaken under brachial block given through axillary approach by opposite party No. 4 - Dr. Hitesh Bafana, the Anaesthetist. After the regionalb lock was given, surgical procedure was started and performed with the help of Dr. Dheeraj Mahangade, by opposite party No. 1 - Dr. Manish Motwani. Surgery was over at 9.00 a.m. At the same time, the patient had a cardiac arrest for which anaesthesiologist with opposite party No. 1's help did everything to resuscitate the patient. Patient was transferred to Chetna Hospital for ICU management. Patient succumbed at 10.30 a.m. and was then declared dead. The detailed treatment is mentioned in indoor papers.