NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 1000 OF 2015
 
(Against the Order dated 15/10/2015 in Complaint No. 160/2011 of the State Commission Maharastra)
1. DR. ALANKAR LAXMAN KHANVILKAR
R/O. AT BUILDING NO. 197, ROOM NO. 7748, VAINATAYE CO-OPERATIVE HOUSING SOCIETY, KANNAMWAR NAGAR, VIKHROLI (EAST)
MUMBAI-4000083
...........Appellant(s)
Versus 
1. L.H. HIRANANDANI HOSPITAL & 4 ORS.
HILLSIDE AVENUE, HIRANANDANI GARDENS, POWAI,
MUMBAI-400075
MAHARASHTRA
2. DR. SHALINI SURALKAR
WORKING AT DR. L.H. HIRANANDANI HOSPITAL, HILLSIDE AVENUE, HIRANANDANI GARDENS, POWAI,
MUMBAI-400075
MAHARASHTRA
3. DR. MEGHA MANE,
WORKING AT DR. L.H. HIRANANDANI HOSPITAL, HILLSIDE AVENUE, HIRANANDANI HOSPITAL, HILL SIDE AVENUE, HIRANANDANI GARDENS, POWAI,
MUMBAI-400075
MAHARASHTRA
4. DR. BHUPENDRA MAHADIK
WORKING AT DR. L.H. HIRANANDANI HOSPITAL, HILLSIDE AVENUE, HIRANANDANI GARDENS, POWAI,
MUMBAI-400075
MAHARASHTRA
5. MS. POLSY JOSHI
WORKING AT DR. L.H. HIRANANDANI HOSPITAL, HILLSIDE AVENUE, HIRANANDANI GARDENS, POWAI,
MUMBAI-400075
MAHARASHTRA
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
 HON'BLE DR. S.M. KANTIKAR, MEMBER

For the Appellant :
Mr. R. Satish Kumar, Advocate
For the Respondent :

Dated : 10 May 2016
ORDER

                                                                                                                  

 

DR. S. M. KANTIKAR, MEMBER

1.      Dr. Alankar Laxman Khanvilar, the complainant, took his mother, namely, Smt. Shobha L. Khanwilkar, aged about 61 years ( herein after referred as ‘patient’) for treatment of fever and chills to opposite party No. 1/Dr. L. H. Hiranandani Hospital on 16.12.2006.  The patient was kept in the ICU, carried out number of investigations and the result of all such tests found normal after USG and CT Scan of Abdomen.  It was found that the stent which was placed in the common bile duct previously was blocked and infected.

2.      On 20.12.2006, the doctor replaced the old stent with a new one.  The patient was stable and kept in the ICU upto 29.12.2006.  The patient was shifted from ICU to ward despite having fever on 29.12.006 at about 2.00 p.m.  The OP assured that the patient was well and the patient can be managed in the Special Room.  OP 2/Dr. Shalini Suralkar came for the evening round.  The fever was same.  On 30.12.2006, the saturated oxygen ( O 2 ) level  of the patient was normal at about 2.00 a.m.  The saturated oxygen level started falling down, which was noticed by the complainant to 90, therefore, the patient’s condition started worsening.  It was immediately informed to OP 5, Mr. Polsy Joshi to call OP 2 but no one attended the patient after 2.00 a.m.  Further, on 4.00 a.m., O 2 saturation level fell down to 83 % and then her condition became extremely critical.  Same was informed to OP 3 through OP 5 telephonically.

3.      At 4.10 a.m. without examining the patient, OP 3 advised the opposite OP  5 to give her the injection ‘Akenil to reduce the fever.  The complainant immediately brought this matter to opposite party No. 5 and asked to shift the patient to ICU immediately to save her life.  At 5.59 a.m., OP 2 shifted the patient to ICU and put on ventilator.  At about 6.00 a.m., OP 3/Dr. Megha Mane came to the patients’ room.  However, she was not aware of how to auscultate.  Lastly, the patient was shifted to ICU in a rash and negligent manner.  Unfortunately, the patient died at about 6.45 a.m..  The opposite parties in connivance with each other created false entries of treatment of suit their purpose.  Therefore, the complainant lodged a police report.  Also, alleging negligence, the complainant filed a complaint before the State Commission, Maharashtra praying compensation of Rs.88,71,411/-.

4.      The State Commission dismissed the complaint.  Therefore, aggrieved by the impugned order,  the complainant filed this first appeal before this Commission.

5.      We have heard the learned counsel for the appellant and perused the order of the State Commission.  The State Commission observed that there was no dispute as to treatment to control septicemia due to infected stent.  The only grouse was despite fever, the patient was shifted out of ICU on 29.12.2006 evening.  Therefore, at about 5 a.m. on 30.12.2006 she developed signs of deterioration with depleting level of saturated O 2.  Therefore, OPs 2, 3 and 5 failed to put in place life support treatment which was needed badly for revival of the patient’s condition.

6.      We have perused, the hospital clinical notes dated 30.12.2006, it revealed,  Dr. Mane initiated the Cardio Pulmonary Resuscitation(CPR)  and shifted the patient to ICU at 6.00 a.m. and patient was on ventilator.  The nursing notes also  show  85% O 2  saturation and B.P. was falling . O 2 was administered, injection Akenil was given for the fever and patient was shifted to ICU by Dr. Mane.  We do not find any tampering in the   hospital record. It clearly reveals that at about 2.00 a.m. of 30.12.2006, the patient was sleeping.  The saturated O2  level was 96 %. The relevant part of medical record on 30.12.2006, is reproduced as below;

          30/12/06

6.00 am.

          Received patient from wards in collapsed state

  • Cyanosed, no pulse, no B.P. recordable – immediately intubated and put on ventilator --- CPR continued
  • I.V. adrenaline 1 amp + I.V. atropine 1 amp. Stat given – CPR continued --- I.V. sodabicorb 50 ml stat given, I.V. calcium gluconate 10 ml stat given.

CPR continued, I.V. Adrenaline 1 amp repeated

  • No cardiac activity
  • CPR continued and I. V. adrenaline – atropine stat repeated --- CPR ----- I.V. vasopression 20 units state – CPR continued
  • I.V. adrenaline repeated --- scope S/O no cardiac activity
  • No spontaneious breathing, no heart sounds
  • No bowel sounds, pupils not reacting ECG S/o. no cardiac activity
  • Patient declared dead and relatives at 6.45 am informed Dr. Shalini.

 

7.      Therefore, we do not find any deficiency or negligence in the duty of care by the OPs. It was an emergency, the doctors performed CPR to revive the patient, but patient could not survive.  It should be borne in mind that, “ No Cure is Not a Negligence”. It is the tendency of  the  person to sue the doctors in such cases. Hon’ble Supreme Court in“Martin F. D’ souza vs. Mohd. Ishfaq”, 2009 CTJ 352 (Supreme Court) (CP)   was pleased to observe as under:-

41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.”

49. When a patient dies of suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.”

 

In the context doctor’s  skill and duty of care, the Hon’ble Supreme Court observed  in  Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634 as follows:

 

“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”

 

8.      For the reasons discussed hereinabove, we find no ground to interfere with the view taken by State Commission. The first appeal is, therefore dismissed.

 
......................J
J.M. MALIK
PRESIDING MEMBER
......................
DR. S.M. KANTIKAR
MEMBER