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Wednesday, 1 May 2013

Gynaecologist, physician directed to pay Rs 6.6 lakh for giving anaesthesia, causing death ...........47313


Mumbai: 


The Maharashtra State Consumer Disputes Redressal Commission has directed gynaecologist Dr Sujata Rathod and physician Dr Vasant Kumar Purshottam Jog to pay Rs 6.6 lakh as compensation to the family of a woman who died days after giving birth to her child 10 years ago following anaesthesia-related complications.


The state consumer commission upheld a district forum order, which found the doctors guilty of negligence. 

Dubbing the doctor a “quack” for administering anaesthesia despite not being qualified to do so, the commission observed that no doctor can do a specialized job if he or she does not have the necessary qualification.


While Dr Rathod performed an emergency Caesarean section on the patient, Dr Jog administered the anaesthesia. 

The commission observed that Dr Rathod was aware that Dr Jog did not hold either a postgraduate degree or diploma in anaesthesia, which is a mandatory qualification for an anaesthetist as per the Medical Council of India (MCI).


Full judgement

 

BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI

First Appeal No. A/11/942
(Arisen out of Order Dated 10/10/2011 in Case No. 49/2004 of District Thane)

1. DR SUJATA RATHOD
JOG'S MATERNITY AND NURSING HOME VARTAK NAGAR NAKA,
POKHARAN ROAD NO 1, THANE 400606,
MAHARASHTRA
2. DR VASANT KUMAR PURSHOTTAM JOG
JOG'S MATERNITY AND NURSING HOME VARTAK NAGAR NAKA,
POKHARAN ROAD NO 1, THANE 400606,
MAHARASHTRA
...........Appellant(s)


Versus

1. SHASHIKANT KISAN VICHARE,
BABY PRAFULLATA SHASHIKANT VICHARE,
DADIBAI KISAN VICHARE,
56/2539 VARTAK NAGAR HOUSING BOARD POKHARAN ROAD NO 1, THANE 400606
MAHARASHTRA
2. DR JOGS HOSPITAL AND ASHWINI X RAY
JOG'S MATERNITY AND NURSING HOME VARTAK NAGAR NAKA POKHARAN ROAD NO 1 THANE 400606
THANE
MAAHARASHTRA
3. DR ANAND BHAVE
TAMHANES BUILDING GHANTALI ROAD THANE 400602
MAHARASHTRA
4. LOK HOSPITAL
LOK UPAVAN PHASE II,
GLADYS ALVARES MARG THANE 400601
MAHARASHTRA







...........Respondent(s)

BEFORE:


HON'BLE MR. Dhanraj Khamatkar PRESIDING MEMBER

HON'BLE MR. Narendra Kawde MEMBER

PRESENT:
Dr.G.N. Shenoy, A/R for the Appellants.

Advocate Mr.Rajiv Thakur for the Respondent No.1.
 

O  R  D  E  R

Per Mr.Dhanraj Khamatkar – Hon’ble Presiding Member:

1.       This appeal takes an exception to an order dated 10.10.2011 passed in Consumer Complaint No.49/2004 by the District Consumer Disputes Redressal Forum, Thane. 

2.       The Complainant No.1 is husband, Complainant No.2 is the minor daughter and Complainant No.3 is the mother-in-law of the deceased Shashikala Vichare.  Late Shashikala Vichare died on 09.08.2003.  Initially she was admitted in  the Opponent No.3 hospital.  Opponent No.1 had done the cesarean on the deceased and the Opponent No.2 had administered the anesthesia. As the health of the deceased deteriorated in the Opponent No.3 hospital, she was shifted to Opponent No.5 hospital on the advice of Opponent No.4 – Dr.Anand Bhave.  The Complainants had alleged medical negligence on the part of the Opponent Nos.1 to 5 and filed the consumer complaint.

3.       The facts of the complaint can be summarized as under:

The deceased was registered with the Opponent No.1 during her pregnancy.  On 07.07.2003 the Opponent No.1 had examined the deceased and advised the Complainant No.1 that the cesarean will have to be carried out on the deceased.  Cesarean was carried out on 07.07.2003.  However as there was pain in the chest of the deceased the Opponent No.3 hospital had called the Opponent No.4 for the treatment of the deceased.  Opponent No.4 had told the Complainant that there was a cough in the chest of the deceased and advised to shift her in the Hospital of Opponent No.5.  She was in the hospital of Opponent No.4 from 09.07.2003 to 09.08.2003 and ultimately she died on 09.08.2003.  The Complainants alleged that late Shashikala Vichare died because of the medical negligence on the part of the Opponent Nos.1 to 5 and hence, they prayed that the complaint be allowed and the Opponents be directed to pay `20 lac as compensation.  The Opponent No.5 be directed not to recover the medical bills as the death of the deceased was due to gross negligence, deficiency in service and unfair trade practice adopted by the Opponent No.5 hospital.

4.       The Opponent No.1 challenged the complaint contending that for the first time deceased came to her on 14.04.2003 and she was pregnant after the gap of ten years from the marriage.  She again visited the hospital for check-up on 27.05.2003, 07.06.2003, 23.06.2003, 26.06.2003.  The Opponent No.1 further stated that the deceased again came for check-up on 30.06.2003 and stated that she was suffering from cold and fever.  Opponent No.1prescribed some tablets.  On 07.07.2003 she came for the check-up and she was having a temperature.  The Opponent No.1 found that she had completed 38 weeks of pregnancy and advised to go for cesarean for the safety of the child and herself.  Cesarean was carried out at 09.26 hrs. in the evening and she had given a birth to a female child weighing 2.5 kg.  The Cesarean was completed at 10.30 p.m. without any complications.  Opponent No.1 has further contended that she had examined the patient on 08.07.2003 at about 08.00 p.m. and the deceased was in a good condition.  On 09.07.2003 at 10.00 a.m. she complained of cough and hence, x-ray was taken and in a x-ray it was noticed that there was ‘by lateral consolidation of lungs).  Hence, the Opponent No.4 was called.  Opponent No.4 examined the deceased and advised to shift the deceased to the Opponent No.5 hospital for further treatment.  Therefore, the Opponent No.1 had prayed that there is no deficiency in service, no negligence on her part and hence, the complaint may please be dismissed.

5.       Opponent No.2 in his written version stated that he was informed about the cesarean operation on 07.07.2003.  Te Opponent No.1 told him that there is a Faetal Distresse  and cesarean is immediately required.  As an anesthetist he examined the deceased, the blood pressure was normal, the deceased was not having a problem of diabetes, high blood pressure and asthma.  He had seen the medical treatment papers and found that the deceased was fit for administering anesthesia.  The Opponent No.2 further stated that the cesarean was successful and the new born child as well as deceased was in good condition.  There was no problem or complications during cesarean operation.  The Opponent No.2 had stated that there is no deficiency in service on his part and hence, the complaint may please be dismissed.

6.       Opponent No.3 in its written version stated that the hospital has the facility of maternity and nursing home and x-ray and the Opponent No.2 is the owner of the hospital.  The Opponent No.3 hospital further stated that the hospital is in existence since 1986 having facility of 20 beds.  Opponent No.3 further stated that on the instructions of the physician – Opponent No.4 the deceased was shifted to Opponent No.5 hospital.

7.       The Opponent No.4 in his written version stated that when he examined the deceased, the deceased was administered for Bilateral Pneumonia with impending adult/acute Respiratory Distress Syndrome (ARDS).  He further stated that in such cases percentage of death is 70%.  He further stated that the treatment given to the deceased is recorded in the case papers.  He further stated that during her treatment he had called Dr.AlkeshShah, Dr.Nandita Palekar, Dr.S. Raju and Dr.Suchetra Kelkar.  He had also called one Dr.Stephen Alfred and Dr.Mahashur of  Hinduja Hospital.  He had given best treatment as per protocol.  However, on 09.08.2003 her blood pressure came down, and ultimately she died on 09..08.2003 at 10.45 p.m. and the diagnosis is ”ARDS (Acute Respiratory Distress Syndrome)”.  He, therefore, prayed that there is no deficiency in service  on his part and there is no medical negligence in the treatment given to the deceased and hence, the complaint may please be dismissed. 

8.       The Opponent No.5 hospital had filed a written version stating that in their hospital all the medical facilities are available and the strength of the hospital is 50 beds.  They are having specialist Doctors for the treatment and the trained employees.  There is no deficiency in service on their part or there is no negligence on their part and therefore, they prayed that the complaint may please be dismissed.

9.       On the written version of the Opponents the Complainant had filed a copy of report submitted by the Committee of experts dated 06.12.2006 on the directions of the Criminal Court regarding the death of the deceased and prayed that the report may please be included as evidence.

10.     The Opponents had given interrogatories for the Doctors who prepared the report.  Out of three experts one expert Dr.R.S. Bengal had replied to the interrogatories.  The Opponents have filed affidavit of Dr.Vasudha Vishnu Apte, in support of pleadings of the Opponents.

11.     The District Forum after going through the complaint, written versions filed by the Opponents, affidavits in evidence filed by the parties and the Expert Committee Report dated 06.12.2006 and the affidavit of Dr.Vasudha Vishnu Apte, on behalf of the Opponents, has partly allowed the complaint directing the Opponent No.1 to pay compensation of `1,00,000/- and costs of `10,000/- to the Complainants.  Further, the District Forum directed the Opponent no.2 to pay compensation of `5,00,000/- (Rupees Five Lac) and costs of `10,000/- to the Complainants within a period of 45 days from the date of the order, failing which the amount shall carry interest @18% per annum from the date of passing of the order till its realization. 
Aggrieved by this order the Opponent Nos.1 and 2 have filed this appeal.

12.     We heard A/R Dr.Shenoy for the Appellants and Advocate Mr.Rajiv Thakur for the Respondent No.1.

13.     Admittedly, the deceased – Shashikala Vichare was admitted in the hospital of Respondent No.2 for cesarean operation.  Cesarean was carried out during the period 08.45 p.m. to 09.26 p.m. on 07.07.2003.  The Appellant No.1 had admitted in her written version that the deceased – Shashikala Vichare had given birth to a female child weighing 2.5 kg at 09.26 p.m. and the cesarean was completed at 10.30 p.m. without any complications.  It is also admitted that the health of both, the deceased as well as the newly born child was fine.  It is also admitted by the Appellant No.1 that on 08.07.2003 at 08.00 p.m. she had examined the deceased and her health was normal.  Even on 09.07.2003 at 10.00 a.m. Appellant No.1 had seen the deceased and admitted that the health of the deceased and the newly born child was normal.  Only the deceased had complained that she was having a cough and hence, X-ray was taken and in X-ray bilateral consideration of lungs noticed.  Hence, they called the Respondent No.3 – Dr.Anand Bhave for examination at 03.15 p.m. and the Respondent No.3 Doctor advised to shift the deceased in I.C.U. and as the I.C.U. facility was not available in Opponent No.2’s hospital she was shifted to Opponent No.5 hospital (Lok Hospital).

14.     The District Forum has not observed any deficiency in service on the part of the original Opponent Nos.3, 4 and 5 and dismissed the complaint against them.  This order is not challenged by the original Complainants, i.e. Respondent No.1 in the present appeal and hence, question of examining the responsibility of original Opponent Nos.3, 4 and 5 does not arise.

15.     The main grievance of the Respondent No.1 is that the Appellant No.2 is not holding necessary qualification for administering anesthesia and the Appellant No.1 though holding required qualification to carry out the cesarean had allowed the Appellant No.2 to administer anesthesia.

16.     The technical Committee in its report had relied on Dr.C.S. Don’s Medico Textbook, especially the contents “choice of anesthesia should be mere local infiltration and block technique especially poor risk patients”  and these guidelines are not followed by the Appellant No.2.    The further observation that Dr.V.P. Jog’s educational qualifications are not valid for general anesthesia.  The Committee further observed that a quack is a person who does not have knowledge of a particular system of medicine but practice in that system and is a mere pretender of a medical knowledge or skill or to put differentially, a charlatan.  As per the Indian Medical Council Professional Conduct, Etiquette and Ethics)  Regulations 2002 dated 11th March, 2001, the duties and responsibilities of the physician have been notified.  Clause-B Sub-clause 1.1.3 states as under:

No person other than a doctor having qualification recognized by Medical Council of India and registered with Medical Council of India /State Medical Council(s) is allowed to practice Modern System of Medicine or Surgery.”

 Similarly, Clause B-1.2.1 states as under:

“the physician should practice methods healing founded on scientific basis and should not associate professionally with anyone who violates this principle.”

In the present case, the Appellant No.1 knowing that the Appellant No.2 does not hold either post graduate degree or diploma in anesthesia allowed to administer anesthesia on the deceased and the Appellant No.2, knowing that he does not hold post graduate degree or diploma in anesthesia and aware all the facts that as per Medical Council of India, holding a post graduate degree or diploma in the subject is must for performing the job, administered anesthesia on the deceased.  The Appellant No.2 had tried to argue that he has done a three months training in anesthesia conducted by J.J. Hospital and worked in the Government hospital for considerable time and administered anesthesia in his hospital.  However, the training which he had undergone is not recognized by the Medical Council of India or the State Medical Council.  The Appellant No.2 claimed that there is Government resolution stating the Doctors having undergone three moths training are authorized to practice, however, he miserably failed to bring such Government resolution on record.  In the absence of the valid degree prescribed by the Medical Council of India the Appellant No.2 becomes quack.  The affidavit of Dr.Vasudha Vishnu Apte, filed by the Appellant No.2, supporting that he is an anesthetist and has experience will not help to the Appellant No.2 to prove that he is a specialist.  The Expert Committee in its report has observed that:
“It cannot be said that pre anesthetist evaluation was properly carried out and everything was normal.   This is so because when the patient had told the history of fever and cough since 10 days any prudent doctor would have investigated the patient for the same and would mentioned the findings in the anesthesia record.  However, this important aspect related to health of patient was completely ignored and all the systems were shown as normal in the records.”   

The Committee further observed that:

when patient had respiratory tract infection and when it is a standard practice to administer spinal anesthesia to minimize the complications, still general anesthesia was administered.” 

17.     The Apex Court in various judgements has observed that unless the person hold a necessary qualification, should not perform job of the Specialist.  We find that the Appellant No.2 was not educationally qualified to administer the anesthesia to the deceased and the Appellant No.1 though aware about the fact, allowed the Appellant No.2 to administer the anesthesia.  Holding this as deficiency in service and negligence on the part of the Appellants, the District Forum has passed the order and Appellants miserably failed to prove that the Appellant No.2 was qualified to administer anesthesia on the deceased as per Medical Council of India norms.  The District Forum has passed the impugned order taking into consideration the law and facts and we do not think it proper to interfere in the same.  We hold accordingly and pass the following order:

O  R  D  E  R
Appeal is dismissed.
The order of the District Forum is hereby confirmed. 
No order as to costs.
Inform the parties accordingly.

Pronounced on 13th March,  2013.

[HON'BLE MR. Dhanraj Khamatkar]
PRESIDING MEMBER


[HON'BLE MR. Narendra Kawde]
MEMBER
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