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Judgment
Dr. S.M. Kantikar, Presiding Member
The present Appeal is a challenge to an impugned order dated 30.08.2011 passed by State Consumer Disputes Redressal Commission, Gujarat, Ahmedabad (hereinafter referred to as the ‘State Commission’), whereby the Consumer Complaint No. 102/2000 was allowed and the Appellant/Opposite Party was ordered to pay Rs. 3 lakh with 6% interest from the date of complaint till realisation.
Brief facts are that Smt. Pushpaben, the wife of the Complainant, aged 44 (hereinafter referred to be the “Patient”) had symptoms of fever, edema, blood pressure and passing less urine. She was under treatment of Dr. Piyush Shastri, the OP from 26/03/1999 to 06/05/2000. During the said period, more than 25 times, she visited the OP, but there was no improvement in her condition. On 06/05/2000, the Renal Function tests (RFT) showed high values including the uric acid. Thus the kidney problem was diagnosed and she was referred to Kidney Institute, Civil Hospital. But her problem aggravated and within 24 hours, the patient died on 07/05/2000 in the Kidney Institute. As per the Kidney Institute’s medical report, the cause of death of patient was Rheumatoid Arthritis, Hyper uremia, Acute renal failure, with Cardio respiratory failure. The Complainant alleged that in-spite of regular treatment for more than one year, the Opposite Party failed to diagnose and treated properly to his wife. She died due to the negligence of the OP, thus being aggrieved he filed a Consumer Complaint before the State Commission and claimed compensation sum of Rs. 6,25,000/-
The Opposite Party filed his reply and denied negligence. He submitted that the patient had been coming since 26.03.1999 for her complaints of giddiness and Vertigo. She never complained of edema and oliguria and there were no symptoms of any renal involvement. After 21.04.1999, she did not follow her check-up, but after 5 months, she came on 07.10.1999 with the complaints of fever and pain in joints. Accordingly medicines were prescribed. She came again for the same complaints on 17.11.1999. The thyroid test showed hypothyroidism. Her urine report was normal, Rheumatoid Antigen (R.A.test) was positive and medicines were prescribed accordingly and she was advised to consult Orthopaedician. Thereafter the patient last visited on 29.02.2000. The period in between the patient never complained of edema or oliguria. She again came to OP on 01.05.2000 with the joint pain and backache. The certain tests were advised but the patient ignored it, she was not cooperative to the prescription, did not consult Orthopaedician and used to visit the OP as per her convenience. On 06.05.2000, the patient was specifically asked about urine output and at the first time she told that she had oliguria. Accordingly the renal function tests and other investigations were carried out and on the same day advised her to go to the kidney hospital for specialized treatment. She was taken to the Kidney hospital around 5:00 PM but unfortunately expired there on the next day at 10:30 PM.
After hearing the parties, the State Commission allowed the Complaint.
Being aggrieved, the OP filed the instant Appeal before this Commission.
We have heard the learned Counsel for both the parties.
The learned Counsel for the OP vehemently argued that the State Commission passed an erroneous order in absence of medical document of institute of Kidney disease and research centre at civil hospital, Ahmedabad. The patient took treatment at Pukhraj Hospital (Sabarmati). The Complainant deliberately has not filed important medical documents. No expert opinion was filed. The OP relied upon the medical text book ‘Clinical Nephrology’ chapter “Pathophysiology and aetiology of acute kidney injury in clinical nephrology.” He further relied upon few decisions of Hon’ble Supreme Court and this Commission on the issue of medical negligence.
The learned Counsel for the Complainant reiterated the facts and stressed upon the negligence of OP.
We gave our thoughtful consideration to the arguments of the learned Counsel for the parties. Admittedly, the patient was under treatment of OP since March, 1999. The medical prescription showed that she was not regular in her follow-up. The patient or her husband did not complain of Oliguria (passing less urine). From the standard medical literature, it is known that, if the patient is taking pain killer medicines continuously for two to three years, cause renal damage. It is evident that the patient was diagnosed as positive for Rheumatoid Arthritis, and was taking pain killers without proper follow-up with OP. She did not consult the Orthopedician for her joint pains. Therefore, the treatment given by OP cannot be faulted. He treated as per the reasonable standard of practice.
It should be borne in mind that” No cure is Not a negligence”. In the instant case, the patient developed acute renal failure after one year. She consumed pain killers on her own without monitoring. Finally she was referred to Kidney Institute in Civil Hospital at Ahmedabad on 06.05.2000. The RFT values were very high (Urea- 147 mg and Creatinim 8 Mg), which became fatal. The OP treated the patient as per the clinical signs and symptoms and she never had swelling of legs or oliguria to suspect the renal failure.
The allegations need to be proved with cogent evidence. We would like to rely upon the recent judgment passed by the Hon’ble Supreme Court in Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors.[ 2021 SCC OnLine SC 1149], whereby it was held in paragraphs 32 and 34 of judgment as below:-
In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam [2009) 7 SCC 130], this Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. This Court held as under:
“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”
Recently, this Court in a judgment reported as Dr. Harish Kumar Khurana v. Joginder Singh & Others[(2021) SCC Online SC 673] held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence.
In the case of S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another[(2019) 2 SCC 282], Hon’ble Supreme Court held that there has to be direct nexus with these two factors to sue a doctor for negligence. It was further held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. Recently on April 20, 2022, the Hon’ble Supreme Court in the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. Vs Dr. M.A. Methusethupathi & Ors.[ 2022 LiveLaw (SC) 391] has laid down in no uncertain terms that merely because doctors could not save the patient, he/she cannot be held liable for medical negligence.
Based on the afore discussion, the medical negligence could not be conclusively attributed to the act of OP. We allow the instant appeal and set aside the Order of State Commission. Consequently, the Consumer Complaint is dismissed.
The parties to bear their own costs.