Wilfred Dmello vs Dr. Manoj K. Dhruve And Anr.

THE instant Appeal has been filed challenging the impugned order dated 14.5.1996 passed in complaint No. 88/93 by State Consumer Disputes Redressal Commission, Maharashtra (hereinafter referred to as State Commission), that there was no negligence on the part of both respondents and the complaint was dismissed. The Appellant herein was a complainant and the Respondents herein were Respondents in the complaint which was filed before State Commission, Maharashtra.

THE facts of the case in a nutshell are as under: On 28.4.1992 at 7.00p.m. the Appellant''s son (hereinafter referred to as patient), aged about 8 years fell down and sustained an injury on the left side of his head with bleeding from left ear and vomiting. He was taken to his family doctor Dr. Manoj K. Druve the first Respondent herein who advised for admission in Sanjeevini Nursing Home, Andheri instead of referring patient to a Neurosurgeon as desired by the complainant. Subsequently, patient was examined and treated by second Respondent who is purported to be ENT surgeon and who diagnosed the case as CSF otorrhea which means leakage of cerebrospinal fluid through the ear and started treatment for the same. Appellant was insisting for referring the patient to a Neurosurgeon for conducting a CT -Scan. But Respondent considered that CT scan was not necessary. However, he did an X -ray of the skull which indicated a crack. The patient was discharged on 9.5.1992 with an advice that he should report back in case of persistent vomiting, high grade fever, severe headache, etc. On 21.5.1992, the patient complained of severe headache and giddiness and was therefore rushed to Respondent No. 1 who advised to go to another clinic and he then visited Respondent No. 2. But, it was only thereafter that the patient went to a Neurosurgeon by name Dr. KG Shah, and a CT Scan was conducted. Dr. K.C. Shah admitted the patient to Bombay Hospital where the patient was under treatment till his last breath i.e., till 26.6.1992. Therefore, the appellant filed a complaint before the State Commission on the grounds of medical negligence and deficiency in service and requested State Commission to direct the respondents to jointly and severally pay a sum of Rs. 8,00,000 as compensation along with Rs. 50,000 as cost.

RESPONDENT S on being served filed a detailed reply denying the allegations of medical negligence and deficiency in service. Appellant was given treatment by both the respondents as per their best professional judgment based on proper clinical and diagnostic tests of the patient

THE State Commission after hearing the parties and on the basis of evidence produced before it dismissed the complaint by observing as follows: After hearing the parties and after going through the papers we find that the allegations made against the opposite party No. 1 are that he was negligent in wrongly referring the patient to the ENT doctor even though asked for referring to Neurosurgeon by the complainant. This allegation of the complainant could not be substantiated. In case there was any lapse on the part of opposite party No. 1 then definitely the complainant would not have approached him on the second occasion i.e. 23.5.1992. The reference made by the opposite party No. 1 Sanjivani Hospital was properly looked into by Dr. Kale who referred the patient to Dr. Dhaval Shah. From the records, it appears that the opposite party No. 1 referred the case to opposite party No. 2. Therefore, there was no negligence on the part of the opposite party No. 1 as alleged by the complainant. The opposite party No. 2 was appointed by Sanjivani Hospital for the treatment of this patient. It also appears that the opposite party No. 2 has treated the patient with all precaution which can be seen from the case papers placed on record. We are fully convinced that the conduct of the opposite party No. 2 in treating the patient was perfectly right and in consonance with the medical practices, which can be seen from the treatment of the opposite party No. 2 i.e. leakage of fluid was stopped within a period of 3 days. Thereafter the patient was kept under the observation upto 9.5.1992. Again when the patient was discharged, the instructions were given to the complainant that in any case, of giddiness and unconsciousness, the patient should be immediately rushed to the hospital. This precaution on the part of the opposite party No. 2 in our view appears to be reasonable precaution on the part of the opposite party No. 2 in our view appears to be reasonable precaution in treating the patient. The allegations made by the complainant that there were lapse on the part of the opposite party No. 2 under circumstances, cannot be accepted. The subsequent treatment by Dr. K.C. Shah also appears to be correct. The contention of the complainant that the patient was required to be referred to Neurosurgeon in the beginning itself and not either Dr. Dhruve and Dr. Dhaval Shah in our view cannot be said to be proper contention. The contention of Mr. Chavan appearing on behalf of the complainant as regards the negligence on the part of both these doctors should not be substantiated. Under the circumstances, we are not inclined to accept the contention making allegations against these doctors about the negligence. Therefore, this complaint fails and stands dismissed. No costs.

Learned Counsel appearing for both the parties made oral submissions and vehemently reiterated the submissions made by the two parties before the State Commission.

WE have carefully considered the entire materials placed on record and the contentions of both the parties, the arguments submitted by learned Advocates appearing for both the parties as also the Medical Literature on the subject ''Diagnosis and Management of Otologic Cerebrospinal Fluid Leak'' in Journal Otolaryngol clin NAM38 (2005) 583 -595.

AT the outset it is necessary to note here the undisputed facts. It is an undisputed fact that on 28.4.1992 patient was taken to Respondent No. 1 and as per the advice of Respondent No. 1 patient got admitted in second Respondent''s Nursing Home and he took treatment as an in -patient for a period of 12 days that is from 28.4.1992 to 9.5.1992. On 21.5.1992 patient was once again taken to Second Respondent''s Hospital and on that day Second Respondent advised the Appellant to get an urgent CT -Scan and to admit him to Nanavati Hospital. All these facts are admitted facts, which need not be proved. Now, under the given set of facts, we are required to determine as to whether there is medical negligence on the part of Respondent Nos. 1 and 2 in the treatment and care of the young patient.

CASE sheet of patient maintained in second respondent''s Hospital amply establishes that the patient was suffering from headache and fever continuously from 28.4.1992 to 9.5.1992 that is from the date of his admission till the date of his discharge. The second Respondent in his objection specifically admitted that patient was referred to him with a history of a fall resulting in vomiting, trauma to the left side of his head with discharge of fluid blood from the left ear. Second Respondent further admitted that on 21.5.1992 patient was taken to him with the history of vomiting and on that day immediately he advised the Appellant to get CT Scan done and admit him to Nanavati Hospital. It is germane to note here that, advising the Appellant to get urgent CT Scan pre -supposes that the Second Respondent was well aware that a CT Scan was necessary for proper diagnosis and for proper treatment. It is also noteworthy that as already discussed supra, the Second Respondent himself in his objections specifically admitted that the patient was referred to him with the history of fall resulting in vomiting and other symptoms. This type of contention crystallizes that on the first day itself the Second Respondent was well aware that CT Scan was a must and this type of patient needs to be treated by a Neurosurgeon. Though the second Respondent was well aware about this aspect, he has chosen not to advise the Appellant to get CT Scan done and he has chosen not to refer the patient to a Neurosurgeon.

CASE sheet of the patient also clearly discloses that, from the date of admission till the date of discharge that is from 28.4.1992 to 9.5.1992 patient had continuous headache and fever. He was discharged on 9.5.1992 with instructions to report immediately if there is any problem or vomiting. At the time of discharge it was explained to the parents of the patient that head injury could get complicated for a period of up to 2 months and in such circumstances they should contact Second Respondent But later within 12 days that is on 20.5.1992 the patient had two to three times vomiting for which they consulted the second Respondent on 21.5.1992 and on that day the second Respondent advised them to get urgent CT Scan and admit him in Nanavati Hospital and expressed his desire to call any Neurosurgeon or Pediatrician to examine the child. Therefore, it is crystal clear that the Second Respondent was well aware and he anticipated the complication regarding the head injury. When this being so, the Second Respondent ought to have investigated the patient by CT Scan on the day of admission itself or during the course of treatment with him. By not doing so, it can be said that there is a medical negligence on the part of the Second Respondent. It is pertinent to note here that the records disclose that the Appellant himself insisted to refer the patient to Neurosurgeon for conducting CT Scan. Appellant is a common man. He is not a Medical Expert. Even then he being an ordinary prudent man he insisted to refer the patient to Neurosurgeon. But the 2nd Respondent being a medical practitioner, though he was made known about the nature of disease of this patient and though he was well aware that a CT Scan was very much necessary for the purpose of diagnosis and for treatment, he did not refer the patient to Neurosurgeon for the reasons best -known to him.

DURING the pendency of this appeal, to enable us to reach a conclusive decision based on correct assessment of the patient''s medical condition and treatment as also in the interest of justice, we sought expert medical opinion from Ram Manohar Lohia (RML) Hospital, New Delhi as relevant to this case and specifically: (i) Whether keeping in view the physical/clinical symptoms of the patient due care was taken to diagnose and treat the case?

(ii) Whether Respondents/doctors were justified in concluding that no CT scan or reference to a Neurosurgeon was necessary immediately on their seeing the patient?

(iii) Any other medical aspects relevant to this case.

THE Medical Board of expert doctors comprising of ENT -surgeon, Neurosurgeon and Pediatrician at Ram Manohar Lohiya Hospital, New Delhi reviewed this matter and is of the following opinion: 1. The case in question was a case of head injury with CSF Otorrhoea.

The initial assessment and subsequent conservative time of treatment was done in an appropriate manner by the concerned doctors.

The Board is also of the opinion that a neurosurgical consultation and a CT Scan should have been done during the period from 28.4.1992 to 9.5.1992. However, this might not have changed the line of management.

Relevant portion of the report reads as under; A neurosurgical consultation and CT Scan should have been done during the period from 28.4.1992 to 9.5.1992.

EXPERTS '' opinion throws a light on the entire dispute. Experts'' opinion as reproduced supra amply establishes that Neurological consultation and CT Scan ought to have been done when the patient was taking treatment as an in -patient in 2nd Respondent''s Hospital. Not giving of proper advice at the right time or not giving proper treatment and also not referring the patient to a proper hospital by the Second Respondent amounts to medical negligence on his part. So far as respondent No. 1 is concerned, he is also equally guilty of medical negligence in view of the fact that admittedly the appellant has brought his son with the history of fall resulting in head injury, vomiting, and discharge of blood/fluid from his ear and taking note of these symptoms any doctor with ordinary skills and exercising professional judgment should have immediately realized that a CT scan and referral to neurologist is necessary on the first day itself. In this case, there is evidence on record that appellant himself had insisted on the first day that the patient be referred to a Neurosurgeon. Even then First Respondent did not refer the patient to Neurosurgeon and indeed referred the patient to the Second Respondent who is a ENT surgeon. Non -referring the patient to a proper and competent Specialist that is Neurosurgeon is therefore Medical Negligence on the part of Respondent No. 1.

WE have referred to the medical literature on the subject ''Diagnosis and Management of otologic cerebrospinal fluid leak'' It is clear from this literature that CSF otorrhea is potentially life threatening situation and the symptoms from which the patient suffered following the head injury could be indicative of either CSF otorrhea or an injury/trauma to the brain. It is necessary to note here that there is sufficient material on record to show that the patient consulted First Respondent and Second Respondent with a history that he had fallen down and sustained several injuries including head injury. And this fact was made known to both the Respondents. Even then they did not refer the patient to proper competent Doctor that is a Neurosurgeon or at least got conducted a CT Scan to find the extent and seriousness of head injury. What constitutes Medical Negligence is now well established by a plethora of Rulings of the Hon''ble Supreme Court of India and by several orders of this Commission and essentially three principles are applied: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; in this present case it is ''YES'' both the respondents are qualified?

(ii) Whether the doctor adopted the practice (of clinical observation diagnosis - - including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field?

(iii) Whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated. Our view on the points Nos. (ii) and (iii) are "NO" as the both respondents did not adopt standard of practice in proper diagnosis, referral and further management. In the Bolam''s case. Bolam v. Frien Hospital Management Committee,, (1957)1 WLR 582, it was also held that a doctor is not negligent if he is acting in accordance with standard practice merely because there is a body of opinion who would take a contrary view. The same view has been taken by this Commission. Wrong reference is an error, which no doctor/hospital exercising ordinary skills would have made.

APPLYING all the above principles in the instant case, we are convinced that there is medical negligence - -admittedly, the respondents are qualified doctors but they have not used their best professional judgment and due care in treatment of petitioner''s son right from the beginning.

THE State Commission erred in ignoring the vital evidence of Respondent No. 1 who diagnosed the patient as "Possibility of head injury requiring observation and specialist opinion". The State Commission also failed to appreciate the preponderance of probability pointing to the negligence and deficiency in service of both the respondents. Taking into consideration, the detailed discussions and observations made supra, we are of the firm view that there is medical negligence on the part of Respondents No. 1 and Respondent No. 2. Admittedly, the Respondent Nos. 1 and 2 were deficient in not adopting the practice of clinical observation and diagnosis including diagnostic tests - in this case the necessary CT Scan - -for which both Respondents 1 and 2 are liable to compensate the Appellant. Hence, we are of the view that the order of State Commission in dismissing the complaint cannot be sustained. The Appellant lost his young 8 years old son due to the negligent act of Respondent Nos. 1 and 2. Naturally a father has many dreams for his son. In the instant case all the dreams of the Appellant about his deceased young son were destroyed due to the negligent act of Respondent Nos. 1 and 2. Hence, his pain obviously cannot be compensated completely in terms of money. However, for the purpose of reducing his financial liability and in the interest of justice, it is just and proper to award compensation and expenses towards litigation.

IN view of the foregoing observations and discussions, we proceed to pass the following Order. The first appeal is allowed and the order passed by State Commission in a Complaint No. 88/1993 dated 14.5.1996 is set aside. The Respondent Nos. 1 and 2 are jointly and severally directed to pay the Appellant an amount Rs. 4,20,000 (i.e. Rs. 4,00,000 as compensation and Rs. 20,000 as cost) within a period of three months, failing which it will carry interest @ 9% per annum for the period of default.