C.C. No. 28 of 2014. Case: Rajani R. Gaunekar and Ors. Vs Manipal Health Systems Pvt. Ltd. and Ors.. Goa State State Consumer Disputes Redressal Commission
| Case Number | C.C. No. 28 of 2014 |
| Counsel | For Appellant: B.P. Sardessai, Advocate and For Respondents: S.V. Joga Rao and Radha Pyari, Advocates |
| Judges | N.A. Britto, J. (President) and Vidhya R. Gurav, Member |
| Issue | Consumer Law |
| Citation | IV (2015) CPJ 23 (Goa) |
| Judgement Date | September 03, 2015 |
| Court | Goa State State Consumer Disputes Redressal Commission |
Order:
N.A. Britto, J. (President)
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The complainants are the widow and the son of late Ramesh G. Gaunekar who expired on 23.3.2014. The complainants, alleging medical negligence, particularly on the part of OP Nos. 2 and 3, by this consumer complaint seek to recover from the OPs total compensation of Rs. 40,20,298. The undisputed facts would be as follows:
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The patient Ramesh G. Gaunekar, aged 68 years, was a known case of Diabetes and Hypertension, and was seen in the OPD by OP No. 2 Dr. Naik, General Surgeon, on 17.10.2012 and was advised mesh repair of incisional hernia.
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The patient got admitted in OP No. 1 hospital on 8.1.2013 under Dr. Naik, surgeon, and OP No. 3 Dr. Parsekar, anesthetist, and the surgery was fixed on 9.1.2013, after it was consented to by the patient himself. On 9.1.2013 the patient was seen by Dr. Naik and was referred for ultrasound for marking the site of incision. The patient then first went for ultrasound and then to the OT by walk for repair of incisional hernia (copy at page 127). The spinal anesthesia procedure was explained to the patient and the patient was given spinal anesthesia (pages 119 and 397) under aseptic precaution. The patient had bradycardia during anesthesia (page 667). (Bradycardia is a slow heart rate, commonly defined as a rate of < 60 bpm or a rate which is too slow to be physiologically appropriate for the person and/or activity (generally recognized as < 45 beats/minute in men, < 50 beats/minute in women). Post spinal anesthesia, the patient suddenly suffered cardiac-respiratory arrest i.e. 25 minutes after the spinal anesthesia. The patient suffered a second episode of cardiac respiratory arrest after 25 minutes and later was diagnosed as a case of hypoxic brain injury which is secondary to cardiac arrest. The patient was shifted to ICU duly consented by Complainant No. 2 (pg. 656) where he remained till 17.1.2013 and during the time of his stay in the ICU, the patient was suspected to have had acute kidney injury in view of decreased urine output and also had neurological problem for which opinion was taken from nephrologist and neurologist and the condition of the patient was improved. The patient had also focal seizure and one episode of GTCS (Generalised Tonic-Clonic Seizures) lasting for one minute which were treated and managed appropriately. On 16.1.2013 tracheostomy was conducted by Dr. Deepak Murthy, ENT surgeon, with OP No. 3 Dr. Parsekar as anesthetist, and as the patient was stable haemody namically and off ventilation, the patient was shifted to a private room under medical care of Dr. Oscar Rebello on 17.1.2013.
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The patient was discharged on 8.3.2013, after about 57 days of hospital stay, and thereafter was treated at home. While at home, the patient had to be treated at Campal Hospital between 12.3.2014 and 15.3.2014 under the advice of Dr. Oscar Rebello. Towards the end, the patient stopped passing urine. The condition of the patient became edematous and deteriorated further and the patient ultimately expired on 23.3.2014 of kidney failure.
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The gravamen of the case of the complainants is that the spinal anesthesia to the patient was given by some incompetent quack, at the behest of Dr. Parsekar, OP No. 3, who was away from the O.T. (operation theatre) which damaged the patient permanently and the patient who had walked in into the O.T. came out of it in a comatose state. The condition of the patient further deteriorated for failure of prompt resuscitation on account of absence of both Dr. Naik, OP No. 2, and Dr. Parsekar, OP No. 3, who were absent from the O.T. while the patient was being experimented.
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The complainants have sought to support their case with the affidavit-in-evidence of complainant No. 2, and medical records, particularly, the unsigned O.T. notes/Doctor's orders (copy at page 397), signed and officially given O.T. notes (copy at page 119) and the nurse's record (copy at page 126). The complainants say that the last two records (copies at pages 119 and 126) are fabricated as they contain different readings.
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On the other hand, the case of the OPs is that the complaint is false and frivolous. The OPs say that they treated the patient as per standard medical practice and there is no negligence or deficiencies of services on their part. The OPs say that although they have sympathy for the complainants' family for having lost their loved one, they cannot be held liable for any claim towards mental agony, financial constraints, etc., as there was no negligence whatsoever on their part in rendering treatment to the patient. The OPs filed their detailed written version duly signed by all, verified as well as supported by affidavit of Dr. Shruti Malhotra.
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In support of their defence, the OPs filed the affidavit of Dr. Siddharth Gupta, head of operations of OP No. 1 hospital and also the affidavit of Dr. Shailesh Pai Raiturkar, anesthetist working for several hospitals. Dr. Raiturkar has opined that Dr. Parsekar is a well qualified and competent anesthetist who is in professional practice for last more than 12 years and that as per records Dr. Parsekar had chosen correct anesthesia technique, the drug and dosage was perfect and appropriate, considering the condition of the patient and the nature and duration of the surgery.
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Later, after evidence was closed, on or about 4.8.2015, Dr. Sachin Jain, Unit Head, filed his affidavit on behalf of OP No. 1 hospital (copy at page 1575) and so did Dr. Naik (copy at page 1470) and Dr. Parsekar (copy at page 1566).
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Before referring to the evidence of the parties, it is necessary to dispose of some of the pending applications. The written version was signed by all the OPs and it can be said to have been filed also by OP No. 2 Dr. Naik, as well. We say so, because, inter alia, OP No. 2 Dr. Naik admitted in the written version that the complainants had approached him to seek some discount on billing and he had informed them to approach hospital authorities. On the same day, OP No. 2 Dr. Naik also filed an application for deletion of his name on the ground of misjoinder (copy at page 453) which application was contested by the complainants by reply dated 7.11.2014. Dr. Naik alleged that no specific avernments of professional negligence was made in the complaint as against him. Referring to certain avernments made by the complainants in the complaint, OP No. 2 Dr. Naik pleaded that he is a general surgeon and had not role in the said case at all.
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Now, Dr. Naik, OP No. 2, has filed a memo dated 4.8.2015 with his affidavit-in-evidence stating that in case this Commission comes to the conclusion that OP No. 2 is not a proper and necessary party, the affidavit be rejected and on the...
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