STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI CONSUMER COMPLAINT NO.CC/09/160

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1 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI CONSUMER COMPLAINT NO.CC/09/160 Smt.Rohini H. Merchant, Ms.Vaishali M. Vaz, Ms.Shefali S.D Souza C/0. Mr.Sunil Khanvilkar, 606/B, Kanjur Kalpataru Society, Kanjur Marg East, Mumbai Complainant/s Versus 1.Sir H.N.Reliance Foundation Hospital Research Centre, Padmashri Gordhanbapa Chowk, Raja Rammohan Roy Marg, Girgaum, Mumbai Dr.V.N.Vahia, C/o. Sir H.N.Reliance Foundation Hospital Research Centre, Padmashri Gordhanbapa Chowk, Raja Rammohan Roy Marg, Girgaum, Mumbai Opponent/s BEFORE: Justice Mr.A.P.Bhangale, President Mr.K.B.Gawali, Member PRESENT: Advocate Mr.A.V.Patwardhan for complainants Advocate Mr.Vipul Shukla for opponent no.1 Advocate Mr.S.B.Prabhavalkar for opponent no.2 ORDER Per Hon ble Mr.K.B.Gawali, Member [1] The complainants have filed this complaint alleging medical negligence and deficiency in service against the opponent no.1 -Hospital (hereinafter referred as Opponent Hospital) and opponent no.2 Doctor viz. V.N.Vahia (Herein after referred as Opponent doctor ) attached to it, for wrong treatment given to Mr.H.J.Merchant, husband of complainant no.1 and father of other two complainants resulting into his death and for raising bills of the said wrong treatment. 1

2 [2] The complainants' case in brief is that complainant no.1 Smt.Rohini s husband Mr.Harendra J.Merchant (herein after referred as the patient ) was a Captain in Navy. That earlier he was habituated of consuming alcohol but had given up the said habit since the last 25 years. However, when he was sailing near Andaman and Nicobar Islands, there was Tsunami which had left behind deaths of hundreds, seeing which he was psychologically and mentally disturbed and signed off the ship in February 2005 and due to trauma, he again started consuming alcohol. That, as after a long gap he started taking alcohol, he was immediately affected and was admitted in Jaslok Hospital from where he was discharged after two days. [3] That on or about 10/12/2005, Mr.Harendra -the patient- started drinking again. That, to treat him for proper detoxification, the complainant approached the Opponent s hospital where she was informed that opponent doctor was competent to treat the said problem. Accordingly, after consulting opponent doctor on phone, the patient was admitted in the said hospital on the evening of 13/12/2005. That at the time of admission the patient was fully conscious and told the in-house Dr.Sonali that he was feeling congestion in his chest and also suffering from Asthma, Blood Pressure and was diabetic. The patient therefore had requested to administer only saline to him and no medication as he had consumed alcohol and also had a cough. But the another in-house Dr.Anamika injected a sedative Serenace 10 mg and did nothing to remove the cough. Thereafter, patient started breathing very heavily with hissing sounds. The opponent doctor came in later and tried to talk the patient but the patient did not respond on account of sedation. Hence opponent doctor injected Phenergan. That after 45 minutes the patient suffered a cardiac arrest due to which he was shifted to I.M.C.U. and put on ventilator where he remained unconscious for two and half days. After he gained consciousness, he started hallucinating and did not sleep for two days. The complainant thus contended that although the opponent parties were aware that when a patient is under the influence of alcohol, it was not at all safe to inject the patient with sedative serenace 10 mg, the same was injected causing cardiac arrest and further complications. 2

3 [4] It is also the case of the complainant that the patient who was being given A class facility was shifted to general ward in I.M.C.U. on 18/12/2005. That on 19/12/2005 at 6 a.m. the patient suffered second cardiac arrest and he went into coma and remained in the same state till his death i.e. on 15/09/2007. That the opponent parties to avoid legal action against them, the complainant was asked to sign some papers and then only the dead body of the patient was handed over. The documents and case papers pertaining to the treatment of the patient were also not made available for want of payments of hospital bills. It is also submitted that the deceased was earning about Rs.1,20,000/- per month and was capable of earning 7 more years of service. Therefore, considering even half of the expected income, there was a loss of Rs.43 lakhs apart from mental trauma to herself and to her daughter for more than 21 months. [5] Thus, on the basis of the aforesaid grounds, the complainants filed a present complaint alleging deficiency in service against both the opponents seeking directions to them to cancel the costs of hospitalization and final bill of Rs.16 lakhs, to pay compensation of Rs.63 lakhs towards loss caused to the complainants and mental agony along with Rs.1 lakh as costs of complaint. [6] In support of the grounds of allegation of medical negligence and deficiency in service the complainants have submitted various documents such as medical case papers and other documents supplied by the opponent hospital on later date along with medical literature pertaining to medicine of serenace and phenergan, hospital bills, etc. [7] Both the opponents appeared before the Commission and resisted the claim of the complainants by their separate written versions. As the stand taken by both the opponents is more or less same, we have briefed the same as under:- [8] At the outset, it is submitted that the complaint is barred by limitation as per section 24-A of Consumer Protection Act, 1986 as the same is filed on 02/09/2009 i.e. much after lapse of two years from the 3

4 date of cause of action which is 13/12/2005 as per the complaint, without filing separate application for condonation of delay. That the complainants nowhere in their complaint justified that how the complaint is within prescribed time limit and, thus, on this ground itself it is submitted that the complaint deserves to be dismissed. That the complainants have filed this complaint only to avoid the payment of hospital bill of Rs.16 lakhs. As regards the allegations of medical negligence, it is submitted that they are false and baseless as the same are not substantiated with support of any medical literature and independent medical expert evidence. The opponent doctor specifically submitted that on 13/12/2005 as submitted by the complainant the inhouse doctor Anamika administered injection serenace 10 mg under the instructions of opponent doctor. It is specifically denied by the opponent parties that due to administering of inj.serenace and inj.phenergan there was cardiac arrest to the patient. It is submitted by opponent doctor that after examining the patient at 8.30 p.m. on 13/12/2005 and knowing from the patient s wife that the patient was coughing and suffering from high BP with diabetes mellitus, after consulting senior doctor Snehal Sanghvi from opponent hospital recommended the injection of serenace with injection Phenergan to control the aggressive and violent behavior of the patient. He further submitted that even earlier in Jaslok Hospital when the patient was treated on 03/07/2005 with the same drug i.e.serenace even when he was found alcoholic and there was no such case of any cardiac arrest to him. Hence, confirming that the said injection of serenace was safe and effective to control dystonia of the patient. the said injection with injection Phenergan was continued. That on 14/12/2005 and 15/12/2005 the patient was conscious and he was weaned off the Asstt. Respiratory support and had normal behavior. That, on 16/12/2005, the patient again exhibited violent disruptive behavior and thus tablets of serenace and pacitane were administered. It was observed that the patient had symptoms of syndrome of alcohol withdrawal for which serenace and phenergan were to be administered. That on 17 th December, he was administered only oral antipsychotic and calming medicine. That when on 18 th December, the patient had cardiac arrest, the injection of senenace and phenargan were not administered. 4

5 That after the cardiac arrest, he was promptly resuscitated i.e. brought to consciousness. However, his neurological status did not improve until his demise. [9] It is further submitted by the opponents that the medical literature filed by the complainants is not a literature but only leaflet and computer print outs of information available on internet. They are used as a reference only for a person indulging in self medication and not for a doctor. That the literature from medical textbooks submitted by them clearly support that to treat mental illness and complications associated with it, the medication generally applied by the medical practitioners in this field. It is also submitted that the patient had not consumed alcohol for several hours of his stay before the said injections were administered. Thus the opponents have denied in to-to the allegations of the complainants that the patient had cardiac arrest due to injection serenace and that of injection phenergan. [10] It is also submitted that the patient s status of treatment from A class was lowered to general class only on the request of the complainant so as to avoid extra financial burden but there was no reduction in the treatment. That the complaint no.1 had also given in writing before the police that she had no complaint against both the opponents. [11] The opponents thus submitted that the present complaint is false and have no support to the allegations made against be dismissed with costs. [12] In support of their contentions the opponents have submitted various documents such as, extract of medical literature, affidavit of expert doctor namely, Dr.Yusuf Abdulla Matchiswalla, etc. [13] We heard this complaint finally on 03/02/2017. Advocate Mr.A.V.Patwardhan for complainants, Advocate Mr.Vipul Shukla for opponent no.1 and Advocate Mr.S.B.Prabhavalkar for opponent no.2 were present. The advocates for both the parties have already submitted their brief notes of written arguments. We also heard them at length and 5

6 complaint came to be reserved for judgment. [14] We have carefully gone through the complaint, written versions of the opponents, the evidence affidavits of both the parties, the documentary evidence as submitted by both the parties and have thoughtfully considered the arguments as advanced by learned counsel for both the parties. We have accordingly framed the following main issues which arise for our determination and have also given our findings against these issues on the basis of the reasons given for the same as below:- Sr.No. Issues Findings Whether the complaint is barred by limitation 1 under section 24-A of Consumer Protection No Act, Whether the alleged medical negligence and 2 deficiency in service is proved against the No opponents? 3 What order? As per final order. As to Issue No.1 :- Reasons Ld.counsel Mr.Prabhavalkar for opponent doctor contended that the complaint is hopelessly barred by limitation as prescribed under provisions of the section 24-A of Consumer Protection Act, This contention is based on the ground that as per the complainant s allegation of wrong treatment of injection serenace and injection phenergan were administered by the opponents on the patient who was under influence of alcohol on 13/12/2005 which led to his cardiac arrest and further to coma leaving him in vegetative state for about one and half years resulting finally into his death on 15/09/2007. Thus, according to learned counsel Mr.Prabhavalkar the date of cause of action is 13/12/2005 and considering the date of filing of consumer complaint as on 02/09/2002 he contended that the complaint is barred by limitation. However, the actual grievance of the complainants has started from the date of death of the patient. Hence, though the partial cause of action arose on 13/12/2005, the same is continued till the death of the patient. Hence, the date of cause of action is 15/09/2007 6

7 and not 13/12/2005. Considering the date of 15/09/2007 as cause of action and the date of filing of consumer complaint on 02/09/2009, the same is well within the limitation. Hence, the contention of learned counsel Mr.Prabhavalkar that the complaint is barred by limitation cannot be sustained and hence not accepted. We have, therefore, given our findings against this issue as in Negative. As to Issue No.2 :- The only ground of allegation of medical negligence as put forth by the complainant is that the injection of Serenace though not advisable to be administered when the patient is under influence of alcohol, the opponents have administered the same on 13/12/2005 which caused cardiac arrest to the patient driving him further into coma and finally resulting into his sad demise. The question is therefore whether the patient was under influence of alcohol and whether Serenace injection is responsible for the cardiac arrest leading to further death of the patient. On the perusal of the complaint, it reveals that on or about 10/12/2005 the patient started drinking again and therefore for proper detoxification he was admitted with the opponent hospital on evening of 13/12/2005. There is no mention that the patient had consumed alcohol before admission and that he was under influence of alcohol, etc. The learned counsel Mr.Patwardhan for the complainant submitted that the entire case revolves round the wrong injection and the drugs i.e. Serenace given to the patient though he told not to give the same as he was under influence of alcohol, which is however not so as per the complaint. It is further contended by learned counsel Mr.Patwradhan that the literature provided by him prohibits the administering of the said drug when a person is under the influence of alcohol. However, as pointed out by learned counsel Mr.Prabhavalkar for the opponent doctor, the documents as filed by the complainant includes only leaflet and the information as obtained from the internet and the same cannot be termed as medical literature. It is also pointed out by learned counsel Mr.Prabhavalkar that the same leaflet provides instructions only for a person indulging in self medication and not for a doctor. From the perusal of the said leaflet especially under the title 7

8 New Zealand Consumer Medicine information Serenace injection, it does reveal that the same provides for If you have any concerns about using this medicine, ask your doctor or Pharmacist. On the other hand, the medical literature as filed by the opponents consists of extracts of various medical books and hence weigh over the leaflets and information obtained from the internet. We refer to the extract of Text Book of Psychosomatic Medicine edited by James L. Levenson, M.D. which provides treatment for Alcohol induced psychotic disorder as under:- When patients experienced alcoholic hallucinosis during detoxification, a potent antipsychotic such as haloperidol 2-5 mg orally twice a day, is typically needed to control agitation and hallucinations. It is further provided when people suffer from hallucinations and delusions (psychosis) they can become agitated, scare or aggressive and will not respond very rapidly to other peoples reassurance or help. In this situation, medication of haloperidol (serenace) is used to help agitated people relax and become more tranquil or to sleep. Thus, we find that when there is a acute agitation of the patient the haloperidol or serenace is recommended to be used by the doctors. It is also further observed that this literature nowhere prohibits the use of serenace drug even if the patient is under influence of alcohol. In fact as mentioned above, there is no material to show that the patient was under influence of alcohol on 13/12/2005 when injection serenace was administered and when the same was continued further. It is also to be noted that as per discharge card issued by Jaslok Hospital where patient was earlier admitted for two days from 03/07/2005 to 05/07/2005, it reveals that the patient was diagnosed as Alcohol abuse acute alcohol intoxication and as a part of treatment the concerned doctor had administered injection serenace. However, there was no any incidence of cardiac arrest. It is further to be noted that the opponent doctor has produced the affidavit of Dr.Yusuf Abdulla Matchiswalla, as expert evidence. He is 8

9 qualified as M.D. Psychological Medicine from Mumbai University in 1988 with other qualifications. As per his affidavit, there is a clear opinion that the combination of the drug serenace and phenergan as intramuscular and intra venous injections can be safely given in doses as high as 40 mg. in patients of alcohol and presenting with pshycotic symptoms and disruptive behavior. Though this Commission by its daily proceedings did take decision as not to call an expert opinion in view of the Hon ble Apex Court s judgment in respect of V.Kirshan Rao vs. Nikhil Super Speciality Hospital. It was directed to complainant to produce any independent expert evidence, if she wanted. However, there is no any counter affidavit of an expert filed by the complainants to the defence contentions and hence this affidavit has gone unchallenged. Hence, considering the evidence on record as submitted by the opponents, the contention of the learned counsel Mr.Patwardhan for the complainants that due to injection of the drug of Serenace to the patient, he had heart attack and other complications, cannot be sustained and hence, not accepted. The learned counsel Mr.Prabhavalkar for opponent doctor further referred to the ratio laid down by the Hon ble Supreme Court in case of Poonam Verma vs. Ashwin Patel and others reported in (1996) 4 Supreme Court Cases 332, which reads that Non-exercise of reasonable care and skill is essentially pre-requisite for holding medical practitioner guilty of medical negligence. He submitted that in the present case, opponent doctor had taken all the reasonable and proper precaution and the psychiatric symptoms of the patient had reduced significantly and responded well to the treatment administered to him on 13/12/2005 as on 14/12/2003, the patient was conscious and settled. He also referred to Bolam s Case [1957] 2 All ER 118 Bolam vs. Frein Hospital Management Committee as approved by the Hon ble Supreme Court which is referred in its judgment in case of V.Kishan Rao Vs. Nikhil Super Specialty Hospital on 08/03/2010, wherein following principle has been laid down 9

10 A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. The learned counsel Mr.Vipul Shukla for the opponent hospital also submitted that the hospital has taken every care and caution while treating the said deceased who remained admitted for a period of more than one and half years. There is no specific allegations against the opponent no.1 made by the complainants regarding negligent act. The allegation that the A class treatment of the patient was reduced to general class is also not true because the said change was done only as per request of complainant no.1 herself so as to reduce financial burden. The allegation that the body of the deceased was detained for signing some papers is also not true. [15] It can, therefore, be safely concluded that the complainant s allegation of medical negligence and deficiency in service against both the opponents remained baseless and has not been proved. [16] In view of the aforesaid facts and observations, we are of the considered view that the complainants have failed to prove alleged wrong treatment and thereby medical negligence and/or deficiency in service. [17] In the result the complaint deserves to be dismissed. Accordingly, we pass the following order. ORDER Consumer complaint is dismissed. No order as to costs. Pronounced on 9 th February, [JUSTICE A.P.BHANGALE] PRESIDENT Ms. [K.B.GAWALI] MEMBER 10