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Brief Facts :
1.
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.
2.
Brief facts are that Smt. Pushpaben, the wife of the Complainant
-Respondent, aged 44 (hereinafter referred to be the “Patient”) had
symptoms of fever, edema, blood pressure and passing less urine. 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.
3. 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/-
Defense :
1. 4. The Appellant - Doctor in his reply 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 ( the production of abnormally small
amounts of urine ) 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.
4.
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.
Held :
1.
The NCDRC
Observed, the medical prescription showed that the patient 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.
2.
The NCDRC held
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.
3.
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 that the
Commission ought not to presume that the allegations in the complaint are
inviolable truth even though they remained unsupported by any evidence
4.
Recently, the
Apex 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.
5.
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.
6.
As a result,
the NCDRC dismissed the Compliant and allowed the Appeal filed by the
Doctor.
The NCDRC has
reiterated two important principles, laid down by hon. Apex Court. “NO
CURE IS NOT A NEGLIGENCE” and “MERELY BECAUSE DOCTORS COULD NOT SAVE
THE PATIENT, HE/SHE CANNOT BE HELD LIABLE FOR MEDICAL NEGLIGENCE.” These
principles would be of great help to Doctors provided that they follow up
the SOP and perform their duties as per their knowledge and skill. One more
important point is that of “self Medication” which was proved in this case,
that actually absolved the Doctor. So while taking the history, please do
ask a patient about self medication and make a note about it.
Thanks and Regds
Adv. ROHiT
ERANDE.©
Pune
The
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