Ins. Malhotra vs A. Kirplani & Ors

1] This appeal arises out of order dated 15.09.2000 of the National Consumer Disputes Redressal Commission (hereinafter referred as the "Commission") in Original Petition No. 265 of 1992, whereby a complaint filed by Ms. Ins. Malhotra-complainant has been dismissed. 2] Brief facts leading to the filing of this appeal are as follows:

2.2] On 16/17.07.1989, Dr. Jain suspecting kidney problem referred Priya Malhotra to Dr. A.Kriplani, a Nephrologist. On 18.07.1989, Dr. A. Kriplani informed appellant that Priya Malhotra had kidney failure and chronic renal failure. The appellant consented for immediate Haemodialysis as was recommended by the doctor to save Priya Malhotra's life. In spite of Heamodialysis, Priya Malhotra continued to have vomiting and diarrhea and the same went out of control. Dr. A. Kriplani directed performance of Ba-meal and Ba- enema tests suspecting Koch's of abdomen and the two tests 3 conformed dilated loops of small intestine. Dr. Vasant S. Sheth carried out ascetic tapping. On 22.07.1989, Dr. A. Kriplani advised Peritoneoscopy for confirming Koch's of abdomen. On the same day, on the recommendation of Dr. Vasant S. Sheth and Dr. A. Kriplani, ultrasonography of upper abdomen was performed on Priya Malhotra for confirmation of Koch's of abdomen. On 31.07.1989, Dr. Vasant S. Sheth performed ascetic tapping on Priya Malhotra and the diagnosis made from Histopathologist was confirmation of Koch's abdomen (anti malignant). Dr. A. Kriplani prescribed Streptomycin injection with other medicines. The two reports of M.D. (Pathologist) and Dr. Arun Chitale dated 01.08.1989 would show no T.B. organism in Peritoneal Fluid. On 03.08.1989, Dr. A. Kriplani advised CT scan for confirmation of T.B. lower abdomen. Priya Malhotra vomited and could not be controlled even by giving I.V.C.C Perinorm injection. On 06.08.1989, chest X-ray taken by X-ray Department of the Bombay Hospital showed lung and pleura normal. 2.3] On 08.08.1989, Dr. Vasant S. Sheth and Dr. [Mrs.] S. R. Jahagirdar examined Priya Malhotra and advised laparoscopy. 4 The operation was to be performed by Dr. [Mrs.] S. R. Jahagirdar on 09.08.1989. Four bottles of blood were given to Priya Malhotra during diagnosis. Liver profile and renal profile tests were performed. Liver profile showed `Australia Antigen' positive and renal profile showed low serum sodium and serum potassium. On 09.08.1989, Dr. Pramod came at about 3:00 a.m. and removed Femoral Cath. On that day, Priya Malhotra was having high fever. On the same day, Dr. [Mrs.] S. R. Jahagirdar, could not attend the hospital and in her absence Dr. Pratima Prasad performed Laparoscopy when Dr. A. Kriplani, Dr. Vasant S. Sheth and Dr. S. Gupta were also present in the O.T. 2.4) After the operation, Priya Malhotra was removed to the recovery room where she allegedly told the appellant by gestures that she was having severe pain in the chest and she was speechless and having breathing difficulty. Dr. A. Kriplani observed that there was no need to worry and Priya Malhotra would be kept in I.C.U for two days under observation. On 12.08.1989, Priya Malhotra was shifted to 3rd floor of the hospital. According to the appellant, Priya 5 Malhotra started becoming semi-conscious and erratic in behaviour. On 20.08.1989, Priya Malhotra developed intestinal fistula leading to her throwing out liquid from her body and she developed serious infections septicemia. On 22.08.1989, Priya Malhotra became deep unconscious and she passed no urine and her face was swollen.

On 23.08.1989, Dr. A. Kriplani advised Haemodialysis and Pneumothorax. Unfortunately, on 24.08.1989 at about 9:15 a.m., Priya Malhotra expired. On the same day, post- mortem upon the dead body of Priya Malhotra was conducted at J.J. Hospital, Bombay. The post-mortem report revealed the cause of death was due to Peritonitis with renal failure. 2.5) The appellant filed police complaint against the doctors of Bombay Hospital in Azad Maidan Police Station, Bombay. In the year 1990, complaint was also filed before the Maharashtra Medical Council.

3) During the course of the proceedings before the Commission, the appellant was granted opportunity to produce written opinion of expert doctors in support of her allegations made in the complaint against the named doctors and Bombay Hospital for their medical negligence or lack of proper medical treatment to deceased Priya Malhotra. The appellant could not lead the evidence of any expert doctor in support of her complaint and she pleaded before the Commission that no expert doctor was willing to give an opinion against the doctors of Bombay Hospital though, according to her, unofficially some doctors had expressed an opinion that injustice had been done to deceased Priya Malhotra. The appellant was issued notice to appear on 09.07.2000 for recording of her cross-examination. The 7 counsel for the respondents stated before the Commission that they did not intend to cross-examine the appellant. None of the respondent had appeared as witness in support of his or her defence, as pleaded in the written statement. 3.1) On consideration of the entire material on record, the Commission vide its order dated 15.09.2000 dismissed the complaint of the appellant holding that the complainant has not been able to establish a case of medical negligence against the respondents.

9) The order of the Commission would reveal that Dr. P.H Joshi had made noting on 26.07.1989 which reads "Laparoscopy SOS shall review later" while referring the case of Priya Malhotra to Dr. S.R. Jahagirdar who at the relevant time was in-charge of Department of Obstetries and Gynaecology of the Bombay Hospital. The appellant had no complaint to make against Dr. P.H. Joshi, rather she had got full faith in him. As noticed above, Dr. S.R. Jahagirdar was out of town on the day when the patient was to be operated upon and in her absence Priya Malhotra was examined by Dr. Pratima Prasad and she has filed written statement before the Commission in which it has categorically been stated that on perusal of the case papers, she noticed that the patient was referred to her because of suspected "Tubercular Peritonitis"