Wednesday, 28 June 2017

Dr. Rahul Kakodkar, C/o Jupiter Hospital, Eastern Express Highway, Service Road, Next To Viviana Mall, Thane – 400 601 (Maharashtra) Phone : 022 - 2172 5555 Permanent R/o House No. 509, Mangoirish, 303, Vainguinim Valley, University Road, Dona Paula, Panji – 403 004 (Goa)

BEFORE THE MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
Old Administrative Staff College Building,
Opp. C.S.T. Station, Hazarimal Somani Marg,
MUMBAI – 400 001, (Maharashtra).
Phone : 022 – 2282 1810 / 2205 7409 Fax : 022- 22018539
COMPLAINT CASE NO. 366 OF 2017

1.   Consumers Welfare Association, Mumbai.
(A Voluntary Consumer Organization
Registered under the provisions of
Society Registration Act, 1860
Bearing Registration No. 643 of 2003),
Through its Honorary Secretary,
402, B-Wing, Ashoka Complex
Justice Ranade Road, Dadar,
Mumbai – 400 028. (Maharashtra).
Phone: 022-445 4936.
Email: cwamumbai@gmail.com

2.   Ms. Kankana Bakshi,
Aged about 28 years,
Occupation – Business,
Flat No. 701, Vandana Building,
Janki Kutir, Juhu Church Road,
Juhu, Mumbai – 400 049, (Maharashtra).
Vodafone : 9820213404
E-mail : bakshe_konkanaa@yahoo.co.uk

3.   Rahul Bakshi,
Aged about 23 years,
Occupation – Service,
Flat No. 701, Vandana Building,
Janki Kutir, Juhu Church Road,
Juhu, Mumbai – 400 049 (Maharashtra).

4.   Ratan Bakshi,
Aged about 60 years,
Occupation – Retired,
Flat No. 701, Vandana Building,
Janki Kutir, Juhu Church Road,
Juhu, Mumbai – 400 049     ……..                 COMPLAINANTS
VERSUS


1.   Jupiter Hospital,
Eastern Express Highway,
Service Road, Next To Viviana Mall,
Thane – 400 601 (Maharashtra)
Phone : 022 - 2172 5555


2.   Dr. Rahul Kakodkar,
C/o Jupiter Hospital,
Eastern Express Highway,
Service Road, Next To Viviana Mall,
Thane – 400 601 (Maharashtra)
Phone : 022 - 2172 5555

Permanent R/o House No. 509, Mangoirish,
303, Vainguinim Valley,
University Road, Dona Paula,
Panji – 403 004 (Goa)


3.   Dr. Gauthama Ramakanthan,
C/o Jupiter Hospital,
Eastern Express Highway,
Service Road, Next To Viviana Mall,
Thane – 400 601 (Maharashtra)
Phone : 022 - 2172 5555

R/o 301-A, Fiesta, Vasant Oscar,
Lal Bahadur Shastri Marg, Mulund,
Mumbai – 400 080, (Maharashtra)
Phone : 022 – 2564 3377.

Also R/o 20, Sai Bhawani,
RHB Road, Mulund,
Mumbai – 400 080, (Maharashtra)
Phone : 022 – 2561 1177.    …………..   OPPOSITE PARTIES



WRITTEN STATEMENT ON BEHALF OF OPPOSITE PARTY NO. 2 DR. RAHUL KAKODKAR

Answering opposite party No. 2 strongly opposes the relief sought by the complainants and beg to file his written statement as under:

Nothing in the notice under reference shall deemed to, admitted unless it has been specifically admitted in this reply.

PRELIMINARY OBJECTION WITH RESPECT TO THE MAINTAINABILITY OF THE COMPLAINT CASE


Hon’ble Lordships,
The opposite parties named above most respectfully beg to state as under:

1.  That at the very outset the opposite party by virtue of this preliminary objection denies each and every allegation of Professional Negligence alleged by the complainant in this complaint case, the instant complaint case filed before this Hon’ble Commission is founded on false, frivolous and concocted facts, no prima facia case of professional negligence is established by the complainant before this Hon’ble Commission, the primarily obligation of burden of proof till this date has not been discharged by the complainant. The entire averments of the alleged negligence committed by the opposite party is based on wholly incorrect, wrong and misconceived facts which are not corroborated from the documents placed by the complainant along with her complaint case, the alleged allegation of negligence stated to be committed by the opposite party is based on assumption and presumption which are wholly devoid of merit, the complaint case being vague is liable to be dismissed in limine with cost and special costs throughout.

2.  That the complaint case is not maintainable in view of the fact that present complaint case is neither verified nor identified in accordance with Law, this complaint petition is in complete violation of the provision of Order VI Rule 15 of the Code of Civil Procedure, 1908, which obligate that every pleading shall be verified at the foot by the party or by one of the parties to the pleading. For ready reference of this Hon’ble Commission the relevant provision of Order VI Rule 15 of the Code of Civil Procedure, 1908 is being reproduced herein under:

15. Verification of pleadings.—
(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.


3.  That by virtue of this complaint case a total claim of about Rs.     lakhs is claimed, it is respectfully submitted that the claim is speculative, exaggerated, inflated and grossly overvalued in order to circumvent the jurisdiction of the District Consumer Forum, in no circumstance the claim of the complainant can be valued over and above Rs.20 Lakhs, however in order to attract the jurisdiction of this Hon’ble Commission and to by-pass the jurisdiction of the District Forum, instant case is filed before the original jurisdiction of this Hon’ble Commission, it is submitted here that this Hon’ble Commission has no pecuniary jurisdiction to entertain and adjudicate this complaint case.

4.  That the Hon’ble National Commission in Charu Chhabra and another versus Jai Maa Infrastructure Private Limited, reported in III (2015) CPJ 292 (NC) was pleased to consider the aspect of the pecuniary jurisdiction, the relevant extract of the judgment is being reproduced herein under for the convenience of this Hon’ble Commission :
5.     If we entertain this complaint which, on the basis of an apparently unjust, unfair and unreasonable claim which in our view cannot result in award of more than about Rs. 86,00,000 to the complainants, it will deprive the opposite party of its valuable right to first contest the complaint before the State Commission and then approach this Commission by way of an appeal in case the State Commission is to rule against the said opposite party. Thus, entertaining this complaint will result in taking away a legal right available to the opposite party to avail the remedy of an appeal which the statute has provided to it in case the complaint is to be filed before the State Commission.
6.     We are satisfied that the purpose behind filing this complaint before this Commission is to bye pass the State Commission and circumvent the procedure prescribed in the Consumer Protection Act for hearing a complaint having jurisdictional value of less than Rs. 1,00,00,000 despite knowing fully well that ultimately the complainants cannot get an amount of Rs. 1,00,00,000 or more from the opposite party. We have before us, a case, where the complainants having invested only Rs.25,00,000, less than four years ago, want the Commission to award them a sum of more than there by giving them a return of 1000% on the investment made by them. The claim, to say the least is grossly inflated and highly unjustified and unreasonable. We, therefore, decline to entertain this complaint and reject the same. We, however, grant opportunity to the complainants to file a fresh complaint before the concerned State Commission after making appropriate amendments in the prayer clause.

5.   That the complainant by virtue of the instant complaint case has made huge, exaggerated and speculative demand bifurcated under various heads of the relief, it is submitted that the claim is not supported by an iota of documentary evidence, it is necessary to submit here that the Hon’ble National Commission in Rajni Gupta versus DLF Universal Limited III (2015) CPJ 149 (NC) was pleased to consider this aspect. The relevant extract of the judgment is being reproduced herein under for the convenience of this Hon’ble Commission:   
9.  There lies no rub in demanding as much as money as one feels correct. However, there should be some ‘basis’ for the same. The question of market value cannot be adjudicated by a Consumer Court which is to dispose of the case in a summary fashion. It is settled law that where huge demand/claim has been made, the complainant should be advised to knock at the doors of the Civil Court. See recent authorities reported in Pesi Dady Shroff v. Boehringer Ingetheim Denmark & Anr., Civil Appeal No. 9453 of 2013, decided on 10.7.2013 and Synco Industries v. State Bank of Bikaner & Jaipur & Ors., I (2002) CPJ 16 (SC)=I (2002) SLT 214=(2002) 2 SCC 1.     

6.   That the complainant has failed to establish the factum of loss and injury suffered by her, the relief worth more than Rs.    Lakhs is wholly illegal, arbitrary and un just which lacks corroboration the entire relief claimed by virtue of the complaint case are speculative and are not corroborated by any evidence, it is worth to mention here that no cause of action has accrued to the complainant to claim a relief valuing Rs.    Lakhs, the entire relief is speculative, exaggerated and inflated intended to by-pass the jurisdiction of the District Consumer Forum and to attract the original jurisdiction of this Hon’ble Commission. It is submitted here that relief of Rs.    Lakhs towards expenses incurred towards the treatment is not accepted in view of the lack of the evidence, further relief of Rs.   Lakhs towards compensation are not corroborated by an iota of evidence, it is pertinent to mention here that the complainant in relief 2 herself valued the claim of compensation to Rs.    Lakhs only, thus the relief of Rs.     Lakhs is speculative on the face of record, the case is blatant misuse of the benevolent institution of the Consumer Commission established under Section 9 of the Consumer Protection Act, 1986 and is liable to be dismissed with heavy cost.    

7.   That the complaint case is bad in view of the non jointer of necessary parties, it is submitted here that the patient remained for the treatment under various doctors and hospitals, however with mala fide intention and with ulterior motive they has not been arrayed as a parties in this complaint case. It is further submitted that the patient was attended with due care and caution by the opposite parties and no negligence or deficiency in service has been committed by the opposite parties in this case. It is worth to mention here that the complainant alleges that the cause of action arise to her only when,




however the complainant deliberately on false and concocted documents is filing this complaint case before this Hon’ble Commission.

8.   That it is submitted here that the case of Medical Negligence stand on a different footing contrast to other cases which are filed before the Consumer Forum, in the cases pertaining to Professional Negligence the onus lies heavily on the part of the complainant to prove and establish the factum of negligence and only thereafter the burden that negligence has not been committed is shifted at the shoulder of the treating doctor, with reference to this the opposite parties rely on the judgment of the Hon’ble Supreme Court in C.P. Sreekumar (Dr.) versus S. Ramanujam, (2009) 7 SCC 130 at page 140, wherein the scope of the burden of proof was discussed by the Hon’ble Apex Court:

37.     We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case (2005) 6 SCC 1 : 2005 SCC (Cri) 1369 the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.


9.  That it is respectfully submitted that even the principle of res ipsa loquitur (things speak for itself) is not applicable in each and every case pertaining to medical negligence, simply because the complainant suffered in view of any known complication/ailment shall not make liable the treating doctor for the treatment rendered by him. The Hon’ble Supreme Court in Jacob Mathew versus State of Punjab and another reported in (2005) 6 SCC at page 1, has occasion to deal with the extent of the Medical Practitioner liability in criminal and civil law:
 “Negligence by professionals

18.    In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

25.    A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.   

26.    No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter-productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur

30.    The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.


10.     That there is no expert evidence on record to suggest any negligence committed by the opposite parties in the instant case, neither any medical literature is filed by the complainant to establish her case, bald, baseless and concocted facts are made by virtue of the instant case claiming illegal and arbitrary amount, it is vehemently and vociferously reiterated by the opposite party that no negligence is been committed by them in this case, no case of deficiency in service is established by the complainant rather vague and baseless allegations are made which are afterthought and implanted to extract illegal money from the opposite parties. The opposite parties rely on the judgment of the Hon’ble National Commission in Sethuraman Subramaniam Iyer versus Triveni Nursing Home and another reported in I (1998) CPJ 110 (NC), wherein it was held that complainant since failed to adduce expert evidence hence his cause of Medical Negligence did not stand establish and no case is made out against the doctor. The relevant extract of the judgment is being reproduced herein under for the convenience of this Hon’ble Commission 

….It appears from the record that the complainant did not requisition the services of any expert to support his allegations. In the absence of any expert evidence on behalf of the complainant, the State Commission was right in relying upon the affidavits filed by the four doctors on behalf of the respondents. In our view, the State Commission was right in holding that there was no negligence on the part of the respondents. The State Commission rightly analysed and appreciated the materials placed on the record. The State Commission arrived at the finding after taking into consideration the totality of the circumstances. No case is made out by the appellant for interference with the order passed by the State Commission.


In another judgment by the Hon’ble National Commission in Madan Surgical and Maternity Hospital and another versus Smt. Santosh and another Revision Petition No. 3527 of 2012 decided on 1.4.2014, it has been held that that 4 D’s has to be fulfilled to make out the case of Medical Negligence, namely:

Duty- A professional owed duty to patient
Deficiency- Breach of such duty
Direct Causation- injury caused by the breach (Causa Causans)
Resulting Damages
          
11.    That the instant case involves the issues of complicated and complex nature which requires leading of exhaustive evidence as well as examination and cross examination of witness, since the certificate issued by Dr. S/W/ Thatte is not corroborated and proved by the complainant, such a intricate and complex nature of dispute cannot be adjudicated within the summary jurisdiction of this Hon’ble Commission, the opposite party rely on the judgment of the Hon’ble Apex Court in Trai Foods Ltd. v. National Insurance Co., (2004) 13 SCC 656, wherein the principle of Law was summarized as under
4. Learned counsel appearing for the respondent Insurance Company has stated that the decision in J.J. Merchant1 did not deviate from the principles enunciated by this Court in Synco Industries v. State Bank of Bikaner and Jaipur where this Court has said that where detailed evidence would have to be led to prove the claim and thereafter to prove the damages, it was not appropriate for such cases to be heard and disposed of in the summary jurisdiction of the National Commission and that the more appropriate forum was the civil court.
5. Having heard the submissions, we are of the view that the learned counsel for the respondents is correct. In J.J. Merchant this Court has not denied the discretion of the Commission to refer the complainant to the civil court for appropriate relief, in case the complaint involves complicated issues requiring recording of evidence of experts which may delay the proceedings.
6. The only question to be decided is, when should this jurisdiction be exercised by the Commission. In our view the Commission should address itself to the quantity of the claim, the nature of the claim, the nature of the evidence which would be required to be submitted both in respect of the claim and the damages suffered and the nature of the legal issues before deciding that the matter ought to be decided by the civil courts in the regular course. It is not disputed that the Consumer Forum has been set up to grant speedy remedy. The Consumer Forums have been given the responsibility of achieving this object. They were not meant to duplicate the civil courts, and subject the litigants to delays which have become endemic in the civil courts.


10.  That it is axiomatic to submit that the degree of skill and care required by a medical practitioner is provided in Halsbury’s Laws of England (Fourth Edition, Vol. 30, Para 35). The relevant extract is being quoted for the perusal of this Hon’ble Commission :
The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he 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, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown, (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.

11.  That the Hon’ble Supreme Court in a case of Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others, reported in (1996) 2 SCC 634, made the following observations on the issue of Medical Negligence, which is being reproduced for the perusal of this Hon’ble Commission:

This Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession

12.  That the Hon’ble Supreme Court in the judgment of State of Punjab v. Shiv Ram & Ors., VI (2005) SLT 498, which was a case of a failed tubectomy leading to a plea of medical negligence. This is what the Hon’ble Court had to say in paragraph 33:

A Doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. If the medical profession, as a whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery. It is in this background that this Court has cautioned that the setting in motion of the criminal law against the medical profession should be done cautiously and on the basis of reasonably sure grounds. In criminal prosecutions or claims in tort, the burden always rests with the prosecution or the claimant. No doubt, in a given case, a doctor may be obliged to explain his conduct depending on the evidence adduced by the prosecution or by the claimant. That position does not change merely because of the caution advocated in Jacob Mathew in fixing liability for negligence, on doctors


13.  That another judgment of the Hon’ble Supreme Court which deserves special mention before this Hon’ble Commisison is Martin F. D’Souza versus Mohd. Ishfaq wherein the Hon’ble Court cautioned the courts as well as the tribunals in India dealing with the cases of the Medical Negligence, a note of caution was issued by the Hon’ble Apex Court not to straight away issue notice on the treating doctors without ascertaining the substance of the issue involved and the evidences and proof tendered by the complainant. For the necessary perusal the paragraph of the judgment is being reproduced for the convenience of this Hon’ble Commission :

47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.


14.  That from the aforementioned propositions of the settled principles of Law it is explicit that the onus of proving the negligence of Medical Practitioner rests on the complainant who is endowed to prove the negligence and only then the burden shifts on the Medical Men, in the instant case not an iota of evidence has been placed before this Hon’ble Commission except bald, baseless and vague allegations which are not corroborated by any expert evidence or medical literature on record to substantiate the case. Thus the basic and onerous principle with respect to the burden of proof has not been discharged till this date by the complainant, thus the complaint case is liable to be dismissed at the very threshold with exemplary cost.

15.  That the opposite parties respectfully craves leave from this Hon’ble Commission to file additional written synopsis with details of the treatment given to the patient along with the renowned Medical Literature during the course of oral arguments.

16.  That in view of the above the complaint case of the complainant is devoid of merit and is liable to be dismissed under Section 26 of the Consumer Protection Act, 1986 with cost and punitive cost.

PARAWISE REPLY

17.Contents and allegations of Para 1 are specifically denied. It is specifically denied that this case involves medical negligence and/ or unfair trade practice.

18.      Contents and allegations of Para 2 to 4 are not proply pleaded. True and material facts are like this - Mrs Shipra Bakshi (hereafter referred to as patient) was seen by me along with the liver transplant team of Jupiter Hospital on 24/01/2015 in outpatient clinic. She has already been registered on the Mumbai city waiting list for receiving a deceased/cadaver donor liver the Zonal Transplant Coordination Committee of Maharashtra (hereafter referred to by acronym ZTCC) since 17/01/2015 via a duly filled in form signed by the patient and Dr Gautama Ramakanthan, Director-Organ Transplant at Jupiter Hospital Listing who is an approved Liver Transplant Physician with the ZTCC. From the time of listing, patient and family are explained the process, risks and complications associated with a liver transplant operation by the liver physician, liver transplant team and transplant coordinator and their queries answered.

19.Contents and allegations of Para 5 are specifically denied. It is specifically denied that the consent was obtained in a horridly manner. The patient at time of listing declared her age to be 47 years. She weighed 78kg and her blood group was O Rh positive. According to the history provided by the patient and records available at time of assessment. Patient was suffering for diabetes from about 15 years and hypothyroidism for about 2 years and was receiving insulin since 8 years and thyroid hormone supplementation. She also gave history of suffering from bronchial asthma since childhood. She was diagnosed to have chronic hepatitis B virus infection 7 years ago incidentally. She had undergone 2 caesarean section surgeries in past. She had developed ascites for which ascitic tapping was performed several times at another hospital and she was diagnosed to have cirrhosis with portal hypertension by her liver physician at another hospital. She was under follow up with her liver physician and on treatment for hepatitis B virus infection ( Entecavir & Tenofovir). As per records, she was found to have elevated alpha fetoprotein levels in August 2014 and on MRI found to have developed a space occupying lesion in her liver with characteristics of a hepatocellular carcinoma (Hereafter referred to by acronym HCC). She had undergone a session of transarterial chemoembolisation (Hereafter referred to by acronym TACE) at another hospital on 02/09/2014. A repeat MRI study revealed residual HCC 1.2x1.2x0.8cm and two other tiny lesions in the liver. Another TACE session was performed on 23/12/2014 and she was asked to consider undergoing liver transplantation by her liver physician. She then approached Jupiter Hospital and other hospitals to be listed for liver transplantation on the cadaver donor list since there were no suitable relatives who could be living donors. She underwent a comprehensive evaluation of her liver, general condition and liver tumour from time of listing on 17/01/2015 to April 2015. Since there was no evidence to suggest spread of HCC outside liver or invasion of major blood vessels detected on MRI or PET scan and she was medically cleared to undergo the procedure of liver transplantation, she was actively on the waiting list.

20.Contents and allegations of Para 6 and 7 are specifically denied. It is specifically denied that death was caused due to medical negligence and/ or lack of poper skill and management. Everything is being discussed hereinbelow :

A.   On 16/04/2015, Shaivali Prakash Ghanekar (hereafter referred to as donor), 1.58m tall, weighing 56kg with blood group O Rh positive (identical to patient Shipra Bakshi) was detected to have irreversible brain damage but normal cardiac activity. She had been diagnosed to have developed intracranial haemorrhage on CT scan and admitted in Jupiter Hospital ICU since 14/04/2015. As per records, she was suffering from seizure disorder, hypertension and chronic kidney disease receiving maintenance haemodialysis prior to 14/04/2017. Under provisions of the Transplantation of Human Organs Act (Hereafter referred to by acronym THOA), a approved and designated brain death declaration team of Jupiter Hospital conducted first set of tests at 2:20pm on 16/04/2015 and second set of tests at 9:30pm on 16/04/2015. In accordance with provisions under THOA, brain stem death was certified HOTA. Since the donor had chronic kidney disease, consent was obtained only for liver retrieval. The liver function of the donor was biochemically normal except for lower albumin level due to her chronic kidney disease. Donor was non-reactive for hepatitis B virus, hepatitis C virus and human immunodeficiency virus. Ultrasound examination of the liver on 16/04/2015 revealed no abnormality in liver size and echo-reflectivity suggesting normal liver. At time of declaration of brain-stem death and till cessation of circulation during retrieval, donor was on small dose of vasopressors (nor-adrenaline 1.5ml/min and vasopressin 2ml/min) and had normal cardiac activity. Donor sodium level was 135 meq/L and not elevated above 155 at any time. To summarise, donor was a brain dead heart-beating donor with identical blood group as patient, weighing less than the patient but matching in height, did not have transmissible infection like hepatitis B, hepatitis C or human immunodeficiency virus and was on mild support to maintain blood pressure and with normal sodium levels and liver function tests. Donor ultrasound done also revealed a normal sized liver without any abnormality or evidence of fatty infiltration.

B.   As mentioned above, the patient was listed on city list and hospital list to receive O blood group liver since January 2015. When the above donor was identified, those listed with Jupiter hospital and having blood group O were informed about the potential availability of the organ. Patient Shipra Bakshi was also informed by transplant coordinator of Jupiter Hospital and asked to report to hospital as early as possible if desirous of undergoing the procedure of liver transplant. The patient reported to the hospital and was admitted at 12:15am on 17/04/2015 to ICU at Jupiter Hospital for preparation for liver transplantation. Her recorded height was 1.57m and weight 77kg at admission. I met with the patient and family including her daughter and reinforced the discussion that had already been held at several occasions since time of listing. I informed the patient and relatives that the retrieval had to be done as early as possible as the donor with chronic renal failure can become unstable and supporting such donors for long periods can be difficult. They were also informed that Jupiter Hospital would need to convey their decision to the ZTCC so that the organ could be passed to next in line if they were not willing, in a timely fashion. Informed consent for surgical procedure, use of a potentially marginal organ and detailed consent for liver transplantation including a 15% possibility of perioperative death was signed by the patient and her daughter in my presence. The reason for discussing potential marginality was that donors with chronic kidney disease could become unstable at any time from declaration of brain stem death and retrieval and should such eventuality occur we needed to know whether we had the go-ahead to exercise our judgment and available data to use the organ in the patient with an elevated risk of organ dysfucntion or whether the organ, if of acceptable quality, was to be offered to next person on the waiting list of hospital or city. The consent for was signed by patient and her daughter in my presence at 1:50am on 17/04/2015 and by sheer oversight, conditions mentioned for marginality in the form, that were not applicable to this donor: steatosis (fatty infiltration)>30% (surgical assessment, biopsy), abnormal donor liver tests, viral serology (HBcAb,Anti HCV,HBsAg+), Donor haemodynamic instability (high vasopressor support, cardiac rhythm abnormality), persistent hypernatremia (serum h.jsodium >156) anticipated or actual cold ischaemia >6hrs, ABO incompatibility, Non heart beating donor; were not struck off. However as mentioned above, donor reports and clinical records of donor monitoring before retrieval of liver easily confirm that none of the unapplicable conditions that were not struck off by oversight in the marginal consent form, existed in the donor except chronic kidney disease.

C.   After pre-operative assessments and preparations and confirming availability of blood products liver transplant was planned. As per standard protocol and discussion with patient and family, donor surgery was to start first and only when donor liver was found to be of good quality by visual assessment and frozen section biospsy, recipient surgery was to commence. Accordingly donor was wheeled into operation theatre at 02:45 am on 17/04/2015 and donor surgery commenced at 03:08 am. Assessment by the retrieval surgeon was that the liver was normal and no macroscopic abnormality was identified intraoperative donor liver biopsy was performed which revealed no fatty infiltration, fibrosis or malignancy and near normal histology. Aortic cross clamping time in donor was 5:15am on 17/04/2015 and the retrieved liver was preserved as per recommended protocols and moved to adjacent operation theatre.

D.  The patient was moved into operation theatre at 03:30 am on 17/04/2015 and surgery commenced at 04:30 am after the donor liver had been assessed and near normal histology confirmed by biopsy. Aortic cross clamp in donor had been performed by donor team after assessment of patient abdomen confirmed that there was no spread of HCC outside the liver. The patient’s native liver was removed preserving her inferior vena cava (Hereafter referred to by acronym IVC) and patient was tolerating the procedure unremarkably. The donor liver was unpacked for implantation into the patient at 08:15 am on 17/04/2015 after the native liver of patient was removed. The cold ischaemia time (calculated from aortic cross clamping in donor to unpacking from cold preservation) was 3 hours. A standard piggy-back implantation of donor liver was performed. After cross clamping the patient IVC, the suprahepatic IVC cuff of donor liver was anastomosed to an opening created in recipient IVC by connecting the openings of the left and middle hepatic veins and extending the common opening transversely on the IVC anterior wall to include the right hepatic vein. The donor and recipient portal veins were anastomosed end-end with growth factor and after venting 450ml recipient blood to flush out preservative solution, the liver allograft was perfused with recipient portal blood. The warm ischaemia time (calculated from unpacking donor liver to perfusion with recipient portal blood) was 53 min. There was progressive swelling of the allograft once perfused that appeared to exert pressure on the patient IVC causing fall in blood pressure and higher requirements of nor-adrenaline. When the allograft was elevated out of the right subdiaphragmatic space, the parameters appeared to improve.

E.   To maintain this position, we first reduced the subdiaphragmatic space (fossa reduction) by suturing the right subdiaphrgmatic tissues to the right perinephric fat and sutured the falciform ligament of the donor liver to the diaphragm to reduce rotational effect. End to end arterial anastomosis was performed between donor common hepatic artery proper and patient common hepatic artery in this position. Arterial pulsation and thrill of portal flow were well felt across the anastomosis. After arterial anastomosis, the situation appeared to recur and hence we further elevated the liver by placing three mops behind the right lobe to elevate it further but since this too did not appear to remedy the situation, another anastomosis side-side between the donor IVC and patient IVC was performed (which has been described as a salvage procedure in several reports where such situation was seen). After these measures, we decided only to close the skin (as muscle closure could constrict space) and move patient to ICU for further stabilization with plan to remove the packs placed behind the liver once allograft swelling had reduced and patient stabilized. Closure was completed at 05:35 pm on 17/04/2015 and patient received in ICU on ventilator at 06:05 pm nor-adrenaline support 15ml/hr with blood pressure of 90/40 mm Hg. The situation was explained by liver team to an attendant of the patient since immediate family was not available at that time and then to the family, when they arrived. Patient remained stable on same supports with good urine production till about 08:30 pm on 17/04/2015. Ultrasound Doppler performed in ICU revealed low flow in portal vein and no flow in hepatic artery.

F.   At 09:00 pm on 17/04/2015, after review of status and Doppler report by the liver team, a plan was made to re-explore that patient to restore arterial and portal flow and assess the liver. A plan to place a stent in IVC if allograft swelling was persistent was made and interventional radiologist Dr Vimal Someshwar was called. The condition of patient, the allograft dysfuction and plan was discussed with the patient’s son and daughter, high risks of the procedure and consideration of IVC stent placement if other measures did not work was also discussed. Informed consent for a high-risk exploratory laparotomy was taken from son of patient since patient was unable to consent. Patient was taken up for laparotomy at 10:00 pm on 17/04/2015 and incision was opened. Allograft was found to be tense and discoloured and colour improved when abdomen was open.

G.  Hepatic artery pulsation and thrill in portal vein were felt beyond the respective anastomoses. An embolectomy catheter was passed across hepatic artery anastomosis. To prevent further compression, the incision was not closed and temporary abdominal closure using Bogota bag technique was performed (as has been described for such situations previously). Since well described surgical salvage procedures to improve situation were already utilized, after discussion it was decided to consider placement of a stent in IVC to improve flows. Re-transplantation at short notice was ruled out since no close family member was suitable as a living donor and there was no deceased donor liver likely to be available. The procedure of IVC stenting, risks, outcomes and complications were discussed with the family by interventional radiologist, Dr Vimal Someshwar and after informed consent, transfemoral IVC stent placement was performed. IVC contrast study before placement of stent indicated patent donor IVC, hepatic vein and cavo-caval side-side anastomosis with a narrowing in the patient IVC below the liver (infra-hepatic). A 20mmx80mm wall stent was deployed with which there was some improvement in blood pressure on same supports. Liver team and Dr Someshwar discussed the situation with relatives. Relatives were informed that patient continued to be critical and could become unsalvageable if there was no encouraging response to the measures already initiated. Despite intensive supports with blood and clotting factors and blood pressure supports, there was deterioration in patient status and urine production ceased. Patient was reviewed by liver team and the relatives were informed that it was likely that patient was unsalvageable. Nephrologist Dr Mihir Kulkarni was consulted and he proposed continuous renal replacement therapy (CRRT) but due to fluctuating blood pressure, it could not be initiated immediately. She continued to deteriorate and was reviewed by ICU team and liver transplant team as well as nephrologist and the grave condition informed to her relatives. She did not respond to maximal supportive measures and had episode of bradycardia that responded initially to medication but then was sustained. Patient condition was frequently informed to relatives and attempts to address queries by liver and intensive care unit teams. She sustained cardiac arrest and despite every efforts to resuscitate could not be revived. She was declared to have passed away at 10:30 am on 18/04/2015.

H.  A post-mortem examination was asked for by the treating team however the son and daughter were not willing for it. As per Jupiter Hospital policy and legal provisions, they were informed that the body could not be handed over to the family without a signed waiver and information to the police station at Vartak Nagar, Thane. The waiver was signed by the relatives and they approached the police station but were sent back without notification by the officer on duty. After discussion with Jupiter Hospital administration, the patient abdomen was closed and body handed over to relatives for last rites with death certificate and detailed death summary.


21.Contents and allegations of Para 8 are specifically denied. Unless an application under the provisions of Section 65B of the Indian Evidence Act, 1872 is allowed, complainants cannot be permitted to rely on those documents. The same is reproduced hereinbelow :
Section 65B in The Indian Evidence Act, 1872

[65B. Admissibility of electronic records.—

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]

22.Contents and allegations of Para 9 to 11 are not related to Answering opposite party No. 2, hence specifically denied. 

23.Contenst of Para 12 to 15 are formal in nature and needs no reply.

24.In view of the above discussion, it is crystal clear like light of the day that answering doctor did his duty with utmost care and caution therefore there is no question of medical negligence and/ or deficiency in service, the same is specifically denied. There was no question of lack of qualification on the part of answering doctor. He had the skill and knowledge of his specialised subject. He cannot be held negligent on this count at all. An analysis of the spirit of other judgments also do not help the complainants because there has been no error of judgment, dereliction of duty or non-application of reasonable degree of skill. Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or nor is not the test of the man on the top of a Clapham omnibus because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

25.The answering opposite parties relies on and file documents as per list and will rely on and file more documents as and when necessary.

Affidavit is false and specifically denied.

An affidavit in support of this written statement is being filed herewith.

Accordingly the instant complaint, being devoid of any merit, is liable to be rejected, with heavy costs.


PLACE: MUMBAI


DATED: 26.06.2017                                   


OPPOSITE PARTY NO. 2



ADVOCATE FOR OPPOSITE PARTY NO. 2

VERIFICATION
I, Dr. Rahul Kakodkar, C/o Jupiter Hospital, Eastern Express Highway, Service Road, Next To Viviana Mall, Thane – 400 601 (Maharashtra) Phone : 022 - 2172 5555, Permanent R/o House No. 509, Mangoirish, 303, Vainguinim Valley, University Road, Dona Paula, Panji – 403 004 (Goa), do hereby verify and sign on this 28th day of June, 2017 at MUMBAI that the content form Para 1 to 25 above are true to my personal knowledge and belief. I have suppressed nothing, so help me God.

OPPOSITE  PARTY NO. 2






























BEFORE THE MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
Old Administrative Staff College Building,
Opp. C.S.T. Station, Hazarimal Somani Marg,
MUMBAI – 400 001, (Maharashtra).
Phone : 022 – 2282 1810 / 2205 7409 Fax : 022- 22018539
COMPLAINT CASE NO. 366 OF 2017
Consumers Welfare Association, Mumbai. …….. COMPLAINANTS

VERSUS

Jupiter Hospital & Ors.        …………..           OPPOSITE PARTIES

AFFIDAVIT
I, Dr. Rahul Kakodkar, C/o Jupiter Hospital, Eastern Express Highway, Service Road, Next To Viviana Mall, Thane – 400 601 (Maharashtra) Phone : 022 - 2172 5555, Permanent R/o House No. 509, Mangoirish, 303, Vainguinim Valley, University Road, Dona Paula, Panji – 403 004 (Goa), the above named deponent, solemnly affirm and state on oath as under:
1.    That I am the treating doctor and opposite party No. 2 in the above mentioned Complaint Case and am fully conversant with the facts deposed to in the written statement.
2.    That the contents of paragraphs 1 to end of the accompanying written statement are true to my personal knowledge and the contents of paragraphs are based on legal advice, which I believe to be true. No material has been concealed and no part is false. So help me God.
3.    That the Annexure No(s). to the accompanying written statement are true copies of the originals and I have compared the said Annexures with their respective originals and certify them to be true copies thereof.

PLACE : MUMBAI                                              

DATED :                                                           DEPONENT

                                        VERIFICATION
I, Dr. Rahul Kakodkar, the above named deponent do hereby verify on oath that the contents of the affidavit above are true to my personal knowledge and nothing material has been concealed or falsely stated. Verified at ______this______day of _______

DEPONENT

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