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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.4690 OF 2009
(Against the order dated 12.10.2009 in First Appeal No.37/2007 of the
State Commission, Andhra Pradesh)
1. Pragathi Hospitals, Nizamabad, Managed by Pragathi Hospital Trust, Hyderabad
Road, Nizamabad Represented by its Trustee Dr. Ala Lakshma Reddy, S/o. A.V.
Ganga Reddy, Nizamabad.
2. Dr. Meenakshi W/o. Dr. P.V. Ramakrishna, R/o Nizamabad.
3. Dr. P.V. Ramakrishna S/o S.Venkatachalam R/o Nizamabad
……….Petitioners
Versus
1. Kumari Shirisha Madhuri, D/o Hanmanth Rao, Teacher, R/o Srinagar (Village)
Varni Mandal, Nizamabad District
2. Dr. Shyamsunder Reddy S/o Not Known, R/o. Nizamabad (Deleted)
3. Dr. Seetharamaraju S/o Not Known, R/o. Nizamabad (Deleted)
4. Dr. N.S. Rao, S/o Not Known, R/o. Nizamabad (Deleted)
.....Respondent
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mrs. Radha, Advocate
For the Respondent
: Mr. B. Suyodhan, Advocate
PRONOUNCED ON: 01.11.2012.
ORDER
PER MR.VINAY KUMAR, MEMBER
The three revision petitioners were arrayed as OPs-1,2 and 3 respectively,
before the District Forum in the complaint filed by Kumari Shirisha Madhuri. The
Complainant had listed there other doctors as OPs-4, 5 and 6. The order of the District
Forum, Nizamabad dismissed the complaint against them and fixed the responsibility,
jointly and severely, on OPs 1, 2 and 3 to pay a compensation of Rs.5 lakhs to the
Complainant, with 9% interest from the date of the complaint. The appeal of OPs
1,2 and
3
in
FA
37/2007
was
dismissed
by
the
AP
State
Consumer
Disputes Redressal Commission with cost. The order of the State Commission is now
challenged in the present proceedings by OPs 1,2 and 3.
2.
Before the District Forum, the case of the Complainant was that her mother,
Smt. Parvata Vardini was operated for hysterectomy in the OP-1 hospital on
28.4.1994. Her condition worsened when she developed abdominal swelling and
respiratory problem. Allegedly, it was informed that a puncture wound was found in her
intestine and leakage from it had to be removed. On 4.5.1994, another surgery was
performed on her by OPs 3 to 6 but the patient died on the next day i.e. 5.5.1994.
3.
On the other hand, the contention of the OPs was that on 2.5.1994 the patient
complained of breathlessness. Her blood urea and serum creatinine were slightly above
normal. On 3.5.1994 distension of abdomen was noticed and 4.5.1994 she was running
temperature. Here, as per the written response of the OPs:“Then X-ray of abdomen was taken which showed large
gas shadow under the left side Diaphragm with multiple fluids
levels. As Dr.Lakshma Reddy was not at Nizamabad on that day,
the
respondent
no.5
was
called
to
see
the
case. He
advised Giproteam as the cause for above condition of the patient
is not know. As per his advice, respondent no.6 who is a
senior anesthologist was
called
and
the
respondent
no.5
performed surgery at 6.30 p.m. which went uneventfully. It is false
to
allege
that
five
litres
of
fluids
was
found
in
the
abdomen. Patient recovered from anaesthology was 8.30 p.m.
and was shifted to post operative ward. On 5.5.94 at 3.30 a.m. the
patient developed Hypertension and was treated for the
same. Patient
died
at
11.15
a.m.
Death
certificate
was
issued. The patient died of Cardoi-Respiratory failure due to
septic and shock with some underlying renal problem.”
4.
The District Forum and the State Commission both have relied heavily on the
case sheet of the patient (Ext. A-7 before the District Forum) as evidence of the
complication which developed after the surgery of 28.4.1994 and which eventually led to
the second surgery of 5.5.1994.
5.
Significantly, the Complainant along with OPs 4,5 and 6 have been arrayed as
the respondents in the appeal before the State Commission as well as in the present
revision petition. But, the proceeding before this Commission of 16.9.2010 shows that
the counsel for the revision petitioners sought deletion of the names of respondents
No.2 to 4 (OPs 4 to 6) on the ground that they were not a necessary parties to the
present proceedings. This was contested by counsel for respondent No.1 (the
Complainant) stating that respondent No.3 was the doctor who, during the second
surgical operation, had noticed the puncture in the jejunum and therefore his
appearance was necessary. The Commission after hearing the two counsels ordered
deletion of respondents No.2 to 4 from the array of the parties. Again, on 9.5.2012,
counsel for the respondents submitted that the presence of respondent No.3, already
ordered to be deleted from the list of parties, was necessary. This argument was kept
open for consideration on the next date of hearing, but has not been pressed by the
respondents. The revision petition was finally heard on 23.8.2012 and reserved for
orders.
6.
We have perused the records and heard the counsels for the two sides. It needs
to be noted that the revision petition assails the impugned order stating that:“The State Commission erred in holding that, the nonexamination of respondents 3 and 4 herein (Opposite Parties 5 &
6) who conducted the subsequent operation, gives rise to the
conclusion that the perforation occurred during the first operation
and the petitioners herein are negligent. The reasoning of the
appellant authority that the Opposite Parties 5 and 6 failed to file
affidavit evidence and explain the circumstances under which the
perforation to jenjunum was occurred, obviously they did not like to
depose in favour of the petitioners as the perforation was caused
when the opposite parties 2 and 3 performed the operation is
perverse and unsustainable in law.”
7.
This contention needs to be viewed in the light of the evidence placed before
the fora below. No evidence was adduced that an abdominal ulcer, perforated or
otherwise, existed before the first surgery on 28.4.1994. On the contrary, the
GYNAECOLOGICAL CASE SHEET shows that the first evidence of it came in the
morning of 4.5.1994. It reads—
“X Ray plain abdomen in erect posture
Large gas shadow before Lt diaphragm
With multiple fluid levels
? Volvlus
Posted for Laprotomy at 6 pm”
8.
The State Commission has observed that—
“Though Opposite Parties 1 to 3 in their affidavit evidence
stated that they had operated her for hysterectomy on 28.4.1994
they did not observe any puncture to jejunum. Opposite parties 5
and 6 had performed an operation on 5.5.1994 when they found
puncture in the jejunum. Opposite Parties 1 to 3 could not explain
why such a puncture was caused.”
Due to this, the State Commission has noted that OPs 5 and 6 should
have been the best witnesses to answer questions on the of puncture in
the jejunum but OPs 1,2 and 3 chose not to examine them.
9.
In our view, the record in the GYNAECOLOGICAL CASE SHEET and the Written
Response of the OPs, noted above, clearly support the view taken by the State
Commission. We therefore, find no substance in the above contention of the Revision
Petitioner.
10.
The other ground raised in the revision petition, as well as argued by their counsel
is that, as per medical literature cited before the fora below, perforation of jejunum is an
uncommon disorder which can be caused due to many reasons and is rarely diagnosed
preoperatively. But, the counsel for petitioner could not explain how does this support
their claim that perforation of the jejunum was not caused during the surgery for
hysterectomy. Learned counsel for the respondents pointed out the petitioners should in
that case, have examined the doctors who performed the second surgery. We find
ourselves in agreement with the latter. No evidence has been led, before the fora below,
by the petitioners/OPs 1,2 and 3 to show that it was not a surgical perforation which
occurred in the course of the first surgery and which necessitated the second one.
11.
make
We therefore, conclude that the revision petitioners have completely failed to
out
any
case
against
the
decision
of
the
A
P
State
Consumer
Disputes Redressal Commission in FA/37/2007 which could justify our intervention
under Section 21(b) of the Consumer Protection Act 1986. The revision petition is
therefore dismissed for want of merit.
.……………Sd/……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/…………….
(VINAY KUMAR)
MEMBER
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW
DELHI
ORIGINAL PETITION NO. 114 OF 1999
1.
Smt. Tilat Chaudhry, Wife of Shri Nihal Azmat Chaudhry, Resident
of C-66, Sector-J, Aliganj, Lucknow – 226024 (Uttar Pradesh)
2.
Nihal Azmat Chaudhry, Son of Sri Wajahat Ali, Resident of C-66,
Sector-J, Aliganj, Lucknow – 226024 (Uttar Pradesh)
…
Complainant (s)
Versus
1.
All India Institute of Medical Sciences, Ansari Nagar, New
Delhi – 110 029, Through its Director / Incharge
2.
Dr. (Prof.) T.K. Chaterjee, Department of Surgery, All India Institute
of Medical Sciences, Ansari Nagar, New Delhi – 110 029.
…
Opposite Party (ies)
BEFORE :
HON’BLE
MR.
JUSTICE
R.C.
JAIN,
PRESIDING
MEMBER
HON’BLE MR. S.K. NAIK, MEMBER
For
the
Complainant
(s)
… Mr. Nihal Chaudhry,
in
person
for
complainant
For the Opposite Party (ies)
…
Mr. Anchit Sharma, Advocate
DATED: 09th NOVEMBER, 2012
ORDER
PER JUSTICE R.C. JAIN, PRESIDING MEMBER
The above named complainants have filed this complaint alleging
medical negligence and deficiency in service on the part of the opposite
party-Hospital and Doctor in the treatment of complainant No.1Smt. Tilat Chaudhry and have claimed compensation of Rs. 30,58,923/from them under various heads.
2.
In nut shell, the case of the complainants is that complainant No.1
is the wife of complainant No.2. They are ordinarily based in Lucknow. In
February, 1997, the complainant had complaint of pain in her abdomen
and
after
consultation
with
local
doctors
and
radiological
and
other investigations, she was diagnosed as having stones in the Gall
Bladder and was advised surgery for the same. Going by the high
reputation of opposite party No.1-All India Institute of Medical Sciences,
the complainants approached the said hospital in March, 1997 and after
the complainant No.1 was examined by certain doctors, she was advised
to undergo laparoscopic cholecystectomy, which would normally require
hospitalization of 3-4 days in all. On 25.3.1997, the complainant No.1 was
admitted in AIIMS in the private ward of AIIMS after paying the requisite
charges and laparoscopic cholecystectomy was conducted on her in the
morning of 27.3.1997 by opposite party No.2-Surgeon. As it took
unusually long time to conduct the procedure, the complainant No. 2
became suspicious. Complainant No.1 was shifted to her room only in the
morning hours of 28.3.1997 when it was noticed that her entire abdomen
had been stitched. When the Complainant No.2 wanted to enquire from
O.P. NO.2, he snubbed him. According to the complainants problem of
complainant
No.1
increased
and
new
troubles
erupted
after
operation. She was discharged from the hospital on 04.4.1997 in a very
bad condition with fever, excessive pain, shivers, vomiting etc. From the
discharge summary received by the complainant, it was revealed that
some injury was caused to the bile duct during laparoscopic procedure
and to repair the same, the abdomen of the complainant No.1 was opened
and false excuse was given for covering up the said mistake, which was
caused due to the negligence and carelessness of opposite partyNo.2 and
other assisting doctors. It is alleged that not only that the injury to the bile
duct was caused but it was not repaired promptly and properly, which
resulted into further complications. After her discharge from the opposite
party No.1-hospital, the complainant No.1 consulted other doctors at
Delhi, Patna and Lucknow who tried to treat the complainant No.1 through
medicines at a huge cost. Even then, the level of Alkaline Phosphate
increased
in
the
body
of
complainant
No.1
as
was
found
after Neuclear Medicine test at Sanjay Gandhi Post Graduate Institute of
Medical Sciences,Lucknow (fort short ‘SGPGIMS’) and it was found that
there was blockade in the body of the complainant No.1, which prevented
free passage of bile and raised alkaline phosphate which was due to the
faulty repair of the bile duct injury. Despite taking treatment at various
medical centers, there was not much improvement in the condition of
complainant No.1 and she was advised to undergo second surgery, which
could pose a risk to her life. It is alleged that due to residual defect /
disability, the family life of the complainant has also been ruined and the
complainants are unable to perform their duties and pursue their social
and
political
activities. Complainants
have
therefore,
claimed
a
compensation of Rs. 30,58,923/- under the following heads:
1. Expenses at AIIMS:
(i) Payment
of
bill
:
Rs.
:
Rs.
:
Rs.
11,785.00
(ii) Purchase of medicine and
Things
of
surgical
need
around
30,000.00
2. Expenses incurred in tests, medicines,
Fees of doctors etc. at Delhi, Patna and
Lucknow between
two
operations
35,000.00
3. Expenses in SGPGI, Lucknow during
Second operations:
(i)
(ii)
Payment of bills
:
Rs. 17,138.00
Purchase of medicines and
Things
used
in
surgery
around
:
Rs.
30,000.00
4. Expenses incurred in tests and medicines
After the operation of SGPGI till date around
Rs.
10,000.00
5. Expenses incurred in travelling, conveyance
And miscellaneous expenses around
:
Rs.
25,000.00
6. Expenses incurred in travelling
Abroad
:
Rs.
2,00,000.00
7. Compensation for deprivation from
Leading normal life in past and future
And reduction of life expectancy of
Complainant No.1 due to two operations
During
15,00,000.00
short
time
:
Rs.
8. Compensation for mental agony
Suffered by complainants and physical
Pain
and
sufferings
:
Rs.
:
Rs.
10,00,000.00
9. General
compensation
2,00,000.00
_____
_________
Total
Rs.
30,58,923.00
_____
_________
3.
On being noticed on the complaint, the opposite parties contested
the complaint by filing a joint / common reply raising preliminary objections
about the maintainability of the complaint on the ground that the opposite
parties have not obtained any services charges from the complainants. It
is sought to be explained that the amount charged by opposite party No.1
was towards private room, special diet and other clinical diagnoses on
subsidized rates. It is stated that the opposite party No.1-Institute is of
National importance, having laudable objects and reasons established to
impart professional competence among medical practitioners and to
provide teaching facilities of high standard in imparting medical treatment
to the persons suffering from severe complicated deceases. It is also
stated that the complaint is liable to be rejected in view of the applicability
of legal maxim ‘Volenti non fit injuria’. On merits, it is not denied that the
laparoscopic cholecystectomy was conducted by opposite party No.2 on
the complainant No.1 at opposite party No.1-hospital and that during the
course of the procedure an injury was occasioned to the bile duct of
complainant No.1. However, it is sought to be explained that the alleged
injury (defect) is incidental and commonly accepted phenomena to such
surgeries, which was assented to by complainant No.2 and therefore, no
liability can be enfastened on the opposite parties. The complaint is
stated to have been filed with ulterior motive and after the limitation period
as prescribed under Section 24-A of the Consumer Protection Act,
1986. In this regard, it is pleaded that the surgery was conducted on the
complainant No. 1 on 27.3.1997 and she was discharged from the
opposite party No.1-hospital on 4.4.1997 and therefore the complaint filed
in July, 1999, is barred by limitation. It is however, denied that there was
any negligence or carelessness on the part of the opposite party No.2Surgeon in conducting the surgery of the complainant No.1 and on the
other hand, it is maintained that opposite party No.2 is a renowned and
experienced surgeon. As regards the procedure, it is pleaded that the
opposite party No.2 operated complainant No.1 with utmost care and
ability and that while removing the stones from the gall bladder through
laparoscopic procedure the surgeon encountered with a situation when it
became eminent for him to convert the laparoscopic procedure into open /
conventional cholecystectomy procedure. Asregard the consequential
blockade of bile, it is stated that this also is a phenomena whereby
the Billo-enteric anastomosis gets obstructed after repair, this related to
the nature of healing of the complainant and had nothing to do with the
skill of the doctor. It is explained that the level of Alkaline Phosphate was
normal on 03.4.1999 i.e. a day before she was discharged from opposite
party No.1-hospitalon 4.4.1997. It is denied that the opposite parties are
liable for any medical negligence or deficiency in treatment of complainant
No.1 or liable to pay any compensation for the same much less the
compensation sought by the complainants.
4.
In the rejoinder, the complainants have controverted the
objections and pleas raised in the reply of the opposite parties in regard to
the maintainability of the present complaint before the consumer fora and
have generally reiterated and maintained the averments and allegations
already made in the complaint.
5.
To substantiate their claim, complainants have mostly relied upon
the documentary evidence i.e. the record of the diagnosis and medical
treatment of complainant No.1 at O.P. No.1-AIIMS and subsequent
treatment, which the complainant received at SGPGIMS, Lucknow and
hospital at Patna etc. Besides the complainants have filed their affidavits,
from the side of the opposite parties, affidavits of Dr. D.K. Sharma,
Medical Superintendent, AIIMS has also been filed on behalf of the
opposite party No.1-Hospital besides the affidavit of O.P. No. 2, Dr.
T.K. Chatopadhyay, Prof. & Head Department of G.I. Surgery, AIIMS, New
Delhi has been filed. Complainant had also served a set of interrogatories
on the opposite parties which were duly replied by them.
6.
We have carefully gone through the entire evidence and material
produced on record and have heard complainant No.2 in person on behalf
of the complainants and Mr. Anchit Sharma on behalf of the opposite
parties and have considered their respective submissions. As noted
above, it is not disputed and even otherwise it is established from the
medical record and the discharge summary of complainant No.1 from O.P.
No.1-Hospital that CBD injury was caused during the procedure of
laparoscopic cholecystectomy and procedure was converted to open
cholecystectomy upon detection of the CBD injury. Whether the CBD
injury is a known complication of laparoscopic cholecystectomy procedure
or it was caused due to lack of care / negligence on the part of the
operating surgeon (O.P. No.2) and his team assisting doctors is the
material question, answer to which would decide the fate of the present
complaint. According to the complainants, CBD injury was caused due to
negligence of the operating surgeon and assisting doctors at the time of
conducting the said procedure. For this, we may first consider the various
observations / findings as recorded in the operation notes and the
discharge summary of complainant No.1:
ALL INDIA INSTITUTE OF MEDICAL SCIENCES, NEW DELHI – 110029
Name Mrs.Talat Choudhary
:F
Marital Status
Service: Surgery –III
203
Age 52
Occupation
Post-Operative
Sex
CR No.495592
Ward : Pvt.II Bed :
Religion
Cholelithiasis
Diagnosis
Post-operative
-do-
Diagnosis
Operative
Laproscopic
Procedure
Major
Proposed
Cholecystectomy
Routine
Minor
Operative
Laparoscopy – converted to open
Procedure
cholecystectomy + Roux-en-y
Executed
Hepaticojejunostomy
Surgeon –
Assistant -1
Prof. T.K.Chate
Dr. Rajender Prasad
rjee
Dr.Gopal /
Anaesthetist –
Anaesthetic :
Dr. Lokesh
GA
Assistant 2-
Dr.Devender
Nurse
Material
forwarded to
pathology
Department for
Examination
Skin
Savlon + Betadine
Preparation
Findings
GB distended : single stone in GB
Record of all
while dissecting the GB, the bile ooze
organs
detected – converted to Open – CBD
Examined
injury detected
Procedure
includes
Incision
Ligatures
Specimen
Part prepared and draped
removed
Portis inserted in the standard fashion
Drainage
Lapraoscopic dissection done. While
Sponage count
dissecting bile ooze detected
Closure
Converted to open cholecystectomy
Blood loss
Operating time
CBD injury detected
Roux-en-Y hepaticojunostomy done
using vicryl 4 /0
Jejunojejunostomy done in 4 layers
using vicryl 3/0
Hemostasis achieved
Chest tube drains put
Abdomen closed by using prolene No1
Skin clips applied.
SURGERY UNIT – III
ALL INDIA INSTITUTE OF MEDICAL SCIENCES
DISCHARGE SUMMARY
Follow up on Friday at 2.00 p.m. in R.No. I.V.Floor OPD Block
Name :
Talat Choudhary
F
CR No.495592
Age 52
Sex :
FUC No.
Address : 169 Zakir Marg, Okhla Road,
D.O.A. : 25/3/97
D.O.O.:
27/3/97
New Delhi – 25
D.O.D.4/4/97
DIAGNOSIS :
Cholelithiasis
ADVICE
T.Flexon 1 – SOS
T.Rantac 150 mg – HS x 10 days
To Report SOS
To Attend Surgery-III FUC on Friday 2.00 p.m.
To
Attend Gynae OPD for
Cystocele
and uterine
prolapse
HISTORY & PHYSICAL FINDINGS : Pain (Rt) Hypochondrium x 2
yrs. Retrosternal burning x 2 yrs. Patient asymptomatic before
2 yrs when she developed pain right HC. Pricking nature, mild –
moderate, few minutes, increased frequency in last 2 months. Now
almost daily. H/o retrosternal burning sensation x 2 yrs mold to
moderate increased after heavy / spicy meals
Diagnosed – cystocele = Uterine Prolapse X 2 months ago
O/E
- Vitals –WNL, GPE-NAD, Chest /CVS-NAD, Abdomen-NAD
OPERATIVE PROCEDURE & FINDIGNS:
–
Laparoscopic
converted
to
open
cholecystectomy
+ Hepaticojejunostomy under GA on 27/3/97
Finding : normal size gallbladder with unclear ductal anatomy
–
led
to
CBD
injury-converted
to
open
&
Roux
en
Y Hepaticojejunostomy done.
HOSPITAL COURSE :
Uneventful. NG Removal PODI, Passed
flatus POD3, orally allowed POD3 Passed Stools POD4, Drain out
POD6, sutures out POD8. On discharge, patient afebrile, taking fully
orally, wound healthy. LFT-WNL.
7.
From the above notes and discharge summary, it is manifest that
the CBD injury was caused and detected during the Laparoscopic
dissection procedure and therefore, the said procedure was converted into
open cholecystectomy to correct / rectify the said complication i.e. Roux
en YHepatiicojejunostomy was done in 4 layers using vicryl 3/0 and
Hemostasis achieved.
8.
At this stage it is pertinent to note that going by the main plea of
the complainant that given the condition of the complainant No.1, the
opposite parties should not have resorted to the laparoscopic procedure
and that CBD injury was caused due to non-visualization of the ductal
anatomy of the complainant No.1 during the laparoscopic cholecystectomy
procedure and since the CBD injury during the laparoscopic procedure
was not denied from the side of the opposite parties, this Commission,
with a view to sort out the controversies thought it advisable to obtain the
opinion from an independent medical expert body. Normally, this
Commission had been obtaining the opinion of the Medical experts of All
India Institute of Medical Sciences in other cases of medical negligence
but since in the case in hand, the AIIMS and its doctor were parties and
the allegations of medical negligence and deficiency in service in the
treatment were made against them, this Commission vide an order dated
16.1.2012 referred the matter to the Director General of Health Services,
Government of India, New Delhi for constituting a Medical Board from the
relevant discipline(s) not less than three in number and not belonging to
AIIMS for the purpose of examining the matter and giving its expert
opinion in the case in hand on the above aspect. In terms of the direction
of this Commission, the DGHS constituted a Board of four Medical
Experts viz:
(i) Dr. O.P. Pathania, Professor, Department of Surgery,
LHMC & Smt. S.K. Hospital, New Delhi – 110 001;
(ii) Dr. Manju Sharma, Member, Consultant, RML Hospital, New Delhi;
(iii) Dr. Archana Aggarwal, Consultant, Department of
Radiodiagnosis,
VMMC & Safdarjung Hospital, New Delhi;
(iv) Dr. Gulshan Jit Singh, Consultant & Head, Department of
Surgery, VMMC
& Safdarjung Hospital, New Delhi.
The Board constituted by the DGHS after going through the entire
record of the medical treatment and gave their opinion as under:
“Summary:
Mrs. Talat Choudhary, 52 years Female was admitted on 25.3.1997 vide
CR No. 495592 in Surgical Unit III AIIMS, New Delhi. She was operated
on 27.3.1997. laparoscopic cholecystectomy was started which was
converted to open cholecystectomy on detecting CBD injury (due to
unclear anatomy) and Roux en YHepaticojejunostomy was done. Postoperative stay was uneventful. Tc 99m scan done on 03.4.1997 at AIIMS
showed patent Hepaticojejunostomy (page 3 of the document provided
shows the date as 03.4.1997, page 19 shows the date as 03.3.1997 and
page 16 does not mention any date on the test report provided). Patient
was discharged on 4.4.1997.
Patient had persistently raised Serum Alk. Phosphatase but Ultrasound
abdomen & CT abdomen done at Patna on 10.6.1997 was not showing
any evidence of biliary stasis.
Patient was investigated at SGPGI, Lucknow, HIDA scan done on
04.7.1997 revealed evidence of stenosed biliary enteric anastomosis
(page 12 shows the report however there is some overwriting in the report
marked X, may be checked with the original for confirmation) for which
Redo Surgery was done on 05.7.1997. Patient was discharged on
23.7.1997. Post-operative HIDA scan was done on 18.8.1997 showed
patent anastomosis.
Observations:
Laparoscopic Cholecystectomy for Gall stone disease is a preferred mode
of treatment. CBD injury is a known complication of Laparoscopic as well
as open Cholecystectomy. Conversion to open Cholecystectomy upon
suspicion/detection of CBD injury is a standard procedure as and when
indicated.
On perusal of operative records of AIIMS, injury to the CBD in this patient
was
recognized intraoperatively and
approximately
laparoscopic
procedure was converted to open procedure and remedial corrective
measure in the form of Roux en Y Hepaticojejunostomy was performed
which is a standard operative procedure for such complication. Tc 99 m
scan done on 03.04.1997 at AIIMS showed patent anastomosis.
Conclusion:
Committee is of the opinion that Laparoscopic Cholecystectomy was
converted to open cholecystectomy and appropriate corrective measures
(Hepaticojejunostomy) for the CBD injury were successfully taken. At no
stage any evidence of negligence is forthcoming on the perusal of relevant
medical records made available to the committee.”
9.
To elicit the detailed information and other clarifications, a set of as
many as 34 interrogatories was served on the opposite parties with the
leave of the Commission and the same have been duly replied by the
opposite parties. Some of the interrogatories and their replies are
germane to decide whether there was any lack of care on the part of the
operating surgeon and his team. For the facility of reference we would
extract the relevant interrogatories and their replies:
“1.
Interrogatory No.4 – When did you first perform an operation by
Laparoscopy technique? How many surgery cases exclusively by
Laparoscopic method were carried out by you personally before this
case? And is there any record of it?
Reply: Laparoscopic Cholecystectomy was introduced in late 1980s and
was soon adopted at AIIMS. The exact number of surgery exclusively by
laparoscopic method, by OP No.2 before the case in question is difficult to
ascertain for want of specific records.
2.
Interrogatory No.5 - How much total time was actually consumed in the
surgery of complainant on 27.3.1997. And is there any record of it?
Reply: Even though it is difficult to say anything with certainty at this
time. However, on the basis of documents on record it appears that the
surgery in question was started at 9.15 A.M. and came to an end at 12.15
P.M. This is on the basis of conterminous records. The copy of the
Anesthetists in the OT records is attached as Annexure OP-1.
3.
Interrogatory No.8 - In how many cases before this case, while
performing laparoscopic cholecystectomy, common bile duct injury was
caused by you.
Reply:
Prior to the case at hand no bile duct injury was reported by any
one in amongst the surgeries performed by the OP No.2.
4.
Interrogatory No.9 - Do you agree that in the discharge summary or at
least in the operation note a mention is supposed to be made of
abnormality if any found in anatomy of any patient?
Reply:
Yes, the discharge summary of the present complainant does
mention abnormality found in the anatomy of the patient.
5.
Interrogatory No. 10 - Whether you agree “That positive identification of
anatomy before any structure is legated, divided or dissected is must and
mandatory in Laparoscopic Cholecystectomy?
Reply:
During any surgery either open or laparoscopic, structures are
identified before being legated and divided.
6.
Interrogatory No.11 - Will it amount to negligence and carelessness if
injury to bile duct is caused during process of hole making itself?
Reply:
That injury to bile duct during process of hole making itself, is not
in itself negligence and/or carelessness.
7.
Interrogatory No. 12 - What do you have to say that on observing any
complication a careful surgeon is supposed to convert to conventional
method and not persist with Laparoscopic method?
Reply:
That immediately on observing any complication any surgeon is
supposed to convert the procedure to conventional method. As soon as
bile leak was noted in the present patient, the procedure was converted to
an open procedure.
8.
Interrogatory No. 14 - Which of the following reasons given on your
behalf you think is the actual reason for the causing of bile duct injury?
(iv)
(i)
Unclear ductal anatomy as referred in ‘discharge summary’
(ii)
Undue brittleness of tissues referred in para 19 of written reply
(iii)
Chronic Cholecysitis of patient ‘referred in para 2 of affidavit.
Anatomy of cystic duct not clearly identifiable ‘referred in para 2 of the
affidavit’
(v)
Chronic Cholecystitis reaction is higher and more severe due to which
identification of anatomy becomes difficult ‘referred in para 6 of affidavit’
(vi)
Inflammation (referred in para 6 of affidavit)
Reply:
The factors raised in interrogatory 14 (from i to vi) are known
factors of bile duct injury. At times more than one factor are present in a
given cases. The contributory or independent value of each is difficult to
ascertain.
9.
Interrogatory No.16 - Is oozing of bile not a clear indication that bile duct
injury had already been caused? What do you have to say?
Reply:
The answer depends on the quantity of oozing of bile and there
cannot be strict formula for that. However, as soon as bile like was
detected the laparoscopic procedure was converted to an open
conventional method.
10.
Interrogatory No.17. - Whether you had properly and positively identified
the anatomy before cutting in this case. It is correct to say that if there is
no positive identification of anatomy as in the present case it would not
have been advisable to go for Laparoscopic Cholecystectomy.
Reply:
During
laparoscopic manoeuvre nothing
was
cut. However,
dissection was attempted to clarify the anatomy. It is at this stage bile like
was detected.
11.
Interrogatory No.19 - At what stage of surgery the Bile Duct injury was
caused – during hole cutting, or after dissection started, what do you have
to say?
Reply:
During
laparoscopic manoeuvre nothing
was
cut. However,
dissection was attempted to clarify the anatomy. It is at this stage bile like
was detected.
12.
Interrogatory No.20 - What steps had you taken to identify hepatic, cystic
and bile ducts? Were hepatic and bile ducts identifiable?
Reply:
13.
That during open surgery all these ducts were identified.
Interrogatory No.24 - Please refer to para 7 of affidavit that decision to
convert is taken by surgeon on operation table. Whether in totality of
circumstances and situation the decision to convert to conventional
method was taken too late.
Reply:
As soon as bile leak was noted a decision to convert was taken
without wasting any time. There is no question of the decision to convert
being late.
14.
Interrogatory No. 30. - If as mentioned in paras 13, 15 and 17 of your
written reply shrinkage of the passage in bile duct created by you was on
account of peculiar healing characteristics of the patient. Can you explain
why such shrinkage did not occur after surgical correction of bile passage
at SGPGIMS Lucknow in the operation subsequently performed?
Reply:
The fact that the surgeon at SGPGIMS noted raised alkaline
phosphates is suggestive and indicative of shrinkage of the passage. This
fact confirms and justify the reasoning of the OP given in the written reply.
15.
Interrogatory No. 31 -
In para 10 of written reply it is stated that “as
soon” as possibility of the bile duct injury was realized OP No. 2
immediately converted to open procedure.” Do you mean to say that
conversion as done before the bile duct injury was caused?
Reply:
The reference of para 10 of written reply is misreading
thereof. The contents of para 10 of the written reply is reiterated. The
decision to convert the procedure was as a sequel to the bile leak, which
could have been for different reasons and not necessarily for bile duct
injury.
16.
Interrogatory No. 32 – In para 13 of the written reply you have tried to
absolve
yourself
of
responsibility
by
putting
blame
on
healing
characteristics of the complainant, what do you have to say that after
surgical correction done at SGPGIMS, Lucknow, after the operation done
by you, the suffering of the complainant described in para 12 to 15 of
complaint ended up to great extent, and no further surgical correction as
required with the same healing characteristics.
Reply: The interrogatory under response has already been replied as
above. The fact that the surgeon at SGPGIMS noted raised alkaline
phosphates is suggestive and indicative of shrinkage of the passage. This
fact confirms and justify the reasoning of the OP given in the written reply.
17.
Interrogatory No. 33 - Is it true that in surgery negligently done through
Laparoscopic technique by you, first the bile duct of the complainant was
injured and then the repair done by you in surgery through conventional
method was also negligently done and was not successful. Complainant
had to undergo lot of sufferings and necessitated a second surgery within
3 ½ months of your surgery to save her life.
Reply: It is absolutely incorrect that either the surgery was done
negligently or the repair thereof was deficient in any manner. The findings
after the surgery at SGPGIMS confirms and justify the reasoning of the
OP given in the written reply.”
10.
Complainant No.2, then submitted that the reply to the interrogatories
would show that due care was not exercised by the operating surgeon to
visualize the anatomy of the complainant No. 1 before embarking upon the
procedure of laparoscopic cholecystectomy. Indeed his submission is that
the non-visualization of the duct anatomy was the main cause which led to
the CBD injury. In support of his submissions he heavily relied upon the
opinions contained in certain medical text i.e. Laparoscopic Surgery of
the Abdomen by Bruce V. MacFadyen, Jr., MD & Others (published by
Springer), wherein the Authors of the said book have said so in regard to
the General Principles, Adequate Exposure, Dissection and Maintenance
of Hemostasis, Identification of the Anatomy etc., by observing as under:
General Principles:
………..
4.
Positive identification of the anatomy before any structure is
ligated or divided.
Adequate Exposure:
…..The surgical dictum that you can only operate on what you can see
remains a guiding principle of laparoscopic surgery…..
Dissection and Maintenance of Hemostasis
….. Laparoscopy is a visual procedure and what you cannot see you
cannot safely dissect….
Identification of the Anatomy
….. Absolute identification of the anatomy of the portahepatis and
triangle of Calot before ligation of any structure is the only safe way
to reduce the risk of inadvertent injury, particularly to the common
bile duct…..
11.
At this stage it will be useful to note the circumstances in which, the
incidence of CBD injury are indicated by other Authors of the Medical Text
books. In the book Sleisenger and Fordtran’s Gastrointestinal and Liver
Disease Edited by Mark Feldman, Lawrence S. Friedman and Marvin
7th Edition
H. Sleisenger,
–
Section
titled
under
the
heading
“Complications Following Laparoscopic cholecystectomy” it has been laid
down:
“Laparoscopic cholecystectomy has laregely replaced “open” surgical
cholecystectomy because laparoscopic cholecystectomy results in shorter
hospital
stay,
faster
recovery
and
lower
overall
morbidity
rate. Unfortunately, the frequency of complications resulting from the bile
duct
injury
has
increased
with
the
advent
of
laparoscopic
cholecystectomy. Bile Duct injury, which was observed in 0.1% of open
cases, may occur inas many as 0.2% to 0.5% of laparoscopic cases. In
addition, laparoscopic bile duct injuries tend to be more severe and more
difficult to treat than biliary injuries produced by open surgery.
Bile duct injury that occurs during laparoscopic cholecystectomy results
in two basic problems
biloma formation and (2) biliary
obstruction caused by stricture formation. Patients may present with pain
and fever from a biloma of jaundice because of biliary obstruction. Bile
leaks result from incomplete clipping of the cystic duct or laceration or
transection of central or peripheral bile ducts. Failure to recognize variant
bile duct anatomy, particularly an aberrant low insertion of a segmental
right duct, is a common cause of bile duct transection. Strictures tend to
occur in the common hepatic duct owing to thermal injury to the hilum from
cautery and dissection probes. Strictures or obstruction can also result
from inadvertent ligation of aberrant ducts.
The initial work-up of patients with presumed bile duct injury includes
cholangiography to assess the biliary anatomy and a cross-sectional
imaging study such as CT or US toinvestiage the presence and location
of biloma. Cholangiography is performed via an endoscopic approach
when possible. Billiary tract disruption results in decompression of the bile
duct and the ducts may actually be decreased in calibure, making
percutaneous cannulation difficult
or
even
hazardous. When
endoscopic cannulation of the duct is not possible or when contrast
material cannot be directed into the intrahepatic ducts, PTC may be
necessary. In patients with possible laparoscopic cholecystectomy injury,
it is particularly important toopacify all the intrahepatic ducts by
cholangiography. Inadvertent ligation or peripheral ducts may result in
incomplete opacification of the biliary tree, which is difficult to notice
immediately.
The
treatment
of
bile
duct
injury
following
laparoscopic
cholecystectomy depends on the nature and extent of injury. Small to
moderate bile duct leaks at the cystic duct stump or peripheral ducts may
be cured with non-operative therapy alone, but large leaks or transection
of the main ducts often requires surgery. The treatment of small bile duct
leaks
includes
percutaneous
drainage
of
large
or
symptomatic bilomas coupled with a biliary drainage procedure to divert
bile from the site of injury. The drainage catheter is initially placed into
thebiloma under US or CT guidance and then the collection is
evacuated. External biloma drainage is continued until biliary output
through
the
drain
ceases. Billiary diversion
is
usually
achieved endoscopically by sphincterotomy and placement of a temporary
plastic endoprosthesis. Although the leak may require several stent
changes to achieve complete closure, most leaks will close within six
weeks.
Strictures after laparoscopic cholecystectomy may occur after an
uneventful operation and may not be recognized until many months to
several years after surgery. The treatmentofthese strictures is usually
–
surgical
creation
of
Y hepaticojejunostomy. In slected patients who
a
Roux-en
cannot undergo
this
surgery because of severe medical problems or cirrhosis with portal
hypertension, non-operative management by means of balloon dilation
and
placement
of
a
metallic endoprosthesis may
be
appropriate. Lillemore and colleagues reported a success rate of 100% in
the treatment of the bile duct strictures using a combination of surgery and
percutaneous dilation. However, the cost of treating these patients was
quite high, with mean cost of $51,000/-.”
12.
What amounts to medical negligence on the part of a medical
professional has been considered by the Hon’ble Supreme Court and
Foreign Courts in number of its decisions. In this connection reference
may be made to the celebrated and oftenly cited Queen’s Bench Division
in Bolam V Frirn Hospital
Management
Committee
Hospital
Management Committee (1957) 1 WLR 582, (Queen’s Bench
Division),
Spring
Meadows
Hospital
& Another V.Harjol Ahluwalia & Anr. (1998) 4 SCC 39 / Indian Medical
Association Vs.
V.P. Shantha & Ors.
Dr. Laxman Balkrishna Joshi
V.
(1995)
6
SCC
651,
Dr. Trimbak Bapu Godbole and
Another, AIR 1969 SC 128 / Savita Garg (Smt.) Vs. Director, National
Heart
Institute
(2004)
8
SCC
56
/
Malay
Kumar Ganguly Vs. Sukumar Mukherjee Doctors & Ors. 2009 CPJ 17
(SC) / Martin F D’Souza Vs. Ishfaq – I (2009) CPJ 32 (SC)
13.
We do not wish to burden this opinion by referring to all those
decisions in detail. Certainly we would like to take into account the legal
position which emerges from the said decisions. The Hon’ble Supreme
Court on consideration of the above referred Foreign and Indian decisions
in the case of KusumSharma & Others Vs. Batra Hospital (2010
CPJ) culled out the following principles:
“Negligence is the breach of a duty exercised by omission to do
something
which
a
reasonable
man,
guided
by
those
considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a prudent and
reasonable man would not do.
ii. Negligence is an essential ingredient of the offence. The
negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon an
error of judgment.
iii. The medical professional is expected to bring 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.
iv. A medical practitioner would be liable only where his conduct
fell below that of the standards of a reasonably competent
practitioner in his field.
v. In the realm of diagnosis and treatment there is scope for
genuine difference of opinion and one professional doctor is
clearly not negligent merely because his conclusion differs from
that of other professional doctor.
vi. 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. Just because a professional looking to
the gravity of illness has taken higher element of risk to redeem
the patient out of his/her suffering which did not yield the desired
result may not amount to negligence.
vii. Negligence cannot be attributed to a doctor so long as he
performs his duties with reasonable skill and competence.
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.
viii. It would not be conducive to the efficiency of the medical
profession if no Doctor could administer medicine without a
halter round his neck.
ix. It is our bounden duty and obligation of the civil society to
ensure that the medical professionals are not unnecessary
harassed or humiliated so that they can perform their
professional duties without fear and apprehension.
x. The medical practitioners at times also have to be saved from
such a class of complainants who use criminal process as a tool
for pressurizing the medical professionals/hospitals particularly
private
hospitals
or
clinics
for
extracting
uncalled
for
compensation. Such malicious proceedings deserve to be
discarded against the medical practitioners.
xi. The medical professionals are entitled to get protection so
long as they perform their duties with reasonable skill and
competence and in the interest of the patients. The interest and
welfare of the patients have to be paramount for the medical
professionals”.
14.
On a consideration of the above noted authoritative opinions of the
Medical experts and bearing in mind the legal position, there cannot be
any denial of the position that the CBD injury is a well-known complication
of the laparoscopic cholecystectomy procedure and frequency of such
complications
has
increased
with
the
advent
of
laparoscopic
cholecystectomy. It is much higher, say almost double or four times than
in the case of open / conventional cholecystectomy. Therefore it must be
presumed that the incidence of CBD injury is a well-known risk when a
patient undergoes a laparoscopic cholecystectomy procedure. In other
words, the same cannot be correlated as the act of negligence or
carelessness on the part of the operating surgeon. In a case where a
patient has incidentally suffered CBD injury during the laparoscopic
procedure cannot by itself be presumed to be a result of negligence in all
such cases. However, that does not mean that a surgeon conducting the
laparoscopic cholecystectomy procedure would be immune even if the
CBD injury has been caused due to his negligence / lack of care in
performing the said procedure. In the case in hand, the complainants are
mostly harping upon the situation that the anatomy of the complainant
No.1 was not fully and properly visualized before she was booked for
laparoscopic cholecystectomy procedure for the removal of the stone from
the gallbladder. In other words, the complainant wants to suggest that the
operating surgeon has overlooked the said situation. This argument does
not cut much ice because in the present case, the complainants have
failed to show that complainant No.1had any abnormal / unusual anatomy
on the face of which procedure of laparoscopic cholecystectomy was
counter indicative or the operative surgeon should have gone only for
conventional / open cholecystectomy procedure even to begin with. From
a perusal of the Notes of Surgery, it does not appear that the operating
surgeon encountered with such a situation. Rather it would show that the
surgeon had to convert the procedure of laparoscopic cholecystectomy
into open cholecystectomy, when it was noticed that there was oozing of
the bile. Merely because the laparoscopic cholecystectomy had to be
converted to open cholecystectomy procedure, it cannot be said that the
laparoscopic cholecystectomy procedure adopted by the surgeon was
counter indicative in the case of the complainant No.1. We therefore hold
that no negligence can be attributable to the opposite parties on that
count.
15.
As regards, the procedure of laparoscopic cholecystectomy and the
procedure adopted to correct the CBD injury, no fault can be found with
the same as has been opined by the body of medical experts
(supra). Once it is shown that due medical protocol was followed, no
case of medical negligence is made out against the opposite parties.
16.
As
regards
the
subsequent
and
persisting
problems,
which
complainant No.1 claims to have suffered even after her discharge from
the opposite party No.1-Hospital, suffice it to say that such post-operative
problems after such a complication were normal and had subsided after
the complainant No.1 took treatment at certain other medical centers. In
any case, the complainant No.1 was discharged from the hospital on
04.4.1997, in a satisfactory condition and she did not revert back to the
said hospital for consultation about the subsequent problems, which she
had to face, may be for the reason that the complainants had lost faith in
the treatment given by the opposite parties. On that count also, it is also
not possible to fix any liability on the opposite parties.
17.
Thus on a consideration of the entirety of the facts and circumstances
of the present case, the evidence and material brought on record, the
opinion of expert body and the view of the well-known Authors in different
medical text books, the irresistible conclusion is that the complainants
have failed to establish their case about the medical negligence and / or
deficiency in service against the opposite parties in the treatment of
complainant No.1. The complaint being devoid of any merits is
accordingly dismissed, leaving the parties to bear their own costs.
..………………..……….
(R. C. JAIN, J.)
PRESIDING MEMBER
.………………………
(S.K. NAIK)
MEMBER
SB/2
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO.396 OF 2000
Shri Mehernosh Kersi Khambatta, S/o Kersi Minocher Khambatta, By faith Parsi, by
occupation Ex-Employee of M/s. Tata Iron & Steel Co. Ltd., Jamshedpur, R/o
No.6 Parsi Colony, Pipe Line Road, P.O. & P.S. Bistupur, Town Jamshedpur, Dist.
East Singhbhum (Bihar)
……….Complainant
Versus
1. Venkatrama Nursing Home, D. No. 47-7-43, Nehru Market Road, Dwarkanagar,
Vishakapatnam
2. Dr. A. Dayasagar Proprietor, Venkatrama Nursing Home, D. No. 47-7-43, Nehru
Market Road, Dwarkanagar, Vishakapatnam
3. Dr. C. Dharma Rao (since deceased) Through LRs:i)
Smt. C. Vimala Devi (Urmila Devi) wife,
ii)
Dr. C. Srinivas, son
iii)
iv)
Sri C. Srinivas, son
Dr. C. Sridevi, daughter, (married)
Vivekananda Marg, Vishakhapatnam
All
residents
of
D
.........Opposite party
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainant
: In person
For the Opposite parties NO.1 & 2: Mr. G Ramakrishna Prasad,
Advocate
For the Opposite Party No.3
: NEMO
No.
30-1-3
PRONOUNCED ON: 06.12.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
Shri M.K.Khambatta filed this original complaint in November 2000. The
complaint is against Venkatrama Nursing Home, Vishakapatnam (OP-1), its proprietor
Dr. A. Dayasagar (OP-2) and Dr. C. Dharma Rao, the Orthopedic Surgeon of the
Nursing Home (OP-3).
2.
Proceedings before this Commission show that OP-3, having failed to respond to
the notices from the Commission, was set ex-parte on 12.5.2003. In 2009 the
Commission was informed that OP-3 had passed away and therefore, the Complainant
was directed to bring LRs of OP-3 on record. Notices were subsequently issued to
them but elicited no response. In between, the Commission considered the request of
both parties to cross-examine each other. Accordingly, on 26.8.2004, Mr. Ravi Kumar
Addl. District Judge (Retd.) was appointed as the Local Commissioner to record
evidence. The Local Commissioner has recorded the two cross-examinations on
15th and 16th December, 2004, which are available in Part II of the record of this case.
3.
The case, as seen from the complaint petition and the affidavit evidence of the
complainant, is that the Complainant, an employee of M/s. Tata Iron and Steel
Company
Limited.
through Vishakapatnam on
(TISCO) Jamshedpur, was
24.1.1998. While
walking
travelling
on
by
the
train
platform
at Vishakapatnamstation, Complainant’s left leg suddenly snapped from the tibia. He
could not even stand and fell down. He was taken to the Railway Hospital, who advised
him to consult some nursing home, as the Railway Hospital did not have the required
infrastructure. The Complainant was admitted to OP-1 Nursing Home and was assured
best possible treatment by OP-2. He was attended to by OP-3 /Dr. C. Dharma Rao,
who advised him to undergo a corrective surgery for proper reunion of the bone. The
operation was performed by OP-3 on 25.1.1998 in OP-1 Nursing Home. He was
discharged on 9.2.1998 and was advised by OP-3 to take the post-operative care and
treatment at Tata Memorial Hospital in Jamshedpur. The Complainant became
medically fit and resumed his duties on 21.4.1998.
4.
Allegedly, the problem returned in July, 1999, with severe pain and swelling at the
same spot in the leg where the surgery had been performed at OP-1. Fresh X-ray of the
leg showed that the implant was broken and tibia was cracked. The Complainant was
admitted to Apollo Hospital, Chennai for treatment on 14.8.1999. Another surgery was
performed on 17.8.1999 to remove the broken implant and to put Illizarov Ring Fixator
on the leg.
5.
The allegations levelled in the complaint petition against the OPs, are that—
a. Opposite Party Nos. 2 & 3 failed and neglected to diagnose properly,
which aggravated the problems of the Complainant. (Para 30).
b. Sub-standard quality of implant material was used in the surgery for fixing the
fracture. (para 13).
c. The OPs claimed to have high qualification but indulged in professional and
intentional negligence. Otherwise, failed or improper implant could not have occurred
(para 14).
d. In the discharge-slip no weight bearing was advised and there was no mention
of position of the fracture, whether open or compound, displaced orundisplaced. This
shows medical negligence on the part of the OPs.
e. The report of Dr. Rajgopal Krishnan of Apollo Chennai Hospital reveals nonunion of the left tibia with failed implant. This shows that Dr. C. DharmaRao was not
competent to perform this kind of operation.
6.
According to the affidavit evidence of the Complainant, he was physically fit
and normal when the rail journey was commenced on 23.1.1998. The next morning
when the train reached Vishakapatnam, he got down to buy some snacks at the
platform. It is stated that while proceeding towards the vendor his left leg suddenly
snapped from the tibia and he could not walk even a single step and fell down. He was
admitted to VenkatramanNursing Home on the advice of the Railway Hospital.
7.
It is alleged that OP-3, who examined him on the same day i.e. 24.1.1998, advised
him to undergo a surgery for proper reunion of the bone. This advice was given without
proper examination and allegedly only to make money from the Complainant. However,
trusting the advice of the doctor, he gave consent for surgery, which was performed by
OP-3 on 25.1.1998. He was discharged on 9.2.1998, returned to Jamshedpur on
10.2.1998 and got admitted in Tata Memorial Hospital (TMH) on 11.2.1998. TMH had
discharged
him
on
23.2.1998,
advising
bed
rest
for
two
months. On
his
recovery, para 17 of the affidavitsays:“I say that I was under regular check-up by doctors of
Tata MAIN Hospital and on 21.04.1998 I was found medically fit
to resume my duties Original of the fitness certificate is
exhibited as Exhibit C/4.”
8.
The affidavit of the Complainant also mentions the problem which occurred in July,
1999 i.e. about 15 months later. But, it does not mention what exactly had happened to
cause this sudden problem. It merely states that a fresh X-ray was taken in Tata Main
Hospital (TMH), which showed broken implant and fracture of the tibia. Apparently, he
was discharged from TMH on 19.7.1999 and got admitted to Apollo Hospital Chennai on
14.8.1999.
9.
Both, in his affidavit and the complaint petition, the Complainant has relied upon
the Discharge Summary issued by Apollo Hospital, Chennai, under the signature of
Chief Orthopaedic Surgeon, Dr. R. Gopalakrishnan, for his allegation that the operation
conducted by OP-3 was not proper and that the latter was not competent to conduct
such an operation.
10.
A perusal of this Discharge Summary shows that it is a very brief document where
the operative portion reads as follows:“DATE OF ADMISSION
DATE OF SURGERY
: 14.08.99
: 17.08.99
DATE OF DISCHARGE : 04.09.99
DIAGNOSIS
: NON UNION LEFT TIBIA WITH FAILED
IMPLANT
OPERATIVE PROCEDURE : REMOVAL OF IMPLANT
ILIZAROV RING FIXATOR
FIXATION
INVESTIGATIONS
: ENCLOSED
COURSE IN THE HOSPITAL : He had an uneventful surgical recovery. Wound
routinely inspected and dressings done. Wound found healthy. Pin tracts were
routinely
dressed. Patient
was
mobilized
with
crutches
from
5 th post
operative day. Bone transport was initiated from 10th post operativeday.
DISCHARGE ADVICE:
-Pin tract dressings to be done twice a week with betadine and surgical spirit”
11.
Per contra, the case of Dr A Dayasagar for OP-1/OP-2 is that he cannot comment
on what had transpired between the Complainant and OP-3. However, the allegation of
medical negligence is denied. Significantly, a reference is made to the discharge
report of TISCO (TMH) Hospital, Jamshedpur, showing that the Complainant had
suffered fracture of the left leg (shaft of the left femur and trochanter) in 1989
itself. Because of this old history of fracture, the Complainant was advised by OP-2 (in
the discharge slip) to wash the wound with normal saline and apply ensamycin cream till
the wound healed and also advised to consult specialist in TISCO Hospital.
12.
The written response also denies the allegations that the sub-standard material
was used for implant. It is claimed that the implants used were from INOR Company,
which is based at Mumbai, which supplied instruments to International market and is
one of the oldest and leading companies in India for Orthopaedic implants. The
allegation of the Complainant that the diagnosis at Apollo Hospital Chennai proves that
OP-2 and 3 were negligent and had aggravated the problem due to improper diagnosis,
is also denied on behalf of the opposite parties.
13.
The affidavit evidence of the Dr. Dayasagar on behalf of OP-1 makes a specific
reference to the discharge report of TISCO Hospital (TMH), filed by the complainant and
states:“THIS shows that THE COMPLAINANT HAS SUSTAINED BOTH
BONES FRACTURE OF LEFT LEG, CLOSED FRACTURE OF SHAFT
OF LEFT FEMUR AND TROCHANTICE FRACTURE OF LEFT FEMUR
DURING 1989. AGAIN, COMPLAINANT HAS SUSTAINED BOTH
BONES FRACTURE OF LEFT LEG MIDDLE 1/3rd AND WAS ADMITTED
IN MY HOSPITAL IN JANUARY’ 1998.”
14.
The affidavit of Dr Dayasagar for OP-1/OP-2 refers to their own Discharge Slip
and says that “I have advised the complainant under the discharge slip to wash the
wound with normal saline and apply Ensamycin crème till the wound heals and
suggested certain precautions to be taken by the complainant and also specifically
advised the complainant to consult a specialist.........Therefore, I have taken all the
required steps and advised the complainant suitably as a post –operative care.”
15.
We have heard the Complainant Shri M.K. Khambatta at length and carefully
perused the voluminous records and case law filed in evidence by him. ShriG.
Ramakrishna Prasad, Advocate has been heard on behalf of the Opposite parties 1 and
2. OP-3 as already noted, did not respond and was treated ex-parte. Consequent upon
his death notices have been served on his legal heirs but they have chosen to remain
unrepresented. The case of the OPs is found to be based primarily on their affidavit
evidence, arguments, medical literature and on the records of treatment filed by the
complainant. However, full record of treatment at OP-1/Venkatrama Nursing Home for
the duration 14.1.1998 to 9.2.1998, has not been filed by either party.
16.
During the course of oral submissions, the Complainant pointed out that discharge
summary of 9.2.1998, given by OP-1, is in the name of OP-3/Dr. C. Dharma Rao. But it
has not been signed by OP-3 and has been signed by someone else on his behalf.
Learned counsel for OPs 1 and 2 clarified that the discharge summary as well as the
discharge slip have both been signed by the proprietor of the Nursing Home/OP-2,
himself. The Complainant emphatically argued that his case is that he has lost 18 years
of service due to deficiency in the treatment of his leg by the OPs. He therefore,
submitted that his claim should be considered for the amount mentioned in the
complaint petition and not as subsequently reduced in the proceedings of 8.2.2002.
17.
Learned counsel for OPs 1 and 2 challenged the claim of the Complainant that the
fracture had occurred on 24.1.1998 when the Complainant was merely walking at the
platform at Vishakapatnam. He referred to two documents submitted before this
Commission by the Complainant himself. The first is the record of treatment at TISCO
Hospital (TMH) at Jamshedpur, relating to the period 11th to 23rd February, 1998. This
document
clearly
shows
that
the
patient
had
fallen
down
at Vishakapatnam Railway Station on 24.1.1999. It also refers to the previous
history of fracture and operation of 1989. The second document is the case
summery at TMH, when the patient reported again there on 13.7.1999 with sudden
pain and swelling in the left leg. This document also refers to a fracture of left
femur and grade three open fracture of tibia left leg, which had occurred in
1989. The counsel arguedthat this fact of previous fracture, at the same spot in
the same leg, was concealed by the Complainant and not reveal to the OPs on
24.1.1998. In
this
behalf,
counsel
also
referred
to
the
affidavit
of
Dr.
A. Dayasagar/proprietor of OP-1 in which the history of previous fracture of 1989
mentioned above, has been referred to.
18.
We have earlier referred to the cross examination of OP-2 and the Complainant,
by each other. Here, the complainant admits for the first time that—
“My same leg was also fractured in a road accident in 1989. After operation
at that time, there was a bit of shortening of leg about 1.75 centimeters. Because
of that I had a little limping while walking. The limp was cured in 1991 when the
implant was removed.” This material fact was not revealed either in the complaint
petition or in the affidavit evidence of the complainant. Similarly, Dr Dayasagar/OP2, has made a sudden change in his position after OP-3 was set ex parte by this
Commission on 12.5.2003. In his cross-examination conducted on 16.12.2004, he has
said that Dr Dharma Raohimself brought the implant. OP-1 added the price of the
implant in the consolidated bill as the complainant was in hurry to go to Jamshedpur.
This being in direct contradiction of their specific evidence, is rejected at the threshold
itself.
19.
We now need to consider the evidence from the treatment records of TMH,
Jamshedpur and Apollo Hospital, Chennai where the complainant was subsequently
treated. The Case Summary of Tata Main Hospital (TMH) also states that the
X Ray report showed broken Tibia implant and crack fracture of Tibia. But, we do
not find anything in this report which can relate this fracture and failure of the
implant to the quality of treatment provided at OP-1, including the quality of
implant and other materials used by them. On the contrary, it was argued on behalf
of the OPs that it was caused due to the condition of osteoporosis, which the
complainant suffered from and which is disclosed in the Case Summary of TMH.
20.
The complainant has stated in his cross examination that he was not
suffering from osteoporosis. This claim is found to be in conflict with the
documentary evidence produced by the complainant himself. In the CASE
SUMMARY of hospitalisation at Tata Main Hospital from 19.7.1999 to 27.7.1999,
signed by Dr A Sengupta, Orthopaedic Surgeon, it is clearly noted that Skeletal
survey shows evidence of osteoporosis”. There is no explanation why he chose to
deny it in the cross examination conducted on 15.12.2004. However, proceedings of
30.10.2006 before this Commission,show that the complainant later tried to bring on
record a certificate to show that he is not suffering from osteoporosis now. He was not
permitted, on the ground that the cause of action arose much before and therefore, the
report of 5.4.2006 has no relevance to it.
21.
It was argued on behalf of the OPs that the problem of the complainant was due to
his condition of osteoporosis which had rendered his bones porous and therefore, weak.
It was not due to any deficiency in his treatment by OPs. In the affidavit of Dr.
A. Dayasagar filed on 25.10.2006, reference is made to repeat fracture of the left leg at
the same spot in 1998 where the earlier fracture had occurred in 1989, in support of the
argument that the subsequent fracture was on account of osteoporosis. Medical
literature filed in this behalf (Harrison’s Principles of Internal Medicine 14th Edition)
shows that osteoporosis is a disease that causes reduction in bone density. It defines
the degree of skeletal fragility sufficient to increase the risk of fracture. “Although
osteoporosis is a generalized disorder of the skeleton, the major sequelae result from
fractures of the vertebrae, wrist, hip humerus, and tibia......... Hip fractures are the most
severe complication. They may be the consequence of trauma, most resulting from a
fall from standing height. The likelihood of fracture in a particular location is
related in part to the site where the bond density is most reduced, such as the
femoral neck or inter-trochanteric region.”
22.
The word ‘osteoporosis’ literally means ‘porous bone’. It is a condition where the
person gradually looses bone material which makes his bones more fragile. As a result,
they are more likely to break even after a simple fall. On this point, the Complainant, in
his written argument claims:“The explanation as to why the implant broke has to come from a
person having special knowledge- the treating surgeon who performed
the surgery at OP No 1 having ocular evidence. This wasn’t done by Dr.
C. Dharma Rao or any one from the operating team and he chose to
become exparte vide order dated 12/5/2003. Breaking of an implant
assuming it did break- was at best a neutral;-circumstance.”
This argument amounts to asking the OPs to give evidence against themselves. The
onus to prove medical negligence lies on the person who alleges it i.e. the
complainant. One of the allegations is that requisite preoperative investigations were
not carried out. But on the contrary, material placed on record by the complainant itself
shows that preoperative tests, including X Ray of the leg, were done on 24.1.1998.
23.
The fact remains that the Complainant has not produced any evidence of an
independent medical expert. In fact, the proceedings of 9.4.2002 show that a question
did arise in this behalf, but the position taken by the then counsel for the Complainant
was that no report of any expert was to be filed in evidence at that stage. The
complainant’s argument is that no doctor agreed to give evidence against a colleague.
We do not accept it. Without placing reliance on any expert opinion, the Complainant
appears to have made his own surmises, as is evident from the following in the
rejoinder of 17.12.2003 to the proof affidavit of OP-2 :a)
Referring to the statement that the Complainant was an employee of TISCO
as mentioned in the discharge summary, the Complainant says “it further
makes evident that Opposite Party is in a habit of committing negligence”.
b)
“It is submitted that a doctor who did not attend the operation according to
his own statement, how he can he said to be a competent person to say
whether the improper implantation was due to rashness or negligence or
not.” This is strange logic. By this, no independent medical expert can give
an assessment, as he would not have been a part of the medical team that
treated or operated upon the patient.
c)
“The act of negligence of the Opposite Party came to the notice of the
Complainant only after the Complainant had been asked to undergo a fresh
surgery by Apollo Hospital Chennai, which proved that the operation as
conducted by Opposite Party was handled in a very casual and negligent
manner.”
CONCLUSIONS
24.
The genesis of the complaint lies in the recurrence of the problem in July, 1999,
one and half years after surgery at Venkatrama Nursing Home, in 1998. Detailed
consideration of the evidence on record in the forgoing paras, shows that1. The X-ray at Tata Main Hospital, Jamshedpur shows broken tibia
implant and crack fracture of tibia. Similar is the finding of Apollo
Hospital Chennai, which calls it “non-union of left tibia with failed
implant”. But no evidence has been led by the Complainant to
show that it was due to any negligence on the part of the OPs in
his treatment.
2. Evidence produced by the Complainant itself shows that after the
treatment at OP-1 in January-February, 1998, followed by bed rest
of two months, he was medically fit to perform his official duties for
the next 15 months, till July, 1999.
3. The problem occurred in the same place of the Complainant’s left
leg in 1989 due to an accident and 1998 due to a fall at the railway
station. But, the Complainant has not disclosed the cause for its
recurrence in 1999. In this background, the finding of osteoporosis
at TMH in 1999 acquires a special significance.
4. His medical condition of osteoporosis was not revealed in the
complaint and the supporting affidavits by the complainant. In fact,
in his cross examination, it was specifically denied.
5. The complainant has not disproved the medical finding that he was
suffering from osteoporosis in 1999. His subsequent attempt was
only to show that in 2006 he was not suffering from it. This was
not permitted by the Commission, as it was not relevant to the
cause of action.
6. Medical literature brought on record shows a definite possibility of
osteoporosis being the cause of recurrent fractures of the tibia.
7. There is no evidence to show that the problem in 1999 was
caused due to poor quality of the implant material.
8. There is no evidence on record to show that OP-3, Dr. C.
Dharma Rao, did not have the requisite professional qualification to
perform the surgery on the Complainant.
25.
The above findings of fact have to be seen with reference to the law on the
subject. The Complainant himself refers to the Bolam test for determination of medical
negligence. It came in a decision by McNair J. in Bolam Vs. Friern Hospital
Management Committee [1957] 1 WLR 258, in the following words“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 not 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... A man need not possess the highest expert skill;
it is well established law that it is sufficient if he exercises the ordinary
skill of an ordinary competent man exercising that particular art.”
26.
It is fully endorsed by Hon’ble Supreme Court of India in the following landmark
decisions which have laid down the law on the subject of medical negligence. In Jacob
Mathew Vs. State of Punjab, (2005) 6 SCC 1, the Apex Court has summed it up in
eight conclusions. Of them, the following conclusions will directly apply to the matter
now before us :“1. Negligence is the breach of a duty caused by omission to do
something which a reasonable man guided by those considerations
which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do.
2. Negligence in the context of medical profession necessarily
calls for a treatment with a difference. To infer rashness or negligence
on the part of a professional, in particular a doctor, additional
considerations apply. A case of occupational negligence is different from
one of professional negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the part of a
medical professional. So long as a doctor follows a practice acceptable
to the medical profession of that day, he cannot be held liable for
negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor
would not have chosen to follow or resort to that practice or procedure
which the accused followed. When it comes to the failure of taking
precautions what has to be seen is whether those precautions were
taken which the ordinary experience of men has found to be sufficient; a
failure to use special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for judging
the alleged negligence. So also, the standard of care, while assessing
the practice as adopted, is judged in the light of knowledge available at
the time of the incident, and not at the date of trial.
3. A professional may be held liable for negligence on one of the
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 possible for every
professional to possess the highest level of expertise or skills in that
branch which he practices. A highly skilled professional may be
possessed of better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional proceeded
against on indictment of negligence.
4. The test for determining medical negligence as laid down
in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in
India.”
In Martin F D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1, the above principles for
determination of negligence by a medical practitioner were reaffirmed byHon’ble Apex
Court. It was observed that:“From the principles mentioned herein and decisions
relating to medical negligence it is evident that doctors and
nursing homes/hospitals need not be unduly worried about
the performance of their functions. The law is a watchdog,
and not a bloodhound, and as long as doctors do their duty
with reasonable care they will not be held liable even if their
treatment was unsuccessful.
27.
Considering the requirements of the law as laid down by Hon’ble Supreme Court
of India, together with the conclusions on facts reached earlier in this order, we come to
an inescapable conclusion that the Complainant has completely failed to establish his
allegations of medical negligence against the Opposite Parties. The complaint is
therefore, held to be devoid of any merit and is dismissed as such. No order as to
costs.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
S./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 39 OF 2003
1. Sh. Mahesh Prasad Aggarwal S/o late Lala Har Prasad Aggarwal
2. Smt. Deepti Aggarwal Widow of late Rajeev Aggarwal
3. Kumari Manjari
4. Kumari Mayuri
5. Master Akshay
All minor daughters and son of late Rajeev Aggarwal (Through their mother
Smt. Deepti Aggarwal, their next Friend and natural guardian) All R/o 39, Inner City,
Ring Road, Agra – 1 (U.P.)
…Complainants
Versus
M/s. Kamayani Patients
Care
India
Guru Ka Taal, Secundera Agra – 282 07 (U.P.)
Ltd.
672, Geeta Mandir NH
2
… Opp. Party
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Complainants
For the Opp. Pary.
PRONOUNCED ON
:
Mr. S.C. Singhal, Advocate
:
With Ms. Mridul Chawla, Advocate
Mr. S.K. Sharma, Advocate with Mr.
J.P. Sharma, Mr. A. Poddar, Advocates
3rd JANUARY, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
Complainants have filed complaint against the opposite party for recovery of
Rs.30.00 lakhs as compensation.
2.
Brief facts of the complaint are that complainant no. 1 is father of deceased,
Rajeev Aggarwal, complainant no. 2 is wife of deceased Rajeev Aggarwal and
complainant nos 3
to
5
are
minor
daughters
and
son
of
deceased
Rajeev Aggarwal. Father Rajeev Aggarwal aged 41 years met with an accident while
he was proceeding towards Agra as his vehicle overturned and he sustained multiple
serious injuries and became unconscious. He was immediately taken to opposite partyhospital at Secundra, Agra where he was admitted and Rs.1200/- were charged for C.T.
Scan of head, Rs.300/- for X-ray chest and wrist, Rs.600/- as OT charges, Rs.500/- as
emergency charges and Rs.500/- as Doctors examination fee. Rajeev Aggarwal was
plastered in left hand and he was discharged and was informed that he is alright. He
was not given documents of discharge. Rajeev Aggarwal was complaining of serious
headache and pain at back but no treatment regarding aforesaid pain was given
to Mr. Rajeev Aggarwal while he was in opposite party-hospital. Rajeev Aggarwal was
taken to the house, though, his legs and hands were not moving properly besides
suffering from severe pain in head and back. Elderly persons of his family advised to
shift Rajeev Aggarwal to good hospital in Delhi and for this purpose ambulance was
hired on 15.10.2001 and proceeded for Delhi but Rajeev Aggarwal collapsed after he
travelled about 20 kms on account of the injuries sustained by him in the
accident. Complainants contacted opposite party-hospital to supply entire medical
record but opposite party-hospital refused. From post mortem report it was revealed
that the deceased had fracture of left partial bone and there was evidence of
haematoma of left side of the brain and even the membranes were found
congested. 100 ml. free clotted blood was also found in the brain. Opposite partyhospital neither operated nor advised operation and on account of negligence of
opposite
party-doctors,
Rajeev Aggarwal succumbed
to
death.
The
deceased,
Rajeev Aggarwal was tee-totaller having good health and earning about 3 lakhs per
annum and was also assessed to income tax. The deceased last assessed income was
Rs.3,35,332/-. There is longevity of life in the family of the deceased as his father about
75 years old is alive, hence, complainant may be awarded Rs.30 lakhs as
compensation along with 18% p.a interest.
3.
opposite party-hospital filed written statement and submitted that deceased was
given first-aid treatment as outdoor patient at the hospital of opposite party. It was
admitted that C.T. scan of the head and X-ray of the chest was advised by the opposite
party-hospital and Rs.300/- were charged, Rs. 600/- were charged for operation theatre
and Rs.500/- were charged as fee of doctor. It was further admitted that first-aid
treatment by putting bandages on the wounds of the deceased was given. Duty doctor
of opposite party-hospital very vehemently advised the deceased to be admitted in the
hospital but this advice was not followed and was not admitted in the hospital. When
Rajeev Aggarwal was brought to the opposite party-hospital, he was accompanied by
his friends and after sometime his father and brother Dr. Rohit Aggarwal came there
and they were of the firm view that they did not want to admit Rajeev Aggarwal in
opposite party-hospital or take further treatment from the opposite party- hospital. Dr.
Rohit Aggarwal represented himself to be a doctor having his own nursing home at his
house where he wanted to treat the deceased. So, the deceased was not admitted in
opposite party-hospital, hence, question of discharge does not arise. The deceased
was not in a condition to be taken to Delhi rather should have been admitted in opposite
party-hospital for proper care and treatment. The deceased was brought to the
opposite party-hospital in the afternoon of 14.10.2001 and was taken away within an
hour by his brother Dr. Rohit Aggarwal, his father and other relatives. As the deceased
was not given proper care and treatment by his own relatives the deceased,
Rajeev Aggarwal expired. It was denied that complainants contacted the opposite
party-hospital to supply medical record and opposite party-hospital refused to supply the
said medical record. The deceased’s earning, longevity of life and his last assessed
income was also denied. It was further submitted that no compensation is payable by
opposite party-hospital as there was no negligence or deficiency of service on the part
of the opposite party-hospital and prayed for dismissal of complaint.
4.
Complainants filed replica and alleged that Duty Doctor of the opposite party-
hospital
did
not
advise
admission
in
the
hospital
and
further
alleged
that Dr. Rohit Aggarwal did not say that they do not want to admit the deceased or take
further treatment at the hospital. Deceased was neither properly treated nor CT Scan
was properly observed and deceased was negligently discharged, he was not taken
voluntarily from opposite party-hospital and further submitted that deceased expired on
account of negligence of opposite party-hospital.
5.
Complainants
filed
affidavit
of
Mahesh
Prasad Aggarwal (father)
and Dr. Rohit Aggarwal (Brother). Opposite party filed affidavit of Dr. Munishwar Gupta
(Managing Director of opposite party-hospital). Parties also filed documents in support
of their case.
6.
Heard learned Counsel for the parties and perused record.
7.
Learned Counsel for the complainant submitted that opposite party-hospital
discharged the deceased Rajeev Aggarwal negligently, though, deceased was not in a
position to move, hence, complainants may be awarded compensation. On the other
hand, learned Counsel for the opposite party submitted that deceased was never
admitted as indoor patient in opposite party-hospital, but was given first-aid and in spite
of advice of opposite party Duty Doctor, relatives of deceased took away the deceased
from opposite party-hospital in such circumstances, no deficiency on the part of
opposite party-hospital, hence, complaint may be dismissed.
8.
It is an admitted case of the parties that deceased, Rajeev Aggarwal sustained
injuries on 14.10.2001 in an accident and was brought to opposite party-hospital by
some persons. It is also admitted that deceased Rajeev Aggarwal’s C.T. Scan and Xray of chest was done by opposite party-hospital after charging money and opposite
party-hospital also charged Rs.600/- as O.T. Charges and Rs.500/- as Doctor’s
examination fee. It is also admitted case of the parties that after putting plaster and
bandages on the left hand of the deceased, he was discharged/takenaway by his
relatives from opposite party-hospital.
9.
Learned Counsel for the complainants vehemently argued that opposite party-
Duty Doctor committed negligence in discharging patient from the hospital and placed
reliance on Notification dated 11.3.2000 issued by Medical Council of India. He has
drawn our attention to para 1.3 of Chapter I (Code of Medical Ethics) according to which
every physician is required to maintain medical record pertaining to his indoor patient for
a period of 3 years. The important question in this case is whether the deceased,
Rajeev Aggarwal was indoor patient in the opposite party-hospital. Opposite partyhospital has proved Annexure ‘E’ vide affidavit of Dr. Gupta which reveals that on
14.10.2001, 4 patients were admitted in opposite party-hospital and deceased was not
admitted in the opposite party-hospital as indoor patient. In these circumstances,
Notification dated 11.3.2000 issued by the Medical Council of India is not applicable to
the present case and opposite party-hospital was not required to maintain the medical
record of deceased Rajeev Aggarwal, as deceased was treated as outdoor patient and
after C.T. Scan, X-ray and giving first-aid, the deceased Rajeev Aggarwal was taken
away from opposite party-hospital by his family members and relatives.
10.
Complainant Mahesh Prasad Aggarwal has mentioned in para 1 of his affidavit
that Rajeev Aggarwal died on 21.11.2001 which is not correct in the light of evidence of
other
witness
and
documents
which
shows
that
Rajeev Aggarwal died
on
15.10.2001. Complainant Mahesh Prasad Aggarwal and Dr. Rohit Aggarwal who is
brother of deceased have stated in their affidavit that deceased was not fit and on
reaching home he was very uncomfortable and his condition was deteriorating. His
sufferings were manifold and pain was unbearable and in such circumstances it was
decided to shift him to a good hospital in Delhi and accordingly the ambulance was
hired
on
15.10.2001.
This
evidence
reflects
that
after
taking
deceased
Rajeev Aggarwal from opposite party-hospital he was brought to his residence which is
not believable because when his legs and hands were not moving properly and was
suffering from severe pain in back and head, no person will take his kith and kin to his
home instead of shifting him to some hospital particularly when deceased’s
brother Dr. Rohit Aggarwal was running Usha Memorial Health Centre in the same city
having 24 hrs. facility for fracture and accident cases as reflected in photograph of
Annexure ‘A’, ‘B’ & ‘C’ which have been proved by opposite party’s evidence. In normal
course
either
Rajeev Aggarwal would
have
been
brought
to Dr. Rohit Aggarwal’s hospital or admitted to some other hospital instead of bringing
him home as condition of Rajeev Aggarwal was deteriorating. Complainant’s witness
nowhere explained that after taking Rajeev Aggarwal to opposite party-hospital where
was he kept for another 24 hours or more before proceeding for Delhi. It was
obligatory on their part to lead evidence and prove that in last 24 hrs. proper care of the
deceased Rajeev Aggarwal was taken which they failed to do, rather they have
suppressed material facts about his treatment in last 24 hours.
11.
Complainant’s witness simply say that after plaster, opposite party informed that
Rajeev Aggarwal is alright and fit and can be taken to home and he was
discharged. This statement has not been supported by any other independent witness,
though, as per complaint and written statement, Rajeev Aggarwal was brought to
opposite party-hospital just after accident by other persons and these two witnesses
reached opposite party-hospital after sometime. Both witnesses being interested in the
complaint cannot be believed unless supported by other independent witness,
particularly, when opposite party in the written statement specifically stated that Duty
Doctor of opposite party-hospital advised the deceased to be admitted in the hospital
but his advice was not followed and Rajeev Aggarwal was not admitted in the hospital.
Same fact has been proved by affidavit of opposite party witness. In such
circumstances, it cannot be believed that in spite of insistence by the deceased’s father
and brother, the deceased was not admitted in opposite party-hospital and was
discharged but this inference can be drawn that advise of opposite party-hospital was
discarded as deceased’s brother Dr. Rohit Aggarwal was having his own hospital in the
same city. He and his father insisted opposite party-hospital not to admit
Rajeev Aggarwal in
the
hospital
and
took
away
him
for
treatment
either
in Dr. Rohit Aggarwal’s hospital
or
in
some
other
hospital
where
Rajeev Aggarwal’s condition deteriorated and ultimately died on next day.
12.
Learned Counsel for the complainant has not alleged any deficiency in taking
C.T. Scan, X-ray and plaster of Rajeev Aggarwal’s left hand. In such circumstances,
neither any negligence nor any deficiency of service can be attributed on the part of
opposite party-hospital towards treatment of Rajeev Aggarwal and no compensation
can be awarded to the complainant on account of sad demise of the deceased
Rajeev Aggarwal on next day.
13.
Learned Counsel for the complainant placed reliance on I (2006) CPJ 16 (NC) –
Dr. Shyam Kumar Vs. Rameshbhai Harmanbhai Kachhiya in which it was held that
if fees is paid towards receiving medical services by the complainant, the complainant
falls within the purview of consumer. There is no dispute on this legal aspect and
certainly in the present case complainants being legal heir of deceased, falls within the
purview of consumer as opposite party has charged fees for C.T. Scan, X-ray,
etc. Learned Counsel for the complainant also placed reliance on (2005) 6 SCC I –
Jacob Mathew Vs. State of Punjab and Anr. in which it was held that complainant
has to prove 3 constituents, namely; (1) the existence of a duty to take care, which is
owed by the defendant to the complainant; (2) the failure to attain that standard of care,
prescribed by the law, thereby committing a breach of such duty; and (3) damage,
which is both casually connected with such breach and recognised by the law, has been
suffered by the complainant. It was further observed that if the claimant satisfies the
Court on the evidence that these three ingredients are made out, the defendant should
be held liable in negligence. We agree with the proposition of law laid down
by Hon’ble Apex Court but this citation does not help to the complainants in the present
case. Pleadings and evidence clearly proves that when Rajeev Aggarwal was brought
to Opposite party-hospital, C.T. Scan, X-ray, etc. were done immediately and his hand
was plastered and in such circumstances, it can be presumed that Opposite partyhospital took care of the deceased, Rajeev Aggarwal. Complainant has failed to show
any negligence or deficiency in taking C.T. Scan, X-ray or plastering his hand. Leaned
Counsel for the complainant submitted that Opposite party-hospital discharged
Rajeev Aggarwal against the wishes of deceased, hence, Opposite party-hospital is
guilty of negligence as Opposite party-hospital failed to take standard of care required
under the law. This argument is devoid of force in the light of discussion made earlier
as we have come to the conclusion that Rajeev Aggarwal, the deceased was never
admitted as indoor patient in the Opposite party-hospital, rather Rajeev Aggarwal was
taken
away
by
the
complainant,
Mahesh
Prasad Aggarwal and
deceased’s
brother Dr. Rohit Aggarwal and other relatives against the advice of Duty Doctor of
Opposite party-hospital and further supressed material facts about Rajeev’s treatment in
last 24 hours after he was taken away from Opposite party-hospital.
14.
Learned Counsel for the complainant also placed reliance on I (1997) CPJ 332 –
Kanaiyalal Ramanlal Trivedi & Ors. Vs. Dr. Satyanarayan Vishwakarma & Anr. in w
hich it was held that in case of death due to medical negligence compensation can be
awarded as in fatal motor accidents. This citation does not help the complainant in
present case as complainant has failed to prove negligence or deficiency on the part
of Opposite party-hospital.
15.
In the light of the above discussion, it becomes clear that Opposite party-
hospital was neither negligent nor deficient in providing services to the deceased,
Rajeev Aggarwal and complaint is liable to be dismissed.
16.
Consequently, complaint filed by the complainants against Opposite party-
hospital is dismissed. Parties are directed to bear their own costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( SURESH CHANDRA)
MEMBER
K
A. Srimannarayana Vs. Dasari Santakumari & ANR.
[Civil Appeal No. 368 of 2013 arising out of S.L.P (C) No.26043 of 2010]
[Civil Appeal No. 369 of 2013 arising out of S.L.P (C) No.1495 of 2011]
ORDER
1. Delay condoned.
2. Leave granted.
3. These appeals arising out of the aforesaid special leave petitions have been filed
against the judgment and order dated 15.07.2010 in R.P. No. 2032 of 2010 passed by
the National Consumer Disputes Redressal Commission (hereinafter referred to as "the
National Commission"), New Delhi.
4. Relevant facts are taken from Special Leave Petition (C) No.26043 of 2010.
5. The appellant and respondent No.2, who are doctors, conducted an operation on the
left leg of the husband of the complainant. Sometime after the operation, the patient
died on 13.07.2008. Respondent No. 1, wife of the deceased, filed a complaint against
the appellant and respondent No.2, before the District Consumer Forum. We may notice
here that respondent No.2 is the appellant in Civil Appeal No. of 2013 arising out of
SLP(C) No.1495 of 2011.
The complaint was duly registered and notice was issued to the appellant and
respondent No.2. Against the issuance of the notice, the appellant filed a revision
petition before the State Consumer Disputes Redressal Commission, Hyderabad on the
ground that the complaint could not have been registered by the District Forum without
seeking an opinion of an expert in terms of the decision of the Supreme Court reported
in Martin F. D'Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1. In this revision petition,
respondent No.2 filed IA No.2240 of 2009 praying for stay of proceedings before the
District Consumer Forum. The State Commission rejected the revision petition by
granting liberty to the appellant to file the necessary application before the District
Forum to refer the matter to an expert.
He did not file any application before the District Forum, but challenged the aforesaid
order of the State Commission by filing revision petition No. 2032 of 2010 before the
National Commission. The revision petition has been dismissed by the National
Commission by relying upon the subsequent judgment of this Court in V. Kishan Rao
Vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513, wherein this Court has
declared that the judgment rendered in Martin F. D'Souza (supra) is per incuriam.
Hence the present special leave petitions challenging the aforesaid order of the National
Commission dated 15.07.2010.
6. Heard Mr. Rao, learned counsel appearing on behalf of the appellant and respondent
No.2 and Mr. K.K. Kishore, learned counsel appearing on behalf of the respondent
No.1, at length.
7. Mr. Rao has tried to persuade us that the judgment of this Court in the case of V.
Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. (supra), has erroneously
declared the earlier judgment of this Court in the case of Martin F. D'Souza Vs. Mohd.
Ishfaq (supra) as per incuriam, on a misconception of the law laid down by a threeJudge Bench of this Court in Jacob Mathew Vs. State of Punjab & Anr., (2005) 6 SCC 1.
We are not inclined to accept the submission made by Mr. Rao. The judgment in Jacob
Mathew (supra) is clearly confined to the question of medical negligence leading to
criminal prosecution, either on the basis of a criminal complaint or on the basis of an
FIR. The conclusions recorded in paragraph 48 of Jacob Mathew (supra) leave no
manner of doubt that in the aforesaid judgment this Court was concerned with a case of
medical negligence which resulted in prosecution of the concerned doctor under Section
304A of the Indian Penal Code. We may notice here the relevant conclusions which are
summed up by this Court as under:
"(5) The jurisprudential concept of negligence differs in civil and criminal law. What may
be negligence in civil law may not necessarily be negligence in criminal law. For
negligence to amount to an offence, the element of mens rea must be shown to exist.
For an act to amount to criminal negligence, the degree of negligence should be much
higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a
higher degree may provide a ground for action in civil law but cannot form the basis for
prosecution.
(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in
criminal law negligence or recklessness, to be so held, must be of such a high degree
as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of
the IPC has to be read as qualified by the word 'grossly'.
(7) To prosecute a medical professional for negligence under criminal law it must be
shown that the accused did something or failed to do something which in the given facts
and circumstances no medical professional in his ordinary senses and prudence would
have done or failed to do. The hazard taken by the accused doctor should be of such a
nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law
specially in cases of torts and helps in determining the onus of proof in actions relating
to negligence. It cannot be pressed in service for determining per se the liability for
negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited
application in trial on a charge of criminal negligence."
8. The guidelines in Paragraph 48 were laid down after rejecting the submission that in
both jurisdictions i.e. under civil law and criminal law, negligence is negligence, and
jurisprudentially no distinction can be drawn between negligence under civil law and
negligence under criminal law. It was observed that :"12.................................................................................. The submission so made cannot
be countenanced inasmuch as it is based upon a total departure from the established
terrain of thought running ever since the beginning of the emergence of the concept of
negligence up to the modern times. Generally speaking, it is the amount of damages
incurred which is determinative of the extent of liability in tort; but in criminal law it is not
the amount of damages but the amount and degree of negligence that is determinative
of liability.
To fasten liability in criminal law, the degree of negligence has to be higher than that of
negligence enough to fasten liability for damages in civil law. The essential ingredient of
mens rea cannot be excluded from consideration when the charge in a criminal court
consists of criminal negligence. 28. A medical practitioner faced with an emergency
ordinarily tries his best to redeem the patient out of his suffering. He does not gain
anything by acting with negligence or by omitting to do an act. Obviously, therefore, it
will be for the complainant to clearly make out a case of negligence before a medical
practitioner is charged with or proceeded against criminally.
A surgeon with shaky hands under fear of legal action cannot perform a successful
operation and a quivering physician cannot administer the end-dose of medicine to his
patient. 29. If the hands be trembling with the dangling fear of facing a criminal
prosecution in the event of failure for whatever reason - whether attributable to himself
or not, neither can a surgeon successfully wield his life-saving scalpel to perform an
essential surgery, nor can a physician successfully administer the life-saving dose of
medicine. Discretion being the better part of valour, a medical professional would feel
better advised to leave a terminal patient to his own fate in the case of emergency
where the chance of success may be 10% (or so), rather than taking the risk of making
a last ditch effort towards saving the subject and facing a criminal prosecution if his
effort fails. Such timidity forced upon a doctor would be a disservice to society."
9. The aforesaid observations leave no manner of doubt that the observations in Jacob
Mathew (supra) were limited only with regard to the prosecution of doctors for the
offence under Section 304A IPC.
10. The aforesaid observations and conclusions leave no manner of doubt that the
judgment rendered by a two-Judge Bench of this Court in the case of Martin F. D'Souza
(supra) has been correctly declared per incuriam by the judgment in V. Kishan Rao
(supra) as the law laid down in Martin F. D'Souza (supra) was contrary to the law laid
down in Jacob Mathew (supra).
11. In view of the above, we are of the opinion that the conclusions recorded by the
National Commission in the impugned order does not call for any interference. The civil
appeals are dismissed.
...................................J. [Surinder Singh Nijjar]
...................................J. [Anil R. Dave]
New Delhi;
January 09, 2013.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 270 OF 2006
(Against the order dated 16.03.2006 in C.D. No. 41 of 2001 of the A.P. State Consumer
Disputes Redressal Commission, Hyderabad)
Yashoda Super Speciality Hospital Represented by its Managing Partner Somajiguda,
Raj Bhavan Road Hyderabad, A.P.
…
Appellant
Versus
1. Smt. A. Subbalakshmi W/o Late Shri G. Ramakistaiah R/o H.No. 12-12-76, Ravindra
Nagar Sethaphalmandi Secundrabad-500061 (A.P.)
2. New India Assurance Co. Ltd. Divisional Office 5-2-174/2, Madan Mohan Buildings
R.P. Road Secundrabad, A.P.
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants
: Mr. Y. Raja Gopala Rao, Advocate with
Mr. Hitendra Nath Rath, Advocate
For Respondent
: NEMO for R-1
Mr. Salil Paul, Advocate for R-2
Pronounced on 15th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This appeal has been filed by Yashoda Super Speciality Hospital, Hyderabad
(hereinafter referred to as the appellant-hospital) being aggrieved by the order of the
A.P. State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred
to as the State Commission), which partially allowed the complaint of medical
negligence and deficiency in service filed against them by Smt. A. Subbalakshmi,
respondent no.1 herein and original complainant before the State Commission.
FACTS :2.
In her complaint before the State Commission, respondent no.1 had contended
that her late husband (hereinafter referred to as the patient), who was a Senior
Accountant in the Accountant General’s office, had a minor fall from his bed while
sleeping and approached the Central Government Health Scheme (CGHS) dispensary
with a complaint of muscular pain on the right side near the shoulder. The medical
examination revealed slight tenderness and swelling on the right shoulder blade region,
for which he was advised to consult an orthopedic surgeon. Patient thereafter got
admitted in the appellant-hospital and the medical examination conducted by the
orthopedic surgeon revealed that there was no orthopedic defect but there was some
congestion on the nerve shoulder region which was fixed with collar and sling so as not
to disturb the position. Respondent no.1 noted that on 18.04.2000 the eyes of her
husband were yellowish, which was indicative of jaundice and she informed the
concerned doctors. It was only two days later that a blood test was conducted, which
indicated that moderate jaundice was prevalent. According to respondent no.1, around
5.00 p.m. on 20.04.2000 her husband complained of breathlessness and a feeling of
uneasiness and when she informed the doctor and nurses on duty, they were very
casual and administered an injection to the patient late in the evening but his condition
deteriorated. It was, therefore, decided to shift him to the Intensive Care Unit but there
was delay in doing so because no stretcher or wheelchair was available and ultimately
he was taken to the Intensive Care Unit at 8.50 p.m. and expired there at 10.00
p.m. According to respondent no.1, if her husband had been given proper and prompt
medical treatment and necessary precautionary measures taken, including immediate
treatment for jaundice, during his stay in the appellant-hospital, his premature death
could have been avoided. Being aggrieved she issued a legal notice on grounds of
medical negligence to appellant-hospital as well as the treating doctor claiming a sum of
Rs.10,50,000/- as compensation but to no avail. Therefore, respondent no.1 filed a
complaint before the State Commission requesting that appellant-hospital and the
treating doctor be jointly and severally directed to pay her Rs.10,60,000/- as
compensation for mental pain and torture, medical expenses, legal & miscellaneous
expenses and interest @ 24% per annum from 14.08.2000.
3.
Appellant-hospital on being served filed a written statement denying the above
allegations. It was contended that as soon as the patient approached appellanthospital with complaints of pain on the shoulder etc. on 14.04.2000, he was immediately
examined by a consultant orthopedic surgeon, who confirmed that there was no fracture
but only an injury to the soft tissue around the shoulder. He was admitted into the
hospital and was treated for the same and a cuff and collar was put on him and he was
advised rest. Since the patient had diabetes, medicines were also prescribed for the
same and special care was taken to check the sugar level as also blood pressure
etc. As a result of the medical treatment given to him, the pain on the right shoulder
considerably
subsided
and
it
was
planned
to
discharge
this
patient
on
21.04.2000. However, on 19.04.2000 when the patient developed yellowish colouration
of the eyes, he was examined by Dr. M.V. Rao, a Physician, and a Liver Function Test
conducted confirmed the jaundice, for which he was given due treatment. On
20.04.2000, when the patient complained of breathlessness and sweating, he was
immediately shifted to the Acute Medical Care Unit and a cardiologist attended to him,
wherein he was diagnosed with acute myocardial infarction, for which he was given
treatment, including cardio pulmonary resuscitation. He was also put on the ventilator
but despite the best efforts, he died at 10.00 p.m. The death of the patient occurred due
to the sudden myocardial infarction, which is quite common in diabetic patients and,
therefore, his death could not be attributed to any medical negligence on the part of the
appellant-hospital/doctors. Therefore, the complaint made by respondent no.1 of
medical negligence and deficiency in service against appellant-hospital was baseless.
4.
The State Commission, after hearing the parties and on the basis of evidence filed
before it, concluded that so far as the orthopedic problem of the patient was concerned,
he was treated with reasonable care and caution and, therefore, no case of medical
negligence against respondent no.2 i.e. the specialist doctor was established and also
consequently respondent no.3, the New India Assurance Co., with which he was
insured. However, the State Commission found appellant-hospital guilty of not taking
due care and giving prompt treatment to the patient. In this connection, the relevant
part of the State Commission’s observation is as under :“… There are many unanswered questions with respect to cause of death
whether it can be Pulmonary embolism or Myocardial Infraction which only
the opposite parties can answer but they have not chosen to do so either
in their counter, affidavits, discharge summary or case sheet, but only
came up with this plea of Myocardial Infraction during
arguments. Therefore, we are of the considered opinion that though
opposite party No.2 treated the patient with reasonable care and caution
so far as orthopaedic problem is concerned, we are of the view that
opposite party No.1 hospital did not take due care and precaution by
giving prompt treatment to the patient. The patient joined the hospital on
14-4-2000 complaining of right shoulder pain and was put on a cuff and
colar and was admittedly to be discharged on 18-4-2000. On 20-4-2000
he developed breathlessness and at 5.00 p.m. as per the complainant’s
version and at 7.45 p.m., as per the version of the opposite parties. It is
pertinent to note that there is a visible correction in the timings on page –
26 of the case sheet which has not been initialed or signed. Post mortem
report could probably have confirmed the factors leading to the cause of
death, however no post mortem was insisted on by the complainant or his
relatives and therefore, the compensation being awarded is a nominal
amount. It is the case of the complainant that the doctors and nursing
staff were not alert enough immediately when the breathlessness
developed. The patient was already admitted in the hospital for shoulder
pain five days prior to the attack of breathlessness and the burden lies on
the hospital to prove that they were alert enough and attended to him
immediately. …”
5.
The State Commission, therefore, directed appellant-hospital to pay a sum of
Rs.2,00,000/- with interest @ 9% per annum from the date of filing of complaint i.e.
14.03.2001 till the date of realization within six weeks, failing which the said sum would
attract interest @ 9% per annum together with costs of Rs.5000/-. Hence, the present
first appeal.
6.
Learned counsel for both the parties made oral submissions.
7.
Learned counsel for the appellant-hospital stated that the State Commission erred
in concluding that it was guilty of medical negligence and deficiency in service. In fact,
immediately on patient’s admission, all the necessary diagnostic tests like x-ray, ECG
etc. were conducted and there was no indication of any heart problem since the ECG
was normal. However, since the patient was a known case of diabetes, he was
prescribed medication to control his sugar levels. His injury was also properly treated by
a specialist orthopedic doctor and thereafter his condition continued to be carefully
monitored and had improved. On 20.04.2000, around 8.00 p.m. (and not 5.00 p.m. as
contended by respondent no.1) when the patient developed breathlessness and
sweating, which was a sudden complication, he was immediately referred to a
cardiologist, who attended to him within ten minutes. Thereafter, he was shifted to the
Intensive Care Unit within twenty minutes and put on a ventilator around 8.30 p.m. The
relatives of the patient were also informed about his critical medical condition and poor
prognosis. A team of doctors put in their best efforts to save the life of the patient but
unfortunately failed to do so. The sudden heart attack was neither due to negligence of
the doctors or administration of any wrong medicine. Thus, the appellant-hospital
cannot be held to be guilty for the unfortunate death, which occurred despite the best
possible treatment as per standard procedures.
8.
Counsel for respondent no.1 on the other hand stated that the appellant-hospital
took the plea that the patient died of a myocardial infarction only at the argument stage
before the State Commission. This fact was not mentioned either in the death report or
in the medical history of the patient filed before the State Commission. There was no
evidence that an ECG was conducted and the appellant’s explanation that the ECG and
its findings had faded away with the passage of time lacks credibility. The patient was
under the treatment and care of the appellant-hospital for six days and because they did
not properly monitor his condition, it deteriorated with the onset of jaundice and other
complications for which the State Commission rightly held it responsible for medical
negligence and deficiency in service.
9.
We have heard learned counsel for both parties and have carefully gone through
the evidence on record. The fact that the patient was admitted after a fall in his sleep to
the appellant-hospital, wherein he was treated by opposite party no.2, is not in
dispute. It is further a fact that six days after his admission in the hospital, patient
developed breathlessness and severe uneasiness and he was examined by a
cardiologist and shifted to the Intensive Care Unit, where he passed away. The
appellant-hospital has sought to explain the cause of his death as a result of sudden
myocardial infarction. However, we note (as also observed by the State Commission)
that this fact has not been recorded either in the case history or death certificate of the
patient. Further, appellant-hospital’s contention that an earlier ECG conducted on the
patient did not indicate any abnormality is also not available on the record. When
specifically asked by us if there was any proof of the same, learned counsel for the
appellant-hospital stated that it was very much a part of the case history and related
papers filed before the State Commission but unfortunately the ECG image as also the
observations recorded on it were not visible since these had faded away. We agree
with the State Commission that this is not a plausible explanation. We further agree
with the finding of the State Commission that the appellant-hospital has not been able to
satisfactorily explain as to what caused the death of the patient, which leaves many
unanswered questions, including whether he was given prompt and adequate treatment
by the appellant-hospital.
10.
In view of these facts, we see no reason to interfere with the order of the State
Commission and uphold the same. This first appeal stands dismissed. The appellanthospital is directed to pay respondent no.1 a sum of Rs.2,00,000/- with interest @ 9%
per annum from the date of filing of the complaint i.e. 14.03.2001 till payment along with
litigation cost of Rs.5000/-.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
(FIRST APPEAL NO.387 OF 2007)
(From the order dated 19.03.2007 in CC No.127/1999
of the State Commission, Gujarat)
……Appellant(s)
Kersi F.Dalal
Versus
……Respondent(s)
Dr.Janak K.Mehta & Ors.
BEFORE:
HON’BLE MR.JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS.VINEETA RAI, MEMBER
For the Appellant (s)
For the Respondent (s)
:
Mr.S.J.Mehta, Advocate
:
Dr.Sushil Kr.Gupta, Advocate for R-1
and R-2.
Pronounced on 15th January, 2013
ORDER
PER VINEETA RAI, MEMBER
This revision petition has been filed by Kersi F. Dalal(hereinafter referred to as
the ‘Appellant’) being aggrieved by the order of the State Consumer Disputes Redressal
Commission, Gujarat(hereinafter referred to as the ‘State Commission’) which had
dismissed his complaint of medical negligence filed against Dr.Janak K.Mehta and
Dr.Jayesh J.Shah, Respondents No.1 and 2 herein. The National Insurance Co.Ltd. is
Respondent No.3 in this case.
In his complaint before the State Commission, Appellant, a practicing Advocate,
who had also earlier been treated by Respondent No.1, consulted him on 07.01.1997
with complaints of feeling feverish with abdominal pain. He was given a course of
antibiotic injections for 4 days but instead of getting relief, his fever rose to 104 FH and
his stomach became very distended and he also started vomiting. In spite of this,
Respondent No.1 without trying to find out the cause of his multiple medical complaints,
did not advise any pathological or other examination e.g. X-ray, stool examination
etc. and instead he referred the Appellant to Respondent No.2 who conducted a
sonography twice but could not get a good image. During this procedure, two big straps
were tightly tied across appellant’s stomach which caused him extreme distress. As a
result of the defective sonography, Appellant’s ailments could not be properly diagnosed
and the infection spread into the stomach. Respondent No.1 instead of treating him for
this condition, asked him to go to Patwa Nursing Home to an unknown doctor. It was
only another senior surgeon whom the Appellant consulted in the late evening, who
advised him to immediately get admitted into the hospital and be put on a saline drip
prior to an emergency operation for appendicitis. The saline drip which was fixed by
Respondent No.1 was done so carelessly that Appellant’s biceps and forearm became
swollen upto three times. It was with difficulty that the Appellant managed to get a ticket
to Pune and got admission in Jehangir Nursing Home where he underwent a 3½ hours
surgery and had to stay there for 4 months undergoing extreme mental agony as also
substantial expenditure on boarding, lodging as also on medical treatment. Besides,
Appellant’s profession also suffered due to his inability to regularly attend to his
clients. Being aggrieved by the treatment and medical negligence on the part of
Respondents No.1 and 2, Appellant filed a complaint before the State Commission and
requested that they be directed to jointly and severally pay him compensation of Rs.10
lakhs with interest @ 18% per annum, Rs.30,000/- as costs and any other damages as
considered appropriate.
On being served, Respondents filed written statements before the State
Commission
challenging
the
allegations
made
against
them
by
the
Appellant. Respondent No.1 contended that he had a Degree in Medicine and is fully
qualified as a General Medical Practitioner who had been practicing medicine for
several decades and had been the family doctor of the Appellant for about 2
decades. On 07.09.1997 on a request from the Appellant, he visited him and noted that
he had complaints of watery diarrhea, vomiting and mild pain on the left side of the
lower abdomen. Respondent No.1 thoroughly examined him and gave him two
injections i.e. Gentamicin and Ranitin and also prescribed oral medication. The
Appellant’s general condition was satisfactory. His blood pressure was 140-90 and
there was no distension of the abdomen and his fever was 99 Deg.FH. He was advised
liquid diet. In the evening, Appellant phoned the Respondent No.1 and requested that
since he does not want to take oral drugs, he may be given injection and a drip. On
08.09.1997 when Respondent No.1 again examined appellant, he had only mild fever
and pain and no diarrhea. However, he was put on an IV drip slowly for one hour and
after examination his pulse rate, blood pressure etc. was found to be normal and his
general condition continued to be good. In this way, he was given conservative
treatment to manage his minor medical complaints. On 10.09.1997, Appellant
continued to complain of vague pain and Respondent No.1, therefore, advised him to
consult Dr. Rahul Thakore, a senior surgeon, for further investigations. Dr.Thakore
gave Appellant an appointment for 5.15 pm and Respondent No.1 also accompanied
the Appellant to Dr.Thakore who after examining him advised the sonography and X-ray
to be done at the clinic of Respondent No.2. The sonography was satisfactorily
conducted and after seeing the two reports, Dr.Thakore immediately advised the
Appellant to get admitted in Patwa Nursing Home where surgery may be
required. However, the Appellant did not get himself admitted there and instead
requested the Respondent No.1 to give him a drip which was done. There was
however no swelling on the Appellant’s forearm or biceps. It was contended that
Respondent No.1 had medically treated the Appellant as per the standard medical
practice and used his best professional skills. It was Appellant who did not heed the
medical advice for which Respondent No.1 cannot be held responsible. Respondent
No.2 also denied that he had conducted a defective sonography. He contended that he
is a qualified Radiologist and Sonologist and has a post-graduate degree in
Radiology. He had used the best available equipment for conducting the sonography
and the same was satisfactorily done. It was specifically denied that any flaps or straps
were tied on the abdomen of the Appellant. In fact, when the sonography of the
abdomen is performed there cannot be any obstruction between the machine and the
skin of the patient and therefore, the question of putting any obstruction like a flap did
not arise. The State Commission after hearing the parties and on the basis of the
evidence produced before it, dismissed the complaint by observing as under:
“There is nothing oral or written on record or evidence to suggest that treatment given to
Mr.Dalal was incomplete, inappropriate or wrong. Mere say of Mr.Dalal (in absence of
any documentary or oral evidence) cannot be accepted as truth. Mr.Dalal had ample
time and opportunity to bring forth the evidence to substantiate the claim, but sadly
complainant has failed to avail it. As far as opponent No.1 Dr.Mehta is concerned,
though Mr.Dalal was not serious (as indicated by records showing his physical condition
and vital data) Dr.Mehta showed indulgence to take him to Dr.Thakore for
consultation. Dr.Shah for sonography and put I/V drip at home. These acts in itself will
suggest that he exercised due care expected of him. As far as treatment in form of
medicine is concerned nothing indicates that the medicines given were wrong or
inappropriate done o that medicine had harmed Mr.Dalal. As far as Dr.Thakore’s
management is concerned, Mr.Dalal chose to ignore his advice to get hospitalized for
treatment and chose to go to Pune of his own sweet will for further treatment. We do
not have records of medical management of said treatment at Pune on
record……………..Dr.Shah against whom allegations of poor quality of x-ray &
sonography are not proved; Mr.Dalal has not only not produced the film nor an opinion
on that film. Dr.Shah also rules out as physical impossibility to put straps tightly or for
that matter even to put the strap as then sonography will not be possible, but in fact he
did sonography further suggesting non-putting of strap. Mr.Dalal has not shown us how
Dr.Shah’s report are wrong or his machineries were outdated, not even challenged the
same in written statement of Dr.Shah or his evidence.”
Hence, the present First Appeal.
Learned Counsel for both parties made oral submissions. Learned Counsel for
Appellant reiterated the medical negligence and deficiency in service on the part of both
Respondents No.1 and 2 and stated that the main complaint against Respondent No.1
was that without conducting any diagnostic tests including a stool examination, he gave
him medical treatment which actually worsened his condition. He also reiterated that
the sonography conducted by Respondent No.2 was not clear and undue agony and
pain was caused to him by putting straps on his distended abdomen during the
procedure which the State Commission failed to take note of. It was also reiterated that
the patient actually suffered from appendicitis which could have been easily diagnosed
if he was given proper medical attention including a proper sonography. Instead, a
wrong diagnosis was made and it was only at Pune when the Appellant’s condition
deteriorated that he was immediately detected with appendicitis and a surgery had to be
performed. It was prayed that because of the mental agony and harassment as also the
financial hardship and loss caused to the Appellant, compensation of Rs.10 lakhs was
reasonable and justified.
Learned Counsel for Respondent on the other hand stated that the clinical
condition of the Appellant was carefully assessed after due examination he was given
conservative treatment as warranted during the first 3 days. Thereafter, when the
complaints persisted, Appellant was advised to consult a specialist surgeon and in fact
Respondent No.1 not only fixed the appointment but also accompanied him to the
surgeon who advised diagnostic tests including a sonography which was properly
conducted by Respondent No.2 who had a post-graduate degree in Pathology and was
fully qualified to conduct the same. It was the Appellant who erred in rejecting the
medical advice to get himself admitted in the hospital and instead rushed to Pune for
further treatment. There was, therefore, no deficiency in service on the part of the
Respondents.
We have heard learned Counsel for both parties and have gone through the
evidence on record. The fact that the Appellant consulted Respondent No.1 with
complaints related to his abdomen with nausea and related problems is not in
dispute. It is also a fact that Respondent No.1 who was a qualified doctor after
examining the Appellant decided to treat him conservatively since the parameters
relating to his blood-pressure, temperature and the condition of the stomach was not
unduly abnormal. There is nothing on record produced by the Appellant, on whom there
was onus to do so, to support his contentions that he had very high temperature and
other severe problems. We further note that when the Appellant’s condition remained
the same with the lower abdominal pain continuing, he was immediately referred to a
specialist surgeon and then a qualified Radiologist for conducting the required
diagnostic tests which included sonography and X-ray. Appellant has made certain
allegations against Respondent No.2/Radiologist pertaining to the quality of the
sonography conducted by him. However, again there is nothing on record to support
this contention. In fact, the sonography and diagnostic test reports were seen by a
specialist surgeon who advised hospitalization since there was a possibility of
surgery. The Appellant, however, chose not to get admitted to the hospital and instead
went to Pune for treatment. These facts have also been confirmed by the State
Commission as a first court of fact.
What constitutes medical negligence is now well established [Jacob Mathew v.
State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be
followed: (i) Whether the doctor in question possessed the medical skills expected of an
ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor
adopted the practice (of clinical observation diagnosis – including diagnostic tests and
treatment) in the case that would be adopted by such a doctor of ordinary skill in accord
with (at least) one of the responsible bodies of opinion of professional practitioners in
the field and (iii) whether the standards of skills/knowledge expected of the doctor,
according to the said body of medical opinion, were of the time when the events leading
to the allegation of medical negligence occurred and not of the time when the dispute
was being adjudicated.
Applying these principles to the present case, we see no reason to disagree with
the order of the State Commission, which had concluded that there was no deficiency in
service or medical negligence in the treatment of the appellant, which was done by wellqualified doctors using their best professional judgment and skills to treat the patient
after conducting the necessary diagnostic and clinical tests. The appellant has not been
able to produce any credible evidence, including documentary or expert evidence to
contradict or controvert these facts. We, therefore, uphold the order of the State
Commission in toto and dismiss this first appeal. No costs.
Sd/(ASHOK BHAN J.)
PRESIDENT
/sks/
Sd/(VINEETA RAI)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2106 OF 2008
(From the order dated 08.02.2008 in Appeal No. 367/2002
of Gujarat State Consumer Disputes Redressal Commission)
Parvatiben Bhimjibhai Rathod Resides at : Shiv Shakti Society-2; Plot No.
41, Bhavnagarpara: Bhavnagar
……. Petitioner
Versus
1. Dr. Shivkumar Chandra Shekhar Resides at Bhajrangdas Hospital
Panwadi; Bhavnagar
2. Trustee, Bhajrangdas Hospital Panwadi; Bhavnagar
…. Respondents
REVISION PETITION NO. 2112 OF 2008
(From the order dated 08.02.2008 in Appeal No. 837/2006 of Gujarat State Consumer
Disputes Redressal Commission)
Parvatiben Bhimjibhai Rathod Resides at : Shiv Shakti Society-2; Plot No.
41, Bhavnagarpara: Bhavnagar
……. Petitioner
Versus
1. Dr. Shivkumar Chandra Shekhar Resides at Bhajrangdas Hospital
Panwadi; Bhavnagar
2. Trustee, Bhajrangdas Hospital Panwadi; Bhavnagar
…. Respondents
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner(s)
Ms. Surekha Raman, Amicus Curiae
For the Respondent-1
Mr. Sumit Bhatia, Advocate
For Respondent-2
Mr. Nikhil Goel, Advocate
PRONOUNCED ON : 16th JAN. 2013
ORDER
PER SURESH CHANDRA, MEMBER
Both these revision petitions have been filed against the common order dated
08.02.2008 by which the Gujarat State Consumer Disputes Redressal Commission (for
short ‘the State Commission’) dismissed Appeal No. 837 / 2006 filed by the petitioner for
enhancement in the amount of award passed by the District Forum and accepted the
Appeal No. 367 / 2002 filed by the respondent no. 1 for setting aside the order of the
District Forum passed on 11.02.2002. They are being disposed off by this common
order.
2.
Both the revision petitions have been filed by the original complainant and the
respondents in both these revision petitions were opposite parties 1 & 2 respectively
before the District Forum. For the sake of convenience, the parties hereto have been
referred to as the complainant and the opposite parties.
3.
Briefly stated, the complainant, who is a resident of Bhavnagar earns her
livelihood by engaging herself in miscellaneous labour work. As she had to undergo a
cataract operation of left eye, she was admitted in the OP No. 2 hospital in which OP
No. 1 is an eye surgeon. It is not in dispute that she paid the fee for her admission and
charges demanded by the hospital. It is alleged by the complainant that there was
negligence on the part of the OP Doctor while administering the anaesthesia injection
into her eye which caused damage to it and even though she was rushed to Civil
Hospital, Ahemdabad by taxi, theDoctor there informed her that due to serious mistake
of the OP Doctor, the damage to the eye of the complainant could not be
restored. Alleging carelessness on the part of the OP Doctor while carrying out the
operation, the complainant knocked the doors of Consumer Fora by lodging a complaint
with the District Forum, Bhavnagar. On notice, the Opposite Parties resisted the
complaint. On appraisal of the issues and the evidence placed before it and after
hearing the parties, the District Forum vide its order dated 11.02.2002 accepted the
complaint and awarded an amount of Rs.25,000/- by way of compensation with interest
@12% p.a. from the date of complaint till its actual payment. Aggrieved by this order,
the opposite parties challenged the same before the State Commission by filing appeal
for its dismissal. The complainant also filed another appeal praying for enhancement in
the amount of the award. The State Commission by its impugned order, as stated
above, accepted the appeal of the opposite parties and set aside the order of the
District Forum. Accordingly, the appeal of the complainant for enhancement was also
dismissed by the impugned order.
4.
We have heard Ms. Surekha Raman, Advocate who was appointed as Amicus to
assist this Commission on behalf of the petitioner / complainant and Mr.Sumit Bhatia,
Advocate for the respondent no. 1 and Mr. Nikhil Goel, Advocate for respondent no. 2.
We have also perused the record placed before us.
5.
It was contended by learned Amicus that the facts of this case which are not in
dispute would indicate that sufficient care was not taken by the OP Doctor in carrying
out the surgery in question particularly while administering the anaesthesia
injection. She submitted that looking at the status and background of the complainant
who was a petty labourer and a poor villager, it should have been kept in view by the
OP Doctor that adequate care was taken to avoid any likely mishap since it was a
delicate matter when the anaesthesia injection was to be administered into the eye of
the complainant. Admittedly, not only once but in the second attempt also there was
shaking of the head and / or hand of the complainant when the injection was being
administered into the eye by the OP Doctor. She submitted that as a professional
engaged in the surgery of the eyes, he should make sure that the hands and the head
were held by the attending staff present in the operation theatre, particularly when the
second attempt was made by OP Doctor for administering injection. In the
circumstances, the negligence was writ large and no further expert opinion is required in
the matter to prove the negligence on the part of the Opposite Parties. She further
submitted that looking to the overall facts and circumstances of this case, the District
Forum had rightly awarded compensation of Rs.25,000/- with interest in favour of the
complainant and the same should, at least, have been upheld by the State Commission
rather than dismissing the complaint altogether. She, therefore, submitted that there is
a fair case for upholding the order of the District Forum by setting aside the impugned
order.
6.
On the other hand, counsel for the OP Doctor has submitted that the damage to
the eye was caused on account of the mistake on the part of the complainant when she
did not follow the instructions given by the Doctor and moved her head and hand which
resulted in the damage to her eye. He submitted that at worst, it could be regarded as a
case of contributory negligence for which OP Doctor could not be held liable for
compensation while discharging his professional functions to the best of his
capabilities. He, therefore, submitted that there is no force in the revision petition and
the same is liable to be dismissed. Learned counsel for the respondent no. 2 did not
have anything further to add in the matter.
7.
We have considered the rival contentions. Perusal of the O.T. notes and the
written statement filed by the OP before the District Forum confirm that there was
movement of head and hand both the times during the administration of anaesthesia
injection by the OP Doctor. The District Forum in its order has observed that the
incident of disturbance during administration of anaesthesia injection took place thrice in
this case which indicates that the Doctor has not taken care in respect of what could
happen in such a situation because of general human nature / behaviour and the
incident which took place was uncalled for and improper. In the given facts and
circumstances of this case, we agree with the view taken by the District Forum. The
State Commission apparently erred while treating it as “an unfortunate accident” for
which it did not hold the OP Doctor as being negligent or deficient in service while
dismissing the complaint. We are of the considered view that the finding returned by
the District Forum was fair and just and hence confirm the same except to the extent
that the interest @12% p.a. is on the higher side and hence in the given circumstances
we reduce the same to 6% p.a. from the date of the complaint, i.e., 2.08.1997 till its
actual payment.
8.
Revision Petitions are thus, partially accepted and disposed off in above
terms. There shall be no order as to costs.
..……………Sd/-………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………Sd/-………………
(SURESH CHANDRA)
MEMBER
RS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 692 of 2006
(Against the order dated 31.08.2006 in Complaint Case No. C-21/95 of the
State Consumer Disputes Redressal Commission Delhi)
Devinder Singh
Gupta
S/o
Late Shri B.L.
Gupta
Resident
of H.No. I-4
Mandir Wali Gali No.10 Brahampuri, Delhi-53 Presently at Pocket F, 56-D, MIG Flats,
GTB Enclave Dilshad Garden Delhi-93
…
Appellant
Versus
Dr. Vivek Pal Navjyoti Eye Centre 53, Daryaganj New Delhi-11002
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For Appellant
: Mr. Santosh Kumar, Advocate
For Respondent
: Ms. Anu Narula, Advocate
Pronounced on 16th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by Devinder Singh Gupta, the original complainant
before the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred
to as the State Commission) and Appellant herein, being aggrieved by the lesser
compensation awarded to him by the State Commission in respect of his complaint of
medical negligence against Dr. Vivek Pal, Respondent herein.
FACTS :2.
In his complaint before the State Commission, Appellant had stated that following
a minor complaint of a cosmetic nature in his left eye he consulted Respondent, who
was an eye surgeon, in his clinic in Daryaganj in June, 1993, who after examining him
informed that he was suffering from an innocuous growth known as Pytreygium and
since there was likelihood that the growth may increase excision was advised through a
minor surgery, which would ensure that the Appellant’s eye would become normal
within five days. Appellant, therefore, agreed to undergo this surgery, which was
conducted in October, 1993 in Respondent’s clinic at Masjid Moth, New Delhi and he
was
thereafter
prescribed
medicines
for
both
local application,
which
included Mitomycine-C, as also oral medication. However, soon after Appellant’s left
eye became red and there was acute pain and irritation, which persisted, and, therefore,
he consulted the Respondent, who assured him that if he continues to regularly
use Mitomycine-C, his eye would become normal. However, during the course of using
this medicine, Appellant’s eye further deteriorated and became very dry and there was
loss of vision in that eye. Appellant complained about this to Respondent, who changed
the medicine, which only further aggravated the condition. Appellant, therefore,
consulted another ophthalmologist Dr. G.C. Mukherjee, who informed him that his left
eye had become very dry due to wrong prescription of Mitomycine-C and he was
advised to consult Dr. P. Vishwanathan Gopal atGeetanjali Hospital, New Delhi, who
confirmed that the eye had got damaged due to prolonged use of MitomycineC. Appellant thereafter went to All India Institute of Medical Science, New Delhi, where
this diagnosis was confirmed by a Cornea Specialist-Dr. Anita Panda. He was advised
to stop using all the medicines, including Mitomycine-C. Being aggrieved because of
the medical negligence and deficiency in service on the part of Respondent, because of
which the Appellant’s eye became dry, he issued a legal notice to Respondent to pay
him Rs.10 Lakhs as compensation but received no response. Appellant, therefore,
approached the State Commission with a complaint of medical negligence and
deficiency in service against Respondent and requested that he be directed to pay
Rs.10 Lakhs as damages and compensation since there was total loss of vision in
Appellant’s left eye, which had adversely affected both his professional and personal
life, as also any other relief as deemed appropriate.
3.
Respondent on being served filed a written rejoinder denying the above
allegations, which he termed as false, frivolous and vexatious. It was contended that
Appellant approached him with a condition known as Pytreygium, which is a growth of
extra skin and if it reached the pupil area of the eye, it could permanently hamper the
Appellant’s vision. Surgery was, therefore, necessary, which was satisfactorily
conducted. Appellant, thereafter advised both oral medication as also medicine through
local application and a week later when the healing of the Appellant’s eye was
completed, he was advised to useMitomycine-C for two weeks since this was necessary
to prevent recurrence of Pytreygium. This medicine, which comes in the form of
injection, was converted into eye drops for use three times a day and Appellant was
verbally told that over use of this medicine for more than two weeks is
harmful. Unfortunately, Appellant did not heed this advice and instead of coming back
for a further check up appears to have continued using Mitomycine-C and taking
treatment from various other doctors as per his own whim and fancy. It was only on
03.03.1994 i.e. after over four months that Appellant visited the Respondent and told
him that he was still continuing the use of Mitomycine-C. Respondent immediately
asked him to discontinue the same and to come back after 15 days. Appellant again did
not heed this advice and consulted Respondent after three months i.e. on 22.06.1994
when he was prescribed natural tear drops and lacritubeointment. A perusal of these
facts clearly indicate that it was the Appellant who was responsible for the damage
caused to his left eye by prolonged use ofMitomycine-C on his own volition and against
medical advice given by Respondent. There was, therefore, no deficiency in service or
medical negligence of Respondent.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it held the Respondent guilty of “limited negligence” by not advising the
Appellant in writing to use Mitomycine-C only for a particular limited period. The
relevant part of the order of State Commission reads as follows :
“28. By not prescribing in writing in the prescription that
medicine Mitomycine-C should be used, at first instance, only for two
weeks to O.P. has committed an offence of limited medical negligence as
complainant also cannot be excused for contributory negligence by not
approaching the treating Doctor after few days and hopping from one
Doctor to another and continued using the medicine for long resulting in
dry-eye syndrome causing loss of vision in the eye.
29. OP is guilty of this limited medical negligence amounting to
deficiency in service due to which the complainant has lost his vision of
one eye though he can also be not absolved from contributory negligence
which is a mitigating circumstance for awarding compensation.”
5.
The State Commission, therefore, held that a lump-sum compensation of
Rs.50,000/- to the Appellant would meet the ends of justice.
6.
Being aggrieved by the lesser compensation, the present first appeal has been
filed.
7.
Learned counsel for both parties made oral submissions.
8.
Learned counsel for the Appellant contended that the State Commission erred in
holding the Respondent guilty of only limited medical negligence and on the other hand
holding the Appellant guilty of “contributory negligence” by not following the advice of
Respondent. In fact, following the surgery the Appellant did visit the Respondent doctor
for further check-up prior to 03.03.1994. According to Appellant, Respondent had
prescribed him Mitomycine-C on 18.10.1993 and the prescription did not indicate either
the duration for taking the medicine or its possible harmful side effects. The Appellant
was also not advised when he should come back for a follow up check. Further, when
the Appellant visited the Respondent on 03.03.1994 with a serious complaint regarding
his operated eye, Respondent again sought to hide the correct facts by recording that
the condition of appellant’s eye as also the vision was normal whereas by then he had
already started losing his eyesight and he was having acute pain in his eye because of
which he was constrained to approach other doctors, who advised the Appellant to
immediately stop the use of Mitomycine-C. It was these doctors who informed him that
the problem in his left eye had occurred due to over use of Mitomycine-C, which should
not have been used for more than two weeks. Counsel for the Appellant further stated
that the conduct of the Respondent was suspect before the State Commission as is
evident from the fact that he did not produce the necessary documents on the ground
that these had been destroyed in a fire. Because of the medical negligence and
callousness on the part of Respondent, Appellant lost the vision in his left eye causing
him a great deal of mental agony and adversely affecting his work as a senior clerk in
the Supreme Court of India.
9.
Learned counsel for Respondent denied the above allegations and stated that it is
not factually correct that Respondent had prescribed Mitomycine-C to the Appellant on
18.10.1993 i.e. immediately following the surgery. In fact, he was prescribed other
medicines and ointments after the surgery and it was only after a week when the eye
had healed that Mitomycine-C was prescribed to the Appellant. It is a proven fact in
ophthalmology medical literature thatMitomycine-C is successful in checking the
recurrence of Pytreygium, which has a very high incidence of recurrence and is
routinely prescribed for limited periods following such surgeries. It was under these
circumstances
that
Respondent
rightly
prescribed
this
medicine
to
the
Appellant. Although not written down in the prescription, it was made clear verbally to
the Appellant that the eye drops were to be used three times a day for a limited period
of two weeks and its over use was harmful. This is further confirmed by the fact that
Respondent converted only one vial of Mitomycine-C injection into eye drops, which
would have lasted at the most for a little over two weeks. From this fact alone, it is clear
that the Appellant had been procuring this medicine and getting it converted into eye
drops from some other doctor(s) and in this way using it for several weeks i.e. till
03.03.1994 when he next visited the Respondent, who immediately directed him to
discontinue the use of this medicine. Learned counsel for Respondent pointed out that
a senior ophthalmologist of Safdarjung Hospital, New Delhi, Dr. Malik, has confirmed to
him in writing that Appellant had consulted him and also informed him that he was
continuing to use Mitomycine “on his own”. Learned counsel for Respondent stated that
Appellant continued to disregard medical advice of Respondent even after 03.03.1994
by not coming for follow up visits, which he was advised to do by Respondent, who had
prescribed him some other medicines and wanted to assess their effect. From the
above facts, it is clear that Appellant, who was not an illiterate person and who had
been clearly orally advised to use Mitomycine-C eye drops only for a limited duration by
Respondent, failed to follow this advice and continued to use the medicine on his own,
for which Respondent cannot be held responsible, particularly since Appellant did not
even come for the follow up visit after two weeks. There was no medical negligence or
deficiency in service on the part of Respondent, who had prescribed the right medicine
and given correct advice regarding its limited period of use. The present first appeal,
therefore, having no merit deserves to be dismissed.
10.
We have heard learned counsel for both parties and have carefully gone through
the evidence on record. The fact that Appellant visited the Respondent’s clinic with a
complaint in his left eye and was detected with Pytreygium, for which a minor surgery
was conducted is
not
in
dispute. It
is
also
a
fact
that
Appellant
was
prescribed Mitomycine-C by Respondent, which is a drug of choice, to ensure
that Pytreygium does not recur since it has a high degree of recurrence. While it is a
fact (as also observed by the State Commission) that no directions were given by
Respondent in writing to Appellant regarding the duration for which the drug should be
used or any written precaution against its prolonged use, we find force in the contention
of Respondent that since he had converted only one vial of Mitomycine injection into
eye drops, this itself indicates that the intention was clearly for its limited use for about
two weeks and not for several months. When specifically asked by us, learned counsel
for the Appellant also fairly conceded that Respondent had converted only one vial
of Mitomycineinjection into eye drops, thus confirming the Respondent’s clear intention
regarding its use for a limited period. It is, thus, apparent that Appellant had been using
this medicine for several weeks by getting the Mitomycine injection converted into eye
drops through some other source and not by the Respondent, for which Respondent
cannot be held responsible. It was under these circumstances that the State
Commission had held the Respondent guilty of only “limited medical negligence” for not
having put down in writing the dosage and duration of the medicine in the prescription
slip. We agree with this finding. We further agree that the Appellant is guilty of
“contributory negligence” by not visiting the Respondent for follow up visits as advised
on more than one occasion and instead consulting one doctor after another and also
continuing Mitomycine-C for long period on his own volition, which resulted in
the dry eye syndrome and consequent loss of vision in the left eye.
11.
To sum up, we uphold the order of the State Commission that Respondent is
guilty only of “limited medical negligence” by not giving a written prescription and
instead verbally advising the Appellant, for which a compensation of Rs.50,000/- is
reasonable and we, therefore, confirm the same. The present first appeal is
dismissed. Respondent is directed to pay a sum of Rs.50,000/- to the Appellant within
six weeks, failing which it will carry interest @ 6% per annum for the period of
default. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/(REKHA GUPTA)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 176 OF 2006
(Against the order dated 30.12.2005 in CD No. 46 of 2001 of the
A.P. State Consumer Disputes Redressal Commission, Hyderabad)
1. G. Ravender Rao (wrongly mentioned as Raghavender Rao in the complaint)
Managing Director Yashoda Super Special Hospital, Malakpet Hyderabad
2. Yashoda Super Speciality Hospital Malakpet, Hyderbad Rep. by Dr. Shari G.S. Rao,
Executive Director
3. Dr. Shri P. Ranganadham, MBBS, M.Ch Neuro Surgeon Yashoda Super Speciality
Hospital Malakpet, Hyderabad
4. Dr. Shri A.V. Naidu, Pathologist Yashoda Super Speciality Hospital Malakpet,
Hyderabad
5. Dr. Shri Sasidhar, Radiologist Yashoda Super Speciality Hospital Malakpet,
Hyderabad
6. Dr. Shri Lingaiah Medical Superintendent Yashoda Super Speciality Hospital
Malakpet, Hyderabad
…
Appellants
Versus
1. Shri Ghulam Dastagir Father and Natural Guardian of Miss Rousheen Ahmedi, 15
yrs. Minor represented by her father Shri Ghulam Dastagir R/o H.No. 8-2-27/1-2-3,
Teacher’s Colony Mahabubnagar
2. New India Assurance Co. Ltd. Divisional Office 5-2-174/2 Madanmohan Building,
R.P. Road Secunderabad
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For Appellants
: Mr.Y. Rajagopala Rao, Advocate
For Respondents
: Ms.Rekha Aggarwal, Amicus Curiae for R1
Mr. Navdeep Singh, Advocate for R-2
Pronounced on 21st January, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by G. Ravender Rao and five others being the
Managing Director and doctors at the Yashoda Super Speciality Hospital, Hyderabad
[Appellants herein and Opposite Parties before the A.P. State Consumer Disputes
Redressal Commission (hereinafter referred to as the State Commission)] being
aggrieved by the order of that Commission, which allowed the complaint of medical
negligence and deficiency in service filed against them by Respondent Ghulam Dastagir
(hereinafter referred to as Respondent).
FACTS :
2.
In his complaint before the State Commission, Respondent had contended that
he had taken his only daughter Rausheen Ahmedi, aged 15 years (hereinafter referred
to as the patient) with complaint of severe headache to Appellant Hospital, where she
was prescribed certain tests by Dr. P. Ranganadham, Neuro Surgeon and Appellant
No.3, which included a CT scan conducted by Dr. Sasidhar, Radiologist and Appellant
No.5. Patient was diagnosed with Meningioma i.e. a non-cancerous tumor on the left
side of her brain and was advised immediate surgery. Respondent, therefore, got his
daughter admitted to the Appellant Hospital and the surgery was conducted on
08.05.2000. He was informed that the operation was successful and that the tumor had
been completely removed. He was further informed that the pathology lab where the
tumor was sent for analysis had confirmed that it was Meningioma (noncancerous). Appellant No.3-Neuro Surgeon, who performed this surgery, after seeing
the patient on 09.05.2000 went away on a holiday for about 10 days. During her period
of stay in the hospital, when she was attended by another Neurologist, her condition
deteriorated and her head and eyes were swollen after the surgery and on 16.05.2000
and 17.05.2000 water was removed from her spinal cord. Late at night on 17.05.2000
her condition became very serious and she became incoherent and this was
immediately reported to the doctor on duty. Despite her remaining in the hospital and
being under the treatment of their doctors, her condition did not improve and on
21.05.2000, when Appellant No.3-Neuro Surgeon returned from holiday, she was again
shifted to the acute neuro ward. On 03.06.2000, Appellant No.3-Neuro Surgeon stated
that the patient was now normal and she was discharged with an advice to bring her
after one week for a check-up. Respondent had paid a bill of Rs.94,815/- for her
treatment. When the patient visited the Appellant hospital on three occasions with
complaints of feeling unwell, she was assured that it would take time to be completely
cured. It was only on 26.06.2000 that she was readmitted in the Appellant hospital and
Respondent was informed that the patient required a second CT scan which was
conducted on 28.06.2000, after which Respondent was informed that the area of the
brain where surgery had been conducted had got filled with “pus” and, therefore, a
second surgery was required. Appellant No.3-Neuro Surgeon, who performed the
surgery, informed the Respondent that he had to remove the pus from the brain as also
9 cm x 4.5 cm of bone from this area since it had got infected. The specimen was sent
for a biopsy alongwith infected bone to the pathology lab of the Appellant Hospital. The
second surgery placed serious doubts in the mind of the Respondent about the
correctness of the treatment being given to the patient and, therefore, he consulted one
Dr. S.S.R. Murthy, Neuro-Surgeon at Apollo Hospital for a second opinion. Dr. Murthy
opined that if the Meningioma tumor had been completely removed, it could not recur
within a short span of 52 days and, therefore, the diagnosis of Meningioma was wrong
and the patient’s tumor was apparently cancerous. Soon after taking the second
opinion, Respondent met Appellant No.3-Neuro Surgeon to find out what exactly he had
removed from the brain when he performed the second surgery and was only then
informed that there was also a tumor which was removed during the second
surgery. On 05.07.2000 the report from the pathology department of the Appellant
Hospital confirmed that the tumor was cancerous. Appellants assured the Respondent
that a committee would be constituted to look into this case but without taking any
action, the patient was abruptly discharged on 18.07.2000 with an advice to take
radiotherapy treatment. Before taking radiotherapy, Respondent took a second opinion
from several doctors, who confirmed that the tumor was cancerous and also opined that
the diagnosis of first tumor being non-cancerous was not correct because a cancerous
tumor could not have formed and that too in 4 th stage in such a short
period. Respondent, therefore, issued legal notice to all the 7 Appellants on grounds of
medical negligence and deficiency in service and demanded a sum of Rs.11 Lakhs
towards damages under various heads. In the meantime, the patient suffered a
paralytic attack and ultimately expired on 04.11.2000. Respondent, therefore, issued a
second legal notice demanding a sum of Rs.20 Lakhs as compensation and not being
satisfied with the response received that the infection had occurred because of the
number of visitors who came to see the patient, Respondent filed a complaint before the
State Commission on grounds of medical negligence and deficiency in service and
requested that the Appellants be jointly and severally directed to pay him Rs.20 Lakhs
as compensation for causing the premature death of his daughter and untold mental
torture and agony due to the careless and gross medical negligence on the part of the
Appellants.
3.
Appellants on being served filed their written counter, in which they denied that
there was any medical negligence or deficiency in service in the medical treatment and
care of the patient. It was stated that following a CT scan of the brain, which revealed a
large lesion in the fronto-temporal area and reported by the radiology test as
Meningioma (i.e. a non-cancerous tumor), the patient was successfully operated and
the entire tumor was removed. Some post-operative complications in the form of fever
and headache developed because of over-crowding by the patient’s attendants in spite
of repeated requests from the hospital authorities. The patient was readmitted on
20.06.2000 with very minor complaints, which were treated in two days’ time and the
patient was discharged in a satisfactory condition. It was only on 26.06.2000 when she
was admitted for a third time that a repeat CT scan was done free of cost, which again
revealed a large lesion in the left fronto-temporal area with infected bone flap. The
second surgery, therefore, became necessary to remove the bone flap and the
intracranial tumor. The histopathology report of the tumor this time indicated that it was
a neuroectodermal tumor (malignant) i.e. it was cancerous and the patient was
accordingly advised radiotherapy. It is not correct that the patient was wrongly
diagnosed as having non-cancerous tumor on the first occasion. It was submitted that
the Appellants are not aware of the medical opinion that the Respondent had obtained
from some other doctors which needs to be put to strict proof. According to the
Appellants, the patient was provided the best possible treatment on the basis of a clear
and scientific diagnosis and she was provided medical treatment by well-qualified
specialist doctors in the Appellant hospital.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it concluded that Appellants No. 1 to 6 were guilty of medical
negligence and they were jointly and severally directed to pay the Respondent Rs.3
Lakhs as compensation. Rs.2000/- was awarded as litigation cost. The relevant part of
the order of the State Commission is reproduced:
“… there is negligence on the part of the opposite party in removing the
cancerous tumor and also deficiency in service in not giving the radio therapy
after removing the tumor in the first operation. Advocate for the opposite party
referred to page 15227 in book of Neurosurgery. The author says that ‘the
primary treatment should be surgery because cure is possible if complete
resection is accomplished. This requires complete removal of tumor, dural origin
and involved skull.
Had the opposite party no.2 removed the tumor completely conducting the
second operation for removal of the tumor at the same place would not arise. IT
is stated in the above said book ‘even with a gross total resection however 10%
of patients will have recurrence within 10 years’. In this case if tumor is
completely removed and it is a meningioma (non cancerous tumor) the patient
would have survived for 10 years. As the opposite party removed the tumor
which is cancerous further aggravated the condition and opposite party
conducted the second operation also. Only after the second operation the
patient got admitted in the cancer hospital and gave the radio therapy. The
patient died within 6 months after the first operation. Due to the medical
negligence in not exercising the reasonable degree of care in treating the patient
the patient died within 6 months after the operation. The complainant and his
family members lost company of the patient for about 10 years. The complaint
was also made to bear expenses of the second operation which could have been
avoided had the first operation conducted with care and caution. Due to the
negligence in conducting the first operation bone was infected. The
complainants claimed Rs.3 lakhs towards medical expenses. Rs.1,50,000/towards loss of company, Rs.15 lakhs for pain and suffering. As the patient was
suffering from Cancerous tumor in the brain and considering the fact that she
would have survived for 5 to 10 years by giving radio therapy we fix Rs.3 lakhs
towards compensation, medical expenses and loss of company as against the
claim of Rs.19,60,000. We fix Rs.2000/- towards legal and miscellaneous
expenses.”
Hence, the present first appeal.
5.
Learned counsel for both parties made detailed oral submissions.
6.
Learned counsel for the Appellants while reiterating the facts as stated by them
before the State Commission contended that the CT scan done on the patient prior to
the first surgery clearly indicated that there was a tumor because of which the surgery
was conducted. Thereafter, as per normal procedure after the tumor was removed, it
was sent for biopsy, which confirmed that it was not Malignant. Therefore, there was no
error in either the diagnosis or the treatment of the patient and the question of
radiotherapy did not arise since the tumor was clearly non-cancerous. A copy of the
histopathology report/specimen pertaining to the first tumor was sent to Apollo Hospital
for a second opinion shortly after the death of the patient and it was confirmed by the
pathologist in that hospital (Dr. Swaranlata) that the diagnosis of the tumor being noncancerous was correct. Unfortunately, the State Commission concluded that this was a
case of medical negligence by relying on the opinion of one Dr. S.S.R. Murthy, a NeuroSurgeon of Apollo Hospital, who apparently informed the Respondent that if the first
tumor had been removed completely, it would not have recurred within a short span of
52 days and further that the first tumor was wrongly diagnosed as Meningioma and,
therefore, a wrong line of treatment was followed causing unnecessary pain and
suffering to the patient and her eventual death. Counsel for the Appellants pointed out
that Dr. Murthy was not examined by the State Commission as a witness nor was any
affidavit or statement filed by him in support of these facts. It was only the Respondent,
an interested party, who had stated before the State Commission that this was the
opinion of Dr. Murthy and the State Commission, therefore, erred in taking cognizance
of the same in reaching its finding of medical negligence. On the other hand, as per
credible documentary evidence on file i.e. the histopathology report and a second
opinion from a pathologist of Apollo Hospital confirming the same in writing, the first
tumor was undoubtedly non-cancerous. There is also no evidence to support
Respondent’s contention that the first tumor was not completely removed. When the
second CT scan revealed a tumor and infection in the bone, the Appellants-doctors
using their best professional judgment conducted a second surgery and when their
report indicated that the second tumor was cancerous, radiotherapy was immediately
advised. Counsel for the Appellants contended that it is medically well established as
per medical literature that a second tumor can recur in the same site as the noncancerous tumor even after it is fully removed and cancerous tumors are known to be
fast growing and, therefore, can occur within a short period. Unfortunately, this is what
happened in the instant case, for which the Appellants cannot be held responsible.
7.
Learned counsel for Respondent in his submissions stated that the State
Commission had rightly concluded that had the entire tumor been removed in the first
instance and a correct diagnosis made, then the second tumor in the same area would
not have recurred. It was also pointed out that this is further confirmed by the fact that
the second tumor was found to be grade IV i.e. at final stage and this could not have
occurred within 52 days. The above facts were confirmed by a specialist Dr. S.S.R.
Murthy, from whom Respondent took second opinion and on whose statement the State
Commission had correctly relied. It was further contended that a well- qualified and
professional doctor should have been immediately able to diagnose a cancerous tumor
on seeing it and in the instant case, the concerned Appellants failed to do so while
removing the first tumor because of their medical negligence and indifferent attitude. It
was because of this that the patient who was a promising 15 year old girl lost her
life. Had radiotherapy been
advised
on
06.05.2000
itself, she
would have
survived. The State Commission, therefore, rightly concluded that there was a clear
case of medical negligence and deficiency in service on the part of Appellant
hospital/doctors.
8.
We have heard learned counsel for both parties and have carefully gone through
the evidence on record. The facts regarding the patient’s admission in the Appellant
hospital and her having undergone two surgeries there are not in dispute. What was
challenged by the Respondent before the State Commission was that the Appellant
hospital/doctors had misdiagnosed the patient’s first tumor as not being cancerous
when she was admitted to the Appellant Hospital on 08.05.2000 and conducting an
unnecessary
surgery
whereas
she
should
have
been
advised
radiotherapy
immediately. The State Commission, we note, had accepted Respondent’s contention
by primarily relying on Respondent’s evidence citing the opinion of Dr. S.S.R. Murthy, a
Neuro Surgeon of Apollo Hospital, to this effect. However, in view of the fact that Dr.
Murthy was not examined as a witness before the State Commission nor was any
evidence filed either in the form of his statement or an affidavit, confirming that he had
given this opinion to the Respondent, we find force in the contention of the Appellants
that the State Commission erred in relying on this opinion cited by the Respondent in
reaching its conclusion of medical negligence. On the other hand, we note that there is
credible documentary evidence on record to indicate otherwise e.g. the histopathology
report filed by the Appellants in respect of the first tumor stating that it was noncancerous which fact was confirmed by another pathologist from Apollo Hospital. Thus,
as stated earlier, we are unable to accept the contention of the Respondent and the
finding of the State Commission that the first tumor was wrongly diagnosed as being
non-cancerous. We are also unable to agree with the finding of the State Commission
that because the second tumor was detected and removed within 52 days of the first
tumor, this is proof of the fact that the first tumor had not been fully removed by the
Appellants, which clearly amounts to medical negligence. In this connection, we have
perused the medical literature on the subject* and note that brain tumors, including
Primitive Neuro Ectodermal Tumor (PNET), from which the patient suffered, are
notoriously fast growing and, therefore, its presence in a short span by itself is not
adequate evidence to conclude that the first tumor was not fully removed. Respondent
on whom there was onus to prove his contention has not been able to produce any
specific evidence, including the evidence of any medical expert before the State
Commission in support. Respondent has also not been able to prove that there was
any mistake in the first histopathology report, which, as stated earlier, was confirmed by
the opinion of a specialist from another super speciality hospital.
[*Source :
(i)
Wikipedia (en.wikipedia.org/wiki/Medulloblastoma)
(ii)
Great Ormond Street Hospital for Children, London, U.K.
(iii)
Einstein Healthcare Reports – Brain Tumor]
9.
What constitutes medical negligence is now well-established through a catena of
judgments of the Hon’ble Supreme Court of India (e.g. in Jacob Mathew v. State of
Punjab [(2005) 6 SCC 1]) and essentially three principles are required to be followed:
(i) Whether the doctor in question possessed the medical skills expected of an ordinary
skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the
practice (of clinical observation diagnosis – including diagnostic tests and treatment) in
the case that would be adopted by such a doctor of ordinary skill in accord with (at
least) one of the responsible bodies of opinion of professional practitioners in the field
and (iii) whether the standards of skills/knowledge expected of the doctor, according to
the said body of medical opinion, were of the time when the events leading to the
allegation
of
medical
negligence
occurred and not of the time when the dispute was being adjudicated.
10.
Applying these principles to the present case, we are unable to conclude that
there was any medical negligence or deficiency in service in the treatment of the
patient. The Appellants, who are well-qualified doctors treated the patient as per their
best professional judgment and on the basis of diagnostic and clinical tests from a wellequipped laboratory. As stated earlier, the Respondent has not been able to controvert
or contradict the above facts through any credible evidence, including that of a medical
expert before the State Commission. In view of these facts, we are unable to uphold
the order of the State Commission concluding that there was medical negligence
against the Appellants and, therefore, set aside the same. We note that Rs.1 Lakh out
of the total compensation of Rs.3 Lakhs awarded by the State Commission has already
been released to the Respondent. Counsel for Respondent states that this may be
treated as ex-gratia payment and not be recovered from the Respondent. Ordered
accordingly.
11.
The first appeal is allowed on the above terms.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/(REKHA GUPTA)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 695 OF 2006
(Against the order dated 26.09.2006 in Complaint Case No. 22/1997 of the Bihar State
Consumer Disputes Redressal Commission, Patna)
Birendra Kumar S/o Shri Baban Prasad R/o Mohalla Hanuman Nagar Punaichak, P.S.
Shastrinagar District Patna Bihar-800023
…
Appellant
Versus
Dr. Usha Kiran Jha Consultant, Histopathologist-cum-Cytologist (U.K. Histopath)
Daughter of Dr. Bodh Krishna Jha R/o Chandrakanta Apartment Pandue Kothi Front of
Bata India Gali Boring Road Patna-1
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants
: Mr. Sumit Kumar, Advocate with
Mr. Anil Kumar, Advocate
For Respondent
: Mr. Mahesh K. Chaudhary, Advocate
Pronounced on 28th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by Birendra Kumar, original Complainant before
the Bihar State Consumer Disputes Redressal Commission, Patna (hereinafter referred
to as the State Commission) and Petitioner herein being aggrieved by the order of that
State Commission, which had disallowed his complaint of medical negligence against
Dr. Usha Kiran Jha, Opposite Party before the State Commission and Respondent
herein.
FACTS :2.
In his complaint before the State Commission, Appellant had stated that he had
taken his minor son Ashish Priyadarshi (hereinafter referred to as the Patient) to a
Specialist-Pediatrician Dr. Mohan Choudhary with a complaint of small gland on the left
side of his neck and who after examination advised some tests, including an x-ray of the
chest and biopsy on the lymph gland. The names of two doctors were recommended;
(i) Dr. K.K. Kanth and (ii) Dr. Usha Kiran Jha. On 18.11.1995 Appellant again went to
Dr. Mohan Choudhary, who advised FNAC of the left lymph gland. Appellant,
accordingly, contacted Dr. Usha Kiran Jha, who took specimens for the FNAC of the
neck gland and after a laboratory examination gave a report that the Patient appeared
to be suffering from Tuberculosis. On the basis of this diagnosis, the consulting
Pediatrician prescribed medicines for Tuberculosis and when the condition of his son
did not improve he took him to the All India Institute of Medical Sciences, New Delhi,
where after seeing the FNAC slide the doctors there opined that this was indicative of
Hodgkin’s disease i.e. Cancer. The Appellant thereafter took his son to Tata Memorial
Hospital for Chemotherapy and
he
is presently recovering from
Hodgkin’s
disease. However, because of the wrong report given by the Respondent, on the basis
of which the Pediatrician also prescribed medicines which were not required, the Patient
apart from suffering adverse side effects also had to undergo delay in the correct
treatment for the Cancer. Appellant thereafter filed a complaint of medical negligence
and deficiency in service against the Respondent and requested that she be directed to
pay Rs.5,41,413.34 as compensation.
3.
Respondent on being served filed a written rejoinder denying any medical
negligence on her part. It was stated that the Appellant had approached her with a
written recommendation of the Pediatrician requiring her to only conduct an FNAC
procedure and not Biopsy. The FNAC was accordingly scientifically conducted in a
well-equipped laboratory and on the basis of this the Appellant gave her opinion. There
was no negligence in this matter and even if there was a misdiagnosis after due care
was taken to conduct the FNAC, it did not amount to medical negligence as per settled
law. Respondent further contended that it was the Appellant who delayed getting a
Biopsy done on his son because admittedly he did not get it conducted on 17.11.1995
and 06.12.1995 despite advice from the Pediatrician and instead went to All India
Institute of Medical Sciences. Even there he did not get the necessary tests done and
instead took the Patient to Tata Memorial Hospital delaying the Biopsy and proper
treatment by several weeks. Respondent further contended that she had not
prescribed/administered any medicine for Tuberculosis, which was done by the
Pediatrician, since she was only the Histopathologist and not the treating doctor i.e. the
clinician in the present case.
4.
In the first round of litigation, the State Commission after hearing both parties vide
its order dated 08.12.1999 dismissed the complaint. Aggrieved by this, the Appellant
filed an appeal before the National Commission, which on 02.06.2006 remanded the
case back to the State Commission with a direction that the Opposite Party
(Respondent herein) be permitted to file evidence by way of affidavits and if so desired
to cross-examine each of the deponents as also refer the matter for obtaining expert
opinion on this subject. The State Commission after complying with the above
directions but not allowing impleadment of consulting Pediatrician as an Opposite Party
again dismissed the complaint by observing as follows :
“12. The O.P. is a cytologist and she is not a clinician and on the basis of
the slide she has expressed suspicion of tuberculosis for which the reason
is mentioned. She has explained that she has given only one prick to
collect smear and that might have been given at a place where lymphoma
was not present at that point of time. The clinician has not discussed the
case with the O.P. He did not advise her for rechecking of the slide. On
the other hand he has advised for biopsy test to eliminate lymphoma
which was never done by her and the complainant himself did not opt for
this test. The physician has insisted for proper biopsy test to exclude
lymphoma but the complainant was himself negligent in not opting for this
test at Patna and he himself wasted time for more than 15 days and
thereafter he went to Delhi. As stated above at Delhi also he did not
cooperate in full test as advised at AIIMS but returned back to Patna and
after six months he went to Bombay. Had the complainant got the biopsy
test done of his son as per advice by Dr. M. Choudhary in between 17-1195 to 6-12-95 the Hodgkin’s disease could have possibly been detected
through biopsy test and he would have even advised for the line of
treatment by the physician who was treating him at Patna. It was the fault
on the part of the complainant that he allowed waste of time in the
treatment of his son by not adopting the advise of the treating
physician. The O.P. in support of her case that her report was correctly
prepared on the basis of guidelines under the medical science as detailed
in journal of clinical pathology of March, 98 which mentions that FNAC test
in conjunction with immunocyto chemistry could give reliable result but
such facility is not available in Patna. It is mentioned in the journal that
excision biopsy and histopathological diagnosis remain the gold standard
for the diagnosis of malignant lymphoma i.e. why the doctors at Patna and
at AIIMS have advised for biopsy test which the complainant willfully
avoided. Therefore, the negligence was on the part of the
complainant and not on the part of the O.P. that she gave a report
showing symptom of tuberculosis on the slide which she prepared
while doing test of FNAC. There is no expert opinion on record
before us to support the case of the complainant that on the slide
prepared for FNAC test the finding given by the O.P. suffers from
defect and it was done under the method not acceptable to the
medical science or it lack technical know how. There is nothing on
record to support the contention of the complainant that slide
prepared by O.P. suffers from any defect or her suggestive finding
suffered from deficiency as she adopted wrong line in examining the
slide against the norms of the medical science. The slide prepared
by the O.P. was handed over to the complainant when he asked
for. The allegation of the complainant that doctor at AIIMS on
examination of this slide came to the conlusion that patient was
suffering from Hodgkin’s disease is not supported from the papers
of the AIIMS as referred to above. ..”
(Emphasis provided)
5.
The State Commission also cited a number of judgments, including the case
of Hacher v. Blare Lancet (1954-2-880), in which it was opined that a doctor cannot be
held to be negligent simply because as a matter of opinion he made an error of
judgment, as also Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], wherein the
Hon’ble Supreme Court has laid down the principles defining medical negligence by
applying the well-known Bolam test. Hence, the present first appeal.
6.
Learned counsel for the Appellant was present. Neither Respondent nor her
counsel was present. Since service on the Respondent is complete, it was decided to
proceed with the case ex-parte.
7.
Learned counsel for the Appellant in his oral submissions while reiterating the
facts stated by him in his complaint before the State Commission contended that the
State Commission erred in not appreciating the fact that the Respondent herself had
admitted that the FNAC procedure without the supporting Immunocyto Chemistry
Technology does not give the best results and she did not use the said technology
because it was not available in Patna. Under the circumstances, she should not have
given a categorical opinion that the Patient was suffering from Tuberculosis. Had she
raised a doubt regarding the diagnosis, then the consulting Pediatrician would have
definitely advised for a Biopsy. Unfortunately, because of this lapse the consulting
Pediatrician also did not prescribe a Biopsy till 06.12.1995, by which time the Patient’s
condition had deteriorated and he had to be rushed to the All India Institute of Medical
Sciences. Appellant further stated that Respondent’s contention that he had himself
delayed the Biopsy on his son is factually not correct. The State Commission also erred
in concluding that the Appellant had not been able to provide any expert medical
opinion to support his contention regarding the faulty FNAC because Respondent had
filed a supplementary affidavit along with the report of the Department of Pathology of
the Mahavir Cancer Sansthan in Patna, which clearly stated that the FNAC report of the
Respondent was indicative of Cancer and not Tuberculosis. The first appeal, therefore,
deserves to be allowed.
8.
We have heard the submissions made by learned counsel for the Appellant,
including his written synopsis filed in Court today as also the entire evidence on
record. The fact that the FNAC was conducted on the minor son of the Appellant by
Respondent on the specific written advice of the consulting Pediatrician, who had
examined the Patient, is not in dispute. It is also an admitted fact that Respondent, who
is a consultant Histopathologist, had opined in writing that “this appeared to be a case of
Tuberculosis Lymphadenitis despite on ATT”. This report was accepted by the
consulting Pediatrician and he did not raise any doubts regarding this diagnosis and,
therefore, Biopsy was not immediately recommended until 06.12.1995 when the
Patient’s condition deteriorated. The State Commission noting these facts had
concluded that the Respondent had only given an opinion based on a scientifically
conducted FNAC that it was Tuberculosis and it was for the Pediatrician to have
reached a conclusive finding either after discussing this case with her or after having
recommended a Biopsy. We find force in the finding of the State Commission since
admittedly the Respondent was not a clinician and there is no evidence that a
reasonable degree of skill and care was not taken by her in conducting the
FNAC. Further, we agree with the State Commission that at the most Respondent
could be held responsible for misdiagnosis, which, as per settled law quoted in para-13
of
the
State
Commission’s
order,
clearly
does
not
amount
to
medical
negligence. Further, the Appellant has not been able to pin point how the Respondent
erred in conducting the FNAC test. The expert opinion filed by him along with his
affidavit also does not indicate any specific deficiency. If at all there was any medical
negligence in not applying reasonable care and precaution, it could have been
attributed to the Pediatrician, who, however, has not been impleaded as a party by the
Appellant in this case.
9.
Keeping in view these facts, we see no reason to differ with the order of the State
Commission which had dismissed the Appellant’s complaint of medical negligence and
deficiency in service against the Respondent. We, therefore, uphold the order of the
State Commission in toto and dismiss the first appeal. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 175 OF 2006
(Against the order dated 28.02.2006 in S.C. Case No. 61/O/2001 of the W.B. State
Consumer Disputes Redressal Commission, Kolkata)
Dr. Sunil Thakur Avenue Nursing Home 3A, Madan Street Kolkata-700072 Residing at
34, Bagmari Road Plot No. D/4, Kolkata-700054
…
Appellant
Versus
1. Gorachand Goswami S/o Late Manick Lal Goswami Residing at Dakshini Housing
Estate Phase-II, House No. C-1/19 P.S. Metiabruz, Kolkata-700018
2. M/s Avenue Nursing Home 3A, Madan Street Kolkata-700072 Jointly owned by
(i) Fatima Khatoon
(ii) Hasma Khatoon
(iii)Mahasur Rahaman
3. Lions District 322 B Blood Bank 27/8A, Waterloo Street Kolkata-700069
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Mr. Suchit Mohanty, Advocate
For Respondents
: Ms. Meenakshi Midha, Advocate for R-1
NEMO for R-2
R-3 already ex-parte
Pronounced on 29th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by Dr. Sunil Thakur, Appellant herein and Opposite
Party before the West Bengal State Consumer Disputes Redressal Commission,
Kolkata (hereinafter referred to as the State Commission) which had allowed the
complaint of medical negligence filed against him by Gorachand Goswami, Respondent
No.1 and others herein and Complainant before the State Commission.
FACTS :
2.
Manick Lal Goswami (hereinafter referred to as the Patient) fell down from his
bicycle while returning home from his office on 14.11.2000 and sustained injuries, which
included a fracture in the neck of the femur. Respondent No.1, who was Patient’s son,
contacted Appellant-Dr. Sunil Thakur, who was a Consultant Orthopedic Surgeon
attached to M/s Avenue Nursing Home on telephone the same night and who advised
him to bring the Patient for medical examination the next day i.e. on 15.11.2000, where
after an x-ray was taken confirming the fracture, patient was admitted in the Avenue
Nursing Home and operated upon by the Appellant on 17.11.2000. Prior to the surgery,
the Appellant advised that one bottle of blood would be required, which would be
provided by the Avenue Nursing Home. Blood was accordingly supplied and transfused
and the operation completed by 5.00 p.m. However, blood transfusion continued even
after the surgery. Soon after the blood transfusion, the Patient started frothing from the
mouth and complained of difficulty in breathing and shivering. The next day, he could not
urinate and his eyes were found to be deep yellow in colour. Subsequently, a
Nephrologist after examining the Patient advised that since he might need Dialysis and
this facility was not available in the Avenue Nursing Home, the Patient be shifted to
Calcutta Medical Research Institute (CMRI), which was done. On request of CMRI to the
Blood Bank attached to it, one bottle of blood of A+ group (being the blood group of the
Patient) was supplied for the Patient’s Dialysis. However, the condition of the Patient
continued to deteriorate and despite being put on a ventilator he passed away on
01.12.2000. As per the death certificate issued by CMRI, one of causes of death was
attributed to the “history of mismatched blood transfusion”. It was contended that while
the blood group of the Patient was A+, the blood which was transfused to him at the
Avenue Nursing Home on 17.11.2000 was of B+ group as per the report of the Blood
Bank which supplied the blood based on an enclosed blood specimen sent with the
requisition slip. It was also stated that the Patient’s condition actually deteriorated
following the transfusion of B+ blood while the Patient was under the treatment and care
of the Appellant, which clearly reveals gross medical negligence as also deficiency in the
treatment of the Patient on the part of the Appellant as also the Nursing Home. Being
aggrieved by the loss of his father, who was the sole earning member of the family,
Respondent No.1 filed a complaint before the State Commission on grounds of medical
negligence and deficiency in service and requested that the Appellant and Avenue
Nursing Home be directed to jointly and severally pay Rs.6 Lakhs as compensation.
3.
Appellant on being served filed a written rejoinder disputing the allegations made
in the complaint. It was stated that as an Orthopedic Surgeon he operated successfully
on the Patient and no complaint regarding the surgery was made by Respondent
No.1. So far as the arrangement for transfusion of blood was concerned, it was
submitted that this was arranged by the Patient’s relatives directly from the Lions District
322B Blood Bank at Waterloo Street, Kolkata and it was the duty of the Blood Bank to
correctly identify the blood group of the Patient and thereafter supply the blood after
matching it with the Patient’s blood group. Further, as per the usual practice, it is for the
doctors and para-medical staff present in the operation theater of the Nursing Home to
carefully verify the name and blood group of the Patient before transfusion and for this
the responsibility cannot be fixed on the Orthopedic Surgeon. It was further stated that
the Patient subsequently developed other complications like urination problems etc.,
which were not due to any medical negligence or deficiency in service in operating the
Patient and, therefore, the allegations of medical negligence and deficiency in service
are without basis.
4.
The State Commission after hearing the parties allowed the complaint and held
the Appellant guilty of deficiency in service and medical negligence. The operative part
of the State Commission’s observations is reproduced:
“27. … we are inclined to say O.P. No.-2* is evidently responsible for deficiency in
service in terms of Sec.2(g) of the C.P. Act, 1986 on the following counts:(i) O.P. No.-2 failed to ascertain the blood Group of the deceased before sending the
sample to the Blood Bank despite the fact that there was a reliable document with the
complainant’s relatives in respect of Blood Group of the deceased though the
Complainant had drawn attention of O.P. No.-2 to the said document.
(ii)
O.P. No.-2 failed to mention the blood group of the deceased while sending
sample to the blood Bank with a requisition which is otherwise mandatory.
(iii) O.P. No.-2 committed gross negligence by accepting and transfusing a blood
group other than A+ve which was the deceased’s confirmed blood group.
*(i.e. the Appellant before the National Commission)
(iv) O.P. No.-2 failed to follow instructions contained in the Issue Document of Blood
Bank where caution is printed on the Poly Bag containing Blood that in case of any
reaction, the Surgeon/Physician must send sample of patient’s blood, a small sample of
the blood transfused, patient’s symptoms evident on transfusion.”
5.
The State Commission, therefore, directed the Appellant to pay a compensation of
Rs.5,28,000/- and Rs.10,000/- as costs to Respondent No.1. The Avenue Nursing
Home (Opposite Party No.1 before the State Commission) was also directed to pay
Rs.10,000/- as compensation for their act of negligence and deficiency in service for
failing to carry the correct blood sample of the Patient to the Blood Bank. The State
Commission, however, concluded that no case of negligence against the Blood Bank
was established. Appellant as well as the Avenue Nursing Home were directed to pay
the above amount within 30 days from the date of communication of the order, failing
which it was to carry interest @ 12% per annum till the amounts were paid.
6.
Aggrieved by this order, only the Appellant (i.e. Opposite Party No.2 before the
State Commission) filed this first appeal.
7.
Learned counsel for both parties made oral submissions.
8.
Learned counsel for the Appellant reiterated that the State Commission gave an
erroneous finding of medical negligence against Appellant since his responsibility was
only that of an Orthopedic Surgeon and admittedly the surgery was successfully
conducted by him without any complications. So far as provision of blood is concerned,
the responsibility is that of the concerned Nursing Home as also the Blood Bank to
cross check the blood group with the blood required and clearly state these
requirements in the requisition slip sent to the Blood Bank. In case of any deficiency in
doing so, including not giving the full details, it is the Nursing Home (i.e. Opposite Party
No.1 before the State Commission) and the Blood Bank, which are solely responsible
and not the operating surgeon i.e. the Appellant in the instant case. It was further
stated that the CMRI to whom the Patient was referred issued a death certificate without
careful consideration of the facts and, therefore, gave multiple reasons for the cause of
death but nowhere did it say that it was because of the faulty surgery. Further,
Respondent No. 1 did not produce any expert medical evidence or person to prove his
case. The Appellant was only a consulting doctor who had been called to the Avenue
Nursing Home to conduct the surgery and was not a regular member of its
staff. Therefore, in respect of any negligence committed by the Nursing Home and its
staff in not verifying the blood group before sending it to the Blood Bank, the Appellant
cannot be held responsible.
9.
Learned counsel for Respondent No.1 on the other hand stated that the Appellant
cannot take the plea that the blood was arranged for the Patient by his relatives and it
was the responsibility of the relatives, the concerned hospital and the blood bank to
ensure that a correct requisition slip was sent because there is evidence on record that
the requisition slip dated 16.11.2000 to the blood bank was signed by Dr. Sunil Thakur
(i.e. the Appellant) stating that one unit of blood for the Patient was required and a
specimen blood sample attached. The requisition slip did not mention the blood group
of the Patient. The blood sample was cross-checked in the blood bank and found to be
of B+ group and accordingly blood of B+ group was sent for transfusion for the
Patient. It is clear from this that the Appellant had signed the requisition slip without
verifying whether the correct blood specimen had been sent and whether any blood
group was mentioned. In view of these facts and the death certificate, which confirmed
that one of the causes of death was “mismatched blood transfusion”, the same was
rightly attributed by the State Commission to the Appellant’s medical negligence.
10.
We have considered the submissions made by learned Counsel for both parties
and have carefully gone through the evidence on record. The fact that the Patient was
admitted in the Avenue Nursing Home for a surgery by the Appellant following fracture
of the femur neck is not in dispute. It is further a fact that a requisition slip was sent to
the Blood Bank for blood transfusion required during and after the surgery and that the
blood specimen attached to it was not of the Patient but of some other person and,
therefore, the blood sent by the Blood Bank did not match with the Patient’s blood group
leading to serious complications, which contributed to his death. Appellant’s contention
that he was not responsible for arranging the blood is not acceptable in view of the fact
that he had admittedly signed the requisition slip sent to the Blood Bank enclosing with
it a wrong specimen of blood. Because of this serious lapse, the Patient developed
other complications following the blood transfusion relating to his liver and kidney
functions because as per medical literature there is a nexus between transfusion of
mismatched blood and renal urinary and liver problems*.
[*Source :
(i)
Medical Dictionary – FARLEX
(ii)
Complications of Blood Transfusion (Maxwell & Wilson Oxford Journal)]
11.
Counsel for Appellant’s contention that Respondent had been unable to produce
any medical evidence in support of their case is also not tenable because in the instant
case the principle of ipsa res loquitur is clearly applicable.
12.
Further, Counsel for Respondent No.1 has brought to our notice judgments of the
National Commission in Dr. Kam Inder Nath Sharma & Ors. V. Satish Kumar & Ors.
[II (2005) CPJ 75 (NC)] and Dr. K. Vidhyullatha v. R. Bhagawathy [I (2006) CPJ 136
(NC)] as also of the Hon’ble Supreme Court inPost Graduate Institute of Medical
Education & Research v. Jaspal Singh & Ors. [II (2009) CPJ 92 (SC)] in support of
the contention, wherein it has been concluded that wrong blood transfusion is an error,
which no doctor/hospital exercising ordinary skill would have made, and such an error is
a sure instance of medical negligence. Keeping in view the facts in this case, as
discussed above, and respectfully following the judgment of the Hon’ble Supreme Court
as also of this Commission, which are relevant in the instant case, we agree with the
finding of the State Commission that the Appellant was guilty of medical negligence and
uphold the same.
12.
This first appeal having no merit is dismissed. Appellant is directed to comply with
the order passed by the State Commission and pay the awarded amount of
Rs.5,38,000/- (i.e. Rs.5,28,000/- as compensation and Rs.10,000/- as cost) to
Respondent No.1. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 279 OF 2007
(Against the order dated 21.02.2007 in O.P. No. 108/99 of the Tamil Nadu State
Consumer Disputes Redressal Commission, Chennai)
Smt. V. Bhavani W/o S. Vijayraja No. 18, Srirengapalayam East Kumarasamy Raja
Nagar Rajapalayam
…
Appellant
Versus
Dr. S. Siva Subramaniam M.S.M.R.S.H. (London) Karthik Nursing Home Chettiarpatti
Rajapalayam
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants
: Mr. V. Prabhakar, Advocate
For Respondent
: Ms. Hetu Arora Sethi, Advocate
Pronounced on 30th January, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
Smt. V. Bhavani, original complainant before the Tamil Nadu State Consumer
Disputes Redressal Commission, Chennai (hereinafter referred to as the State
Commission) and Appellant herein had filed this first appeal being aggrieved by the
order of that Commission which had dismissed the complaint of medical negligence
against Dr. S. Sivasubramaniam, Respondent herein and Opposite Party before the
State Commission.
FACTS :
2.
Appellant approached Respondent for treatment of irregular menstrual bleeding
on 24.02.1998 and Respondent after examining her and conducting relevant tests
advised that she be admitted in the Hospital for undergoing a Trans Cervical
Endometrial Resection (TCER). She was required to purchase the medicines from
Respondent’s clinic and also pay Rs.3000/- for the surgery. The surgery, which lasted
nearly four hours, was conducted under epidural anaesthesia but because the surgical
tools and apparatus were not sterilized in advance and there was no pre-arrangement
for a generator in case of power failure, which failed four times during the surgery, she
experienced severe pain during the surgery and on the third day from the surgery she
developed Sepsis, resulting in high fever, body pain, retention of urine and abdominal
swelling. Respondent prescribed some medicines but she suffered renal failure and her
husband was advised to admit her to Meenakshi Mission Hospital for treatment of renal
failure. She was shifted to that Hospital and admitted in the Intensive Care Unit, where
she was treated for Septicaemia, Jaundice and Renal Failure and was also put on
ventilator support. Because of the sincere and effective steps taken by a team of
doctors at that Hospital, the Patient recovered from her coma and though she was
discharged from the Hospital, she continues to have joint pains, nervous weakness and
shrunken kidneys because of which she might need renal transplantation in due
course. Being aggrieved because of the medical negligence on the part of Respondent,
which resulted in enormous pain and suffering as also heavy expenditure, Appellant
issued a legal notice to him claiming a sum of Rs.15 Lakhs as damages and
compensation for medical negligence and deficiency on his part. Respondent, however,
sent an evasive reply and denied the charges. Aggrieved by this, Appellant filed a
complaint before the State Commission and requested that the Respondent be directed
to pay her total amount of Rs.15 Lakhs as compensation under the following heads:
1)
Medical expenses
..
Rs.3,50,000-00
2)
3)
4)
5)
Attendance and Nutrition till 6-5-98
Pain and suffering and Transportation
Future
attendance
for
transplantation,
Nutrition and Hospital
Reducal of the normal span of life and
damage
Total
..
..
..
Rs.50,000-00
Rs.4,00,000-00
Rs.3,00,000-00
..
Rs.4,00,000-00
..
Rs.15,00,000-00”
3.
Respondent on being served filed a written reply denying that there was any
medical negligence on his part, as alleged by the Appellant. The charge that the
equipments were not sterilized was specifically denied by Respondent, who stated that
the Resectoscope, Telescope and Cautery Loops were sterilized by immersion in cidex
solution prior to the surgery as also all other equipments, which included electrical
cords, suction and irrigation tubes as per standard procedure. It was also specifically
denied that there was any power-cut during the surgery, which was completed within an
hour. Since the Patient was under epidural anaesthesia throughout the surgery, the
possibility of her seeing anything, including her contention that there was a power
failure, is not factually correct. After successful completion of the surgery, the Patient
was recovering satisfactorily until the fourth day when it was noted that her urine output
was very low and, therefore, her Blood Urea and Serum Creatinine were tested and
found to be high. After medical examination, Appellant was diagnosed with Acute Renal
Failure
and
immediately
referred
to
Meenakshi
Mission
Hospital
for
Dialysis. Respondent stated that even after examination in Meenakshi Mission Hospital
he visited her to check her progress and the doctors there informed him that she had
developed Respiratory problems, Jaundice and Vomiting and, therefore, put on
ventilator and kept in the Intensive Care Unit. However, she never lost consciousness
and subsequently recovered. Respondent gave the best possible medical treatment
and care exercising the required professional skills needed in this case. The postoperative condition was because of her pre-existing renal problems, for which she was
also taking treatment. Therefore, the charges of medical negligence and deficiency in
service are totally baseless.
4.
The State Commission after hearing the parties and considering evidence before it
concluded that no case of medical negligence could be established against the
Respondent. The relevant part of the State Commission’s observations in this regard is
reproduced:
“… In the present case the allegation that due to improper sterilization of
instruments the complainant suffered septicaemia has also not been
substantiated. The opposite party has clearly set out his stand in the version and
in the proof affidavit to the effect that the instruments like Resectoscope
Telescope and Cautery Loops were all sterilized by immersion in Cidex solution
and that it was carried out in the morning of 26/2/98 and the Electrical chords,
suction and irrigation tubes were all sterilized by keeping in Formaline tray in the
previous night itself. Cidex is the brand name of Activated Glutaradehyde
Solution which is used as a sterilant and high level disinfectant into which
sensitive instruments could be immersed to attain fully sterilized conditions prior
to surgical procedures. The opposite party had followed all accepted procedures
with regard to sterilization of equipments prior to the start of the medical
procedure on the complainant. Even with regard to the post operative surgical
care, it has already been noted that the complainant had been given proper
medicines and she was also put on I.V. fluids. It is also to be noted that the
opposite party had stated that the complainant brought to his attention her
previous history of renal disorder and the treatment she was undergoing from Dr.
Dhanam only after the operation was completed by him. This fact had not been
controverted by the complainant. There was already a history of renal failure and
treatment which the complainant had been following, which, for reasons best
known to her, she had not disclosed to the opposite party. The complainant has
not substantiated her case set out in the complaint. She has not established that
the opposite party was negligent and consequently there was deficiency in
service on his part while treating the complainant. She has not produced any
expert evidence in support of her stand. She has not chosen to controvert the
contents of the affidavit of Dr. Sampathkumar who treated her at the Meenakshi
Mission Hospital and who has given a clean chit to the opposite party with regard
to the treatment given to the complainant in Karthik Nursing Home.”
Hence, the present first appeal.
5.
Learned counsel for both parties made oral submissions.
6.
Learned counsel for the Appellant reiterated that the State Commission erred in
concluding that there was no medical negligence whereas it was clearly established that
the infection leading to renal failure occurred because the surgical equipments were not
properly sterilized and the situation was further aggravated because the electric supply
failed four times during the critical surgery. In proof of these contentions, it was stated
that prior to the surgery the blood test did not indicate the presence of any bacteria or
infection whereas the Blood Culture conducted after the surgery and which takes 3 to 7
days to confirm, clearly indicated that there was infection. Obviously, this occurred
during the surgery and because of the non-sanitary conditions in the operation theater
and non-sterilized surgical equipments. He brought to our attention the medical history
of the Appellant, which did not indicate that she had any pre-existing problem, apart
from the menstrual problems which necessitated the TCER. It was also specifically
stated that the epidural anaesthesia being mild, the Appellant was fully conscious during
the surgery and, therefore, her observation of power failure is based on facts.
7.
Counsel for Respondent on the other hand reiterated that he was a well-qualified
doctor, who had conducted several surgeries, and that after the clinical examination and
laboratory investigations, the Appellant was diagnosed as suffering from chronic
cervicitis with dysfunctional uterine bleeding because of which she underwent TCER,
which is a standard management procedure in such cases. The surgery was conducted
with properly sterilized state of the art equipments and there was no negligence or
deficiency in conducting the surgery and there was also no power failure. During the
surgery it was found that the entire Endometrium was badly affected due to infection
and it was possible that the infection had spread to the bloodstream earlier and was in a
dormant stage since the uterine cavity is not an absolutely sterilized area. Further, this
also would explain the subsequent Sepsis which was not due to any negligence in the
surgery or non-sterilization of the equipments. Counsel for the Respondent further
stated that the Nephrologist from the Meenakshi Mission Hospital, who had treated the
Patient, had filed an affidavit before the State Commission as an expert, in which he
clearly stated that the renal failure and other problems encountered by the Patient were
not due to any negligence or deficiency in service on the part of Respondent but due to
pre-existing endomentrial infection and because of which occurrence of Septicaemia is
an inherent and accepted complication of TCER. The State Commission had, therefore,
rightly concluded that there was no medical negligence on Respondent’s part and had
rightly dismissed the Appellant’s complaint.
8.
We have heard learned Counsel for both parties and have carefully gone through
the evidence on record. Patient’s admission in Respondent’s clinic with complaints of
irregular menstrual bleeding and related problems, where she underwent TCER
surgery, are admitted facts. It is also a fact that four days following the surgery, she
suffered from symptoms of Septicaemia, retention of urine and renal failure, because of
which she was referred to another Hospital, wherein she was treated for the same and
discharged after recovery. Appellant’s contention that the Septicaemia and the renal
failure problems occurred because of insanitary conditions in the operation theater as
also non-sterilization of the equipments, we note, is not borne out by any independent
or credible evidence to prove the same. It is merely Appellant’s conjecture to explain
the subsequent complications. Apart from this, we agree that a Patient who is under
epidural anaesthesia is unlikely to observe during that period that power was disrupted
on four occasions during the surgery. Therefore, this is also based on either conjecture
or hearsay and cannot be relied upon. On the other hand, we note from the evidence
on record that due care was taken in treating the Patient in respect of the diagnosis as
also the medical treatment and the Respondent’s explanation that the Septicaemia
occurred because a pre-existing infection is confirmed by the evidence of an expert,
Nephrologist from the Meenakshi Mission Hospital and Research Centre, where the
Patient was subsequently admitted, and who stated on affidavit as follows :“9.
… it was a known fact that Mrs. V. Bhavani was suffering from chronic
cervicitis and endometritis even before TCRE, for over a period of 6
months. She underwent TCRE for removing the infected endometrium. In such
a situation, in spite of the reasonable care and skill exercised by the surgeon,
there is every possibility that the pre-existing infection could enter into the blood
stream through the cut ends of the capillaries (the terminal end of an arteriole
which are fine hair-like blood vessels forming a network) in the inner wall of the
uterus after the removal of the endometrium. This possibility can neither be fully
anticipated nor prevented. In my view this should have been the most probable
reason for septicaemia suffered by Mrs. V. Bhavani after TCRE. This
septicaemia should have given rise to the other ailments including the acute
renal failure suffered by Mrs. V. Bhavani.
10.
I submit that the renal problems encountered by Mrs. V. Bhavani was not
due to any negligence or deficiency of service on the part of Dr. S.
Sivasubramanian; but it is due to the pre-existing endometrial infection and in
such a situation occurrence of septicaemia is an inherent and accepted
complication of the TCRE. Even when a surgeon exercises best care and skill,
such complications do occur. In this case, Dr. Sivasubramanian responded with
a sense of urgency and referred Mrs. V. Bhavani for further management to me
within time. In fact it is because of this immediate response that we could
prevent further deterioration in the clinical condition of Mrs. V. Bhavani thereby
saving her life.”
This evidence has not either been controverted or challenged by the Appellant, on
whom there was onus to prove that there was medical negligence. On the other hand,
from the evidence on record as also the expert opinion of the Nephrologist from a
Hospital where the Appellant was admitted and in whom she admittedly had full faith
clearly confirms that there was no medical negligence or deficiency in service in the
medical diagnosis, treatment and post operative care of the Appellant.
9. What constitutes medical negligence is now well established [Jacob Mathew v.
State of Punjab, (2005) 6 SCC 1] and essentially three principles are required to be
followed: (i) Whether the doctor in question possessed the medical skills expected of an
ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor
adopted the practice (of clinical observation diagnosis – including diagnostic tests and
treatment) in the case that would be adopted by such a doctor of ordinary skill in accord
with (at least) one of the responsible bodies of opinion of professional practitioners in
the field and (iii) whether the standards of skills/knowledge expected of the doctor,
according to the said body of medical opinion, were of the time when the events leading
to the allegation of medical negligence occurred and not of the time when the dispute
was being adjudicated.
10.
In the instant case, there is adequate evidence as discussed in the foregoing
paras to conclude that on all these counts the Respondent, who was a well-qualified
doctor, used his best professional judgment and the required medical skills to diagnose
the Appellant’s illness and thereafter conduct the required surgery and also take due
post-operative care, including referring her to a higher medical institution when it was
considered necessary. We, therefore, agree with the order of the State Commission
that there was no medical negligence in this case and uphold the same.
11.
The present first appeal having no merits is, accordingly, dismissed. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 369 OF 2009
(Against the order dated 11.08.2009 in RBT No. 15/2008 in Complaint No. 9 of 1998 of
the State Consumer Disputes Redressal Commission, U.T. Chandigarh)
Shri Anand Parkash, Husband of Smt. Usha Rani (Deceased), Resident of House No.
138, Block 18, Mohalla Dogran, Hisar
…
Appellant
Versus
1. Dr. Satya Sawant,
Sawant Clinic,
6-7, Churamani Shopping Complex,
Hisar
2. Churamani Vishnu Devi Maternity Hospital,
Through Dr. Satya Sawant,
…
Medical Superintendent, Hisar
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Ms. Sangeeta Sondhi, Advocate
For Respondents
: Mr. Prasenjit Keswani, Advocate for R1
Mr. Sanchar Anand, Advocate for R-2
Pronounced on 31st January, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by Anand Parkash, Appellant herein and original
complainant before the State Consumer Disputes Redressal Commission, U.T.
Chandigarh (hereinafter referred to as the State Commission) being aggrieved by the
order of that Commission which had dismissed his complaint of medical negligence
against Dr. Satya Sawant and Anr., Respondents No. 1 and 2 herein.
2.
In his complaint before the State Commission, Appellant had stated that his late
wife Smt. Usha Rani (hereinafter referred to as the Patient) on conceiving her second
child in March, 1996 was under the medical supervision and care of Respondent No.1,
who apart from working in Respondent No.2-Hospital was also doing private
practice. On 22.12.1996, the patient approached Respondent No.1 with mild labour
pains and was admitted on advice of Respondent No.1 in Respondent No.2-Hospital,
where she was put on a drip to induce labour for a normal delivery. Respondent No.1
was fully aware that patient’s first child had been delivered through cesarean section
and that she was also suffering from anaemia with a very low haemoglobin count but no
arrangements for blood transfusion in anticipation of any emergency was made. She
was kept in the labour room, where after 40 hours of labour she delivered a male
child. The patient developed complications immediately after delivery and blood
transfusion became necessary. Appellant and his family donated seven units of blood
on the spot, which was infused without any cross checking. Soon after, the patient went
into an irreversible shock and was declared dead at 5.40 P.M. Shocked and aggrieved
by her untimely and avoidable death, Appellant lodged an FIR at the Police Station and
also a complaint with the Commissioner, Hisar Division, after which an enquiry was
conducted by doctors from the Medical College & Hospital, Rohtak but nothing came
out of it because of Respondent No.1’s political clout. Appellant, therefore, filed a
complaint before the State Commission alleging medical negligence and deficiency in
service against Respondents, which led to the tragic and untimely death of his wife, who
was gainfully employed. It was requested that the Respondents be jointly and severally
directed to pay compensation amounting to Rs.10,65,512/-, which included loss for
future earnings at Rs.6500/- per month, medical and other expenses as also litigation
costs.
3.
Respondents on being served filed written submissions, in which they denied that
there was any medical negligence or deficiency in service on their part. Respondent
No.1 while admitting that the basic cause leading to the death of the patient was Post
Partum Haemorrhage (PPH) contended that following Patient’s death independent
enquiries were conducted by a Medical Board of PGIMER, Chandigarh, which
confirmed that there was no negligence or deficiency in service in the medical treatment
and care to the Patient. Further, an enquiry conducted by another Board of experts
from Medical College & Hospital, Rohtak also concluded on the basis of evidence
before it, including the medical records, that there was no medical negligence in this
case. It was specifically concluded that at the time of her delivery, the Patient was not
anaemic as contended by the Appellant and it was only after careful assessment of her
condition that she was cleared for a normal delivery. The fact that she had previously
undergone a cesarean section by itself was not contraindicated in this case since the
first cesarean section was necessitated because of pre-oclasptia and not because of
any cephalo pelvic disproportion. The process of her labour was carefully monitored
and the labour period in fact was less than 24 hours during which period all care and
precautions were taken. The Appellant was also asked to arrange blood well in
advance. After the PPH occurred, standard emergency treatment was given, including
seven units of blood, but unfortunately patient went into irreversible shock and she
could not be saved. It was also contended that the police had investigated the matter
and found no medical negligence on the part of Respondents. Respondent No.1 also
stated that she had not taken any monetary consideration from the Patient. She treated
her not in her capacity as a private practitioner but in the Respondent-Hospital which is
run as a Trust. Under the circumstances, the case is not legally maintainable under the
Consumer Protection Act, 1986.
4.
The Haryana State Consumer Disputes Redressal Commission, after hearing the
parties and on the basis of evidence produced before it, including the reports of the
Medical Boards of PGIMER, Chandigarh and Medical College & Hospital, Rohtak,
dismissed the complaint, following which the Appellant filed an appeal before the
National Commission, who vide its order dated 28.04.2008 remanded the complaint to
the U.T. Chandigarh State Consumer Disputes Redressal Commission on the grounds
that despite a specific request by the Appellant seeking permission of the State
Commission to appoint any of the two doctors, namely, Dr. Vijay Luxmi Lal or Dr. G.I.
Dhall, to give their expert opinion, this application was not disposed of by the State
Commission either by accepting or rejecting it and it, thus, remained pending. The
National Commission opined that in the interest of justice, the matter be reconsidered
by the State Commission in detail and the Appellant may be given an opportunity to
lead the evidence of any of the two doctors as sought by him in his application dated
28.01.1999 before the State Commission. On remand, the State Commission permitted
Appellant’s request to replace the earlier two experts named by her who were not in a
position to give expert evidence by either of two other experts, namely, Dr. Vijay Kumar
Kadam and Dr. M.C. Gupta. Consequently, Dr. M.C. Gupta appeared before the State
Commission and Respondents were given an opportunity to cross examine him. The
second doctor (Dr. Vijay Kumar Kadam), however, sent his views in writing and did not
appear in person. The State Commission after hearing the parties and considering the
entire evidence, including the evidence filed before the Haryana State Consumer
Disputes Redressal Commission, concluded that there was no medical negligence in
the treatment of the Patient. The relevant observations of the State Commission are
reproduced:
“25. In view of the above findings by the two Medical Boards constituted by the
specialists in the field who had gone into the record of the patient as well as her
treatment and who had given a clean chit to the doctors attending upon the
deceased, which the complainant has not been able to rebut with any cogent
medical evidence/literature, we are of the opinion that in this case, no negligence
could be attributed to the doctor for waiting for normal delivery to take place or in
the management of PPH. In this context, it is also relevant to mention that Dr.
M.C. Gupta, who himself is not a specialist in Gynaecology, has in his evidence
not been able to pinpoint or indicate as to where the Medical Boards had gone
wrong or what was wrong with the conclusion they had drawn. Consequent to
the order of Hon’ble National Commission, full opportunity had been afforded to
the complainant to assail the opinion of the Boards but as stated earlier, in our
opinion, the complainant has not been successful in doing the same. It is
unfortunate that the wife of the complainant died after her delivery but it is on
record that the death was due to uncontrollable Post Partum Haemorrage, which
the doctors tried their best to manage but were unable to do so and failed despite
their best efforts.
26. In the circumstances narrated above, we are of the clear opinion that no
medical negligence can be attributed to the treating doctors or the hospital and
consequently, the complaint is dismissed. However, under the peculiar
circumstances of the case, the parties are left to bear their own costs of
litigation.”
Hence, the present first appeal.
5.
Learned counsel for both parties made detailed oral submissions.
6.
Learned counsel for the Appellant contended that the State Commission erred in
concluding that there was no medical negligence in the treatment of the Patient despite
clear cut evidence that due care was not taken in her treatment and by disregarding the
evidence of two medical experts, Dr. M.C. Gupta as also Dr. Vijay Kumar Kadam. It
was specifically contended that the Patient being anaemic with a Haemoglobin count of
7.8 gms. and having undergone an earliercaesarian section was made to undergo
prolonged and induced labor, which was responsible for both the PPH and her eventual
death. The situation was further aggravated by the fact that there was also a doubt
whether the blood that was transfused was cross-checked with the Patient’s blood
group since no arrangement was made for blood by Respondents in anticipation of any
emergency. It was specifically contended, as observed by Dr. M.C. Gupta, that the
Patient had six high risk factors, apart from anaemia and an earlier caesarian section
(which makes the wall of the uterus weak) and these and other factors including obesity,
small stature as also hypertension makes prolonged and induced labour very risky and
is clearly contraindicated. It is safer to perform a caesarian section in such
cases. Counsel for the Appellant stated that the two Medical Boards of PGIMER,
Chandigarh and Medical College & Hospital, Rohtak gave biased findings of there being
no medical negligence and this had also been reported in the local press, which was
filed in evidence before the State Commission. It was contended that the State
Commission erred in not relying on the medical evidence of Dr. M.C. Gupta merely
because he was not a Gynaecologist whereas he had a Post Graduate Degree in
Medicine as also the statement/affidavit of Dr. Vijay Kumar Kadam, a well-known
Gynaecologist of Delhi, who had opined that there was medical mismanagement of the
case.
7.
Counsel for the Respondents on the other hand challenged the above allegations
and stated that the contention of the Patient having high risk factors was not factually
correct. It was specifically pointed out that the Haemoglobin count which was 7.8 gms.
during the Patient’s earlier visits in July and September, 1996 increased to over 10 gms.
at the time of admission (as recorded in her bed-chart) because she had been
prescribed iron tablets and other drugs to increase the Haemoglobin count. Further, her
blood pressure during these visits as also at the time of her admission and in labour
room was within normal limits. It was also stated that the actual period of her labour
was less than 24 hours and not 40 hours. The enquiries conducted by two highly
reputed medical institutions into this case also clearly confirmed that there was no
medical negligence or deficiency in service in the treatment of the Patient. Appellant’s
contention that all the enquiry reports were biased is based on pure conjecture and is
prima facie unreasonable.
8.
We have considered the submissions made by both learned Counsel as also the
evidence on record, including the medical reports and opinions of the Medical Boards
and Medical Experts. Patient’s admission in Respondent’s nursing home and her death
from PPH following a normal delivery are admitted facts. It is further not in dispute that
following her death and to ascertain if it was because of any negligence or deficiency in
her treatment, as alleged by her husband, detailed enquiries were conducted, including
by two Medical Boards as also by a Chief Medical Officer. All these enquiries
concluded that there was no medical negligence or deficiency in service in the case and
the PPH was an unfortunate and unforeseen incident, for which also emergency
treatment was given. This was sought to be challenged by the Appellant on the ground
that Patient being high risk case should not have been permitted to undergo prolonged
labour and an immediate cesarean section would have saved her life. From the
evidence on record, we are unable to conclude that the Patient was a high risk
case. Admittedly her Haemoglobin count was low, three months prior to her delivery as
per the medical records but at the time of her admission (as per the bed chart) because
of medication, including iron supplementation it had increased to 10 gms., which is not
indicative of anaemia. There has been no evidence to controvert that there was any
error in the bed chart prepared at the time of her admission. Further, Appellant’s
contention that the Patient had hypertension is also not borne out by the medical
records, which clearly indicated that it was very much within normal limits. It is also a
fact that though the first delivery was conducted by cesarean section, this was
undertaken not because of any cephalo pelvic disproportion but because of her
temporary medical condition (pre-oclasptia) at that time, which necessitated a cesarean
section. It is also on record that the progression of the Patient’s labour and delivery was
carefully monitored and even when the PPH occurred standard emergency treatment
was given, including blood transfusion. These were clear findings of the Medical
Boards consisting of highly eminent doctors from PGIMER, Chandigarh, a premier
referral institution of excellence, and also from the Medical College & Hospital,
Rohtak. Appellant’s contention that these reports were biased appears to be both
unreasonable and not acceptable since there can be no plausible reason for the
medical boards of PGIMER, Chandigarh and Medical College & Hospital, Rohtak to be
biased in this case. Also no concrete evidence has been produced by the Appellant in
support of these contentions. The Appellant was given a second opportunity to produce
evidence
of
medical
expert
in
support
of
his
contention
alleging
medical
negligence. We agree with the State Commission that the evidence of the medical
expert Dr. M.C. Gupta, who had neither examined the Patient nor was a Gynaecologist,
has little evidentiary value in this case. In fact, this witness had admitted during his
cross-examination that his evidence was based on advice obtained by him from a
Gynaecologist. Further, neither he nor other medical expert Dr. Vijay Kumar Kadam,
who had filed his written evidence, have been able to point out any deficiency,
shortcoming or bias in the reports of the two Medical Boards. Dr. Gupta has made
some vague allegations that the report does not mention the date when it was signed by
experts and that it does not indicate what evidence they had actually examined. These
are trivial observations since they do not in any way contradict the actual findings of the
two Medical Boards.
9.
Keeping in view these facts, we are unable to conclude that the Appellant, on
whom there was onus to do so, has been able to prove that there was any medical
negligence in the treatment of his late wife by the Respondents. On the contrary,
keeping in view the findings of the Medical Boards from two major institutions PGIMER,
Chandigarh and Medical College & Hospital, Rohtak as also the documentary evidence
pertaining to the medical records of the Patient, it is clear that there was no negligence
or deficiency in the medical treatment and care of the Patient. We, therefore, uphold
the order of the State Commission in toto. The first appeal having no merit is hereby
dismissed. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
SB/Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 494 OF 2007
(Against the order dated 15.02.2007 in O.P. No.9/1993 of the Tamil Nadu State
Consumer Disputes Redressal Commission, Chennai)
Javeed
S/o Ameer
No. 7, C. Kaladipet Market Lane
Tiruvottiyur
Chennai-19
Tamil Nadu
…
Appellant
…
Respondent
Versus
Manager/Officer-in-charge
C.S.I. Rainy Hospital
G.A. Road, Chennai-600021
Tamil Nadu
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Mr. CKR Lenin Sekar, Advocate
For Respondent
: Mr. Parivesh Singh, Advocate
Pronounced on 31st January, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by Javeed, Appellant herein and original
complainant before the Tamil Nadu State Consumer Disputes Redressal Commission,
Chennai (hereinafter referred to as the State Commission) being aggrieved by the order
of that Commission which had dismissed his complaint of medical negligence against
Manager/Officer-in-charge, C.S.I. Rainy Hospital, Respondent herein.
FACTS :
2.
Appellant, who was around 6 years old at the time of filing the complaint before
the State Commission, was admitted to Respondent hospital with complaint of
temporary Inguinal Hernia (R) and after diagnostic tests, confirming that he was
suffering from Inguinal Hernia (R), he was operated on 12.08.1989. However, instead
of operating on the Right side, Appellant was operated for Left Inguinal Hernia and
Hernitomy. This mistake was noted by the main doctor of the hospital and after his
discharge
on
26.08.1989
he
was
advised
to
come
back
in
September,
1989. Appellant’s father, therefore, got him back on 07.09.1989, when he was informed
that an operation is required on the Right Inguinal Herniatomy. His father refused to get
another surgery done and he was taken to Maharaja Hospital, Chennai, where after a
medical check-up he was informed by Dr. A.P. Subramaniam that Respondent had
made a mistake in conducting the first surgery on the Left Inguinal Hernia. Being
aggrieved by the medical negligence on the part of Respondent, Appellant filed a
complaint before the State Commission and requested that Respondent be directed to
pay him Rs.1,50,000/- as compensation.
3.
Respondent on being served denied these allegations and stated that Hernia in
children are often bilateral, as is in the instant case. Since it is well established that
surgery cannot be done on both sides at the same time, Appellant’s parents were
informed that both sides would have to be operated through two separate surgeries,
which they had agreed. At the operation theater, the doctor conducting the surgery
noted that the left side scrotum was bulging more and, therefore, it was necessary to
conduct an operation on the Left side first, about which the Appellant’s mother, who was
waiting outside the operation theater, was duly informed. The surgery was successfully
conducted and after the wound was sutured on 26.08.1989 Appellant was discharged
and was asked to come back for the second surgery in September, 1989 during school
vacations. In the meantime, Appellant was administered medicine and injection for the
second surgery. However, when the Appellant was readmitted for repair of the Right
side Herniatomy, his father for reasons best known to him got him discharged without
waiting for the surgery. It was specifically denied that the Appellant’s parents were
informed that surgery was required only on the Right side. Thus, there was no medical
negligence on the part of the Respondent.
4.
The State Commission after hearing the parties dismissed the complaint filed by
the Appellant against the Respondent by stating as follows:
“The fact remained that the mother of the complainant was aware of the
operation of the left side hernia as she had given consent for herniatomy
which meant operation of both sides as explained by RW-2. Further, right
through the treatment and surgery of the complainant, only the mother of
the complainant was present and only on 08.09.1989, the father had as
suggested in the cross-examination, had compulsorily asked for the
discharge of the complainant. This was with an intention to extort money
from the opposite party. He had projected a false stand as if he was
present throughout from the beginning till the complainant was
discharged. RW-2 had also in her evidence clearly stated that in children,
the swelling would appear and dis-appear and that was the reason why
while operating a child for hernia, the consent was got only for herniatomy
which related to both sides of the scrotum. The opposite party had taken
due care in the discharge of their duties and there was no negligence
whatsoever in operating the complainant. As a competent surgeon, RW-2
had taken the necessary care and caution so that the child’s life could be
saved. The complainant’s father had also published the case that he had
consulted one Dr.A.P. Subramaniam. But, no evidence was produced to
show that any other doctor had been consulted. There was also no proof
produced by the complainant with regard to the expenses incurred.”
The State Commission also cited medical literature entitled “The Surgical Clinics of
North America” [Vol. 65/Number 5, October 1985], confirming that Hernias in children
are often bilateral but both may not always be diagnosed during a medical examination
and further that Inguinal Herniatomy also has a silent side which may not always be
apparent on sight.
5.
Being aggrieved by the dismissal of his complaint Appellant has filed the present
first appeal.
6.
Learned Counsel for both parties made oral submissions.
7.
Learned Counsel for the Appellant stated that the State Commission erred in not
taking cognizance of the medical records pertaining to the Appellant’s case history in
Respondent hospital, which was in evidence before it. As per these records, a clear
diagnosis of obstructed Inguinal Herniatomy on the Right side was made which was
also recorded. This diagnosis was again confirmed in the detailed case history
recorded on 13.08.1989. On 25.08.1989 when the Appellant was admitted for surgery,
it
was
again
clearly
noted
that
he
was “Posted
for
(R)
Herniatomy
on
25.08.1989”. However, it was only on 26.08.1989 i.e. just prior to the surgery that it was
noted in the case sheet that Appellant had Left Inguinal Herniatomy, which required to
be operated. Counsel for the Appellant stated that Respondent’s contention that the
Herniatomy was bilateral and that before the surgery the Appellant’s mother was
informed that the surgery would be first done on the Left side is not factually correct
because nowhere does the diagnosis in the case history indicate that the Appellant was
suffering from bilateral Inguinal Herniatomy. By operating on the Left side of the
Herniatomy, when it was not required Respondent was clearly guilty of medical
negligence, for which the compensation sought of Rs.1,50,000/- is fully justified.
8.
Learned Counsel for Respondent on the other hand stated that the State
Commission had rightly relied upon the medical literature as also the evidence on
record to conclude that there was no medical negligence by stating that it was clear
from the record that the Appellant was suffering from bilateral Herniatomy, i.e. both on
the Right and Left sides, which is a common phenomenon in children, and in the
operation theater when a well-qualified pediatric doctor observed that the bulging was
more prominent on the Left side, after informing the mother of the Appellant, she rightly
conducted the surgery first on the Left side and advised that the Appellant be brought
for the second surgery on the Right side in September, 1989. Counsel for Respondent
stated that this is evident from the consent letter signed by Appellant’s parents as also
the case history recorded on 07.09.1989.
9.
We have carefully considered the submissions made by learned counsel for both
parties and have gone through the evidence on record, including the documentary
evidence from the Respondent hospital pertaining to the Appellant’s case. We note
from the recorded case history of the Appellant that right from the time when he was
brought to the hospital i.e. on 12.08.1989, he was subjected to a number of diagnostic
and clinical tests and on the basis of these tests, a clear cut diagnosis of obstructed
Inguinal Herniatomy (R) was made. These findings were confirmed on 13.08.1989
following a physical examination when it was specifically noted that the Appellant was a
known case of Inguinal Herniatomy (R) and there was no other complaint. This
diagnosis was confirmed at the time of his admission for the required surgery on
24.08.1989 and again on 25.08.1989, when it was stated that the Appellant was posted
for (R) Herniatomy. It was only on 26.08.1989 at the time of the operation that for the
first time it was stated that this was a case of Left Inguinal Herniatomy. We have also
gone through the consent letter signed by the Appellant’s parents (since he was a
minor) and it only states that the Appellant’s mother had given permission for operation
of Herniatomy. No mention is made about bilateral Herniatomy. Respondent has not
been able to produce any evidence that Appellant’s parents were informed that
Appellant was suffering with bilateral Herniatomy or that just prior to the surgery they
were informed that the surgery would be conducted on the Left side and not on the
Right side. The letter dated 07.09.1989 only states that the Appellant is posted
tentatively for Right Herniatomy, which does not help the Respondent and only proves
the Appellant’s contention that a surgery on the wrong side was carried out on
26.08.1989. In view of the overwhelming documentary evidence from Respondent’s
own hospital discussed in the foregoing paras, we are unable to agree with the finding
of the State Commission that as per the evidence on record there was no medical
negligence in the treatment of the Appellant. Clearly, Appellant was diagnosed for
conducting a surgery on the Right Inguinal Herniatomy whereas without any evidence
that it was the Left side which required the surgery, this surgery was conducted. Had
the Respondent advised the Appellant’s parents during their visit to the hospital that the
Appellant had bilateral Herniatomy, then perhaps there would be some case for the
Respondent to explain how the surgery was conducted on the Left side. In the instant
case, nowhere did the case history state that the Appellant had symptoms of bilateral
Herniatomy. On the contrary, as stated above, after clinical and diagnostic tests, it was
recorded that the surgery was for Herniatomy on the Right side. In view of these facts,
we are of the view that there is force in the Appellant’s contention that he was wrongly
operated for Left Inguinal Herniatomy whereas the surgery should have been
conducted on the Right side.
10.
What constitutes medical negligence is now well settled through a number of
judgments of this Commission as also of the Hon’ble Supreme Court of India. One of
the principles to test medical negligence is whether a doctor exercised a reasonable
degree of care and caution in treating a patient [Supreme Court Case Indian Medical
Association v. V.P. Shantha (1995) 6 SCC 651 and this Commission case Tarun
Thakore v. Dr. Noshir M. Shroff (OP No. 215 of 2000)]. In the instant case, the facts
clearly indicate that the required reasonable degree of care and caution was not taken
by Respondent in the treatment of the Appellant and, thus, Respondent was guilty of
medical negligence, for which the Appellant should justifiably be compensated.
11.
In view of these facts and respectfully following the judgment of the Hon’ble
Supreme Court cited above, we are unable to uphold the order of the State Commission
and set aside the same. Respondent being guilty of medical negligence is directed to
pay the Appellant Rs.1,00,000/- as compensation for the unnecessary suffering and
agony caused to him and to his family within two months from the date of this order.
12.
The present appeal stands disposed of on the above terms. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 198 OF 2001
1. Mr. Sanjay Mutha
2. Mrs. Rupa Mutha
W/o
Guardian Mr. Sanjay Mutha
Sanjay Mutha
Through
her
Husband
and
3. Miss Sonal D/o Sanjay Mutha Through her Father and Guardian Mr. Sanjay Mutha
All residing at 3-6-283, Hyderguda, Hyderabad, Andhra Pradesh
….Complainants
Versus
1. Dr. Jayashree Desai W/o not know Desai Maternity and Nursing Home Opp. Old MLA
Quarters Himayathnagar, Beside Hyderabad Stock Exchange, Hyderabad – 500 029
Andhra Pradesh
2. Dr. Sampath Kumar S/o Not known Anesthetist Laxmi Clinic Desai Maternity and
Nursing Home, Opp. Old MLA Quarters Himayathnagar, Beside Hyderabad Stock
Exchange, Hyderabad – 500 029 Andhra Pradesh
3. Laxmi Clinic Desai Maternity and Nursing Home, Old MLA Quarters Himayathnagar,
Beside Hyderabad Stock Exchange, Hyderabad – 500 029, Andhra Pradesh
.....Opposite parties
BEFORE
HON’BLE MR. JUSTICE J. M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Complainants
: Mr. Rajshekhar Rao, Advocate with
Mr. K. Harshavardhan Reddy, Advocate
For Complainant No.3
Complainant No.1 in person
For the Opposite party No.1 : Mr. Tulsi Raj Gokul, Advocate and
Mr. Yoginder Handoo, Advocate
For the Opposite party No.2 : In person
For the Opposite party No.3
:
NEMO
PRONOUNCED ON: 01.02.2013
ORDER
PER MR.VINAY KUMAR, MEMBER
Shri Sanjay Mutha, together with his wife Smt. Rupa Mutha and daughter Sonal,
has filed this Consumer Complaint in July, 2001. The matter arose out of the
developments at OP-3/Laxmi Clinic on 19.7.1999. Complainant No.2/ Rupa Mutha had
undergone a Fallopin Tube Test (hereinafter referred to as FTT) performed by OP1/ Dr. Jayashree Desai assisted by the anaesthetist, Dr. Sampath Kumar/OP-2. This
was in the background of the fact that the first child of the couple was born in
March1988 and they were hoping to have a second child.
CASE OF THE COMPLAINANTS
2.
As per the complaint petition, the procedure was performed in the morning of
19.7.1999
at
OP-3.
While
she
was
still
in
the
operation
theatre,
her
husband/Complainant No.1 was informed that Mrs Rupa had developed cardiac
arrest. At about 11:30 A.M. she was shifted to Care Hospital Hyderabad, accompanied
by OP-2/Dr. Sampth Kumar. Allegedly, she arrived at Care Hospital in comatose
condition. She remained under treatment there till she was shifted to Chennai on
16.8.1999 for further treatment.
3.
Now, Rupa Mutha, as per the Complaint Petition, lives in a vegetative state,
unable to talk, move or think and is like a ‘living corpse’. It is alleged that her
present condition is on account of brain damage suffered due to hypoxia
(inadequate supply of oxygen to the brain), which happened at OP-3 during the
course of the Fallopian Tube Test performed by OP-1 and OP-2.
4.
The Complaint Petition seeks a total compensation of Rs.687.60 lakhs, which
includes the incurred and projected expense of treatment as well as loss of professional
earnings by the patient, who was a practising Chartered Accountant, before her medical
misfortune.
5.
During the course of the proceedings before this Commission, interrogatories
were served by both parties and their respective replies have been brought on record.
The OPs were also permitted to produce the record of treatment at Care Hospital,
Hyderabad. The
case
of
byMr. K. Harshavardhan Reddy,
the
complainants
Advocate.
The
has
OPs
been
were
argued
represented
by Mr. Yoginder Handu and Tulsi Raj Gokul, Advocates. Both counsels have been
heard extensively in October 2012 and the records submitted by the two sides perused
carefully.
6.
The reason for consultation with OP-1 is explained in the affidavit evidence of
Complainant No.1/Sanjay Mutha. The couple had a daughter born in 1988. They
were also concerned about the condition of alopecia (premature baldness), which had
afflicted their first child. Yet, they wanted to have a second child at the earliest. The
advice to go in for Tube Patency Test was due to the gap between the birth of the first
child and plan for the second pregnancy.
7.
The case of the Complainant, as detailed in his affidavit evidence, is that Care
Hospital had certified that the patient was brought to them after she had suffered
from Hypoxic Encephalopathy. Before that the discharge summary of OP-3/Clinic has
recorded that she was having myclonic jerks of her fingers, which, as per medical
literature (Harrisons Principles of Internal Medicines) indicate severe brain damage. The
discharge
summary also records
that Rupahad bradycardia before cardiac
arrest. It is alleged that bradycardia is secondary to Hypoxia, which could show that
the patient was suffering from lack of oxygen prior to cardiac arrest. The affidavit
evidence also seeks to counter the claim of the OPs that the patient was taken from
OP3/Nursing Home under sedation. It is contended that the sedative injection
(Diazepam 10 mg.) was given150 minutes before shifting her to Care Hospital. Had this
been the truth, the patient would have regained conciseness and would not have been
received in Care Hospital in comatose condition.
8.
The Complainant has questioned the correctness of the decision to the conduct
the procedure (Rubin Test) under general anaesthetia. The affidavit evidence also
challenges the claim of the OPs that general anaesthesia was given on the request of
the patient. Complainant’s main contention is that the patient was
not
anaesthetised for the entire duration of the test as the medicine given for this
purpose would have had effect for only five to eight minutes. It is alleged that she
was anaesthetised only with 330mg pentothal and 0.6 mg atropine. No analgesic was
given. Also that thereafter the OPs have not maintained any clear record of the
condition of the patient when she was sinking into cardiac arrest.
RESPONSE AND EVIDENCE OF THE OPPOSITE PARTIES
9.
Per contra, the case of the opposite parties has been made out in a very detailed
response,
denying
the
allegation
of
negligence
in
the
treatment
of
Smt.Rupa Mutha. Fallopin Tube Test is explained to be decided upon as the
Complainant wanted to have a successful pregnancy and a healthy baby. The patient
was not new to the OPs and had been under treatment of OP-1 for several
years. Rupa was an intelligent educated person and had given her consent for the
procedure as well as for general anaesthesia. Her husband had not accompanied her
to the clinic therefore, did not directly know what had transpired between the patient and
OP-1 in this matter.
10.
As
per
the
written
response,
OP-3/Hospital
was
equipped
with
Pulse Oxymeter and Defibribillator, which contained a cardiac monitor as well. This was
also seen by Dr. Raghu, Cardiologist and Dr. Shridhar, Neurologist, who were permitted
to join the OPs in the operation theatre on the request of the second Complainant. No
change was suggested by these two doctors in the treatment being provided by
the OPs to the patient.
11.
The patient suffered cardiac arrest before she was shifted to Care Hospital.
In para 8 the written response states that:“It is necessary to notice that immediately after the Tube Testing was
over, N20 was cut off and 100% Oxygen was given to the patient with face
mask who was spontaneously breathing. All of a sudden the patient, who is
the 2nd complainant herein, developed gasping with jerky irregular laboured
breathing and Oxygen saturation started falling while the patient still held
with mask with 100% Oxygen and Cardiac arrest occurred
rapidly. Immediately on such noticing the patient’s head end was lowered
and endotracheal intubation was done IPPV with 100% oxygen was given
and Cardio-Pulmonary Resuscitation was started.”
12.
However, the very next para of the written response states that at about 11.30
a.m. the patient was shifted to Care Hospital and there is no evidence or reliable
material to support the allegation of the Complainants that the patient suffered from
Hypoxia, even before commencement of the transit to Care Hospital. The written
response claims “there was no scope for Hypoxia while the patient was in the Operation
Theatre of the opposite parties. Both the notes of the Anaesthetist, who is the
2nd opposite party herein, and the Discharge Summary of the 1st opposite party do not
indicate any such occurrence while the patient was in the Operation Theatre.” The OPs
have denied that any brain damage to the patient had occurred in the course of conduct
of the Rubin Test and claimed that the cardiac arrest had no relationship with the
procedure performed on the patient. A question would arise here, that if there was
no hypoxia what else could have caused the sudden deterioration in the
condition of the patient, leading to her transfer to Care Hospital in reportedly
comatose condition. As per the written response, no expert medical opinion has
been specifically relied upon by the Complainants, which can hold the OPs responsible
for the present condition of the patient. The OPs, it is claimed have taken all reasonable
care and have made all efforts.
13.
The written response also contends that on the question of treatment or
management of the patient, there can be difference of opinion on procedure. More than
one right way of managing, must however be accepted in practice by the medical
profession. No opinion given by one set of experts can be said to be conclusive proof of
the applicable practice. There can be more than one type of management practice,
which can be followed.
14.
Accordingly, the claim of the Complainant that the Rubin’s Test is neither reliable
nor preferable, has been challenged by the OPs. It is stated that the Complainant has
partially quote from the book by name “The Principles of Gynaecology” by Senior
Norman Jeffcoate. The same book, while dealing with the assessment of female
fertility, deals with Tubal Patency Test states that it should be carried out during
the seven days following the ends of menstrual period as there is practically no
risk of disturbing the fertilised ovum, at that time.
15.
The OPs have also challenged the contention of the Complainants that, instead of
following an old practice of Rubin’s Test, the more contemporary procedure
of Hysterosalpingography should have been conducted. According to the OPs both the
procedures are available at the option of the medicalpractioner. It cannot be contended
that one is obsolete and abandoned. It is contended that both Rubin’s Test as well
as Hysterosalpingography are available at the option of the medical practitioner
and it is wrong to allege that the Rubin’s Test has become obsolete and
abandoned, is unsustainable.
16.
The OPs have also challenged the contention of the Complainants that the
discharge summary is silent about the time consumed in performing the procedure on
the patient, the time when she started gasping and when she went into the cardiac
arrest. It
is
contended
that
from
a
combined
reading
of
the Anaesthetist’s Notes prepared by OP-2 and the Operation Notes, it becomes
clear that the Rubin’s Test procedure started around 8.30 AM and around 8.55 AM
when the procedure of Tube Test was over, patient developed acute breathing
difficulty, gasping and cardio pulmonary arrest.
17.
Similarly, the allegation that irregular performance of Rubin’s Test has resulted in
cardiac arrest, is strongly denied. In this behalf, the allegation of the Complainants
that the failure of the OPs to deeply anaesthetise the patient had led to vagal
cervical reflex, is rejected by the OPs as baseless. It is claimed that ‘Rubin’s Test is
a simple, minor and short diagnostic procedure that can be done as out-patient
procedure unless the patient insists for general anaesthesia due to apprehension etc.’
18.
According to the OPs, general anaesthesia was given on the request of the patient
herself. However, the written response of the OPs simultaneously admits that:“As already submitted that in case of performing the Rubin’s Test it
can be performed even as an out patient procedure without
administering anesthesia and analgesic. In fact several authorities clearly
published that in various cases the Rubin’s Test was performed on patients
without analgesic. But yet to prevent the possible surgical stimulation in
connection with the dilatation of cervix as an abundant caution the opposite
parties have chosen to administer general anaesthesia to the patient for
which the consent was obtained from the 2nd complainant-patient.”
Thus admittedly, the decision to do the procedure under general anaesthesia was
not at the instance of the patient. It was professional decision of the OPs.
19.
As per the OPs, the patient was alright till the end of the Rubin Test
procedure. She developed sudden gasping and cardiac arrest, only thereafter. The
OPs claimed that the patient developed difficulty in breathing only during recovery from
anaesthesia and not during dilatation of the cervix. It is claimed by the OPs that
within three minutes, the cardiac rhythm of the patient was restored and she was
handed over to Care Hospital with adequate supply of oxygen. This claim loses
all its veracity in the face of the report of Care Hospital, filed in the course of
these proceedings.
20. The net outcome in this case is that the life of Complainant No.2/ Rupa Mutha has
nearly got destroyed at the end of a medical procedure which, in the opinion of the OPs,
was a minor one and could even have been performed as an out-patient and without
general anaesthesia. We have therefore considered the records submitted by both
parties very carefully and heard their respective counsels at length.
ARGUMENTS OF THE COUNSELS
21.
Learned counsel for the Complainants Mr. K. Harshvardhan Reddy, sought to
make out a case of medical negligence on the following grounds:Rubin’s Test was an outdated procedure and should not have been resorted to in
1)
the year 1999. Medical literature filed by the OPs themselves shows that “as false
results
are
frequent
in
this
test
practice.” (Clinical Gynecology (Fourt Edition)
it
is
not
by
commonly
used
K Bhaskar Rao and
N N Roy Chowdhury, page 151).
2)
Continuous supply of the oxygen was not given to the patient. Due to this the
patient suffered from Hypoxia, leading to Hypoxic Encephalopathy.
He referred to the evidence in the Discharge Summary of OP-3, depositions and
medical literature and argued that
--
a. Hypoxia (falling oxygen level in the body) was followed by bradycardia (slowing
down of beating of the heart). Brain damage occurred due to prolonged hypoxia
and bradycardia. Discharge Summary of OP-3 mentions that bradicardia had
ensued, though it is denied by OP-1.
b.
The discharge summary also refers to ‘myoclonic jerks of forefingers’ which has
also been mentioned in the testimony of Dr Sridhar, Neuro Physician who had
admittedly seen the patient at OP-3 hospital, after cardiac arrest. As per medical
texts, this is indicative of brain injury. (Harrison’s Principles of Internal Medicine,
Twelfth Edition, Vol I)
22.
De hors, learned counsel for the OPs argued that gasping was a sudden and
unexpected development. He argued that the record of treatment would also show
that endo-tracheal intubation was done when the patient suddenly started gasping.
Cardiopulmonary Resuscitation (CPR) was done and the patient was revived. Before
shifting to Care Hospital, availability of ventilator was ensured. OP-2 accompanied the
patient to Care Hospital. Drs Raghu and Sridhar were allowed inside the operation
theatre, on the request of Complainant-1. All that could be done was done.
23.
OP-1/Dr Jayshree Desai has said in her affidavit that “All my concern at that time
was to carry out the test as quickly as possible to ensure that general anaesthesia
would be as short as possible.” In a subsequent para, OP-1 also says that “ By the time
when the patient suffered the cardiac arrest at 8.55 AM, the procedure of tube testing
was complete. Therefore, it cannot be said because of the pains she suffered she had
suffered the cardiac arrest.” Thus, while the declared intention was to keep it a
short spell of general anaesthesia, the procedure admittedly took about 25
minutes. According to the complainants, given the quantity of anaesthetic agents
administered, the patient could have been anaesthetised for about 5 minutes
only.
EVALUATION OF EVIDENCE
24.
OP-2/ Dr Sampath Kumar, has in his affidavit evidence, strongly averred that
hypoxia did not occur during or after the FTT procedure at OP-3 or even during transit
to Care Hospital. This assertion is in direct conflict with the certificate of Care
Hospital which showed that the patient was brought at 11.30AM in comatose
condition and was diagnosed with post operative, post resuscitation state
Hypoxic encephalopathy. She was kept on ventilator till 28 th July 1999 and MRI of
brain showed mid brain altered signal suggestive of hypoxic changes. This
certificate comes from a hospital that treated the patient from 19 th July to 16th August
1999. Therefore, in our view the attempt of OP-2 brush it aside in his affidavit, as a
“fraudulently obtained” certificate, cannot be accepted. More so, as the OPs have not
led any evidence to counter it and the affidavit of OP-2 also admits that in the
emergency caused by the cardiac arrest suffered by the patient, he had “failed to
attend to the preparation of anaesthesia notes simultaneously.” The affidavit also
says that the patient’s parameters “such as PR, RR, O2, saturation etc. are routine
observations. Though they are observed and monitored the same might not have been
reflected in the anaesthesia notes, in the circumstances of the case.”
25.
Dr. Shyam Sundar of Care Hospital has, in response to the interrogatories, stated
that “The patient was examined besides me by a neurophysician and a cardiologist.
Laboratory investigations were conducted to rule out other causes of encephalopathy
and we as a team arrived to the conclusion that she had suffered hypoxic
encephalopathy i e brain damage because of lack of oxygen for more than 10
minutes”. He has also stated that occurrence ofbradycardia and gasping before cardiac
arrest are signs of hypoxia leading to cardiac arrest. No expert opinion or medical
authority has been produced by the OPs to show any error in the above opinion given
by Dr Shyam Sundar.
26.
In reply to the interrogatories, OP-2 denied that bradicardia was the cause for
cardiac arrest which the patient had, admittedly suffered. As per Anaesthesia Notes
prepared by him, the patient had suffered from gasping which was followed by cardiac
arrest. But, he accepts, in the same response, that atropine – which is a drug of
choice for treating bradicardia – was given to Rupa Mutha. He also concedes that
“existence of bradicardiamay be a case of manifestation of occurrence of hypoxia
as per the authorities.” However, he qualifies it by claiming that she was given
atropine to prevent and not control bradicardia. It is also claimed that atropine was used
while administering anaesthesia to prevent and depress vagal stimulation. But
admittedly, no analgesic was used.
27.
While answering the interrogatory on this point OPs-1and 2 have asserted that
general anaesthesia given to Rupa Mutha was good enough and deep enough to
prevent vagal reflex. But, while denying the allegation of inadequacy of
anaesthesia, the OPs have claimed that anaesthesia was not given at 8.30 AM but
at about 8.40 AM and the entire FTT procedure was completed before 8.55 AM,
when the cardiac arrest occurred. OP-1 has made a tentative claim that at 8.55
AM “the patient must have been still under anaesthesia effect”. This is contrary to their
records and pleadings.
28.
OP-2 is equally vague in his reply to the interrogatory on this point. He does
not deny that the anaesthesia given would have had effect only for eight minutes.
But, says that the allegation that there was no anaesthesia effect by 8.55 AM
when cardiac arrest took place cannot be said to be correct. Significantly, during
the course of hearing before us, OP -2 was asked the same question. He conceded that
the anaesthesia given by him to RupaMutha was meant to keep her anaesthetised for 8
minutes only.
29. In the written arguments submitted on behalf of the OPs, we find yet another shift.
It is claimed that 8.30 AM was only the scheduled time. The preparatory steps took 10
to 12 minutes and the duration of the FTT procedure was from 8.47 to 8.55
AM. “Therefore, though the effect of Pentothal lasts only around 8 minutes
approximately, it covers the entire duration of the test.” By implication, the
anaesthesia was given not at 8.30 AM, not even at 8.40 AM (as claimed earlier) but
at 8.47 AM. In the background of admitted lapse in recording details in the
Anaesthesia Notes, this can be viewed only as a transparent attempt to mislead.
We deprecate and reject it.
FINDINGS
30.
From the details examined above it is evident that the OPs have denied any
suggestions as to what may have happened. At the same time, they have failed to
explain what would or could have triggered the onset of cardiac arrest. Nevertheless, a
careful scrutiny of the evidence brought on record makes the following clear—
a. Evidence led by the OPs themselves shows that the FTT procedure started at 8.30
AM and breathing problem started at 8.55 AM, when the procedure was over. This
would strongly indicate that the trigger for the breathing problem lay in the conduct of
the FTT procedure.
b. OPs own records go against their claim that general anaesthesia was given on
patient’s own request. Admittedly, it was their professional decision.
c. Despite denials in depositions, the discharge summary of OP-3 clearly shows
that “During recovery from anaesthesia the patient developed difficulty in breathing.
She was intubated immediately by the anaesthetist, placed in head low
position. Bradicardia ensued
and
despite Inj Atropine
she
developed
cardiac asystole.” It is therefore clear that bradicardia occurred before cardiac
arrest.
d. It is admitted by OP-2 that atropine – which is standard treatment for bradicardia –
was given to the patient. It is also admitted that medically, bradicardia can occur due
to hypoxia.
e. Myoclonic jerks are mentioned in the Discharge Summary. As per medical texts, this
is indicative of brain injury. (Harrison’s Principles of Internal Medicine, Twelfth
Edition, Vol I). The OPs have failed to explain it in any other manner.
f.
A few hours after the FTT procedure at OP-3, when Rupa Mutha was brought to
Care Hospital, she “was diagnosed as post operative, post resuscitation state
with Hypoxic
encephalopathy”.
Black’s
Medical
Dictionary
defines Encephalopathy as a condition in which there are signs of cerebral irritation
without any localised lesion to account for them. It also defines Hypoxia as shortage
of oxygen in the body tissues. It may be caused, among others, by low concentration
of oxygen or abnormal breathing pattern. Evidently, she had suffered hypoxia during
the FTT procedure, because she was fit enough to have come to OP-3 hospital the
same morning, on her own and unaccompanied by her husband.
g. Intubation and use of oxygen mask for control of breathlessness has been indicated
in the records. It is also claimed that OP-3 had necessary equipment
including Oxymeter. But, no record of pulse oxymetry (for monitoring the oxygen
level in the blood) was maintained which could have helped in reaching a finding
whether hypoxia had occurred or not. In this behalf, Op-2/the Anaesthetist has
admitted the deficiency in maintenance of full record.
h. Admittedly, no analgesic was given to prevent any possibility of vagal reflex during
dilatation of cervix. OPs have claimed that the type of general anaesthesia given to
the patient was adequate to prevent vagal reflex. But, in the process of justifying
their claim, they contradict their own records as to the time when the FTT procedure
was started. It is also claimed that atropine was used while administering
anaesthesia to prevent and depress vagal stimulation. But admittedly, no analgesic
was used. While answering the interrogatory on this point OPs-1and 2 have
asserted that general anaesthesia given to Rupa Muthawas good enough and deep
enough to prevent vagal reflex. But, while denying the allegation of inadequacy
of anaesthesia, the OPs have repeatedly contradicted themselves on the time
when anaesthesia was actually given. But, what remains uncontroverted is
that the FTT procedure started at 8.30 AM; the anaesthesia given to Rupa was
meant to be effective for eight minutes only and by 8.55 AM the breathing
problem had cataclysmically started.
i.
While occurrence of vagal reflex comes out as a strong possibility, suffering
undergone by the patient during intubation is an admitted fact, as per the evidence
of OPs, themselves. Discharge Summary shows that the patient was fighting
intubation and reaching for the tube. But it does not show whether any muscle
relaxant was given, which is a standard medical practice in endotracheal intubation.
31.
bring
In the course of the present proceedings, the complainants were permitted to
on
record
the
judgments
of
the
Metropolitan
Magistrate,
Hyderabad
and Hon’ble High Court of Andhra Pradesh in the criminal prosecution launched against
the OPs. We however, deem it appropriate to clarify that the findings above have been
reached independently of those records.
32.
The question before us is whether the findings listed above would amount to
‘deficiency of service’ within the meaning of Section 2(1)(g) of the Consumer Protection
Act, 1986. In terms of this provision—
“deficiency” means any fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner of performance which is
required to be maintained by or under any law for the time being in force or
has been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service.”
33.
In the context of ‘medical negligence’ Hon’ble Supreme Court of India has laid
down the law in the following landmark decisions. In Jacob Mathew Vs. State of
Punjab, (2005) 6 SCC 1, The Apex Court has summed it up in eight conclusions. Of
them, the following conclusions will directly apply to the matter now before us :“1. Negligence is the breach of a duty caused by omission to do
something which a reasonable man guided by those considerations
which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do.
2. Negligence in the context of medical profession necessarily
calls for a treatment with a difference. To infer rashness or negligence
on the part of a professional, in particular a doctor, additional
considerations apply. A case of occupational negligence is different from
one of professional negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the part of a
medical professional. So long as a doctor follows a practice acceptable
to the medical profession of that day, he cannot be held liable for
negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor
would not have chosen to follow or resort to that practice or procedure
which the accused followed. When it comes to the failure of taking
precautions what has to be seen is whether those precautions were
taken which the ordinary experience of men has found to be sufficient; a
failure to use special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for judging
the alleged negligence. So also, the standard of care, while assessing
the practice as adopted, is judged in the light of knowledge available at
the time of the incident, and not at the date of trial.
3. A professional may be held liable for negligence on one of the
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 possible for every
professional to possess the highest level of expertise or skills in that
branch which he practices. A highly skilled professional may be
possessed of better qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional proceeded
against on indictment of negligence.
4. The test for determining medical negligence as laid down
in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in
India.”
5. The jurisprudential concept of negligence differs in civil and
criminal law. What may be begligence in civil law my not necessarily be
negligence in criminal law. For negligence to amount to an offence, the
element of mens rea must be shown to exist. For an act to amount to
criminal negligence, the degree of negligence should be much higher i.e.
gross or of a very high degree. Negligence which is neither gross nor of
a higher degree may provide a ground for action in civil law but cannot
form the basis for prosecution.
6. The word ‘gross’ has not been used in Section 304A of IPC, yet
it is settled that in criminal law negligence or recklessness, to be so held,
must be of such a high degree as to be ‘gross’. The expression ‘rash or
negligent act’ as occurring in Section 304A of the IPC has to be read as
qualified by the word ‘grossly.’
7. To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or failed to
do something which in the given facts and circumstances no medical
professional in his ordinary senses and prudence would have done or
failed to do. The hazard taken by the accused doctor should be of such a
nature that the injury which resulted was most likely imminent.
8. Res ipsa loquitur is only a rule of evidence and operates in the
domain of civil law specially in cases of torts and helps in determining the
onus of proof in actions relating to negligence. It cannot be pressed in
service for determining per se the liability for negligence within the
domain of criminal law. Res ipsa loquitur has, if at all, a limited
application in trial on a charge of criminal negligence.”
34.
In Martin F D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1, the above principles for
determination of negligence by a medical practitioner were reaffirmed by Hon’ble Apex
Court. It was observed that:“From the principles mentioned herein and decisions
relating to medical negligence it is evident that doctors and
nursing homes/hospitals need not be unduly worried about
the performance of their functions. The law is a watchdog,
and not a bloodhound, and as long as doctors do their duty
with reasonable care they will not be held liable even if their
treatment was unsuccessful.”
35.
In V. Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr. (2010) 5 SCC
513, the question of expert evidence came up for consideration. Hon’bleSupreme Court
held that :“In the opinion of this Court, before forming an opinion that expert
evidence is necessary, the Fora under the Act must come to a conclusion
that the case is complicated enough to require the opinion of an expert or
that the facts of the case are such that it cannot be resolved by the
members of the Fora without the assistance of expert opinion. This Court
makes it clear that in these matters no mechanical approach can be
followed by these Fora.”
In the present proceedings, eleven years after filing of the complaint and after both
sides had led evidence, a request was received from the OPs on 26.9.2012 to constitute
a medical board. The request was neither pressed nor was constitution of a medical
board considered necessary, given the fact of the case.
36. The first allegation is that, for determination of fertility, the OPs should have
followed the more contemporary procedure of Hysterosalpingography instead of the
Fallopian Tube Test. According to the OPs, both procedures are in vogue and therefore
available at the option of the medical practitioner. The law on this point is well
established. Hon’ble Supreme Court has held in several decision that if there are more
than one way of treating the problem, the medical professional cannot be held to be
negligent merely because he chose to adopt one in preference over the other.
Therefore, we hold that the decision of the OPs to choose the FTT procedure and to
perform it under general anaesthesia does not, in itself, amount to deficiency.
37.
In the background of the detailed consideration of the evidence on record, the
findings reached by us and in the light of the applicable law discussed above, we have
no hesitation in holding that that the OPs have committed serious deficiency of service
in the treatment of Mrs Rupa Mutha. Therefore, the complaint must succeed. The OPs
need to compensate her for her medical condition resulting directly from her treatment
by them.
38.
While we may not agree with the quantum of compensation as claimed by the
Complainants, the need would still remain to arrive at an amount, which is just and
reasonable in the facts and circumstances of the present case. While considering such
a situation in State of Haryana Vs. Jasbir Kaur, (2003) 7 SCC 484, Hon’ble Supreme
Court has observed that:“It has to be borne in mind that compensation for loss of limbs or life
can hardly be weighed in golden scales. But at the same time it has to be
borne in mind that the compensation is not expected to be a windfall for the
victim. Statutory provisions clearly indicate that the compensation must be
‘just’ and it cannot be a bonanza’ not a source of profit; but the same should
not be a pittance. The courts and tribunals have a duty to weigh the various
factors and quantify the amount of compensation, which should be
just. What would be ‘just’ compensation is a vexed question. There can be
no golden rule applicable to all cases for measuring the value of human life
or a limb. Measure of damages cannot be arrived at by precise
mathematical calculations. It would depend upon the particular facts and
circumstances, and attending peculiar or special features, if any. Every
method or mode adopted for assessing compensation has to be considered
in the background
consideration.”
39.
of
‘just’
compensation
which
is
the
pivotal
We therefore, award the following amounts as just and reasonable compensation
in this case:1.)
2.)
3.)
Expenses incurred on her treatment
till 28.6.2001.
Rs. 6 lakhs
Expenses on her maintenance for the
same period.
Rs.14.4 lakhs
Compensation for physical and mental
sufferings of herself and her family.
Total:
Rs.18 lakhs
Rs.38.4 lakhs
The amount of Rs.38.4 lakhs shall carry interest at 9% per year, with effect from the
date of filing of the complaint in this Commission. The entire sum, inclusive of interest
so calculated, shall be paid within a period of three months from the date of this
order. Delay, if any, shall carry additional interest at 2% per year for the period of
delay.
.…………Sd/-………………
(J. M. MALIK, J.)
PRESIDING MEMBER
………Sd/-………………….
(VINAY KUMAR)
MEMBER
s./
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 33 OF 2007
(Against the order dated 28.11.2006 in C.C. No. C-49/96 of the Delhi State Consumer
Disputes Redressal Commission)
1. Orthonova Institute of Advanced Surgery & Research T.C.M.L. House 23, Pushp
Vihar Community Centre New Delhi-110062
2. Dr. V.K. Sadhoo Surgeon Orthonova Institute of Advanced Surgery & Research
T.C.M.L. House 23, Pushp Vihar Community Centre New Delhi-110062
3. Dr. J.S. Dua Plastic Surgeon Orthonova Institute of Advanced Surgery & Research
T.C.M.L. House 23, Pushp Vihar Community Centre New Delhi-110062
…
Appellants
Versus
Nripendra Kumar Thakur S/o Late Shri Diwakar Thakur R/o D-6, Jawahar Park, Devli
Road New Delhi-110062
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants
: Mr. Rajeev Sharma, Advocate
For Respondent
: Mr. C.B. Bhatt, Advocate
Pronounced on 1st March, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by Orthonova Hospital and its 2 doctors,
Appellants No.1, 2 and 3 herein & Opposite Parties No.1, 2 and 3 respectively before
the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as
the State Commission) being aggrieved by the order of that Commission which had
allowed the complaint of medical negligence filed against it by Nirpendra Kumar Thakur,
Respondent herein.
2.
In his complaint, Respondent had stated that he had taken his late father Diwakar
Thakur (hereinafter referred to as the Patient) to the Appellant Hospital on 08.10.1995
at 9.30 p.m. for medical treatment following a roadside accident, in which his father was
hit by a bus causing extensive injuries on his right thigh with compound fractures on the
left tibia. On 09.10.1995 a surgery was conducted on the Patient, which lasted for
nearly 3 hours, after which the Patient was shifted to Intensive Care Unit (ICU) without
explaining the reasons for doing so to Respondent. On 11.10.1995 Respondent was
asked to make an advance deposit of Rs.50,000/-, against which he deposited
Rs.30,000/. Appellants also informed Respondent that the Patient’s over all condition
was stable and improving steadily and that he would be discharged within 15
days. However, on 22.10.1995 at about 6.00 a.m. Appellants administered some
painkillers to the Patient intravenously in the presence of the Respondent, soon after
which he started experiencing severe breathing problems, shivering and his body
started becoming bluish with swelling. On 23.10.1995 Respondent was asked to
deposit another Rs.50,000/-, against which he deposited Rs.20,000/-. The Patient
remained in the Intensive Care Cardiac Unit (ICCU) from 22.10.1995 till 30.10.1995, on
which date he was shifted briefly to the General Ward and again sent to ICCU the next
day. Patient was also prescribed a non-allopathic medicine Iruxol, which could not have
been prescribed by allopathic doctors. On 04.11.1995 Respondent was informed by
Appellants that one Dr. Goel had been called from Moolchand Hospital for expert
consultations, who had advised for amputation of the injured legs but amputation could
not be done due to the deteriorating condition of the Patient. Moreover, since the
imported German medicine had been administered, amputation was not necessary. On
11.11.1995 Respondent was again asked to pay Rs.1,50,000/-, which he expressed his
inability to do at short notice. Soon after, the staff and doctors from the ICCU informed
the Respondent that his father had passed away and he could take delivery of the dead
body only after settling the outstanding payments amounting to Rs.2,60,377/-. On
18.12.1995 Respondent wrote a letter to the Appellants requesting for supply of various
documents pertaining to the Patient’s medical treatment because it had been hinted to
him that right from the initial stages of the treatment the Patient had developed one
problem after another and, therefore, instead of improving the Patient passed away. On
not getting the required information, Respondent filed a complaint before the State
Commission on grounds of medical negligence and deficiency in service and requested
that the State Commission direct Appellants No. 1, 2 and 3 to jointly and severally pay
the Respondent a sum of Rs.12,85,000/- as compensation alongwith Rs.50,000/- as
cost and interest.
3.
Appellants on being served filed a detailed counter reply denying the allegations of
medical negligence and deficiency in service. It was stated that the Patient had been
brought by the Respondent from All India Institute of Medical Sciences and admitted for
better care in the Appellant Hospital in a critical condition, including bleeding, totally
exposed bones from right lower thigh and knee, avulsed skin hanging from both the
lower extremities with few skin tags as also fractures, following his being hit and run
over by a bus. Patient was resuscitated and surgery done on 09.10.1995 as per
standard procedure and the best medical practices by Dr. V.K. Sadhoo, a senior
orthopedic surgeon, who had M.S., M.Ch. degrees in Orthopedics and was a wellknown consulting surgeon in major hospitals. Patient was shifted to the ICCU, which is
the normal practice in critical cases involving major surgery for better monitoring and
care. Detailed medical records of the Patient were maintained indicating careful
monitoring and treatment of his condition. He had breathing problems because of a
past history of Tuberculosis and chronic chest infection. He was constantly checked to
ensure that the wounds did not become gangrenous and on 18.10.1995 the necrosed
tissues were removed and Split Thickness Skin Graft (STSG) was applied under local
anaesthesia because he could not be administered general anaesthesia because of his
critical condition. On 22.10.1995 breathlessness was observed with fall in blood
pressure and extremities becoming cold and basal crepts were noticed in both lungs.
The condition of the Patient deteriorated leading to Acute Respiratory Distress
Syndrome (ARDS) due to flaring up of his old lung infection and the relatives of the
Patient were kept in the picture about his prognosis throughout his treatment. As the
condition of the Patient continued to deteriorate and amputation was not an option
because of Patient’s critical condition and also since Respondent had refused to give
consent for the same, although this was advised by Dr. Goel from Moolchand Hospital,
the Patient was managed according to the best medical practices and in his best
interest. It appears that the Respondent had filed the complaint with a malafide
intention to escape payment of the outstanding bills of the Appellant Hospital.
4.
The State Commission after hearing the parties and on the basis of evidence filed
before it allowed the complaint by observing as under:
“23. It appears to be a case where resort to the conventional and
conservative treatment which every doctor would do at the first instance in
order to avoid the amputation of the limb was taken. But if the situation or
condition of the patient deteriorates to such an extent that the infected
areas are having extensive raw that they would spread to other parts of
the body, it is the medical professional whose decision is final as it is the
doctor who is the best judge as to what kind of line of treatment is to be
provided to a patient whether to save his life or save his limb can be
sacrificed but not other way round. In this case, if not on 05-11-1995 but
at the most on 09-11-1995 the limbs should have been amputated even if
there was no consent of the complainant or the attendants.
24. If this was the view of the OP that the amputation was not necessary
inspite of having obtained expert view of Dr. Goel and there was persistent
resistance by the complainant, nothing prevented the OPs to either ask
the complainant to take the patient to some other hospital or to amputate
the limb but keeping the patient in the ward without amputation of the limb
was nothing but contribution towards accelerating or spreading of infection
in the body that might have resulted in the death. If O.Ps. did not deem it
necessary to amputate the limb on 05-11-1995 they should have at least
done it on 09-11-1995 as the expert had already opined in favour of
amputation.
25. There is no escape from arriving at the conclusion that O.Ps. are
guilty of medical negligence as they did not do what they were, as per
medical practice, and opinion of the expert were required to do. Had they
saved the life inspite of there being no consent for amputation, they would
have got absolved from the charge of medical negligence as there was a
clinching evidence of opinion of expert in the field for amputation.
26. The plea that the complainant did not consent for amputation is the
mitigating circumstance but in no way it can abjure the O.Ps. from the
charge of medical negligence. Though we hold O.P. No.1 and O.P. No.2
jointly and severally liable but first charge for recovery will be that of O.P.
No.1 where patient was taken.”
The State Commission, however, concluded that the use of non-allopathic medicine
imported from a foreign country was not responsible for the deterioration of the Patient’s
condition, as alleged by the Respondent. It, therefore, directed that a compensation of
Rs.1 Lakh would meet the ends of justice in this case which should be made within one
month.
5.
Being aggrieved by this order, the present first appeal has been filed.
6.
Learned Counsel for both parties made detailed oral submissions.
7.
Learned counsel for the Appellants stated that Respondent had filed a complaint
of medical negligence primarily on 2 grounds that (i) a non-allopathic medicine had
been administered to the Patient, which could not be prescribed by allopathic doctors;
and (ii) although amputation had been strongly advised by an expert doctor from
another hospital to check the infection from spreading throughout the body, which
ultimately led to the Patient’s death, Appellant doctors did not act on this advice. So far
as the first allegation is concerned, counsel for the Appellants stated that Iruxol is a nonarsenic allopathic medicine and the State Commission had also concluded that
Appellants were not guilty of medical negligence or deficiency in prescribing this
medicine. Regarding the second allegation pertaining to amputation, counsel for the
Appellants pointed out that from the medical records filed in evidence, it was evident
that the issue of doing an amputation had been considered and discussed among the
Appellant doctors but it was decided not to undertake this highly risky and major surgery
taking into account the Patient’s critical condition at that time since his haemoglobin,
blood pressure and other vital parameters were unstable and unsatisfactory and blood
tests had indicated that he was resistant to almost all major anti-biotics. The State
Commission further failed to appreciate that amputation was recommended by Dr. Goel
because the limbs were not salvageable and not as a life saving measure. Apart from
this, it is also a fact that the Patient’s relatives were not ready to give their consent to
this surgery as clearly noted in the medical records of the Patient. Further, the medical
records proved beyond doubt that the Appellants had given the best possible medical
treatment and care as per standard procedures to the Patient right from the time of his
admission when he was resuscitated and necessary orthopedic surgery successfully
carried out. Unfortunately, because of his very serious injuries and pre-existing comorbidities, which included a chronic chest infection and development of pulmonary
embolism which is known to occur post surgery, he could not be saved. However, there
was no medical negligence or deficiency on the part of Appellant doctors and hospital.
8.
Counsel for the Respondent in his submissions denied that Respondent had not
given his consent for amputation and pointed out that as stated in his complaint as well
as in the affidavit before the State Commission, Respondent had approached the
Appellant doctors requesting for amputation but Appellants declined to do so on the
ground that in view of the German medicine, which was given to the Patient, amputation
was not necessary. The recording in the medical history sheet by Appellants that
Respondent did not give due permission was an interpolation made later on. Further, to
cover up their own medical negligence a post mortem was not conducted, which would
have clearly exposed that the Patient did not die because of pulmonary embolism but
because of negligence on the part of the Appellants in not doing the amputation as
strongly recommended by Dr. Goel of Moolchand Hospital because of which the
infection spread throughout Patient’s body leading to Septicemia and death. The State
Commission had, therefore, rightly held Appellants guilty of medical negligence and the
present first appeal having no merit should be dismissed.
9.
We have heard learned Counsel for both parties and have carefully considered
the voluminous evidence on record. Patient’s admission in the Appellant hospital
following severe injuries in a road accident is not in dispute since these are confirmed
by the detailed notings made in the medical history of the Patient, which required his
resuscitation and thereafter a surgery. Further, these records confirmed that the
surgery was uneventfully conducted and the Patient was shifted to the ICCU for better
monitoring and care and this does not indicate as contended by Respondent that
Appellants were trying to hide something. From the medical records, we further note
that Appellant doctors had also considered the possibility of amputation as advised by
Dr. Goel but decided against it in view of Patient’s critical health condition at that time,
apart from not getting the consent from his relatives. Clearly Patient’s blood pressure
and haemoglobin count was very low and laboratory tests indicated that he was
resistant to major antibiotics which would have made a surgical procedure highly
dangerous. The Appellants using their best professional judgment justifiably decided
against it. We also find substance in the contention of Appellants as confirmed by the
medical history of the Patient that right from the time of his admission in Appellant
hospital his condition was very carefully monitored and medical treatment advised by
well qualified doctors using their best professional skills. Respondent on whom there
was onus to do so has not been able to produce any credible evidence or medical
expert to disprove or contradict these facts. Respondent’s contention that the case
history sheets were fabricated and tutored, including the notings indicating that he had
refused consent for the amputation, is also not proved by any credible evidence in
support of the same. It is also on record and not refuted that the Patient had a preexisting chronic chest infection and had been treated for Tuberculosis, which
contributed to his developing the Acute Respiratory Distress Syndrome and subsequent
death.
10.
What constitutes medical negligence is now well established by a number of
judgments of this Commission as also the Hon’ble Supreme Court of India and
essentially three principles are applied; (i) Whether the doctor in question possessed
the medical skills expected of an ordinary skilled practitioner in the field at that point of
time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis –
including diagnostic tests and treatment) in the case that would be adopted by such a
doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion
of professional practitioners in the field and (iii) whether the standards of
skills/knowledge expected of the doctor, according to the said body of medical opinion,
were of the time when the events leading to the allegation of medical negligence
occurred and not of the time when the dispute was being adjudicated (Bolam Vs.
Friern Hospital Management Committee (1957)1 WLR 582). In the Bolam’s case
(supra) it was also held that a doctor is not negligent if he is acting in accordance with
standard practice merely because there is a body of opinion who would take a contrary
view. The same view has been taken by this Commission as also the Hon’ble Supreme
Court in Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre &
Ors. – (2010) 3 SCC 480.
11.
Applying all the above principles in the instant case, we are not convinced that
there is any medical negligence. Admittedly, the Appellant doctors, who are well
qualified, had through diagnostic and clinical tests and using their best professional
judgment and skills taken due care in the treatment of the Patient right from the
beginning. Merely because one doctor had favoured amputation and Appellants for
plausible and convincing reasons duly recorded did not agree with it does not in any
way constitute medical negligence on their part. As stated earlier, Respondent on
whom there was onus to do so has also not been able to produce any credible
evidence, including a medical expert to contradict or controvert the above facts.
12.
We are, therefore, unable to agree with the finding of the State Commission that
the Appellants were guilty of medical negligence and set aside the same. The first
appeal is accordingly allowed. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 61 OF 2007
(Against the order dated 13.11.2006 in OP No. 251/98 of the Tamil Nadu State
Consumer Disputes Redressal Commission, Chennai)
M. Rajavadivelu S/o Marimuthu Pillai 3, 2nd Street, Bakthavachalam Nagar Adyar
…
Chennai-600020
Appellant
Versus
1. Janamma Hospital 38, Venkatkrishna Iyer Road
600028
2. Dr. V.R. Kanakavalli, MBBS,
Annamalaipuram Chennai-600028
DGO
38,
Raja Annamalaipuram
Venkatkrishna
Iyer
Chennai-
Road
Raja
3. Dr. Mythili Anesthetist 24, Lattice Bridge Road Adyar Chennai-600020
4. R. Selvarani D/o Rajavadivelu 3, 2nd Street, Bakthavachalam Nagar Adyar
Chennai-600020
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Mr. Himanshu Munshi, Advocate
For Respondents
: Mr. T.R.B. Sivakumar, Advocate for R-3
Pronounced on 4th March, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by M. Rajavadivelu, original complainant before
the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (hereinafter
referred to as the State Commission) and Appellant herein being aggrieved by the order
of that Commission, which had rejected his complaint of medical negligence against
Opposite Parties Janamma Hospital and 2 of its doctors, Respondents No. 1, 2 and 3
respectively herein.
2.
wife
In his complaint to the State Commission, Appellant had contended that his late
Mrs. Vijayalakshmi Rajavadivelu alias Vijaya (hereinafter
referred
to
as
the
Patient), who was otherwise keeping good health, had been admitted to Respondent
No.1/Hospital on 02.01.1998 for undergoing Hysterectomy, which was done on
03.01.1998
by
Respondent
Respondent
No.3. She
was
No.2
under
transfused
general anaesthesia administered
one
bottle
of
blood
during
by
the
surgery. Appellant was thereafter informed that the surgery was successful and the
Patient would recover within one hour. However, at 9.45 a.m. Appellant was told by the
Respondents that the Patient had developed breathing problems and would need to be
shifted to the nearby Chennai Kaliappa Hospital for ventilator support. An ambulance
was sent from that Hospital and the process of shifting the Patient to the ambulance
took about 10 minutes. No doctor accompanied the Patient in the ambulance and only
a nurse was present. It was contended that during the transit period in the ambulance
Patient was again deprived of oxygen since the oxygen was not pumped to the Patient
through an ambu bag, which is required for patients with breathing problems. This
delay
proved
to
be
fatal
because
as
stated
in
the
admission
sheet
of
Chennai Kaliappa Hospital it was found that the Patient was not conscious and the
pulse rate and heart sounds were not heard. She was shifted to the ICCU and
connected to the ventilator with a diagnosis of Hypoxic Encephalopathy caused due to
lack of oxygen to the brain. Tracheotomy was done on 04.01.1998 and thereafter
Patient was shifted to Ramachandran Medical College Hospital which had better
medical facilities, like MRIs etc. However, in spite of all efforts, Patient passed away on
03.04.1998. It was contended that the Patient, who was healthy and as per the preoperative tests like ECG and blood tests all her vital parameters were absolutely
normal, expired because of the medical negligence and deficiency in service on the part
of Respondents. After the surgery was over when there was breathing problem, lifesaving equipments like a ventilator were not available in the Respondent No.1/Hospital
whereas if Patient had been put on a ventilator and sufficient oxygen to the brain had
been ensured she would not have suffered Hypoxic Encephalopathy, which caused her
death. The time taken to shift the Patient to the Chennai Kaliappa Hospital took about
an hour, which under the circumstances, as stated earlier, proved to be fatal. Appellant,
therefore, issued a legal notice to the Respondents claiming a sum of Rs.19.50 Lakhs
as compensation and damages. In response, Respondents met Appellant to discuss a
compromise, which, however, did not go through. Appellant, therefore, filed a complaint
before the State Commission on grounds of medical negligence and deficiency in
service against the Respondents and claimed Rs.16.50 Lakhs on account of medical
expenditure and Rs.3 Lakhs as damages.
3.
Respondents on being served filed a written rejoinder denying the allegations of
medical negligence and deficiency in service against them. It was stated that the
Patient, who had been treated on earlier occasions for various ailments by Respondent
No.2 and was thus well-known to her, had prior to conducting the Hysterectomy
undergone all the tests and precautions in the Respondent No.1/Hospital to ensure that
surgery was not contraindicated. The surgery was conducted by Respondent No.2,
who is a well qualified Gynaecologist with four decades of experience and who had
performed a number of similar surgeries. Respondent No.3, who administered the
general anaesthesia, was also a well-qualified and capable anaesthetist and the
procedure was fully successful. Post-surgery the Patient had regained consciousness
but because she did not totally respond to the satisfaction of Respondent No.2 and
because of her long association with the Patient, Respondent No.2 thought it advisable
to transfer her to another Hospital dealing with cardiac problems. It was under these
circumstances that the Respondents contacted doctor at Chennai Kaliappa Hospital,
who immediately sent an ambulance with a trained attendant, and it was only after
ensuring the availability of oxygen in the ambulance that the Patient was shifted. The
Patient was stable on reaching Chennai Kaliappa Hospital and from the records, it is
clear that the cardiac arrest occurred in the Chennai Kaliappa Hospital while the Patient
was in the process of being shifted to the ICU. Even after the cardiac arrest the Patient
had survived for 3 long months which clearly indicate that death was not due to the
surgery done by the Respondents or due to post-operative complications in the
Respondent No.1/Hospital. It was, therefore, contended that the subsequent events
cannot be attributed to the Respondents and a cardiac arrest can occur any time for
which the Respondents cannot be blamed.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it dismissed the complaint by observing as follows :
“15. … There is nothing on record to show that the opposite parties had
committed anything wrong in the performance of the surgery as well as
the administration of the anaesthesia to the patient. Opposite party-3 as
R.W.II has categorically deposed that the patient regained consciousness
after surgery and that there was no episode of hypoxia during surgery and
there was no reintubation after surgery. Oxygen cylinder was available in
the ambulance which carried the patient to ChennaiKaliappa Hospital. A
well trained nurse had accompanied the patient. No medical code expects
that the patient must be accompanied by the surgeon
andanaesthetist when she is being shifted to another hospital. Even
opposite parties-2 & 3 went to the said hospital as a visitors subsequently
when the patient was in I.C.U. The patient was conscious, breathing
properly and her pulse rate was normal at the time she was shifted to
Chennai Kaliappa Hospital. The first charge relating to negligence falls to
the ground. As regards the allegation regarding the non-pre assessment
tests before administering anaesthesia. The witness examined by the
complainant viz., P.W.II expert has clearly admitted that he had no
occasion to peruse the discharge summary as well as pre assessment
chart. In the evidence of opposite party-2 & 3, it was categorically stated
that all the documents were made available by opposite party-1
hospital. Anaesthetist had exercised due care and caution in
administering anaesthesia. There are no allegations with regard to the
administration of the anaesthesia by the complainants. It is not the case
of the complainants that the death occurred due to administration
of anaesthesia. The patient died only after a period of three months. The
expert P.W.II has not been able to give the cause for the death. His
evidence is an interested one. He has deliberately made an attempt to
suppress that the death was due to reduction of oxygen carrying capacity
of blood as a result of decrease in total haemoglobin. Various factors
which make the reduction of oxygen carrying capacity. Long term
ofhaemo dialysis might also cause the reduction of oxygen carrying
capacity in the blood. In any event the first complainant had also admitted
in his evidence that he had already got his claim from his employer by
submitting a claim petition. He had not mentioned about it in his
complaint, the complaint is not a bonafide one. The opposite party-3 is a
Senior Anaesthetist and
having
rich
experience
for
several
decades. There is no legal evidence to prove the negligence on the part
of the opposite parties.”
5.
Being aggrieved by the above order, the present first appeal has been filed.
6.
Learned counsel for both parties made oral submissions before us.
7.
Learned counsel for the Appellant stated that the State Commission erred in
dismissing his complaint although there was clear evidence regarding deficiency in
service and medical negligence on the part of Respondents. It was pointed out that
vide Respondents’ own admission ventilator was not available in the Respondent
No.1/Hospital, which necessitated shifting of the Patient to another Hospital having this
facility. In the absence of this important life-saving facility, Respondents should not
have
conducted
the
general aneasthesia and
Hysterectomy
in
such
which
surgeries
is
a
the
major
surgery
possibility
of
done
under
post-operative
complications as suffered by the Patient cannot be ruled out. Had a ventilator facility
been available, the Patient would not have suffered from Hypoxic Encephalopathy
caused due to non-supply of oxygen to the brain leading to her eventual death. It was
further pointed out that even in the ambulance giving oxygen was delayed because the
oxygen was not pumped through the ambu bag and this delay further aggravated the
situation resulting in the Patient having no recordable pulse or blood pressure when she
reached
the
Chennai Kaliappa Hospital. Dr.
A. Umapathy,
a
senior anaesthetist working in the Department of Anaesthesia attached to Madras
Medical College, had in his affidavit filed as a medical expert clearly stated that it was
shocking that
theAnaesthetist failed
to accompany the
Patient
in
transit to
Chennai Kaliappa Hospital after alleged reintubation since it is the Anaesthetist who is
responsible for immediate post-operative care especially when the Patient had
breathing difficulties and required ventilator support. It was also mandatory to
have ambu bag assisted oxygen supply while shifting the Patient suffering from
breathing problems to another Hospital. The Respondent doctors were guilty of gross
medical negligence and deficiency in service in not checking these facts before shifting
the Patient to Chennai Kaliappa Hospital. Counsel for the Appellant also stated that to
hide their own mistakes, the Respondents did not send the discharge summary or case
sheet to the doctors at Chennai Kaliappa Hospital at the time of admission of the Patient
and
despite
several
requests
these
documents
were
to the Appellant or submitted before the State Commission.
not
made
available
8.
Learned Counsel for the Respondents on the other hand denied that there was
any medical negligence and deficiency in service as confirmed by the State
Commission. There is evidence on record that prior to the surgery, the required preoperative tests were conducted, which confirmed that the Patient was fit for surgery,
including administration of general anaesthesia. The Hysterectomy was successfully
completed and even the Appellant has not stated in his complaint before the State
Commission that there was any deficiency in the surgery conducted by Respondent
No.2. As soon as Respondent doctors noted that there was a breathing problem and
because of lack of ventilator facilities in the Respondent No.1/Hospital, which is
essentially a maternity Hospital and not a polyclinic, a nearby hospital where such
facilities were available was contacted and an ambulance equipped with oxygen
facilities in transit as also a trained nurse was immediately arranged which transferred
the Patient to the Hospital having the said facilities. It was only in that Hospital that the
cardiac arrest occurred for which Respondents cannot be held responsible.
9.
We have considered the submissions made by learned counsels for the parties
and gone through the evidence on record. The facts pertaining to Patient’s admission in
the Respondent No.1/Hospital and a Hysterectomy being conducted after pre-operative
tests confirming that she was fit to undergo the same, are not in dispute. It is also a fact
that in his complaint before the State Commission Appellant had nowhere stated that
there was any problem with the Hysterectomy per se. However, it is an admitted fact
and not disputed by the Respondents that soon after the surgery the Patient developed
breathing problems. It is also an admitted fact that there was no ventilator facility in the
Respondent No.1/Hospital, which necessitated Patient being shifted to a nearby
Hospital having this facility. Appellant has contended that had a ventilator been
available and the required oxygen administered to the Patient by Respondents, she
would not have suffered from Hypoxic Encephalopathy which led to her death some
weeks later. We find force in this contention of the Appellant. It is medically well
established that Hypoxic Encephalopathy occurs when the brain does not receive
enough supply of oxygen which can be fatal because as little as within five minutes of
oxygen deprivation, brain cells can begin dying. In the instant case, Respondents have
themselves admitted that they took 10 to 15 minutes to transfer the Patient to the
ambulance and thereafter some more time to the Hospital, which was undoubtedly fatal
in this case. The Respondents should not have conducted a major surgery like
Hysterectomy under general anaesthesia without ensuring that such life saving facilities
were available in their Hospital. Further, they should have ensured that oxygen through
the ambu bag was available in the ambulance because a Patient with breathing
problems cannot breathe the required oxygen through the oxygen tube/catheter
attached to the oxygen cylinder. The medical history of the Patient recorded at the time
of her admission confirms that at 1100 hours on 03.01.1998 Hypoxic Encephalopathy
had already occurred because as per the admission sheet Patient was “not conscious,
not responding to painful stimuli, very pale, no breathing, pulse not felt and heart
sounds not heard”. Therefore, the Respondents contention that the Patient only had
some breathing problems and was otherwise stable is not borne out by the
documentary evidence on record. It also does not help the Respondents’ case that
there was no problem with the Hysterectomy per se because soon after the surgery,
post-operative complications developed and due to lack of a ventilator in the
Respondent No.1/Hospital the Patient developed a fatal complication.
10.
What constitutes medical negligence is now well settled through a number of
judgments of this Commission as also of the Hon’ble Supreme Court of India. One of
the principles to test medical negligence is whether a doctor exercised a reasonable
degree of care and caution in treating a patient [Supreme Court Case Indian Medical
Association v. V.P. Shantha (1995) 6 SCC 651. Applying this principle in the instant
case, medical negligence and deficiency in service is established because the
Respondents conducted a major surgery under general anaesthesia without taking due
care and caution to ensure that critical life-saving equipments like the ventilator were
available in case of post-operative complications, which can occur following major
surgery.
11.
Appellant has sought a total compensation of Rs.19.50 Lakhs, which includes
medical expenditure of Rs.16.50 Lakhs. From the documents on record pertaining to
the medical expenditure, we are unable to conclude that this amount was spent
because no documents to show that this amount had been paid by the Appellant had
been filed. The documents filed are in the form of demand list which indicate that the
total demand from Ramachandran Medical College Hospital was about Rs.4 Lakhs and
from Chennai Kaliappa Hospital it was Rs.1,43,000/-. However, it is not clear what was
actually paid. Therefore, taking into account this fact as also other aspects pertaining to
this case, we are of the view that a compensation of Rs.3 Lakhs would be reasonable.
12.
To sum up, taking into account the totality of facts and respectfully following the
judgment of the Hon’ble Supreme Court cited above, we are unable to uphold the order
of the State Commission and set aside the same. Respondents are jointly and severally
directed to pay the Appellant Rs.3 Lakhs within a period of three months, failing which it
will carry interest @ 9% per annum for the period of default.
13.
The present appeal is accordingly allowed on the above terms.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 17 OF 2010
(Against the order dated 30.06.2009 in OP No. 69/1998 of the Kerala State Consumer
Disputes Redressal Commission, Thiruvananthapuram)
Dr. M.P. Bhanumathi Paediatrician W/o Dr. K.K. Ramakrishnan Jith Cottage, Kelakam
Kannur District, Kerala State
…
Appellant
Versus
1. Augustine T.D. S/o Devasya Thekkekulathumkara House Adakka thodu PO, Kannur
District Kerala State
2. Thressiamma M.J. W/o Augustine T.D. Thekkekulathumkara House Adakka thodu
PO, Kannur District Kerala State
3. Prasad Augustine S/o Augustine T.D., aged 11 years (minor rep. by his father &
natural guardian Shri T.D. Augustine)
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For Appellant
: Mrs. Praseena Elizabeth Joseph, Adv.
For Respondents
: Mr. Shyam Padman, Advocate
Pronounced on 19th March, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by Dr. M.P. Bhanumati, Opposite Party before the
Kerala
State
Consumer
Disputes Redressal Commission,
Thiruvananthapuram
(hereinafter referred to as the State Commission) and Appellant herein being aggrieved
by the order of State Commission which had allowed the appeal of medical negligence
filed by Respondents against the Appellant.
2.
Respondents No. 1 and 2, who are father and mother respectively of Respondent
No.3 (hereinafter referred to as the Patient) had taken their son (Patient) aged about 8
years on 14.09.1995 to Appellant, who was a Paediatrician, for treatment as he was
suffering from fever, rashes in the mouth and cough. After examining him, Appellant
opined that several children had been suffering from a similar fever and she gave
Patient an injection and two sample tablets to be given in the morning and
evening. Respondents were also asked to purchase some medicines. Respondents
were not told the names of the injected medicine or the sample tablets given by the
Appellant. Despite this medication, Patient’s condition deteriorated in the evening and
he developed rashes all over the face and chest, followed by vomiting. Patient’s eye
also became infected with Conjunctivitis. He was, therefore, taken to Appellant next
day on 15.09.1995 and Appellant again after examination stated that this was due to
sultry climate and that the rashes would disappear within a few days. Because the
condition of the Patient further worsened on 16.09.1995, Respondents took him to
another Paediatrician at Iritty i.e. Dr. Devanand, who opined that the Patient was
suffering from Meningo Cocciemia and should be taken to a hospital where expert
doctors are available. Patient was, therefore, taken to Koyili Hospital, Kannur where he
remained for about 4-5 hours, after which it was decided to take the Patient to Medical
College Hospital, Kozhikode as per the advice of the doctors there. Patient was
admitted to the Medical College Hospital, Kozhikode at 11.00 p.m. on 16.09.1995 and a
Dermatologist, who subsequently examined him, diagnosed the disease as Stevens
Johnson Syndrome, which usually occurs because of adverse reaction to a drug. The
Dermatologist, therefore, advised Respondents to contact the Appellant to obtain details
regarding the medicines administered to the Patient on 14.09.1995. Appellant after
some hesitation finally wrote the names of the medicines and stated that she had
treated the child on 13.09.1995 whereas the medicines were actually administered on
14.09.1995. The Doctors at the Medical College Hospital, Kozhikode informed
Respondents that Appellant had not furnished the names of the actual medicines given
to the Patient and had instead given the names of certain general medicines, which
could not have caused the drug reaction. Although Respondents tried their best to
ascertain the names of the actual medicines given but failed to do so. Patient remained
in Medical College Hospital, Kozhikode till 09.10.1995, after which he was discharged
for better specialized treatment for his eyes. He was subsequently given intensive
treatment for his eyesight and other problems at Little Flower Hospital, Angamali and
later at Christian Medical College Hospital, Vellore from 08.11.1995 to 08.12.1995. The
doctors there stated that the Patient would live in a vegetative state and that there was
no chance of his regaining his eyesight. Being aggrieved by the action of Appellant,
who administered an injection and tablets to the Patient after which he developed a
drug allergy leading to Stevens Johnson Syndrome, Respondents met the Appellant
and requested for financial assistance for treatment of the Patient. According to the
Respondents, Appellant admitted her mistake and stated that since she was insured
with an Insurance Company to indemnify her for mistakes in her professional career,
she would compensate them with Rs.6 Lakhs. However, she paid Respondents only a
sum of Rs.1 Lakh in two installments of Rs.50,000/-. Respondent No.1 was also made
to sign on some stamp papers. It was assured that the balance amount of Rs.5 Lakhs
would be disbursed within six months. Despite this, no further payment was
made. Being aggrieved, Respondents filed a complaint before the State Commission
and requested that Appellant be directed to pay a compensation of Rs.15 Lakhs to
Respondents for medical negligence and deficiency in service. Since Rs.1 Lakh had
already been paid, the Appellant may be directed to pay the remaining amount of Rs.14
Lakhs to the Respondents.
3.
Appellant on being served filed a written rejoinder denying the allegations of
medical negligence. It was admitted that the Patient was brought to the Appellant’s
clinic, which is attached to her residence, on 14.09.1995 and on medical examination of
the Patient, it was noted that he was running a temperature of 102 OF, there was
watering from both eyes and rashes in the mouth, which could have been due to
infection. A provisional diagnosis of Viral Fever was made and 0.5 ml. of
Injection Avil was given to the Patient to control the rashes in the mouth. Patient was
also given 2 tablets of Avil to take ½ tablet twice daily, 6 tablets of Paracetamol to be
taken thrice daily to control the Fever and a cough syrup for the dry cough. A
prescription
for
an
antibiotic Blumox to
be
purchased
from
outside
was
issued. Appellant received Rs.22/- being the cost of injection, medicines and
consultation fee. Patient was advised to be brought for review after two days and to be
given liquid diet. On 15.09.1995 Patient’s fever had come down but there were some
rashes in the body and Conjunctivitis was noticed. Since these did not warrant
immediate hospitalization, Appellant gave injection B-Complex to control the lesions in
the mouth and supportive therapy. Further, Gentamycin eyedrops were prescribed to
control the eye infection. Respondents were advised that further investigations would
be required if the rashes were not controlled. Thereafter Patient was never brought to
the Appellant despite specific advice. It was denied that the medicines prescribed by
Appellant caused Stevens Johnson Syndrome as the said disease takes at least one
week after the administration of drugs to manifest itself whereas the Patient’s condition
was diagnosed by the Dermatologist as Stevens Johnson Syndrome within 4 days of
the Patient being administered the medicines by Appellant. Further, as per medical
literature on the subject, Stevens Johnson Syndrome can also occur in a Patient due to
other causes/viruses. Appellant stated that there is no Hypersensitivity test in respect of
oral medication. She had taken the precaution of ascertaining from Respondents
whether Patient was allergic to any drug before prescribing the same. Appellant
admitted that Respondents met her and being moved by the said plight of their son,
purely on humanitarian and compassionate grounds and not as an admission of any
medical negligence or deficiency in service and on persuasion by some local influential
people, she agreed to pay Rs.3 Lakhs in terms of a written agreement dated 25.03.1996
voluntarily signed between the parties in the presence of witnesses.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it concluded that deficiency by the Appellant in the treatment of the
Patient was established. The relevant parts of the order of the State Commission are
reproduced:
“14. … (It) is to be found that the 3rd complainant was taken to the
opposite party for fever and he was treated for fever only by the opposite
party. It is also noted that the 3rd complainant had no other ailments at the
time when he was taken to the opposite party on 14.09.1995. … It is also
found that the opposite party has not maintained proper record for having
kept the medicines she used to give to the patients. Though it is not our
area of concern, that also contributes to the nature and conduct of the
opposite party. It is also seen that though she as observed the changes
that occurred to the patient after giving the medicines, she had not
referred the patient to any other centre for better treatment and that she is
not fully conversant with the symptoms of Stevens Johnson
Syndrome. She has also not given a clear summary of treatment to the
first complainant for the subsequent treatment of the 3rd complainant. All
these would lead to the indelible impression that there was some sort of
deficiency on the part of the opposite party in the treatment of the
3rd complainant.”
The State Commission also concluded that though Appellant had promised to pay a
compensation of Rs.3 Lakhs to the Respondents, she only paid Rs.1 Lakh. The State
Commission, therefore, holding that a compensation of Rs.5 Lakhs for the deficiency in
service on the part of Appellant in the treatment of Patient, who had passed away on
29.04.2002, would be just and appropriate in the instant case and since the
Respondents had already received Rs.1 Lakh, directed the Appellant to pay a further
sum of Rs.4 Lakhs within a period of two months from the date of receipt of a copy of
the order, failing which the amount would carry interest @ 12% per annum from the
date of default till the date of payment. In addition, Rs.5000/- were awarded as costs.
5.
Being aggrieved by the order of State Commission, the present first appeal has
been filed.
6.
Learned Counsels for both parties made oral submissions.
7.
Counsel for the Appellant contended that the State Commission erred in
concluding that there was medical negligence on the part of the Appellant and also that
though the Appellant had assured to pay Rs.3 Lakhs to the Respondents, she paid only
Rs.1 Lakh. It was stated that the Patient was carefully examined by the Appellant when
he was brought to her clinic on 14.09.1995 with complaints of fever, cough and rashes
in the mouth. The medicines given for the same were as per standard treatment in
cases of suspected Viral Fever and when the Patient was brought on the next day with
complaints of Conjunctivitis, he was prescribed an eye drop and specifically asked to
come for follow up review treatment after two days, which he failed to do and instead
went to other doctors/hospitals, who also did not diagnose the illness as Stevens
Johnson Syndrome till 18.09.1995. As per medical literature on the subject, the
incubation period for this disease is at least one week and, therefore, it is apparent that
the drug prescribed 4 days prior to the diagnosis could not have caused the
disease. Learned counsel for the Appellant further stated that from the deposition of 3
credible independent witnesses, 2 of whom were school teachers and 1 a lawyer,
before the State Commission, it was established that the Appellant had agreed to pay
Rs.3 Lakhs at the instance of certain Panchayat Members and other community leaders
purely on compassionate grounds and a written agreement was drawn up by one of
these witnesses i.e. RW-4, who was a lawyer. Further, from their deposition it is clear
that earlier Respondent No.1 had agreed to receive the money in installments but later
he insisted that he should be paid in lump sum. All witnesses have confirmed that this
amount had been paid and received by Respondent No.1 and that he had put his
signature on the agreement pertaining to this payment voluntarily and after reading
it. Unfortunately, the State Commission failed to take note of this important evidence
and allowed Respondents’ baseless complaint.
8.
Counsel for the Respondents on the other hand reiterated that Appellant had
agreed to pay Rs.3 Lakhs as compensation is by itself proof that she was guilty of
deficiency in the Patient’s treatment. Later she went back on her words and paid only
Rs.1 Lakh in two installments of Rs.50,000/- each and did not pay the remaining
amount. The 3 witnesses who deposed before the State Commission to the contrary
had given wrong statements at the instance of the Appellant and further one of these
witnesses (RW-4) had stated that the money that was handed over was not counted in
his presence and, therefore, the contention of Counsel for the Appellant that all 3
witnesses had deposed that Appellant had paid Rs.3 Lakhs in their presence is not
correct. Further, Respondents in fact are entitled to a much higher compensation
keeping in view Appellant’s deficiency in service in prescribing irrational medication and
not advising proper follow up because of which all the Respondents, particularly the
Patient, had to undergo extreme mental agony and suffering.
9.
We have considered the submissions made by learned Counsels for both parties
and have also gone through the evidence on record. It is not in dispute that
Respondents had taken their son (Respondent No.3) to Appellant for treatment of
cough, fever and rashes in the mouth, for which he was administered an injection and
given oral medicines, including antibiotics, following a preliminary diagnosis of Viral
Fever made by the Appellant. Appellant’s contention that immediate diagnosis of this
disease is difficult because in the initial stages its symptoms are non-specific such as
fever, cough, rashes, headache etc., which also occur in other viral infections, is, we
note, also confirmed by the medical literature on the subject*.
(*Source : (1)www.en.wikipedia.org/wiki/Stevens%E2%80%93Johnson_syndrome
(2)www.skinassn.org/stevens-johnson-syndrome-symptoms-treatment.html )
It is perhaps because of this that other doctors who saw the Patient could not also
immediately diagnose the disease from which the Patient was suffering and the
Appellant cannot be faulted for having prescribed medicines as per normal standard
protocols in respect of patients with such symptoms. Respondents’ contention in his
complaint that actually some other medicines were prescribed and not those stated by
the Appellant is not proved by any credible evidence by the Respondents, on whom
there was onus to do so. It is further worth noting that although Respondents were
specifically advised to bring the Patient for follow-up treatment 2 days later, they failed
to so for which Appellant cannot be held responsible. Therefore, the observation of the
State Commission that the Appellant failed in referring the Patient to a specialist is not
justified because there is every possibility that she may have done so if the Patient had
come for the follow-up visit with worsening symptoms. In view of these facts, we are
unable to accept the findings of the State Commission that there was deficiency in
service in giving wrong treatment to the Patient and also not referring him to a
specialist; in fact Appellant may have done so if the Respondents had brought the
Patient to her after 2 days.
10.
Respondents’ contention that Appellant had agreed to pay Rs.3 Lakhs and
later resiled and paid only Rs.1 Lakh has also not been proved by them because there
is evidence of 3 independent witnesses, namely, two school teachers and one lawyer,
who had clearly deposed that the entire amount of Rs.3 Lakhs was paid in their
presence as also other members of the community by the Appellant to Respondent
No.1 following the insistence of Respondent No.1 that the entire money should be paid
in lump sum. Respondents’ contention that the witnesses were biased and had given
evidence on Appellant’s behalf and, therefore, are not independent witnesses is also not
proved because it has come in evidence and not disputed that the witnesses were wellknown to the Respondents and in fact one of them had been teacher of Respondent
No.1. Respondents’ contention that they were forced to sign the agreement also
appears to be incorrect because all the witnesses have stated that Respondent No.1
had signed it voluntarily after reading it in the presence of a large number of persons
and the agreement was also signed by two Panchayat Members as witnesses. We are,
therefore, unable to accept the findings of the State Commission that Respondents had
received only Rs.1 Lakh from the Appellant and that Respondent No.1 was forced to
sign the agreement.
11.
To sum up, the finding of the State Commission that there was deficiency on the
part of the Appellant in the treatment of the Patient and further that Appellant had paid
only Rs.1 Lakh instead of Rs.3 Lakhs to the Respondents is not established by the
evidence on record and we are, therefore, unable to sustain the order of the State
Commission and, therefore, set aside the same. This first appeal is accordingly
accepted. Counsel for the Appellant states that as directed by the National
Commission vide order dated 28.01.2010, a sum of Rs.2 Lakhs over and above the
agreed amount of compensation of Rs.3 Lakhs had also been deposited in the State
Commission and released to the Respondents. If that is so, the Appellant is at liberty to
recover the said amount in accordance with law.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/(DR. S.M. KANTIKAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 685 OF 2013
(From order dated 26.11.2012 in First Appeal No.1173 of 2011 of the
State Consumer Disputes Redressal Commission, HARYANA, PANCHKULA)
1. Masih Hospital Through its Incharge, Dr.R.Masih 1, Sarojani Colony, Phase-I,
Yamuna Nagar
2. Dr.R.Masih, Masih Hospital 1, Sarojani Colony, Phase-I, Yamuna Nagar
3. Dr.Suman Masih, Masih Hospital 1, Sarojani Colony, Phase-I, Yamuna Nagar
… Petitioners
Versus
1. Kuleep, S/o. Sh.Mam Chand
2. Miss Kitu (Minor) D/o Sh. Kuldeep Both R/o Village – Karerakhurd, Post Office –
Karerakhurd Tehsil – Jagadhri, District Yamuna Nagar
3. United India Insurance Co.Ltd. Through its Divisional Manager 54, Janpath,
Connaught Place, New Delhi
… Respondents
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the petitioners : Mr. Naveen Pandey, Advocate
PRONOUNCED ON 01.04.2013
ORDER
JUSTICE J.M. MALIK
1.
In this revision petition, we are dealing with the allegation of medical negligence
on the part of the petitioners/OPs, i.e. Masih Hospital through its Incharge, Dr. R.Masih,
Yamuna Nagar, No.1, Dr.R.Masih, No.2 and Dr.Suman Masih, No.3. For the purpose of
reimbursement of any compensation amount, United India Insurance Co.Ltd. has been
arrayed as Respondent No.3, in this case.
2.
The facts germane to the present case are these. Smt.Geeta Devi, since
deceased, was the wife of Sh. Kuldeep, complainant No.1. Smt.Gita Devi was in a
family way. The patient was a primigravida (pregnant with first child) She felt labour
pains. She was admitted in the hospital/OP1 on 16.12.2007. The Doctor assured her
that the delivery would be normal. Subsequently, she was told that cesarean
operation was required. The patient was asked to deposit a sum of Rs.12,000/- on
account of operation fee and hospitalization. The said amount was accordingly
deposited.
3.
On the same day, cesarean operation was conducted and Smt.Geeta Devi gave
birth to a female child. However, the condition of Smt.Geeta Devi did not improve. As
per advise given by the OPs, Smt.Geeta Devi got the ultrasound of whole abdomen and
X-Ray Ultrasound from Dr.Mehta’s X-Ray & Ultrasound, on 24.12.2007. After perusing
the ultrasound report, the OPs referred Smt.Geeta Devi to Government Medical
College & Hospital, Sector-32, Chandigarh, for further treatment. She was admitted in
the Chandigarh Hospital where operation was conducted again. However, the
condition of Smt.Geeta Devi did not improve and ultimately, she unfortunately, passed
away on 28.12.2007.
4.
The Autopsy of the dead body was conducted and it transpired that the death was
caused due to puerperal sepsis. The Doctors at Chandigarh Hospital informed them
that Smt.Geeta Devi was suffering from septic due to the negligence of the OPs
while conducting operation on her at the time of delivery of the child. They also
explained that the she was referred to them at a very late stage.
5.
The complainants spent an amount of Rs.24,000/- at the Hospital of the OPs and
incurred a sum of Rs.30,000/- at Chandigarh Hospital. A complaint was filed by her
husband Sh.Kuldeep and her minor daughter, Baby Kitu, with the District Forum that the
OPs were negligent and deficient in discharge of their duty.
6.
The OPs enumerated the defences as follows. The patient was attended by a mid-
wife who was trying to deliver her baby, but failed. On 23.12.2007 at 11.00PM, she
was recovering, when she started having abdominal cramps, vomiting and loose
motions after eating ‘paneer’, at night, from a ‘Dhaba’. Immediately, decision for LSCS
was given to the patient. Moreover, the Husband of the patient wanted a normal delivery
and so refused for cesarean operation and took away the patient for 2nd opinion and
came back after one hour, agreeing for the surgery as the other doctor also had given
the same opinion.
7.
District Forum, after hearing the parties, allowed the complaint and granted
compensation in the sum of Rs.9,11,000/-, jointly and severally against all the four OPs.
8.
Aggrieved by that order, OPs preferred
an appeal before the State
Commission. The State Commission too, dismissed the appeal vide order dated
26.11.2012.
9.
We have heard the learned counsel for the petitioners at the time of admission of
this case who made the following submissions. He stressed that Doctors were not
negligent. The above said incident took place because the deceased had taken
‘paneer’ from a ‘Dhaba’, which resulted in infection. It is contended that the delivery
was normally affected. The deceased herself spoiled her condition which caused all
the problems. The mid-wife had further increased the problems. She handled her by
doing multiple aseptic per vagina examination while trying to deliver her and immediate
decision for LSCS was given. A female baby was delivered at 1.29 PM weighing 1.75
Kgs. It was argued that the wound was sutured, uterus sutured in two layers and
visceral peritonisation was done. The abdomen sutured in layers and skin sutured with
barber cotton thread. LSCS operation was performed by Dr.Suman Masih and
Dr.R.Masih with the help of Anaesthetist Dr.Shubham and other qualified and trained
staff of the hospital. The baby was seen by Dr.Sachin Garg, Paediatrician. The postoperative condition of the patient was stable with BP 118/76, Pulse 114/minute and
SPO2-99%, patient was alright and recovering well till 23.12.2007, 11.00PM, when she
started having abdominal cramps, vomiting and loose motion after eating ‘paneer’ at
night from ‘Dhaba’. All the treatment was given. Since the patient did not recover, she
was referred to the Government Medical College Hospital, Chandigarh.
10.
All these arguments lack conviction. This is an admitted fact that in the record
produced before the District Forum by the OPs, nowhere it is mentioned that the patient
was carrying any genito urinal infection or bad pelvic hygienic and it is not mentioned in
the record that Smt.Geeta Devi was examined by a mid-wife, before she was admitted
in the OPs Hospital. The cesarean operation was conducted on the same day. A
healthy female child was delivered. The treatment record shows that the patient was
recovering normally till 23.12.2007, but suddenly became serious. It is not understood
why the patient was allowed to take ‘paneer’ from a ‘Dhaba’. The patient was not still
discharged. She was supposed to take the food from the Hospital itself. There is no
proof that she had consumed ‘paneer’ as alleged. There is no such report. In case the
allegation made by the OPs is correct, then they should have shown to the Fora that
the ‘paneer’ contained same bacteria, which was found in the body of the
deceased. The pieces of ‘paneer’ should have been examined and preserved, in order
to save their own skin. As per the orders passed by the Fora below, it is also difficult
to understand as to how ‘paneer’ can cause frank pus in the abdominal cavity, in such
a short period. It is clear that the deceased suffered post-operative excessive bleeding
resulting into septicemia shock, resulting into renal functional impairment along with
liver damage. The record from the Government Hospital reveals that the patient was
diagnosed as acute peritonitis/post LSCS and septic shock. The deceased was
transferred to surgery department for exploratory laparotomy. She was operated on
27.08.2007 and approximately 700 ml pus was drained from abdominal cavity and inter
bowel loops pus was also present. She had been bleeding post-operatively for which
she was operated again and bleeding was stopped. On 27.12.2007, she was shifted to
ICU and put on ventilator. Her condition gradually deteriorated and she expired on
28.12.2007. Such a big quantity of pus cannot crop up in a jiffy.
11.
The District Forum has placed reliance on the Hon’ble Apex Court’s authority
reported in V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., 2010 (5) SCC,
513. The facts speak for themselves and there is no need to call for an expert
evidence.
12.
Res Ipsa Loquitor is one form of circumstantial evidence that permits a
reasonable person to surmise that the most probable cause of an accident was the
OPs negligence. Negligence is a breach of duty to take care resulting in damage to
one’s person or property. However, the Black’s Law Dictionary defines negligence as
under:“Negligence per se – Conduct, whether of action or omission,
which may be declared and treated as negligence without any
argument
or
proof
as
to
the
particular
surrounding
circumstances, either because it is in violation of a statute or
valid municipal ordinance, or because it is so palpably opposed
to the dictates of common prudence that it can be said without
hesitation or doubt that no careful person would have been
guilty of it. As a general rule, the violation of a public duty,
enjoined by law for the protection of person or property, so
constitutes”.
13.
The District Forum has meticulously kept in mind that the patient died when she
was young. She left behind her, a small baby who was just 3 months’ old, at the time of
filing of this complaint. Keeping all the facts and circumstances of the case, the
compensation was rightly granted.
14.
The State Commission has also placed reliance on Achutrao Haribhau Khodwa &
Ors. Vs.State of Maharashtra & Ors. 1 (1996) CLT 532 (SC).
15.
The revision petition is without merit and the same is dismissed with costs in the
sum of Rs. 10,000/-, to be deposited with the Consumer Welfare Fund established by
the Central Government under Section 12 (3) read with Rule 10 (a) of the Consumer
Protection Act, 1986, of the Central Excise Act, 1944, within one month from the date of
the order, otherwise, it will carry interest at the rate of 10% p.a.
.…..…………………………
(J. M. MALIK,J.)
PRESIDING MEMBER
.…..…………………………
(VINAY KUMAR)
MEMBER
dd/11
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 39 OF 2007
(Against the order dated 01.12.2006 in OP No.17/2001 of the Tamil Nadu State
Consumer Disputes Redressal Commission, Chennai)
St. Antony Hospital Rep. by its Administrator Madhavaram High Road Chennai-60
…
Appellant
Versus
C.L. D’Silva No. 31 (Old No. 54) Arul Nagar, Madhavaram Chennai-60
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For Appellant
:
Mr. S. Vijayakumar, Advocate &
Mr. Sumit Kumar, Advocate
For Respondent
:
NEMO
Pronounced on 2nd April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by St. Antony Hospital, Appellant herein and
Opposite
Party before
the Tamil Nadu
State
Consumer Disputes Redressal
Commission, Chennai (hereinafter referred to as the State Commission) being
aggrieved by the order of that Commission, which had partly allowed the complaint of
C.L. D’Silva, Respondent herein and Complainant before the State Commission alleging
medical negligence against the Appellant.
2.
FACTS :
In his complaint before the State Commission, Respondent-Complainant had
stated that his wife Corrine D’Silva (hereinafter referred to as the Patient), who was
gainfully employed in a foreign company in Chennai, complained of pain in the lower
abdomen on the right side. Suspecting it to be a case of Appendicitis, RespondentComplainant took her to Pavithra Hospital, Erukkanchery, Chennai, wherein an
ultrasound scan indicated that she had a small cyst on her right ovary and fibroid uterus
was suspected. Respondent-Complainant took a second opinion from St. Thomas
Hospital where removal of ovaries was advised, which required surgery and 10 to 15
days’ hospitalization. Since Respondent-Complainant and the Patient were living
in Madhavaram, they decided to go to the nearby Appellant in April, 2000 for fixing a
date for admission and surgery. Appellant conducted preliminary tests like Chest X-ray,
ECG etc., the results of which were normal. The Assistant Administrator of the
Appellant advised the Patient to postpone the surgery till 12.05.2000, as a reputed and
experienced Doctor from USA, one Dr. Samuel Parra, was visiting their Hospital to
demonstrate his skills. Patient, therefore, applied for medical leave for 4 weeks from
12.05.2000 and was examined by Dr. Samuel Parra on that date, who after diagnosis
stated that he would remove the cyst by Laparoscopy method and, if required,
thereafter a surgery would also be done. Since the Appellant did not have the
Laparoscopy instrument required by Dr. Parra, it was arranged from a hospital
in Tuticorin and the surgery was fixed for 24.05.2000. Patient got admitted on
23.05.2000 and was thereafter allotted a room which was very unhygienic as sewage
water was stagnating nearby. At 8.30 a.m. on 24.05.2000 Patient was taken to the
operation theater for surgery and on its completion, she was brought back to the room
at 12.45 p.m. Same night, she developed high fever and also later complained of
discomfort and severe pain in the abdomen. She was assured by Dr. Parra that this
was a routine pain after surgery. However, when her condition worsened, she was
again examined on 26.05.2000 by Dr. Parra who asked the Respondent-Complainant to
arrange for 2 Pints of blood. Patient’s condition continued to deteriorate and breathing
became belabored and, therefore, she was put on oxygen. When RespondentComplainant returned with the blood required for transfusion, he found that the Patient
had been taken to the operation theater for the second surgery. Thereafter at 11.20
p.m. Dr. Parra informed the Respondent-Complainant that by mistake, colon of the
Patient was ruptured during the first surgery, as a result of which her body fluids
and faecal matters had leaked into her system, but this was cleaned up and the mistake
rectified during the second surgery. Respondent-Complainant was also informed that
both ovaries had been removed and sent to the laboratory for tissue culture. Patient
was breathing with great difficulty and the external incisions following her surgery were
also not fully closed, which according to the Doctor was necessary in case another
emergency surgery was required. Respondent-Complainant stated that he was fully
confused with these sudden developments and on 27.05.2000 when he was permitted
to see the Patient, he found her in semi-conscious state. He also reliably understood
from discussions among Doctors that his wife’s first surgery was an experimental one
and the equipments used were not functioning properly. On 27.05.2000 at 7.00 p.m. Dr.
Parra and other Doctors from Appellant informed the Respondent-Complainant that they
were not equipped to cope with Patient’s critical condition since there were no intensive
care facilities and advised him to transfer her to Sri Ramachandra Medical College
Hospital
at Porur. When
the
Patient
was
shifted
late
at
night
to
SriRamachandra Medical College Hospital, she was taken to ICCU and put on ventilator
there and Doctors informed the Respondent-Complainant that his wife’s recovery
chances were only 5% as the internal organs were in septic condition due to presence
of faecal matter
etc.
causing
severe
internal
damage. The
Doctors
at
SriRamachandra Medical College Hospital also advised that the wounds may have to
be reopened and cleaned but this was very risky procedure, for which the RespondentComplainant was required to sign a consent form. However, despite all efforts Patient
passed away on 16.05.2000 at 2.20 a.m. As per the medical record, the cause of death
was Septicemia leading to multi organ failure. Being aggrieved by the medical
negligence and deficiency on the part of the Appellant and Doctors therein, including Dr.
Parra who used the Patient as a guinea pig, in conducting a Laparoscopy with ill
equipped equipments, which resulted in the rupturing of the colon of the Patient,
Respondent-Complainant issued a legal notice to the Appellant claiming Rs.15 Lakhs
as compensation. However, since no reply was received from them, Respondent filed a
complaint before the State Commission on grounds of medical negligence and
deficiency in service and requested that the Appellant be directed to pay him (i) Rs.15
Lakhs as compensation towards loss, hardships and mental agony suffered by him on
account of gross deficiency in service and the medical negligence on the part of
Appellant and its Doctors; (ii) Rs.1,81,911/- being the refund in respect of medical
treatment; and (iii) Rs.10,000/- as litigation costs, as also any other relief as deemed
appropriate in the interest of justice.
3.
Appellant on being served filed a written rejoinder denying that there was any
medical negligence on their part. It was stated that the Appellant is a charitable hospital
which
was
rendering
service
to
deserving
and
poor
patients. Respondent-
Complainant’s wife had been admitted in the Appellant hospital where after examination
she was diagnosed with Endometrial Cyst and fibromas of the uterus. Patient had
agreed to the Laparoscopy after she was clearly informed about the pros and cons of
the same, including the possible complications, which could require converting it into an
open procedure. On 24.05.2000 after conducting all the pre-operative tests, the
Laparoscopy
Endometriosis,
was
conducted,
inflammatory
which
confirmed
changes
and
that
also
Patient
pelvic
had
extensive
inflammatory
disease. There was extensive adhesions and some fibrinous fluid. All these were
attended to through a time consuming procedure. At 8.00 p.m. on the same day,
Patient’s haemoglobin dropped to 9.3 and she complained of shoulder pain which was
common after Laparoscopy. However, there were no other problems. She was given
IV fluids and antibiotics. The next day when she was not responding to conservative
management and was showing systemic sepsis and peritonitis, RespondentComplainant was advised about the need for exploratory surgery. It was denied that Dr.
Parra had informed the Patient or the Respondent that her colon had ruptured during
the first surgery and faecal matter and other body fluids had leaked into the system
which needed to be immediately rectified. The second surgery was conducted by Dr.
Parra assisted by other qualified Doctors and it was found that she had severe sepsis
with peritonitis endometriosis associated with pelvic inflammatory disease, from which
she had been suffering prior to the surgery. Because Patient required prolonged
ventilator support and other intensive care facilities, which were not available in the
Appellant hospital, she was in her own interest advised admission in an advanced
medical centre for which necessary arrangements were made by the Appellant and she
was transferred to Sri Ramchandra Medical College Hospital at about 9.00 p.m.
accompanied by Dr. Parra, an Anaesthetist and a nurse. It was reiterated that there
was no medical negligence or deficiency in the treatment of the Patient and the entire
medical expenses came to only Rs.25,330/- which was borne by the Appellant.
4.
The State Commission after hearing the parties and on the basis of evidence filed
before it, particularly the statement of Dr. Parra, who admitted that there were some
technical problems and defects with the Laparoscopy equipments which he had faced
while conducting the Laparoscopy, concluded that medical negligence and deficiency in
service was clearly established. In this connection, the State Commission, inter alia,
observed as follows :
“So far as the present case is concerned, there is concrete
unimpeachable evidence in the shape of the report of Dr. Parra. The
equipment was not in good shape; the person who were assisting him
were novices and had no previous experience with the use of laproscope;
during the surgery, there was some malfunctioning of the equipment; there
was a tear in the colon and as to how it happened Dr. Parra could not
explain; the opposite party hospital was unhygienic. There is least doubt
that the opposite party had been negligent and there was deficiency in
service..”
The State Commission while recording that it would be difficult to quantify the amount of
compensation in the case of death of one’s spouse, after taking into account all the
facts of the case, held that a compensation of Rs.5,00,000/- would be just and
reasonable and accordingly directed the Appellant to pay the Respondent-Complainant
the said amount together with Rs.5000/- as litigation costs within a period of two
months.
5.
Aggrieved by the order of the State Commission, the present first appeal has
been filed.
6.
Learned Counsel for the Appellant made oral submissions. Learned Counsel for
the Respondent-Complainant was not present but written submissions were taken on
record.
7.
Counsel for the Appellant stated that the medical records filed in evidence clearly
indicated that there was no deficiency or negligence on the part of the Appellant in the
treatment of the Patient, including the Laparoscopy as also the surgery. It was stated
that the Patient had been brought to the Appellant with Endometrial Cysts and fibromas
of the uterus, for which a diagnostic Laparoscopy was necessary, and the procedure
was conducted after all the pre-operative tests. It was found during the Laparoscopy
that the Patient also had pelvic inflammatory disease which caused complications
leading to sepsis and peritonitis. This was not the result of any negligence as alleged,
including accidental perforation of the colon, and despite the best medical care and
treatment, including a second surgery, these complications persisted. No payment was
taken from the Patient by Appellant which was a charitable institution and which also
paid for her entire treatment at Sri RamachandraMedical College Hospital, where she
expired. All the Doctors, including Dr. Parra, were well qualified and professional
Doctors and, therefore, the findings of the State Commission were not based on correct
appreciation of the facts as also the evidence on record.
8.
Counsel for the Respondent-Complainant in the written arguments contended
that from the statement of Dr. Samuel Parra before the State Commission it was clear
that the Laparoscopy procedure conducted by him was totally botched up. There was
malfunctioning of the equipments and during the procedure colon of the Patient got
ruptured resulting in the faecal matters entering into her system, because of which
another emergency surgery had to be conducted on 27.05.2000, which was also not
conducted properly and even the surgical wounds were not properly incised and
closed. These facts were confirmed by the Doctors in Sri RamachandraMedical College
Hospital, who despite their best efforts could not save the Patient because by then the
whole system of the Patient had collapsed. The State Commission had, therefore,
rightly concluded in its well-reasoned order that during the surgery there was a mistake
which resulted in the tearing of the colon and subsequent complications which could not
be managed and rectified by the Appellant and its Doctors.
9.
During the pendency of the present first appeal before this Commission
Respondent-Complainant died and his legal representatives were brought on record.
10.
We have considered the oral and written submissions made by learned Counsels
for the Appellant and the Respondent-Complainant respectively. Patient’s admission in
the Appellant hospital with a diagnosis of ovarian cyst and her examination by a Doctor
from USA, Dr. Samuel Parra, who confirmed the diagnosis and offered to remove the
cyst by Laparoscopic method, is not in dispute. It is further a fact that following this
procedure, complications developed, because of which a second surgery became
necessary, during which it was found that body fluids and faecal matters had leaked into
the system and also that both ovaries had to be removed and sent to a laboratory for
tissue culture. It is further a fact that on the Appellant’s own advice Patient was shifted
to a higher health facility i.e. SriRamachandra Medical College Hospital, where despite
her being in the ICCU, she could not be saved. Dr. Parra while denying that there was
any medical negligence and deficiency in service on Appellant’s part in conducting the
Laparoscopy as also the subsequent surgery had also admitted on oath before the
State Commission that the Laparoscopy equipment was not available in the Appellant
hospital and had to be obtained from another hospital just two days prior to the
surgery. It was further admitted by Dr. Parra that right from the beginning there were
technical difficulties while conducting the procedure since the insulator needle was not
working properly so the umbilical trochar was placed by open technique. Further, there
were problems with the suction irrigation system as the “rubber tubing of the suction
were collapsing when applying the suction” which was time consuming. Dr. Parra has
also admitted that on 26.05.2000 there were intra-abdominal infections and there was
also
possibility
of
Peritonitis,
which
was
not
responding
to
conservative
management. Therefore, a second exploratory surgery was conducted, wherein Dr.
Parra stated that the Patient was explored with the finding of a small tear of the sigmoid
colon and there was also a residual fluid from the irrigation during the
Laparoscopy. However, despite stating all these facts, Dr. Parra concluded that
Patient’s death was not because of any complications that can arose in such surgeries
and was because of pelvic inflammatory disease. We are not able to accept this
contention of Dr. Parra in view of the fact that he has clearly stated that there were
serious technical difficulties while conducting the Laparoscopy which confirmed the
Respondent-Complainant’s contention that the Patient was used as a guinea
pig. Further, the Appellant and Dr. Parra were not able to satisfactory explain the tear in
the colon which led to the sepsis and peritonitis, except to say that “a non-fault
irreparable damage had occurred”. From the evidence of Dr. Parra, it is also clear that
soon after the surgery, the Patient continued to face a number of medical problems and
blood was also transfused to her. These facts are confirmed from the medical records
of both Appellant hospital and Sri Ramachandra Medical College Hospital filed in
evidence by the Appellant. The State Commission after considering the evidence on
record had, therefore, concluded that there was medical negligence and had specifically
stated in Para-9 of its order as follows :
“It is thus clear that during the surgery, there was a mistake done which
resulted in the tearing of the colon. We have also noticed that the
equipment was also defective. When even according to Dr. Parra, the
equipment was defective it is a moot question whether Dr. Parra and his
associate doctors and assistants should have proceeded further and done
the operation. Even, according to Dr. Parra, there was a concealed nonnoticeable injury of the colon that manifested itself in the postoperative
course. He had also realised that a non-fault irreparable damage had
occurred. In such a situation, the one and only conclusion that could be
reached is that there was negligence which resulted in serious
complications. The patient had to be shifted to the tertiary for
management and of course, things had become unmanageable and
ultimately the patient collapsed and died.”
11.
We are in agreement with the finding of the State Commission that Appellant was
guilty of medical negligence and deficiency in service right from the beginning in not
checking whether the Laparoscopy equipments were working, because of which
admittedly several problems arose during the Laparoscopic procedure, including a tear
in the colon. If indeed the Laparoscopy had gone smoothly as contended by Appellant,
then there would not have been need for a second surgery, which was done to redress
the deficiency of the first surgery. Further, Doctors in the Appellant hospital themselves
admitted that they were unable to treat the Patient in their hospital, which clearly
indicates that by the time she was referred to higher medical facility, her condition was
very critical and could not be reversed. Sri RamachandraMedical College Hospital
where she was transferred has also confirmed that the Patient’s condition at the time of
admission was very critical.
12.
The principles of what constitutes medical negligence is now well established by
a number of judgments of this Commission as also the Hon’ble Supreme Court of India,
including in Indian Medical Association v. V.P. Shantha [(1995) 6 SCC 651]. One of the
principles is that a medical practitioner is expected to bring a reasonable degree of skill
and knowledge and must also exercise a reasonable degree of care and caution in
treating a patient (emphasis provided). In the instant case, it is very clear from the facts
stated in the foregoing paragraphs that a reasonable degree of care was not taken in
the treatment of the Patient. This is apparent, as stated earlier, from the fact that even
the Laproscopy equipments were not checked before they were used because of which
several problems arose with its functioning during the procedure as admitted by the
Doctor who conducted the procedure. Apart from this, the Doctors from the Appellant
hospital have not been able to explain how the colon tear occurred and why a third
surgery may have been necessary because of which even the surgical wounds were not
properly sutured. The instant case is a case of res ipsa loquitur where medical
negligence is clearly established.
12.
We, therefore, agree with the order of the State Commission and uphold the
same in toto. The present first appeal is dismissed. Appellant is directed to pay to the
Respondent-Complainant a sum of Rs.5,00,000/- as compensation together with
litigation costs of Rs.10,000/- within a period of two months. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Sd/(DR. S.M. KANTIKAR)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 2330 of 2012
(From the order dated 14.12.2011 of the Uttar Pradesh State Consumer Disputes
Redressal Commission, Lucknow in Appeal no. 1505 of 2009)
1.
Ram Nihal Son of Ram Karan
2.
Smt Vidya Widow of Late Devendra Kumar Yadav
3.
Kumari Shivangi Daughter of Late Devendra Kumar Yadav All residents of village
Chakia Damodarpur Pargana and Tehsil – Akbarpur District Ambedkar Nagar (Uttar
Pradesh)
Petitioners
Versus
Dr C G Agarwal Medical Officer Gandhi Memorial and Hospitals, Lucknow (now
Chhatrapati Shauja Maharaj Medical University, Lucknow)
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA
HON’BLE MRS REKHA GUPTA
PRESIDING MEMBER
MEMBER
For the Petitioner
Mr Vijay Kumar Yadav, Advocate
For the Respondent
Ms Prem Lata Nigam, Advocate
Pronounced on 3rd April 2013
ORDER
REKHA GUPTA
The revision petition No. 2330 OF 2012 is filed against the impugned order dated
14.12.2011
passed
by
the
Uttar
Pradesh
State
Consumer
DisputesRedressal Commission, Lucknow ( ‘the State Commission’) in appeal no. 1505
of 2009 in original complaint case no. 106 of 2011 before the District Consumer
Disputes Redressal Forum, Faizabad (‘the District Forum’).
The facts
of
the
case
as
per
the
petitioner
was as
follows:
The
deceased Devendra Kumar Yadav was the son of petitioner/complainant no. 1, husband
of petitioner no. 2 and father of petitioner no. 3. The facts of the case are as follows:
The son of the petitioner/complainant no.1 and husband of petitioner/ complainant
no. 2 and father of petitioner/ complainant no.3, Late Shri DevendraKumar Yadav was
allegedly poisoned on the night of 22.02.2001 by Daya Shankar son of Rajaram, Rama
Kant
son
of Daya Shanaker, Phool Chandra
son
ofBabloo, Janaki Daughter
of Phool Chandra and Vidhan son of Ram Bahal which was revealed in the morning of
23.02.2001 The petitioner went to a doctor atBaskhari who asked him to go to the
District
Hospital Faizabad and
they
rushed
to Faizabad Hospital
and Devendra Kumar Yadav was admitted at 09.00 A M on 23.02.2001 and he was
attended by Dr Verma, respondent/Opposite party no. 1 before the District Forum.
Mr Verma was negligent and did not carry out the required procedure for ousting the
poison from the stomach when it was told that the case a poisoning and gave incorrect
general medicines. Due to the negligent treatment and due to non-adopting the correct
required treatment, the condition of Late Shri Devendra Kumar Yadav did not improve
he the doctor then referred the patient to the Medical College, Lucknow.
The
petitioner
rushed Shri Devendra Kumar Yadav to
Medical
College, Lucknow where late Shri Devendra Kumar Yadav was admitted in ward no. III
Bed no. 10 on the same day at about 12.00 Noon. Again there too Dr C G Aggarwal,
respondent herein attended the patient and referred him to Dr A K Pandey for obtaining
C T Scan and on the same day C T Scan was done in the clinic of Dr A K Pandey,
5 Subhash Marg, Near J G Medical College, Lucknow who gave report that there was
impression
of Intraventricular Haemorrhage.
The
late Devendra Kumar Yadav was
required to be given correct medicines and other treatment for a poisoning case but it
was not done.
On 26.02.2001 when the condition of the patient deteriorated then respondent
referred the report for an opinion to Dr Ravi Das, Neurosurgeon, who clearly said that
the case was of poisoning and review was needed.
Due to carelessness of Dr Verma at Faizabad Hospital and a gap of 2 days the late
son of petitioner was unconscious but he never got the appropriate treatment to negate
the result of poison. Again on 25.02.2001 the spinal cord was examined in order to
obtain result as to whether Devendra Kumar Yadav had some other disease like
Bacteria etc, or not and the result was Gram’s stained smear was negative and CSF
smear was also negative for acit fast bacilli and thereafter again the doctor at Medical
College did not adduce correct medicine and kept the patient negligently up to
28.02.2001and the patient died at 10.45 PM on 28.02.2001.
Now again to avoid to report to the nearest police station or Magistrate for
suspected case of poisoning the doctor wrote the cause of death as cardiac failure.
The District Forum considered the case and recorded as follows:
“Services has sufficient on respondent/opposite party no. 1 and thereafter he
appeared on 04.09.2011 through a paper no. 22 before the Court and said no
relation to this matter of them and a wrong notice is issued to him. On this ground
they told there is no necessity for appearing before the court on dates
fixed. Services of notices has presumed on opposite party no. 2. Both opposite
parties did not appear before the Court so for proceeding has initiated ex parte.
We have heard both ex and seen the paper books. The version of the
petitioner/complainant, that the deceased Devendra Kumar Yadav was admitted
on 23.02.2001 in the District Hospital, Faizabad where the treatment was done
by the respondent/opposite party no. 1. Petitioner/Complainant no.1 gave his
affidavit on this point. Against this affidavit, any opposite party, except
petitioner/complainant no.1, affidavit complainants provided discharge certificate
dated 24.02.2001 through paper no. 31/2 which shown deceased was admitted
on 23.02.2001 in the District Hospital, Faizabad and his treatment was done by
the respondent/ opposite party no. 1.
Petitioner/Complainants’ villagers’ one witness Pam Surat gave his affidavit in
which it is stated that poison was given to the deceased in the night of
23.02.2001. Deceased was admitted in the District Hospital, Faizabad where the
treatment was done by the respondent/opposite party no. 1 to the deceased. This
witness also told that the petitioner/complainant no. 1 stated to the
respondent/opposite party no. 1 that the poison was given toDevendra Kumar in
the night. On the same point Ram Milan son of Ram Janam aged about 28 years
given his affidavit.
All the witnesses have proved this fact. Medical negligence has committed by the
opposite parties in the hospital of Faizabad and Lucknow Medical College.
Negligence of doctors also proved this facts that the saying of the complainants
the poison was given to the patients, his treatment did not made any of them and
any of this facts has examined in the record. It is clear for this that the opposite
parties have committed conceal his wrong.
By the petitioner/complainants has produced a photo copy of the toxicology book
for giving treatment in the case of poison matter. By the petitioner/complainants
has filed a case had all in above decision it is relying upon no reply was given by
the respondent/ opposite parties of the affidavits than the fact of the affidavit
could not be denied. In the aforesaid matter the affidavits of witnesses given in
favour of the petitioner/complainants. In this affidavit it is clearly stated that the
story is about giving poison to Devendra Kumar Yadav was told to both the
respondents/opposite parties but by the both the respondents/ opposite parties
did not give any treatment with regard to poison and due to negligence of the
respondents/opposite parties the condition of the deceased has become serious
and he has died. So the complainants have proved their case and the negligence
of the doctors have been proved.
The deceased was aged about 30 years. He was given the poison but due to
slackness in treatment by the doctors he died. There was no one to look after the
petitioner/complainant except the deceased and if he would have alive then he
must live till 60 years and cared his family. It has been stated in the complaint
that
the
deceased
was
earning
Rs.5,000/-
per
month.
The
petitioner/complainants have claimed Rs.5 lakh. In our opinion with regards to
compensation, it is considered the uncertainty of life and one time earning and
expenses on his family a total Rs.2.50 lakh compensation can be awarded.
Except this 10% interest from the date of judgment till the actual date of payment
can be awarded. In our opinion the petitioner/complainants are entitled to
receive the such compensation”.
Hence, the District Forum ordered as under:
“The complaint is allowed for Rs.2.50 lakh against the respondents/ opposite
parties ex –parte. The petitioner/complainants are entitled to receive interest 12%
per annum from the respondent/opposite parties from the date of judgment till the
date of recovery. The petitioner/ complainants will also receive Rs.1000/- towards
litigation
expenses
from
the
respondents/
opposite
parties.
The
respondents/opposite parties are directed to make the payment of compensation
within one month from the date of judgment”.
The petitioner filed appeal no. 1839 of 2006 before the State Commission for
enhancement of the compensation.
Aggrieved by the order of the District Forum, the respondent Dr G
C Agarwal filed appeal no. 1505 of 2009 before the State Commission. In the affidavit
in support of their contention before the State Commission, the respondent in his
affidavit has stated on oath as under:
“That on 30.04.2009 the respondent/appellant was called to appear as a witness in
a
criminal
complaint
case
Ram Nihal versus DayaShanker and Others
no.
3562
pending before
of
the
2006
Chief
re:
Judicial
Magistrate, Ambedkar Nagar, to give evidence on some medical legal queries during
trial of the murder case of the deceased Devendra Kumar Yadav. Certified copy of the
order dated 30.04.2009 passed by the Chief Judicial Magistrate in case no. 3562 of
2006, certifying the appearance of the respondent before him and recording of the
statement.
The said case no. 3562 of 2006 was filed by the petitioner no. 1 before the Chief
Judicial Magistrate, Ambedkar Nagar on the grounds that the deceased son of the
petitioner no. 1 was murdered due to some enmity in the village. Certified copy of the
said complaint case no. 3562 of 2006 is being attached.
After recording of his statement, when the respondent was about to leave the court
of CJM, the counsel for the petitioner/complainant informed the respondent, that in the
same matter, one case has also been decided by the District Forum, Faizabad against
the appellant and one Dr Ramendra Pratap Vermaof Faizabad District, awarding the
compensation of Rs. 2,50,000/- to the complainant on the basis of finding of medical
negligence committed by the appellant and the said another doctor.
It is submitted that it was for the first time when the appellant came to know about
any such complaint case being filed and decided against the appellant by the
respondents before learned Forum, as prior to the same he was having no knowledge
or information about the said case. The appellant never received any notice or summon
etc., about the said case from the learned Forum, nor the respondents ever
informed him about the same nor even the said judgment and award of the learned
Forum was ever served upon the appellant by the respondents or given any information
till date.
That the counsel for the respondents had also informed to the appellant that the
said consumer complaint was filed in the year 2001 against the two doctors,
viz., Ramendra Kumar Verma of District Faizabad and the appellant and the same was
decided in the year 2006 itself. However, the respondent/complainant before the CJM
did not divulge the number of case or other specific details of the consumer case
despite the request of the appellant.
That
it
would
have
been
appropriate
and
normal
for
a
complainant
with bonafide intention to have first met or at least serve a notice to the person from
whom he felt aggrieved before approaching the court of law including the Consumer
Forum. In any case, a bonafide complainant ought to have at least enquired from the
person against whom he is about to file a complaint about his role in the matter in
complaint. However, in the instant case, no such efforts and ever been made by the
complainant either personally or by serving any notice to know the correct facts. Instead
he chose to file a totally false, baseless and imaginary complaint before the learned
Forum Faizabad, against doctors who even not treated the deceased person.
In the circumstances, after coming to Lucknow the appellant consulted his
advocate and discussed the entire matter with him and sought his advice in the matter.
The counsel then advised the appellant to make enquiry about any such complaint case
or the award passed and also to find out the other doctorVerma, who was also said to
have been party in the said complaint case.
As per the advice of the counsel, the appellant then started making inquiry about
any such consumer complaint case against the appellant in Faizabadand also tried to
find out the said other doctor Verma. After much efforts, it was only on 20.07.2009,
through one friend of the appellant, the appellant was able to locate and contract
Dr Ramendra Pratap Verma and consequently to inquire from him about the details of
any such complaint case including the case number etc., before the learned
Forum, Faizabad, as no details was available to the appellant. It was only then, that the
appellant could know from the said doctor, the details of the said Consumer Case no.
106/2001. It was also informed that the said case was also decided by the learned
Forum ex parte on 03.07.2006 against the appellant and the said doctor moreover, a
compensation of Rs.2,50,000/- was also awarded to the complainants/ respondents. It
was also informed by Dr Verma that an appeal no. 1839 of 2006 has also been filed by
the respondents before this Hon’ble Commission for enhancement of the compensation
amount.
Immediately on coming to know about the said complaint case from Dr Verma the
appellant consulted his advocate who suggested about his junior MrVijyant Nigam to let
him go to Faziabad for inspection of the records and for obtaining certified copies of the
required documents. Then the appellant as per the advice contacted Mr Vijyant Nigam
on 23.07.2009 and requested him to go to Faizabad with the complainant who then
went to Faizabad on 24.07.2009 and made enquiry from the office of the learned
Forum, Faizabad. Mr Vijyant Nigam also applied for the inspection of the records of the
said complaint case. It was only then when the appellant could be able to inspect the
records of the learned Forum, Faizabad, relating to the said complaint case.
From the inspection of the records of the learned Forum, Faizabad, it was for the
first time came to the knowledge of the appellant that a complaint no. 106 of 2001 was
filed by the respondents in the year 2001 against the appellant and another
Dr Ramendra Pratap Verma of District Hospital, Faizabad before the learned District
Forum, Faizabad.
The complainants/ respondents alleged in their complaint that both the two doctors
arrayed as opposite parties have committed medical negligence while giving treatment
to the deceased patient Late Devendra Kumar Yadav due to which the patient died.
The District Forum Faizabad was pleased to admit the complaint and issued
notices to both the opposite parties.
The District Forum, Faizabad after issuing notices to the opposite parties fixed the
next date as 05.09.2001 for filing the written statements.
That on 05.09.2001, the District Forum Faizabad has passed the order that the
opposite party no. 1 Dr Ramendra Pratap Verma has filed the written statement in which
he submitted that he was not concerned with the alleged complaint and a wrong
complaint was filed against him. About the appellant, the District forum found that the
service of notice upon appellant/ opposite party no. 2 Dr C G Agrawal was not sufficient,
hence, directed the complainant to take fresh steps within a week for issuing notice to
the appellant/opposite party no. 2 and directed to issue notice to the appellant/ opposite
party no. 2 to file written statement and for hearing. Certified copy of the order dated
05.09.2001 passed by the District Forum, Faizabad in complaint case no. 106 of 2001 is
being attached herewith.
On 01.12.2001, the complaint case no. 106 of 2001 was against listed before the
District Forum, Faizabad. On that date none appeared on behalf of the opposite party
no. 1, hence, the learned Forum directed for proceeding ex parte against him.
Regarding the appellant / OP no. 2, it was observed by the learned Forum that neither
the Registry sent to the appellant/ opposite party no. 2 had returned nor the A/ D was
returned back and on that basis only, the District Forum presumed that the services
upon the opposite party no. 2 was sufficient and directed to proceed ex parte against
the OP no. 2/ appellant also.
Thereafter the District Forum, Faizabad proceeded ex parte against the appellant
and finally decided the complaint on 03.07.2006 directing therein to the opposite parties
to pay compensation of Rs.2,50,000/- along with interest @ 12% per annum to the
complainant.
That from the inspection of the records of the learned Forum, it was revealed that
the opposite party no.1 Dr Ramendra Pratap Verma had also filed a recall application
before the learned Forum, Faizabad on 30.06.2006 which is pending till date and the
same was lastly listed on 24.07.2009. The said matter is now fixed for 26.10.2009.
It is submitted that the appellant has never received any notice of the said
complaint case neither in official capacity nor in person, either from the learned Forum
or from the respondents.
The appellant was also never made aware about the proceedings of the said
complaint case against him before the learned Forum in any manner.
In the circumstances, the presumption drawn by the learned Forum that merely
because the registry of AD had not returned, the notice could served upon the
appellant/ OP No. 2 was factually incorrect and is liable to be set aside by
this Hon’ble Commission. In any case, in view of the appellant/ OP 2 of any notice from
the Forum is liable to be accepted by the learned Forum in absence of any evidence to
the same is produced before the learned Forum. In the meantime the limitation for filing
of the appeal before this Hon’ble Commission has also been expired long back.
Thereafter, the appellant applied for the certified copies of the orders passed by
the learned Forum, Faizabad and obtained the same on 24.07.2009.
After obtaining the records relating to the said complaint case, the appellant then
consulted about the matter with his advocate and it was opined by the advocate that an
appeal should be filed against the said order before this Hon’ble Commission.
After getting the advice from his counsel regarding filing of an appeal, it took some
time for arranging all the necessary documents and records as the matter was very old.
It also took some time in completing the necessary formalities for filing of the appeal as
the matter is a medical legal case and thereafter, immediately the appeal is prepared
and is being filed herewith without any delay on part of the appellant”.
The State Commission noted that, “it is a case of alleged medical negligence by
the doctors who had attended the deceased Shri Devendra Kumar Yadavbefore he
expired on 28.02.2001. Shri Devendra Kumar Yadav was the son of Shri Ram Nihal, the
complainant no. 1, husband of complainant no. 2 SmtVidyawati and father of the
complainant no. 3 Kumari Shivangi, the minior. He was admitted in the district
Hospital, Faizabad on 23.02.2001 at 09.00 A M but since his condition did not improve
he
was
referred
to
the
King
George
Medical
College,
presently
known
as Chatrapati Shauja Maharaj Medical University. In the medical college, he was
attended to by Dr C G Agarwal. He was then examined by Dr A K Pandey and
Neurosurgeon Dr Ravi Das. Unfortunately, he died on 28.02.2001 at 10.45 p.m. His
relative Shri Mahendra Kumar Yadav had taken his body without any complaint against
the hospital authorities, as is evident from his application dated 28.02.2001. About 5
month after, the complaint before the District Consumer Forum was filed by the three
complainants, as stated above and in the complaint, it was for the first time revealed
that Shri Devendra Kumar Yadav was the victim of poisoning. The names of the person
who had allegedly administered the poison to him were disclosed as Daya Shankar,
Rama Kant, Phool Chandra, Janki and Vidhan. The impugned judgment appears to
indicate
that
the
two
doctors
namely
Dr Ramendra Pratap Verma and
Dr
C
G Agarwal did not appear before the District Forum to contest the complaint as a
consequence, ex parte proceedings were drawn and ex parte judgment delivered.
By means of the judgment, the District Forum recorded a finding that the doctors
who were supposed to have cleaned the stomach of the deceased so as to relieve the
body of the patient of the adverse effects of the poisoning and they were, thus, guilty of
medical negligence. On the basis of this finding, the complaint was allowed and a sum
of Rs.2,50,000/- awarded as compensation. Interest @ 12% per annum had also been
levied.
Mrs P I Nigam learned counsel for the appellant Dr C G Agarwal has submitted
that the theory of poisoning was based on an after though idea as neither any FIR
against the accused person namely Daya Shankar and others was lodged nor any
intimation to doctors who had attended the patient or any other authority of the district or
police was given. It is supplemented further by the learned counsel that not only the
theory of poisoning was imaginary one but the findings of the District Forum too are
nothing but presumptary and based on sumrises and conjectures. The contention
seems to carry weight. There is nothing on record to indicate that prompt FIR was
lodged for the incident of poisoning. Not only that the complainants particular the
complainant no. 1 who is father of the deceased was not knowing the procedure of
taking the criminal action but it appears that neither there was a story of poisoning in the
beginning nor there was any indication of any such incident. It is surprising to note that
a complaint under section 302 IPC on the basis of the story of poisoning was filed in the
court of the Chief Judicial Magistrate, Faizabad 5 years after the alleged incident of
poisoning. No doubt the story had already figured in the complaint filed before the
District Forum but the delay in filing the complaint before the Chief Judicial Magistrate
further explodes the imaginary theory of poisoning. The complainants had not offered
any explanation as to why the fact about the poisoning was not conveyed to any
authority such as police or the doctors who had been attend the patient. The affidavit
of Shri Ram Surat, a villager, is not worthy of credit for the simple reasons of his being
silent for four years altogether. He filed his affidavit during the pendency of the
complaint. Shri Ram Surat too did not submit any explanation as to why he did not take
a prompt action by filing an FIR or by approaching any other district authorities. Also he
has not come forward with any explanation as to why he did not inform the father of the
deceased soon after he came to learn about the incident of poisoning. The long silence
on his part falsifies his statement that Daya Shankar and others had poisoned the
deceased. Although it will be within the jurisdiction of a competent criminal court of law
to make a positive finding on the issuing in question and we are sure that by our
observations such court will not be unnecessarily prejudiced, yet we in order to arrive at
a just finding on the issue before us can observe that the theory of poisoning was
nothing but a tissue of lies.
Had
it
been
brought
to
the doctors knowledge
that Shri Devendra Kumar Yadav was the victim of poisoning, there was no reason for
either of them not to have gone into the process of cleaning his stomach as per the
prescribed procedure. Moreover, the cleaning of a poisoned stomach is immediately
required soon after the incident. The appellant Dr C G Agarwal who was incharge of the
ward where Devendra Yadav was admitted for his treatment on 23.02.2001 referred the
patient Dr A K Pandey for obtaining the CT Scan report and Dr Pandey, submitted his
report to the effect that there was an impression of Intra Ventricular Haemorrhage. Then
the patient was referred to Dr Ravi Das, the Neuro Surgeon. It is admitted to the
complainants that C T Scan revealed impression of Intra Ventricular Haemorrhage but
there is no evidence on record to suggest that Dr Ravi Das submitted a report about the
patient being poisoned.
It is a cardinal Rule of Law that a complainant is required to establish his case as
alleged by him in his complaint. In the case in hand not an iota of evidence was
produced either before the District Forum or before this Appellant Court to prove that
the two doctors namely Dr Ramendra Pratap Verma and Dr C G Agarwal had come to
learn about the incident of poisoning before they had examined the patient. In the
absence of any such evident, it would be extremely difficult to suggest that the two
doctors were guilty of the medical negligence or deficiency in service on their part by not
giving
due
attention
to
the
said
aspect
of
the
matter.
The
impression
of Intraventricular Haemorrhage has no relevance vis-a-vis the poisoning the patient
rather indicated that he suffered haemorrhage. The complainants have not adduced any
medical literature in support of their contention and connect the impression
of IntraventricularHaemorrhage with poisoning. The CT Scan report evidently reported
the seriousness of the head injury. Shri Devendra Kumar Yadav had suffered and the
same was perhaps the main cause which had led to his death. The impression
of Intraventricular Haemorrhage certainly has no relevance with the incident of alleged
poisoning. The fact that the complainant came to learn about the poisoning on
12.04.2001 as recited in paragraph 8 of their complaint no. 3562 of 2006 filed before the
Chief Judicial Magistrate, Ambedkar Nagar clearly proves that the theory of poisoning
having been conveyed to the two doctors at the relevant time of the patient being
attended by them, was totally false, baseless after thought and based on surmises and
conjectures.
Funny the doctors were rounded up in the negligence case but no action was
taken against the accused for five years”.
Hence, the State Commission gave the following order:
“Mr Vijay Yadav learned counsel for the respondent/ complainant has not pointed
out any document with reference to which or on the basis of which
communication about the poisoning would have been made to the two doctors.
We are therefore, of the view that neither Dr C G Agarwal nor the other doctor
who had attended the patient, Faizabad was guilty of any kind of medical
negligence.
In the result, the appeal of Dr C G Agarwal succeeds and is hereby allowed.
The impugned judgment is set aside and the complaint dismissed. As a
consequence, other appeal no. 1839 of 2006 becomes redundant and it is liable
to be dismissed. Ordered accordingly”.
Hence, this revision petition.
The grounds for the revision petition are as follows :
“Because the incident of poisoning has totally ignored by the State Commission by
the persons (Daya Shanker, Rama Kant, Phool Chand, Janki and theVidhan Chandra)
who had administered the poison to late Devendra Kumar Yadav. They have been
prosecuted by the Chief Judicial Magistrate, Ambedkar Nagar vide its order dated
15.07.2009 under section 302/34 & 120 (b) IPC in complaint case no. 3562 of 2006.
The State Commission has misread the C T Scan report dated 24.02.2011 by
which it is crystal clear in case of poisoning Intraventricular Haemorrhage is the result.
The State Commission acted illegally in exercise of its jurisdiction in not taking any
medical literature or any expert opinion on the finding (Intraventricular Haemorrhage) of
CT Scan examination.
The State Commission has acted illegally in expressing the power of an expert
himself when it is a well settled law that a court himself cannot act as an expert.
The State Commission has acted illegally and irregularly in ignoring the procedure
of criminal action, against the persons who had given poison to the deceased.
The State Commission has failed to exercise its jurisdiction because a highly time
barred appeal has been filed by Dr C G Agrawal (i.e., near about 3 years) before the
State Commission but without giving any single words of this point in impugned
judgment while the same was opposed by the reply of the revisionists no. 1.
The order passed by the State Commission is illegal, improper and perverse the
evidence and also ignored the documentary evidence available on record”.
We have heard the learned counsel for the parties and have carefully gone through
the records of the case.
Counsel for the petitioner insisted that it was a case of poisoning and that the
doctors had been so informed, and hence, the respondents was guilty of medical
negligence. He has also drawn our attention to the report of the Plain Cranial C T Study
and insisted that it supported the fact that it was due to poisoning.
We have seen the report which is reproduced below:
“Serial
5.0
mm
&
10.mm
cuts
were
taken
through
posterior
fossa
and supralentorial compartments.
POSTERIOR FOSSA
Fourth ventricle is normal in size and located. Both the cerebellar hemos here are
within normal limit.
SUPRAILNIORIAL
Bilateral horizontal CSF haematoent level is seen in both ingonus. Both the lateral
ventricles as such are mildly dilated 3rd ventricle is within normal limits
No mid line shift is observed. Basal cisterns and cortical such are obliterated.
Bony calvaria is within normal limits.
Impression:
Intraventricular Haemorrhage”.
Nowhere, in the report has it been reported that it was due to poison. The other
documents placed on record also do not mention that doctors were informed that it was
case of poisoning rather the case was diagnosed as ‘Encealogy’.
It is difficult to come to any conclusions after studying the typed copies of the
annexures produced as they have been very badly translated and the diagnosis is given
in terms which are not found in the medical dictionary. The original documents cannot
be read. Counsel for the petitioner again in the State Commission could not point out
any documents with reference to which or on the basis of which communication about
the poisoning would have purportedly been made to the doctors. He could not also
produce any document showing that death was due to poisoning. There is no copy of
the FIR, death certificate or post mortem report on record. The case was lodged in the
court of CJM Faizabad five years later after the said incident. The treatment record has
also not been supplied and record given are also not readable.
It is an ubdisputed fact that Shri Devendra Kumar Yadav was admitted in the
District hospital , Faizabad on 23.02.2001 at 09.00 AM . Since his condition was serious
he
was
referred
to
King
George
Medical College,Lucknow presently
known
as Chatrapati Sahauja Maharaj Medical University, where he was attended to by the
petitioner. He was then examined by Dr A K Pandey and Neurosurgeon Dr Ravi Das.
He died on 28.02.2001 at 10.45 p m. About five months later the petitioner filed a case
before the District Forum. The respondent did not get any notice and hence, could not
appear before the District Forum to contest the case and the decision was taken ex
parte.
The respondent came to know about the case for the first time on 30.04.2009
when he was called as a witness in a criminal complaint case no. 3562 of 2006
regarding – Ram Nihal vs Daya Shanker and Ors., pending before the Chief Judicial
Magistrate, Ambedkar Nagar, to give evidence on some medical legal queries during
the trial of the murder case of the deceased Devendra Kumar Yadav. The counsel for
the petitioner could not produce any documents/ records/ or evidence to support his
case that the respondents had been negligent, while treating the deceased who died as
a result of poisoning either before the State Commission or before us.
In view of the foregoing reasons we find that there is no jurisdictional error,
illegality or infirmity in the order passed by the State Commission warranting our
interference. The revision petition is accordingly dismissed with cost of Rs.5,000/(Rupees five thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, within
four weeks from today. In case the petitioner fails to deposit the said cost within the
prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 3rd May 2013 for compliance.
Sd/..………………………………
[ V B Gupta, J.]
Sd/………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 36 OF 2008
(Against the order dated 05.12.2007 in O.P. No. 176/1994 of the State Consumer
Disputes Redressal Commission, Chennai)
1. Dr. Kurien Joseph
2. Joseph Nursing Home 10-A, Dr. Gurusamy Road Chennai-600031
…
Appellants
Versus
Govindarajan S/o Chakranpani No. 150, Raja Street Jothi Ramalingam Nagar
Perambakkam-631402
… Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants
: Mr. T. Srinivasa Murthy, Advocate with
Mr. Krishna Dev, Advocate
For Respondent
: Mr. S. Natana Ranjan, Advocate
Pronounced on 3rd April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by Dr. Kurien Joseph & Another, Appellants
herein and Opposite Parties before the State Consumer Disputes Redressal
Commission, Chennai (hereinafter referred to as the State Commission) being
aggrieved by the order of that Commission which had accepted the complaint of
medical negligence filed against them by Govindarajan, Respondent herein and Original
Complainant before the State Commission.
2.
In his complaint before the State Commission, Respondent had submitted that his
daughter G. Ushanandhini (hereinafter referred to as the Patient) was admitted in
Appellant nursing home on 16.08.1992 with complaints of stomach pain and menstrual
discharge although she was pregnant. Respondent came to know from one Dr. V.C.
Balasubramanium, to whom Appellants had referred her case, on 23.11.1992 that the
medical treatment of the Patient by the Appellants was not correct since she was given
treatment for cancer although she was not suffering from the same, as a result of which
the Patient died at a young age. Being aggrieved because of the medical negligence
and lack of proper treatment resulting in the Patient’s death, Respondent filed a
complaint before the State Commission and stated that Appellants be directed to pay
the Respondent a sum of Rs.10 Lakhs on account of untold agony and loss caused to
the Respondent and also taking into account the young age of the Patient who was
gainfully employed as a teacher.
3.
Appellants on being served filed a written rejoinder challenging the veracity of the
complaint as also the allegation of medical negligence. It was stated that the Patient
was admitted in Appellant nursing home on 16.08.1992 with a history of 45 days
amenorrhea, giddiness and severe abdominal pain. An ultrasound scan showed that
she had ectopic pregnancy with internal bleeding. Therefore, on 17.08.1992 an
emergency laparotomy was done, during which the ruptured corneal pregnancy was
removed and sent for pathological test to Dr. V.C. Balasubramaniam, Chief Pathologist,
Government Medical Hospital. Patient recovered and was discharged on 22.08.1992
with an advice to take iron and vitamin tablets and to come for a review check-up after
10 days. However, she failed to come for the same until 12.09.1992 when she again
visited the Appellant nursing home with complaints of fever, vomiting and abdominal
swelling for 5 days, during which period she had been treated by another Doctor, who
had prescribed antibiotics. On examination in the Appellant nursing home it was found
that the Patient had abdominal mass about 4 inches diameter above the
uterus. Dilatation & Curettage (D&C) could not be done in this case as the mass was
just adjoining the uterus and there were chances of perforating the uterus during this
procedure. Taking this into account this fact and following receipt of the pathological
report dated 24.08.1992 from Dr. V.C. Balasubramaniam that the specimens sent for
test were suggestive of Choriocarcinoma i.e. cancer, the Patient was started with the
course of chemotherapy. Following this, her condition improved and the mass also
decreased in size. On 23.03.1992 Patient came back to the Appellant nursing home
with complaints of difficulty in breathing and abdominal pain and an ultrasonography
indicated that the uterus had further enlarged and both ovaries showed multiple cystic
lesions. Therefore, a second round of chemotherapy was given from 23.09.1992 to
27.09.1992 when she was discharged with a detailed treatment chart indicating the
course of action that she must continue. After discharge it was learnt that the Patient
got admitted to the KMC Hospital where she received treatment but no details were
made available to the Appellants. On 28.10.1992 another ultrasound was done on the
Patient and although the cyst had reduced in size, the uterus was still enlarged and,
therefore, she was advised for admission in the Appellant nursing home, which she did
not heed. A repeat ultrasonography done on 16.11.1992 again confirmed the enlarged
uterus and the cysts. On 23.11.1992 Patient was brought to the Appellant nursing
home with difficulty in breathing, abdominal pain and vaginal bleeding. She had not
continued the prescribed treatment and an ultrasound showed that the large mass in the
abdomen above the uterus had increased in size. A firm diagnosis of Chronic
Carcinoma (Trophoblast) was made and though the Patient was promptly advised to get
admitted in the Appellant nursing home, she was taken home against medical advice
and she passed away 2 days later. All these facts were suppressed in the
complaint. Patient was given right treatment for carcinoma based on a clear medical
diagnosis of the same, following pathological and other tests, which clearly indicated
that there were strong markers indicating carcinoma. Chemotherapy being the
accepted line of treatment in such cases was given and there was no medical
negligence in the treatment and care of the Patient, which was done taking into account
her health and safety.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it, including the oral evidence and cross-examination of the Appellant
doctor and the Respondent, concluded that the Appellants were guilty of medical
negligence and deficiency in service. Relevant parts of the order of State Commission
are reproduced:
“12. … No medical report has been produced to conclude that Usha
Nandhini was suffering from cancer. The test, Ex.B5, relied on by the
opposite party itself says that ‘prior to starting therapy a full blood count is
required and renal and hepatic function must be assessed. Thyroid
function should be measured. The blood group of the patient and her
partner responsible for the most recent or molar pregnancy is required for
the prognostic score’. The opposite parties attempted to wriggle out by
stating that the patient was not suffering from molar pregnancy. The
opposite parties had not taken any steps to measure thyroid function or
find the blood group of her partner.
13.
We are satisfied that the initial onus has been discharged by the
complainant/s. The first opposite party has not substantiated his stand
that it was a case of cancer and that chemotherapy treatment was
absolutely necessary in the context of the ailment of the deceased Usha
Nandhini. The first opposite party not having established conclusively that
the deceased was suffering from cancer, it has to be found that
chemotherapy was ill advised to be tried on the deceased. We therefore
hold that the opposite parties had been negligent in treating the patient
and this had been the cause for the death of the patient.”
The State Commission, therefore, directed the Appellants to pay a sum of Rs.5 Lakhs to
Respondent as compensation within a period of 8 weeks from the date of the order
failing which the amount would carry interest @ 9% per annum. Rs.3000/- were
awarded as litigation costs.
5.
Being aggrieved by the order of State Commission, the present first appeal has
been filed.
6.
Learned Counsels for the parties made oral submissions.
7.
Learned Counsel for the Appellants argued vehemently and at length that the
State Commission erred in concluding that there was medical negligence by not
adequately appreciating the evidence on record, which clearly indicated that the Patient
had cancer for which she was rightly given chemotherapy. It was pointed out that when
the Patient came to Appellant nursing home with complaints of abdominal pain, fever
and amenorrhea, tests confirmed that she had ectopic pregnancy. An emergency
laparotomy was, therefore, conducted, following which products of conception, which
included multiple sections were sent for pathological investigation and as per the report
dated 24.08.1992 it was confirmed that appearances of the specimen were suggestive
of Chroiocarcinoma. Further, urine and other tests conducted on the Patient confirmed
the diagnosis of trophoblastic disease, for which treatment i.e. administration of
chemotherapy was started, to which the Patient also responded. The State
Commission erred in concluding that trophoblastic disease is not the same as cancer
since as per medical literature trophoblastic disease is in fact carcinoma. It was
specifically denied that chemotherapy for treatment of cancer was whimsically started
without carrying out all the necessary tests. In fact there were several important
markers which clearly indicated that the Patient had carcinoma. These included the
ectopic pregnancy, the fact that the Patient had a large mass in the abdomen above the
uterus which had increased rapidly in size and urine & blood tests which indicated
grossly elevated hCG levels. Counsel for the Appellants also stated that it was
dangerous to remove a specimen of the mass or cyst for biopsy to confirm carcinoma
because this could lead to hemorrhaging or perforation of the uterus. As per medical
literature on the subject which was filed in evidence, it is safer to treat patients for such
carcinoma with chemotherapy rather than to risk biopsying a metastasis. It was under
these circumstances that chemotherapy was started and the Patient’s condition had
also started improving. Further, the State Commission erred in not taking note of the
fact that it was the Patient who did not come for review check-ups and instead went to
other hospitals for treatment and also got a self-discharge against medical advice. She
also did not follow the treatment regimen which was given to her for which Appellants
cannot be held responsible. The medical treatment of the Patient for carcinoma was as
per standard medical case practice and treatment was given after clinical and diagnostic
tests, which indicated that she was suffering from cancer. Therefore, the finding of the
State Commission that the Appellants were guilty of medical negligence is without merit
and deserves to be set aside.
8.
Counsel for the Respondent on the other hand stated that the pathological report
on which the Appellants have relied, namely the first report of Dr. V.C.
Balasubramaniam dated 24.08.1992, did not give a clear diagnosis that the Patient was
suffering from cancer. In fact the report stated that the pathological examination of the
multiple
specimens
only
indicated
that
the
appearances
were suggestive of
Choriocarcinoma and there was a question-mark thereafter. The report also specifically
advised that this provisional finding needed to be correlated with the clinical picture and
confirmed with biological test in dilutions. Appellants failed to conduct these tests as
was admitted by the Appellant Doctor himself during his cross-examination before the
State Commission. Appellant
Doctor also
admitted
in cross-examination that
enlargement of the uterus need not necessarily be due to cancer. It was further
admitted that no Oncologist was consulted in the matter. On the other hand, there is a
definite finding based on the second pathological report of Dr. V.C. Balasubramaniam
dated 23.11.1992 that the Patient did not have cancer since the pathological
examinations conducted at the Institute of Pathology confirmed that there was no
evidence of malignancy. Under these circumstances, there is no escaping the fact that
there was medical negligence on the part of Appellants in giving wrong and irrational
medical treatment to the Patient for a disease which she did not have and the rounds of
chemotherapy given to her caused untold damage to her and were also responsible for
her death. The State Commission had rightly concluded that this was a case of medical
negligence and the present First Appeal having no merit deserves to be dismissed.
9.
We have carefully considered the submissions of learned Counsel for both parties
and have also gone through the evidence on record, including the medical literature on
the subject. It is not in dispute that the Patient was admitted in the Appellant nursing
home on 16.08.1992 and following tests a laparotomy was conducted to end the ectopic
pregnancy, which was causing the problems and the specimens of the sections taken
out during this procedure were sent for pathological examinations. It is also not in
dispute that Patient was given chemotherapy since the Appellants reached a diagnosis
based on the first pathological report of Dr. V.C. Balasubramaniam dated 24.08.1992
that the specimens sent had appearances which were suggestive of carcinoma and
following examinations, which indicated elevated levels of hCG as also the increase in
the size of the mass in the uterus. According to the Appellants, these were important
and more than adequate indicators to confirm that the Patient had cancer and that there
was no need for other tests, including biopsy, which could have caused further damage
to the Patient. We are unable to accept this contention of the Appellants. The first
pathological report dated 24.08.1992 which is filed in evidence does not conclude
categorically that the Patient had carcinoma. In fact, it only states that there were some
appearances in the specimens which were indicative of carcinoma but these needed to
be correlated with other tests before reaching a clear finding to this effect. In this
connection, the Appellant Doctor has himself admitted in his cross-examination that he
did not conduct these tests because the Patient came a week later than the time fixed
by Appellant Doctor for conducting the same and by that time she was very ill. We also
note that while during cross-examination Appellant Doctor admitted that enlargement of
the uterus and ectopic pregnancy need not necessarily be due to cancer yet in the
instant case it was primarily on the basis of these very symptoms that Patient was
administered 5 cycles of chemotherapy by him. The Appellant Doctor’s reason for not
conducting a biopsy of the abdominal mass or the cysts was on the ground that it could
have caused severe bleeding and also cited medical literature in support. However, it is
medically well established that the only way to determine if a growth is cancerous is to
remove a sample of it and conduct a biopsy on it*.
(Source : American Cancer Society – Wikipediacancer.org)
We further note that the second pathological report dated 23.11.1992 clearly indicated
that the Patient had no malignancy and, thus, confirming the complaint of the
Respondent that the Appellants started chemotherapy without taking due care to
confirm that the Patient had cancer.
10.
What constitutes medical negligence is now well established through a number of
judgments of this Commission as also of the Hon’ble Supreme Court. Based on the
touchstone of the Bolam’s test, one of the principles is that whether the doctor adopted
the practice (of clinical observation diagnosis – including diagnostic tests and treatment)
in the case that would be adopted by such a doctor of ordinary skill in accord with (at
least) one of the responsible bodies of opinion of professional practitioners in the
field. In the instant case, despite specific advice of the Pathologist to correlate the
provisional finding of carcinoma with the clinical picture and conduct biological test in
dilutions of the Patient, Appellants failed to heed this advice and did not conduct the
required tests nor did they consult an Oncologist or get biopsy done, which is the
common procedure undertaken in cases of suspected cancer of this nature involving
mass in the abdomen and growths. Such a procedure may have an inherent risk but
this is not adequate reason to not conduct the same especially when the ultrasound
indicated that apart from the mass there were a number of cysts and lesions. Taking
into account these facts, the State Commission had rightly concluded that this was a
case of medical negligence.
11.
For the reasons stated above, we agree with the order of the State Commission
and uphold the same. The present First Appeal is, therefore, dismissed. Appellants are
directed to pay Respondent a sum of Rs.5 Lakhs as compensation within a period of 8
weeks from the date of this order, failing which the amount will carry interest @ 9% per
annum, together with Rs.3000/- as costs of the proceedings. We note that Appellants
had deposited a sum of Rs.2.50 Lakhs with the State Commission vide this
Commission’s order dated 05.02.2008. In that case, this amount be released to the
Respondent with interest accrued thereon and Appellants are directed to pay the
remaining amount as directed above.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 139 OF 2008
(Against the order dated 25.05.2007 in Complaint Case No. C-191/1997 of the Delhi
State Consumer Disputes Redressal Commission)
All India Institute of Medical Sciences Ansari Nagar New Delhi-110029
…
Appellant
Versus
Swarn Bedi M-93, Saket New Delhi
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Mr. Mukul Gupta, Sr. Advocate with
Ms. Anjali Chauhan, Advocate
For Respondent
: NEMO
Pronounced on 9th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by All India Institute of Medical Sciences,
Appellant
herein
and
Opposite
Party
before
the
Delhi
State
Consumer
DisputesRedressal Commission (hereinafter referred to as the State Commission) being
aggrieved by the order of that Commission which while partly accepting the complaint of
Smt. Swarn Bedi, Respondent herein and Original Complainant before the State
Commission, had concluded that Appellant-Medical Institute was guilty of limited
deficiency in not making arrangements for a bed in that Institute, which she had visited
as a Patient.
2.
In the complaint, it was contended that on 30.05.1996 when the Respondent and
her daughter Ms. Ginni Bedi were sleeping at night, they were attacked by 6 to 7
intruders with axes, blunt rods etc. and were injured with bleeding from the head. Early
next morning at 5.45 a.m. their neighbours came to know about the incident and with
their help and that of the Police they were taken to Appellant-Medical Institute for
treatment, where they were admitted in the casualty ward. Appellant-Medical Institute
carried out various medical tests and also got the Patients examined in the concerned
departments. Respondent’s daughter was diagnosed with blood clots in the head due
to the head injury, for which she was operated and remained admitted in the AppellantMedical Institute. However, Appellant-Medical Institute discharged the Respondent
without keeping her under observation and only casually attending to her despite her
respect complaints of headache, nausea etc. apparently because a bed was not
available in that Medical Institute. On her way from Appellant-Medical Institute,
Respondent became unconscious and was shifted to Aashlok Hospital, where she was
advised head surgery and underwent the same, for which she had to incur a total
expenditure of Rs.95,490/-. Being aggrieved by the deficiency in service and medical
negligence on the part of Appellant-Medical Institute, who, despite her serious medical
complaints and condition, discharged her, Respondent filed a complaint before the
State Commission and requested that Appellant-Medical Institute be directed to
reimburse her medical expenses of Rs.95,490/-, Rs.50,000/- for medicines and other
post-operative treatment at Aashlok Hospital and compensation of Rs.4,00,000/- for
mental agony and harassment.
3.
Appellant-Medical Institute on being served filed a written rejoinder denying that
there was any medical negligence or deficiency in service on their part. It was inter alia
stated that in the first instance the case was not maintainable against it as AppellantMedical Institute does not levy any charges in regard to service and treatment provided
to the patients and in this case also no payment was taken from the Respondent and,
therefore, she was not a ‘consumer’ as defined under Consumer Protection Act,
1986. Further, it is not a fact that she was discharged even though she had serious
medical complaints merely because there was no bed available. As admitted by the
Respondent herself, as soon as she was brought to Appellant-Medical Institute she was
admitted there and was immediately examined by Doctors in the emergency department
and other departments. On examination, it was found that there was a laceration
wound in the skull of the Respondent but there was no history of loss of consciousness
or vomiting. She was treated with conservative method and procedure and was given
necessary injections and laceration wound was sutured. Respondent was further
examined in the ENT and Dental Departments, where she was treated for a laceration
in the right ear and antibiotics were administered. The Dental Surgeon also examined
her. The overall finding was that there was no loss of consciousness, vomiting and
bleeding and no evidence of fracture of maxilla and zygoma. The Respondent was,
therefore, discharged and asked to attend OPD. On the other hand, her daughter, who
had more serious injuries was admitted in the Appellant-Medical Institute and was
discharged after she was medically fit for the same. Under these circumstances, there
was no question of discharging the Respondent without duly attending to her and
because no bed was available. It was further contended that in case Respondent felt
uneasiness after being discharged, she could have always approached the AppellantMedical Institute and the fact that she went to Aashlok Hospital was her decision for
which Appellant-Medical Institute cannot be held liable to pay for the medical expenses
incurred by her in that hospital.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it concluded that there was no medical negligence in the treatment of
the Respondent and proper emergency treatment had been provided to her. However,
there was some administrative deficiency in discharging the Respondent apparently due
to non-availability of the bed and for this limited deficiency, the State Commission held
that a token compensation of Rs.25,000/- would meet the ends of justice.
5.
Being aggrieved by the above order, the present first appeal has been filed.
6.
Learned Counsel for the Appellant-Medical Institute was present. None was
present on behalf of the Respondent. Since service was complete, the case was heard
ex-parte.
7.
Learned counsel for the Appellant-Medical Institute reiterated the contentions as
made by the Appellant-Medical Institute before the State Commission and pointed out
that from the evidence on record it is clear that both the Respondent and her daughter
were given the best possible medical treatment. The Respondent underwent several
tests in the Emergency, ENT and Dental Departments and based on these she was
given the necessary medical treatment. She was discharged only after the Doctors were
satisfied that there was no need for her to be admitted in the Appellant-Medical Institute
and she was advised to attend the OPD for review check-ups. The allegation of the
Respondent as also the finding of the State Commission that she was discharged
because of non-availability of the bed is a conjecture and not factually correct. She was
discharged after the Doctors using their best professional judgment and after treating
her were of the considered view that her injuries were not such that required her to be
admitted in the Appellant-Medical Institute.
8.
We have considered the submissions made by learned Counsel for the Appellant-
Medical Institute and have also gone through the evidence on record. It is not in dispute
that the Respondent and her daughter on reaching the Appellant-Medical Institute were
admitted to the Emergency Department and were seen by Doctors on duty in that and
other Departments. On the basis of the diagnosis made, it is an admitted fact that
Respondent’s daughter who required surgery was admitted for the same. So far as the
Respondent is concerned, it is not disputed that the injuries which she suffered were
attended to and after the wounds were sutured and necessary injections and antibiotics
were given, she was discharged. No evidence has been produced by the Respondent
to support her allegation that she was discharged because of non-availability of the bed
even though she was medically unfit to be discharged. The State Commission relying
purely on the statement of the Respondent had also reached the conclusion that the
Respondent was discharged because of the non-availability of the bed while at the
same time stating that there was no deficiency or medical negligence in her medical
treatment. We are unable to accept the finding of the State Commission that
Respondent was discharged because of non-availability of the bed since it is purely
conjectural in the absence of any evidence to support the same.
9.
We, therefore, set aside the order of the State Commission concluding that there
was limited administrative deficiency on the part of the Appellant-Medical Institute and
allow the present First Appeal. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 421 OF 2012
(From the order dated 13.04.2012 in Complaint No. CC/08/118 of the Maharashtra
State Consumer Disputes Redressal Commission)
WITH
INTERIM APPLICATION NO. 1 OF 2012
(For expert for Medical Examination)
Mrs. Lalita Ramesh Jain, Residing at A/3, Sukhwani Garden, Dapoli, Pune,
Maharashtra
... Appellant
Versus
1.
Talesara Hospital, Plot No. 6, S. No. 6/A/1, Next to Ganga Complex, Air Port
Road, Yerwada, Pune- 6 Maharashtra
2. Dr. Jayantilal M. Talesara, Talesara Hospital, Plot No. 6, S.No. 6/A/1, Next to
Ganga Complex, Air Port Road, Yerwada, Pune – 6 Maharashtra
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 19.03.2013 at the time of arguments,
For the Appellant
Dr. R.R. Deshpande, Advocate
Mrs. Ujwala R. Deshpande, Advocate
For the Respondent (s)
Mr. Rahul Gandhi, Advocate
PRONOUNCED ON : 10th APRIL, 2013
ORDER
PER DR. B.C. GUPTA, MEMBER
This is the First Appeal filed under Section 19 of the Consumer Protection Act,
1986 by the appellant / complainant against the order dated 13.04.2012 passed by the
Maharashtra State Consumer Disputes Redressal Commission, Mumbai (hereinafter
referred to as ‘State Commission’) in complaint case No. CC/08/118, vide which the
complaint alleging medical negligence on the part of the respondents/opposite parties
was ordered to be dismissed.
2.
Briefly stated, the facts of the case are that the appellant/complainant, who is a
lady aged about 38 years was hit by a two-wheeler at the Dapoli, Pune, fracturing her
right hand. The complainant had severe pain and swelling and she was admitted for
treatment
at
the
hospital/Respondent
No.1
where
she
was
treated
by
Doctor/Respondent No.2. On 26.07.2006, the respondent No.2 performed surgery on
the right hand of the appellant with the help of some other Doctors with the intent to rejoin the fractured bones in the right hand. She was told that the surgery was successful
and her right hand shall become normal after some time. It has been alleged by the
complainant that even after surgical intervention, the pain and swelling on the right hand
neither stopped nor were reduced and she was still in pain and agony, but she was
discharged from the hospital on 03.08.2006. She was asked to visit the hospital on
subsequent dates for post-operative care and she kept on visiting the hospital and
taking the medicines as advised by the opposite parties. The complainant has stated
that after much painful suffering and agony, the pain subsided and the plaster was
removed, but she found that she could not use her right hand for any purpose. The
complainant then got herself examined by another Doctor, who stated that the fractured
bones of the right hand of the complainant were not aligned properly before putting the
plaster on her hand, and as a result, the fractured ends got fused together in an
abnormally twisted manner. She visited some other Doctors as well, who gave the
same opinion, stating that nothing could be done to reverse the damage. It was
therefore, a case of medical negligence on the part of the opposite parties, because had
they taken proper X-ray etc., to see if the bones had been set properly, they could have
discovered the real picture about alignment of bones. The complainant then filed the
complaint, claiming compensation of Rs. 28.20 lacs, but the same was dismissed by the
State Commission vide impugned order.
3.
The case of the opposite parties is that the complainant was an overweight lady
and she had previous history of Epilepsy. She used to take a Tablet called ‘Tagiritol’,
which resulted into the weakening of her bones. Further, the damage occurred due to
her accidental fall on 18.9.2006, because of Epilepsy attack. The complainant had also
not taken proper post-operative care.
4.
Heard the learned counsel for the parties and examined the record.
5.
The learned counsel for the petitioner stated that it was a clear case of medical
negligence on the part of the opposite parties and the matter could be got examined by
a team of medical experts to know the truth. The State Commission had therefore,
erred in dismissing the complaint.
6.
On the other hand, the learned counsel for the respondents stated that although
the complainant had mentioned that she had consulted many doctors about her
condition, but she had not given the names of any doctors so consulted. The
respondents had taken appropriate care to deal with the case and no medical
negligence could be attributed to them.
7.
The State Commission vide impugned order have stated that the averments made
by the appellant that she had consulted other expert Orthopaedic surgeons, who opined
that there was error in joining of the bones of the elbow of the right hand due to wrong
treatment given by the opposite parties, had not been supported by documentary
evidence, as required under Section 13 (4) of the Consumer Protection Act, 1986. The
Medical Board of B.J. Medical College and Sassoon General Hospital, Pune had given
a certificate saying that the operated hand was 42% disabled, but there is no evidence
to show that the abnormality was a result of any post-operative complications. There is
also evidence of Epilepsy attack and fall of the complainant on 18.9.2006.
8.
In view of these facts, we feel that there is no conclusive evidence to prove
medical negligence on the part of the opposite parties. The order passed by the State
Commission reflects a correct appreciation of the facts and circumstances on record
and hence does not suffer from any infirmity or illegality. The First Appeal is therefore,
ordered to be dismissed and the impugned order is upheld, with no order as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER
SB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 142 OF 2006
(Against the order dated 31.01.2006 in Complaint No.71/2000 of the
Karnataka State Consumer Disputes Redressal Commission)
1. M/s Chaithanya Nursing Home No. 80, 3rd Cross, P&T Colony R.T. Nagar Bangalore
-560032 Rep. by Dr. P.M. Patil
2. P.N. Patil, MBBS, MD Consulting Physician and Cardiologist Chaithanya Nursing
Home No. 80, 3rd Cross, P&T Colony R.T. Nagar Bangalore-560032
…
Appellants
Versus
1. P. Puttaraju S/o Late Puttaiah
2. Vijayalakshmi W/o Sri P. Puttaraju Respondents 1 & 2 residing at 24/6, 4th Main Road
5th Cross, Venkatappa Block Ganganagar, Bangalore-560032
3.
M/s Mallya Hospital
No.2, Vittal Mallya Road
Bangalore-560001
Rep.
by
its
Administrative Officer/Superintendent
4. Dr. H.B. Chandrashekhar
5. Dr. R. Srinivas
6. Dr. P.T. Acharya
7. Dr. S. Sunder
8. Dr. Keshav Respondents 4 to 8 are at No.2, Vittal Mallya Hospital Bangalore-560001
…
Respondents
FIRST APPEAL NO. 185 OF 2006
(Against the order dated 31.01.2006 in Complaint No.71/2000 of the
Karnataka State Consumer Disputes Redressal Commission)
1. Puttaraju S/o Late Puttaiah
2. Vijayalakshmi W/o Sri P. Puttaraju Both residing at No.52, R.H.B.C.S. Nandini Layout
2nd Stage Ramakrishna Nagar Bangalore-560096
…
Appellants
Versus
1. P. Puttaraju S/o Late Puttaiah
2. Vijayalakshmi W/o Sri P. Puttaraju Respondents 1 & 2 residing at 24/6, 4th Main Road
5th Cross, Venkatappa Block Ganganagar, Bangalore-560032
3.
M/s Mallya Hospital
No.2, Vittal Mallya Road
Bangalore-560001
Rep.
by
its
Administrative Officer/Superintendent
4. Dr. H.B. Chandrashekhar
5. Dr. R. Srinivas
6. Dr. P.T. Acharya
7. Dr. S. Sunder
8. Dr. Keshav Respondents 4 to 8 are at No.2, Vittal Mallya Hospital Bangalore-560001
…
Respondents
FIRST APPEAL NO. 197 OF 2006
(Against the order dated 31.01.2006 in Complaint No.71/2000 of the
Karnataka State Consumer Disputes Redressal Commission)
1. Dr. H.B. Chandrashekhar Sri Ranga Pulmonary Clinic Abhishek Complex, Sampige
Road 17th Cross Corner Malleshwaram Bangalore-560003
2. Dr. R. Srinivas M/s M.S. Ramaiah Hospital MSR Nagar, Bangalore
3. Dr. P.T. Acharya M/s M.S. Ramaiah Hospital MSR Nagar, Bangalore
4. Dr. S. Sundar Mallya Hospital Vittal Mallya Road Bangalore-560001
5. Dr. Keshav M/s Mahaveer Jain Heart Centre No.8, Millers Tank Bund Road
Vasanth Nagar Bangalore-560052
…
Appellants
Versus
1. P. Putturaju No. 24/6, 4th Main Road 5th Cross, Vasanthappa Block Ganganagar,
Bangalore-560032
2. Vijayalakshmi No. 24/6, 4th Main Road 5th Cross, Vasanthappa Block
Ganganagar, Bangalore-560032
3. M/s Chaithanya Nursing Home Through Dr. P.M. Patil No. 80, 3rd Cross, P&T Colony
R.T. Nagar, Bangalore-560032
4. Dr. P.M. Patil No. 80, 3rd Cross, P&T Colony R.T. Nagar, Bangalore-560032
5. M/s Mallya Hospital Through Admin. Officer/ Supdt. No. 2, Vittal Mallya Road
Bangalore-560001
…
Respondents
FIRST APPEAL NO. 347 OF 2006
(Against the order dated 31.01.2006 in Complaint No.71/2000 of the
Karnataka State Consumer Disputes Redressal Commission)
M/s Mallya Hospital
Through
its
Medical
Officer
Dr. Pradeep Naik
No.2, Vittal Mallaya Road Bangalore-560001
…
Appellant
Versus
1. Shri P. Puttaraju S/o Late Puttaiha
2. Smt. Vijaya Lakshmi W/o Shri P. Puttaraju Both are residing at M: 24/6
4th Main Road, 5th Cross, VAS
3. M/s Chaithanya Nursing Home No. 80, 3rd Cross, P&T Colony R&T Nagar, Bangalore
Through its Dr. P.M. Patil
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For M/s Chaithanya Nursing Home :
Ms. Kiran Suri, Ms. Aparna
Mattoo and Mr. Nakibur
Rahman, Advocates
For P. Putturaju & Ors.
:
Mr. E.C. Vidyasagar, Adv. &
Ms. Kheyali Sarkar, Adv.
For M/s Mallya Hospital
:
Mr. Naresh Kaushik, Adv.
For Appellants in FA/197/2006
:
Mr. B.S. Sharma, Adv. for
Mr. S.V. Joga Rao, Adv.
Pronounced 17th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
Being
aggrieved
by
the
order
of
Karnataka
State
Consumer
Disputes Redressal Commission, Bangalore (hereinafter referred to as the State
Commission) in Complaint No. 71 of 2006, four separate First Appeals have been
filed. First Appeals No. 142 of 2006, 185 of 2006, 197 of 2006 and 347 of 2007 have
been filed by the Opposite Parties before the State Commission, namely,
M/s Chaithanya Nursing Home, M/s Mallya Hospital and Dr. H.B. Chandrashekhar &
others
respectively. The
fourth
appeal
has
been
filed
by
Complainants Shri P. Puttaraju and his wife Smt. Vijayalakshmi for enhancement of the
compensation awarded by the State Commission.
2.
Since the facts and the parties in all the four appeals are common/similar arising
out of the same consumer dispute, it is proposed to dispose of these appeals by one
common order by taking the facts from First Appeal No. 142 of 2006. The parties will be
referred to in the manner in which they were referred to in the complaint
i.e. Chaithanya Nursing Home and Dr. S.M. Patil as OPs No.1 and 2; Mallya Hospital as
OP No.3 and its Doctors i.e. Dr. H.B. Chandrasekhar (Chest Specialist), Dr.
R.Srinivas (Pulmonary
Specialist),
Dr.
P.T. Acharya (Neuro Surgeon),
Dr.
S. Sundar (Nephrologist) and Dr. Keshav (Cardiologist) as OPs No. 4, 5, 6, 7 and 8
respectively.
3.
Shri P. Putturaju and his wife Smt. Vijayalakshmi in their written complaint had
contended that on the intervening night of 19/20.10.1999 at about 1.30 a.m. their
son P.Rajashekhar (hereinafter referred to as the Patient), who was a final year medical
student, had a fall, which resulted in a head injury and he was admitted
toChaithanya Nursing Home/OP-1 for treatment of the same. After being administered
medicines and injections including for epilepsy from which the Patient did not suffer, he
was sent to Mallya Hospital/OP-3 for a CT Scan at about 2.30 a.m. Next day, his renal
condition was assessed after Complainants had complained that their son had no urine
output but he was not treated for the same nor was he referred to any other medical
institute for Haemodialysis. This situation led to prolonged congestive cardiac failure,
pulmonary oedema and multiple organ failure, which was wrongly diagnosed as viral
pneumonia or Adult Respiratory Distress Syndrome (ARDS). After the Patient went into
full respiratory distress, he was referred to Mallya Hospital/OP-3 on 21.10.1999, where
due to multi organ failure he passed away on 28.10.1999. Being aggrieved by the
medical negligence and deficiency in service because of which the Complainants’ highly
promising and only son, who would have become a doctor, had an untimely demise,
Complainants filed a complaint before the State Commission and requested that the
Opposite Parties be directed to pay them jointly and severally a compensation of Rs.19
Lakhs.
4.
On being served, Opposite Parties filed written rejoinders denying the allegations
made by the Complainants. OPs 1 & 2 i.e. M/s Chaithanya Nursing Home and Dr.
P.M. Patil stated that the Patient was brought to their nursing home with a history of
chronic epilepsy since childhood and due to an epileptic convulsion, he had a fall in the
kitchen and sustained a swelling in the right forehead and became unconscious. On
being brought to the nursing home the Patient was administered one ampule of Intra
Muscular Calmpose and after examination, during which he had another convulsion
coupled with vomiting, he was administered Epsolin 4 ampules (400 MG), in addition to
one more ampule of Calmpose and admitted to the ICU. Patient was referred
to Mallya Hospital/OP-3 for a CT scan of the skull and brain. He was brought back after
the CT scan in a stable condition. Unfortunately because of the Dussehara vacations
and despite attempts by OP-2 the results were made available only the next day, which
confirmed that the Patient had a right temporal bone fracture and mild diffuse
cerebral Oedema. OP-1 immediately started treatment, which included administration
of Manitol eight hourly. Patient was also given Taxim injection IV and continued with
tablet Eptoin for controlling the epileptic fits. Investigations/tests of blood, urine, ECG
and Chest x-ray indicated that the kidney functions, heart and lungs were normal. It
was specifically stated that there was no neurological deficit and the Patient’s condition
continued to improve and, therefore, on 20.10.1999 in the morning he was shifted from
the ICU to his room and IV fluids were discontinued and he was advised soft oral
diet. However, Manitol, Taxim injection
and
the
anti-epileptic
medicines Eptoin and Mazetol were continued. At about 5.30 p.m. when the Patient
was examined, he was normal. However, in order to evaluate the Patient further since
he had a history of epileptic convulsions, he was advised EEG. Patient stated that he
would get the EEG done at Medinova Hospital and requested for a reference
letter. Although OP-2 addressed the reference letter to Dr. Manjunath for EEG as also
his opinion on the same, Patient came back at 1.30 p.m. without getting the EEG done
on the ground that the machine was out of order and the concerned doctor was not
available. On enquiry Dr. Patil/OP-2 came to know that the Patient had lied to him since
on 21.10.1999 the ECG machine was in working status and Dr. Manjunath was also
available there. When the Patient came back, he complained of difficulty in breathing
and vomited once. When Patient’s condition continued to deteriorate and his
breathlessness
and
coughing
increased
and
since
the
ventilator
in
the Chaithanya Nursing Home/OP-1 was already engaged with some other patient, he
was shifted to Mallya Hospital/OP-3 where a ventilator was immediately available. It
was contended that at the time when Patient was shifted from Chaithanya Nursing
Home/OP-1 to Mallya Hospital/OP-3 for further management, he was fully conscious
and coherent in answering questions; pulse and BP was stable, respiratory rate was 56
per
minute.
Patient
was
admitted
in
the
ICU
of Mallya Hospital/OP-3
and
later Chaithanya Nursing Home/OP-1 came to know that he had died on 28.10.1999.
Therefore, Complainants’ allegation that the Patient’s clinical condition was not properly
diagnosed and assessed is totally incorrect and unfounded and he was given the due
medical attention and professional care as borne out by the medical case history papers
filed in evidence.
5.
Mallya Hospital/OP-3 as well as its Doctors i.e. OPs 4 to 8 also denied that there
was any medical negligence or deficiency in service on their part and stated that Patient
was
brought
to Mallya Hospital/OP-3
on
a
reference
from Chaithanya Nursing
Home/OP-1 in a very critical condition with a history of epilepsy, head injury and
respiratory distress with severe tachypnea and tachycardia. He was incubated and
connected to a ventilator, which is a life-saving procedure. Other supportive life-saving
medication was also started, including for the treatment for renal failure. In view of the
history
of
epileptic
seizures,
the
anti-epileptic
drugs
as
prescribed
byChaithanya Nursing Home/OP-1 were continued. Despite the best efforts made by
various specialist doctors to save his life, Patient passed away.
6.
The State Commission after hearing the parties and on the basis of evidence
produced before it partly allowed the complaint by inter alia concluding that the Doctors
had administered a number of anti-epileptic drugs which are known to have serious side
effects affecting the kidney and other organs without confirming through medical and
other diagnostic tests including an EEG that the Patient was suffering from
epilepsy. The relevant part of the order of State Commission in this connection is
reproduced:
“29.
… The epilepsy, prior to the admission to the OP1 Hospital of the patient,
and before the fall, is not established. Though eminent, scholarly, Doctors
treated the patient, there is a failure of not foreseeing the complications, and not
overcoming them, and ultimately pleads helplessness. They could not control
the various complications in the course of the treatment. The complainant has
not established the administration of over dosage of drugs. Literature by itself is
not sufficient in that regard. The complainants should have clarified by giving the
quantum of the actual dosage of medicines given, and the required dosage of the
medicine, as per literature, should have been administered, which is not done in
this case. There is an admission by the OPs Doctors regarding the side effects
on the medicines administered. The young Doctor without any serious complaint
before the alleged fall underwent treatment from the OPs 1 to 8 developing
serious diseases ended in his death, as the ultimate result within a span of less
than 15 days treatment. Under these circumstances, the negligence & deficiency
in service is established against OPs. …”
The State Commission after considering the bills and receipts produced and the facts
and circumstances of the case, partly allowed the complaint and directed OPs-1 and 2
to pay a compensation of Rs.1.00 Lakh. OPs No. 3 to 8 were also directed to pay a
compensation of Rs.2.00 Lakhs to the Complainants with interest @ 10% per annum
from the date of complaint till realization. Cost of Rs.2000/- was also ordered to be paid
by each of the Opposite Parties. Hence, the present set of appeals.
7.
Learned Counsel for the parties made oral submissions.
8.
Learned Counsel for Chaithanya Nursing Home/OP-1 and Dr. P.M. Patil/OP-2
reiterated that the Patient’s father himself had stated that the Patient had a history of
epilepsy and this coupled with the fact that within a short span of his admission he
suffered a seizure followed by vomiting, was adequate to conclude that the Patient did
have epilepsy. Therefore, to control the epileptic fits, he was given standard antiepileptic medicines and a number of other drugs as required were also given after
conducting a series of tests, which included ECG, CT Scan, Blood, Urine tests etc.
which confirmed that the heart, kidney and lungs were normal. Patient was referred for
an EEG but the Patient came back without getting the EEG conducted, for which
Opposite Parties cannot be held responsible. It was also stated that because of the
correct treatment given by highly qualified Doctors to the Patient his condition
substantially improved from the time of his admission and it was only in the afternoon of
20.10.1999 that Patient started complaining of acute breathlessness and because the
ventilator though present in the hospital was not immediately available, Patient was
shifted to Mallya Hospital/OP-3 in the best interest of his health. It was specifically
stated that at the time of his discharge, there was no symptom of renal failure. The
Karnataka
Medical
Council,
who
had
investigated
this
incident,
had
also
exonerated Chaithanya Nursing Home/OP-1 as also Dr. S.M. Patil/OP-2 of any medical
negligence or deficiency in service on their part.
9.
Learned Counsel for Mallya Hospital/OP-3 as well as counsel for OPs 4 to 8
stated that the Patient was admitted to Mallya Hospital/OP-3 in a critical condition on
21.10.1999 following a reference from Chaithanya Nursing Home/OP-1 to provide him
ventilator support for further management with a diagnosis of ADRS, seizure and head
injury. At the time of the admission, Patient had also developed acute renal failure,
pulmonary oedema and also respiratory failure. After clinical evaluation and laboratory
tests the required medicines were prescribed and some medicines including those
prescribed for controlling epileptic fits by OP-1 was continued since abrupt withdrawal of
these medicines is medically contraindicated. Patient had come in a critical condition
and all efforts were made by highly qualified doctors in a well-equipped hospital using
their best professional judgment to treat him and save his life.
10.
We have heard learned counsel for parties and have also carefully gone through
the evidence on record. Patient’s admission in Chaithanya Nursing Home/OP-1 in an
unconscious state after a fall is not in dispute. It is also in evidence that a number of
clinical and diagnostic tests were done on the first day, which indicated that there was
no abnormality in Patient’s lung, kidney or heart functions. A CT scan conducted that
evening and whose results were available next day indicated a right temporal bone
fracture and mild cerebral oedema. However, what is important to note is that antiepileptic medicines were given to the Patient reportedly on Complainants giving this
information and without conducting any diagnostic or clinical tests specifically the
required EEG and blood test. Complainants have, however, vehemently denied that
they had told that their son had a history of epilepsy. Even though the EEG was not
conducted on the second day, the anti-epileptic medicinesEptoin and Mazetol continued
to be administered and in the referral letter Mallya Hospital/OP-3 were also told that
Patient had epilepsy, for which he was being given drugs. Even Mallya Hospital/OP-3
without conducting any EEG or other tests and on the basis of OP-1’s referral letter
continued
the
anti-epileptic
drugs
despite
the
fact
that
OP-6/Doctor
from Mallya Hospital/OP-3 had stated before the State Commission in his crossexamination that it is necessary before starting anti-epileptic drugs to ensure that the
Patient had epilepsy and that an EEG can be conducted even on an unconscious
patient to verify this fact. We note that it has also come in evidence before the State
Commission and is further borne out by extensive medical literature on the subject that
irrational
administration
of
anti-epileptic
drugs
can
cause
serious
side
effects. Manitol for example can cause fluid overload, pulmonary oedema as also
progressive renal failure, all of which are ailments which the Patient did not have at the
time of his admission in Chaithanya Nursing Home/OP-3 as is clear from the medical
history of the Patient filed by Chaithanya Nursing Home/OP-1 but which later occurred
and
contributed
to
his
death
in Mallya Hospital/OP-3. The
contention
of Mallya Hospital/OP-3 and its Doctors (OPs 4 to 8) that anti-epileptic drugs were
continued on the ground that immediately stopping these drugs is contraindicated
appears to be somewhat of a lame excuse for irrationally administering drugs without
proper diagnosis. Thus, there appears to be a nexus between the irrational and
unwarranted administration of anti-epileptic drugs and the Patient’s serious renal and
other medical conditions which consequently developed when he was under treatment
in Chaithanya Nursing Home/OP-1 and Mallya Hospital/OP-3.
11.
What constitutes medical negligence is now well established through a number of
judgments of this Commission as also of the Hon’ble Supreme Court. Based on the
touchstone of the Bolam’s test, one of the principles is that whether the doctor adopted
the practice (of clinical observation diagnosis – including diagnostic tests and treatment)
in the case that would be adopted by such a doctor of ordinary skill in accord with (at
least) one of the responsible bodies of opinion of professional practitioners in the
field. Looking at the facts in the instant case, it is very clear that this practice was not
adopted
by
the
Doctors
at
either Chaithanya Nursing
Home/OP-1
or Mallya Hospital/OP-3, who admittedly administered anti-epileptic drugs on a Patient
without conducting the required clinical or diagnostic tests, including the most widely
used EEG and blood tests to confirm epilepsy. In the instant case, by not exercising this
due care, medical negligence is writ large on the part of bothChaithanya Nursing
Home/OP-1 and Mallya Hospital/OP-3 and their Doctors. Admittedly OPs administered
anti-epileptic drugs when there was no medical evidence that the Patient had epilepsy,
which resulted in serious side effects and medical problems. In view of these facts, we
agree with the finding of the State Commission that there was medical negligence on
the part of all Opposite Parties.
12.
The State Commission had directed Chaithanya Nursing Home/OP-1 and Dr.
S.M. Patil/OP-2 to pay Rs.1.00 Lakh and to Mallya Hospital/OP-3 and its Doctors (OPs
4 to 8) to pay Rs.2.00 Lakhs to the Complainants. Looking at the facts of this case,
including the fact that the Patient’s promising and productive career as a prospective
doctor, which would have been of enormous benefit to his economically poor parents
and to the community at large, was cut short by his death, the compensation awarded
by the State Commission is much less than what is warranted in the instant case. We
are, therefore, of the view that a compensation of Rs.4 Lakhs to be paid jointly and
severally by Chaithanya Nursing Home/OP-1 and Dr. S.M. Patil/OP-2 and a similar
compensation of Rs.4 Lakhs to be paid jointly and severally by Mallya Hospital/OP-3
and its Doctors/OPs 4 to 8 would meet the ends of justice.
13.
To sum up, First Appeals No. 142 of 2006, 197 of 2006 and 347 of 2006 filed
by Chaithanya Nursing Home & Anr. (OPs 1 & 2), Dr. H.B. Chandrashekhar & Ors.(OPs
4 to 8) and Mallya Hospital (OP-3) respectively are dismissed and the order of the State
Commission of medical negligence against them is upheld with the modification of
enhanced compensation as stated in para-12 of the order. Rest of the directions of the
State Commission to Opposite Parties regarding interest on the awarded amount and
the cost are also upheld. First Appeal No. 185 of 2006 filed by the Complainants stands
partly allowed. Opposite Parties are directed to pay the awarded amounts to the
Complainants within a period of 8 weeks.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 744 OF 2007
(Against the order dated 23.10.2007 in CC No. C-375/1998 of the Delhi State Consumer
Disputes Redressal Commission)
Manager Parmarth Mission Hospital 23/7, Shakti Nagar Delhi-110007
…
Appellant
Versus
Yudh Vir Chauhan S/o Shri Shiv Raj Singh R/o 1288, Block G and JU Pritampura, Delhi
…
Respondent
FIRST APPEAL NO. 16 OF 2008
(Against the order dated 23.10.2007 in CC No. C-375/1998 of the Delhi State Consumer
Disputes Redressal Commission)
Yudh Vir Singh Chauhan Son of Shri Sheoraj Singh Resident of 128-B, Block G&JU
Pitam Pura, Delhi-110007
…
Appellant
Versus
Manager Parmarth Mission Hospital 23/7, Shakti Nagar Delhi-110088
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Parmarth Mission Hospital
: Mr. Neeraj Dutt Gaur, Advocate
For Mr. Yudh Vir Chauhan
: Mr. J.K. Bhola, Advocate
Pronounced 22nd April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
Being
aggrieved
by
the
order
of
the
Delhi
State
Consumer
Disputes Redressal Commission (hereinafter referred to as the State Commission) in
Complaint No. C-375 of 1998, two cross appeals have been filed. While First Appeal
No. 744 of 2007 has been filed by Manager, Parmarth Mission Hospital, Opposite Party,
First Appeal No. 16 of 2008 has been filed by Shri Yudh Vir Singh Chauhan, Original
Complainant before the State Commission seeking enhanced compensation. Since the
facts and the parties in both appeals are common/similar arising out of the same
consumer complaint, it is proposed to dispose of these appeals by one common order
by taking the facts from First Appeal No. 744 of 2007. The parties will be referred to in
the
manner
in
which
they
were
referred
to
in
the
complaint
i.e. Shri Yudh Vir Singh Chauhan as Complainant and Parmarth Mission Hospital as
Opposite Party.
2.
In the complaint against Opposite Party-Hospital, Complainant had stated that his
wife (hereinafter referred to as the Patient), who had earlier been admitted in the
Opposite Party-Hospital and delivered two children in the same Hospital, was admitted
for delivery in the Opposite Party-Hospital on 22.05.1997 and gave birth to a male child
through cesarean section. Since there was infection in the uterus, this was also
removed. While performing the surgery Doctors of the Opposite Party-Hospital
negligently left a sponge like specimen of 17 x 17 Cm. and a tag of 11 Cm. in the
abdomen of the Patient. Since the Opposite Party-Hospital did not have basic
requirements of a nursery and other facilities, Complainant was asked to take his wife
and new born child to Jaipur Golden Hospital, which was 20 Kms. away and due to this
reason the infant expired after three days. After 10 days of the surgery, Patient
experienced acute stomach pain and she visited the Opposite Party-Hospital number of
times and also paid fees for the same but the problems persisted. On 25.02.1998 when
the pain became unbearable, Patient was admitted to the Opposite Party-Hospital
where Doctors asked her to undergo ultrasound and x-rays at Apollo X-Ray
Centre,Roop Nagar, Delhi and
also
at Anant Imaging
Centre
at
Ashok, Vihar,
Delhi. However, the disease could not be diagnosed and, therefore, Patient was
advised to undergo a surgery in the Opposite Party-Hospital. Although she was
prepared for the same, the concerned Doctor declined the surgery on the ground that
his mother was unwell. Patient continued her treatment as advised by the OP-Hospital
and spent approximately Rs.2.00 Lakhs, which she paid to Opposite Party-Hospital, and
also Rs.50,000/- on the x-rays and other diagnostic tests as per the advice of the
Doctors in the Opposite Party-Hospital. On 09.05.1998 Complainant was told that his
wife had Australia Antigen and he was advised by Opposite Party-Hospital to get his
wife admitted in some other hospital for treatment. She was, accordingly, admitted in
Bara Hindu Rao Hospital where after undergoing tests Doctors conducted a surgery
during which a sponge like specimen and a tag in the stomach of the Patient were
removed. Patient died on 26.05.1998. Complainant made a complaint to the Lt.
Governor as also to the Police Authorities but because of the influence of the Opposite
Party-Hospital, satisfactory action on the same was not taken. Complainant, therefore,
issued a legal notice to the Opposite Party-Hospital, to which there was no
response. Complainant, therefore, filed a complaint before the State Commission on
grounds of medical negligence and deficiency in service against the Opposite PartyHospital and requested that the Opposite Party-Hospital be directed to pay him (i)
Rs.10.00 Lakhs as compensation for the loss caused to him and his two minor children;
(ii) Rs.2.50 Lakhs spent on medical treatment; (iii) Rs.2.50 Lakhs for deficiency in
service and Rs.11,000/- as litigation expenses. Thus, a total amount of Rs.15.11 Lakhs
was sought as compensation.
3.
Opposite Party on being served filed a written rejoinder denying that there was
any medical negligence or deficiency in service on their part. Patient had come to the
Hospital on 22.05.1997 in a serious condition and though this was a high risk
pregnancy, all attempts were made to save the child and the mother. A cesarean
section was conducted and a premature child was delivered, who unfortunately passed
away in another hospital where he had been transferred because he required special
nursery care which was not available in the Opposite Party-Hospital. Further, since
relatives of the Patient were on the staff of Opposite Party-Hospital, special medical
attention and care was given to the Patient. Since there was profuse bleeding which
could not be controlled, after taking opinion from other professional colleagues, the
uterus was also removed in the interest of Patient’s health. She was discharged in
perfect condition with no complaints for approximately nine months, whereafter Patient
visited the Opposite Party-Hospital with complaint of abdominal pain for which she was
advised
investigations. She
was diagnosed
as sub acute intestinal obstruction
cause?, adhesion?, tuberculosis. A surgery was planned on 09.05.1998 but was
deferred since Patient tested positive for Australia Antigen, which is a very dreaded
disease and which affects the liver and can cause death. There was also high risk of
transmission of this disease to the persons conducting the surgery. Patient was,
therefore, put on anti-tuberculosis and other supportive medicines and after she showed
improvement, she was discharged in a satisfactory condition on 18.05.1998. It was
contended that in fact Patient died at Bara Hindu RaoHospital because during the
surgery conducted there the ileum got perforated. There was no medical negligence or
deficiency in service in the treatment of the Patient at Opposite Party-Hospital and,
therefore, the complaint being without any basis may be dismissed.
4.
During the pendency of the complaint before the State Commission, the
Investigating Officer, dealing with the criminal case instituted by the Complainant
against the Opposite Party-Hospital, requested State Commission for setting up of a
medical board for expert opinion, which was set up vide orders of the Government of
NCT of Delhi and its opinion made available to the State Commission and which inter
alia concluded that the presence of the foreign objects was responsible for Patient’s
medical problems and subsequent death.
5.
The State Commission after considering the evidence on record, including the
opinion of the medical board concluded that there was a clear case of medical
negligence on the part of Opposite Party-Hospital since a foreign body like sponge tag
was left in the abdomen of the Patient during the surgery on 22.05.1997 at Opposite
Party-Hospital. However, it did not accept the opinion of the medical board that the
presence of the foreign body was the cause of the death. In this connection, the
relevant observations of the State Commission are reproduced :
“17. It is a case where there is clear negligence of having left foreign
body like sponge tag that might have been causing recurring pain but we
refuse to accept that the presence of foreign body was the direct cause of
death. It might have caused some problem in the form of some infection
and other problem but in no way this could have contributed to the direct
cause of death which at the first instance was found to be cardiac
arrest.
18.
In our view there is no convincing evidence to show that the
presence of foreign articles like sponge and tag was direct result of the
death. It is not understandable as to how board reached to the conclusion
while giving answer to the first question as to the cause of death being
cardiac arrest. However, the opinion in respect of other queries was that
the case of death might have accelerated by the presence of sponge or
tag like foreign body which might have caused some infections.”
The State Commission, therefore, awarded compensation of only Rs.50,000/- and
Rs.10,000/- as litigation costs by stating that taking an overall view of the matter,
particularly the long gap between first operation and the second operation during which
period the Patient did not suffer any major problem except recurring pain in the
abdomen and because she died not due to the sponge or tag left in her body but due to
cardiac arrest.
6.
Being aggrieved by the finding of medical negligence/deficiency in service and the
lesser compensation, present First Appeals No. 744 of 2007 and 16 of 2008 have been
filed by the Opposite Party-Hospital and the Complainant respectively.
7.
Learned Counsel for both parties made oral submissions.
8.
Learned Counsel for Opposite Party-Hospital contended that the State
Commission erred in finding it guilty of medical negligence in the absence of any
evidence that the foreign material found in the body of the Patient had been left there
negligently during surgery at the Opposite Party-Hospital. In this connection, it doubted
the finding of the Bara Hindu Rao Hospital on the ground that that Hospital did not
preserve and make available for inspection the foreign body i.e. the sponge like
substance purportedly recovered from the Patient’s body during the operation
conducted on 26.05.1998 at Bara Hindu Rao Hospital. Apart from this, Bara
Hindu Rao Hospital did not conduct any post mortem and the death certificate clearly
mentioned that the cause of death was cardiac arrest. Under these circumstances, the
State Commission erred in finding the Opposite Party-Hospital guilty of medical
negligence. If at all medical negligence had to be attributed, it would be to specific
Doctors and the Opposite Party-Hospital cannot be burdened with the same. Further,
since Opposite Party-Hospital is a charitable institution charging very nominal fees from
its patients, Complainant’s contention that he had spent over Rs.2.00 Lakhs in the
Patient’s treatment is baseless.
9.
Counsel for the Complainant on the other hand stated that as per the directions of
the State Commission, Government of NCT of Delhi had set up a medical board which
opined that since no surgical operation had been conducted between the operation on
22.05.1997 performed at Opposite Party-Hospital and the operation on 26.05.1998
performed at Bara Hindu Rao Hospital, it was clear that the foreign body had been left
during the first surgery at Opposite Party-Hospital. Counsel for the Complainant further
pointed out that the State Commission erred in disbelieving the opinion of the medical
board which clearly concluded that the death occurred because of the foreign substance
left in the body of the Patient during the surgery at Opposite Party-Hospital. The State
Commission has given no cogent reasons for disagreeing with the opinion of medical
experts. Counsel for the Complainant reiterated that over Rs.2.00 Lakhs had been
spent on medical treatment of the Patient at Opposite Party-Hospital, where fees
charges was about Rs.2000/- per day. Keeping in view the above facts, including the
conclusion that there was medical negligence on the part of Opposite Party-Hospital,
the State Commission erred in granting only a paltry compensation.
10.
We have heard learned counsel for parties and have also carefully gone through
the evidence on record. Patient’s admission in Opposite Party-Hospital on 22.05.1997
where she underwent two surgeries is not in dispute. It is also an admitted fact that
Patient experienced abdominal pain for several months thereafter, for which she
underwent treatment in Opposite Party-Hospital and a surgery conducted at Bara
Hindu Rao Hospital confirmed that a sponge and a tag were found in her
abdomen. The State Commission as the first Court of fact had also concluded that
even though the specimens were not preserved by Bara Hindu Rao Hospital, there was
no
reason
to
disbelieve
the
report
of
Bara
Hindu Rao Hospital
in
this
connection. Opposite Party’s contention that the foreign body could have been left
during some other procedure in the intervening period does not inspire much confidence
since there is no evidence that Patient had undergone any other surgical procedure
between the first surgery at Opposite Party-Hospital and the second one at Bara
Hindu Rao Hospital, where the foreign objects were detected. Apart from this, the
medical board of Doctors set up by the Government of NCT of Delhi on direction of the
State Commission after going through the relevant records and papers had reached an
unequivocal conclusion that the death of the Patient was because of presence of foreign
body in her abdomen and in view of this clear opinion of medical experts, we are unable
to comprehend why the State Commission without discussing or referring to any other
evidence to the contrary concluded that the foreign body in the abdomen was not the
cause of Patient’s death. It may also be mentioned here that ‘Cardiac Arrest’ is a term
commonly used to explain the reason for death but this observation in the death
certificate cannot be used to preclude the causes that led to cardiac arrest – in this case
the foreign body left in the Patient’s abdomen.
11.
The principle of what constitutes medical negligence is now well established in a
series of judgments of the Hon’ble Supreme court, including in Jacob Mathew Vs. State
of Punjab & Anr. [(2005) 6 SCC 1] and Achutrao H.Khodwa Vs. State of Maharashtra
[AIR 1996 SC 2377], wherein it has been inter alia observed that a medical practitioner
must bring to his task a reasonable degree of skill and knowledge and must
exercise reasonable
degree
of
care
provided). Hon’ble Supreme
Court
in Achutrao H. Khodwa (supra) while discussing this principle in the context of the
above case concluded that since a foreign body was left in the system during the
surgery, it clearly indicated that reasonable degree of care was not taken and, therefore,
it amounted to medical negligence. In the same judgment, the Hon’ble Supreme Court
has also held that the State must be held vicariously liable once it is established that the
death was caused due to negligent act of its employees. Following the above two
principles in the instant case, it is clear that the Opposite Party-Hospital is guilty of
medical negligence on both counts.
12.
The State Commission had while concluding medical negligence awarded a
compensation of Rs.50,000/- on the ground that though medical negligence had been
established, it was not the direct cause of the Patient’s death. We have earlier in the
order concluded that in view of the opinion of medical experts, we are not in agreement
with this part of the order of the State Commission. Under the circumstances, there is
adequate justification for enhanced compensation. Considering the fact that a young
woman of 27 years had died leaving behind her two minor children as also her husband,
thus, depriving them of the care and company of a mother and spouse, which is
admittedly an invaluable loss for them, we are of the view that an enhanced
compensation of Rs.4.00 Lakhs would be reasonable and justified in the instant case.
13.
To sum up, First Appeal No.744 of 2007 filed by Opposite Party-Hospital is
dismissed. In respect of First Appeal No. 16 of 2008, we partly allow the same and
partially modify the order of the State Commission by enhancing the compensation from
Rs.50,000/- to Rs.4,00,000/-. Opposite Party-Hospital is directed to pay this
amount alongwith litigation costs of Rs.10,000/- to the Complainant within a period of 12
weeks.
14.
Both the present first appeal stands disposed of on the above terms.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 372 OF 2008
(Against the order dated 27.05.2008 in CC No. 142/1999 of the
Delhi State Consumer Disputes Redressal Commission)
Dr. Sharma Nursing Home Through its Principal Officer Dakshna Road, Vishwas Nagar
Shahdara, Delhi-110032
…
Appellant
Versus
Ms. (Late) Geeta Through her Legal Representatives
a)
Smt. Shyama Devi W/o Late Uttam Chand
b)
Miss Babita D/o Late Uttam Chand
c)
Miss Pooja D/o Late Uttam Chand
All residents of 32/99, Bhikam Singh Colony Gali No.10, Vishwas Nagar Shahdara,
Delhi-110032
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
: Mr. Mr. Gaurav Kakar, Advocate
For Respondents
: NEMO
Pronounced on 23rd April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by Dr. Sharma Nursing Home through its
Principal Officer, Appellant herein and Opposite Party before the Delhi State Consumer
Disputes Redressal Commission (hereinafter referred to as the State Commission)
being aggrieved by the order of the State Commission, who allowed the complaint of
medical negligence filed against it by Ms. Geeta, Complainant before the State
Commission.
2.
FACTS :
Respondent-Complainant had visited the Appellant-Nursing Home for treatment
of medical problems on 09.04.1997. These problems, however, persisted and
Respondent-Complainant found herself becoming unfit to work. Following the Dilation &
Curettage (D&C) procedure that was done on Respondent-Complainant, her condition
deteriorated and ultimately she found that her hands and legs were not working. When
she approached a Government Hospital for further treatment and advice, she was
informed that she had become permanently disabled upto 30%. She contended that
this disability occurred because of the unnecessary surgical procedure of D&C
conducted on her and, therefore, issued a notice to the Appellant-Nursing Home on
grounds of medical negligence in operating on her although the ultrasound indicated
that there was no abnormality and as a result of the unnecessary surgery she had
become permanently disabled. On not getting a satisfactory response, RespondentComplainant filed a complaint before the State Commission on grounds of medical
negligence and deficiency in service and requested that Appellant-Nursing Home be
directed to pay her a lump-sum compensation of Rs.10.00 Lakhs since she was earning
Rs.4000/- per month and since she was maintaining her widowed mother and other
members of the family, as also any other relief as considered appropriate including
litigation costs.
3.
Appellant-Nursing Home on being served filed written reply denying the above
allegations
and
stated
that
the
Respondent-Complainant
was
diagnosed
withamenorrhoea for two months, vaginal bleeding and lower abdominal pain and it was
stated that Respondent-Complainant herself wanted that the D&C procedure be
conducted. Therefore, after taking written consent of her brother, who had
accompanied her, D&C procedure was done under general anesthesia which was
administered by a Doctor who was an MD in Anesthesia and in a well-equipped
operation theater. Respondent-Complainant was discharged in a satisfactory condition
and asked to come back after the histo-pathological report of the tissue which had been
sent for culture was received. However, Respondent-Complainant did not turn
up. Since the surgery was conducted by well-qualified Doctors after proper examination
of Respondent-Complainant and she was discharged in a satisfactory condition, there
was no medical negligence on the part of Appellant-Nursing Home and the complaint
appears to be concocted with some ulterior motive best known to RespondentComplainant.
4.
During the pendency of the complaint before the State Commission and 4 years
after the D&C procedure, Respondent-Complainant passed away on 23.08.2001 and
her Legal Representatives were brought on record to pursue the case.
5.
The State Commission on the basis of evidence produced before it concluded
that the Respondent-Complainant was subjected to D&C procedure which was not
required in view of normal ultrasound report, which stated “uterus is of normal size and
echo-pattern. Minimal fluid seen in the cavity. No sac of POCs seen. No fibroid or
mass lesion seen. POD is clear. No pelvic or adenexal mass lesion seen. No vesicle
calculus or mass lesion seen”. This unnecessary surgery as certified by Bara
Hindu Rao Hospital resulted in restriction of movement of both hands, legs and elbows
of Respondent-Complainant indicating 30% disability. The State Commission also took
note of the fact that Respondent-Complainant passed away 4 years after the
surgery. The State Commission, therefore, concluded as follows:
“10. The aforesaid circumstance of ultrasound report necessitating no
such
operation
amounts
to
negligence
which
resulted
in
30%
disability. Though the complainant has subsequently died, may be, due to
certain other reasons but not due to the operation, we deem that a lump
sum compensation of Rs.50,000/- which shall also include the cost of
litigation, shall meet the ends of justice.”
6.
Being aggrieved by the above order, the present first appeal has been filed.
7.
Learned counsel for Appellant-Nursing Home was present and made oral
submissions
before
us. No
one
was
present
on
behalf
of
Respondent-
Complainant. However, a reply on behalf of Respondent-Complainant was submitted in
respect of the appeal filed by Appellant-Nursing Home essentially reiterating the facts
as stated in the original complaint before the State Commission.
8.
Learned counsel for the Appellant-Nursing Home stated that the State
Commission erred in concluding that an unnecessary D&C procedure was
conducted. Even though the ultrasound did not show any specific abnormality, the
medical examination of the Respondent-Complainant revealed that she had come with
a history of incessant and continuous vaginal bleeding because of which it was
necessary to conduct the D&C procedure. This was conducted after proper clinical and
diagnostic examination by well-qualified Doctors and after taking due care and,
therefore, the disability with which Respondent-Complainant suffered could not be
attributed to the above surgery.
9.
We have heard learned Counsel for the Appellant-Nursing Home and have also
gone through the evidence on record, including the written submissions made on behalf
of
the Respondent-Complainant before the State Commission as also this
Commission. The fact that Respondent-Complainant visited the Appellant-Nursing
Home where a D&C procedure was conducted is not in dispute. It is also a fact that this
D&C was done although the ultrasound report indicated no abnormality as is clear from
the specific finding that the uterus was normal; minimal fluid was seen in the cavity; no
sac of POCs was seen; no fibroid or mass lesion was seen, POD was clear; no pelvic
or adenexal mass lesion was seen; and no vesicle calculus or mass lesion was
seen. Counsel for the Appellant-Nursing Home has sought to explain the reasons for
conducting the D&C procedure despite the ultrasound finding being normal by stating
that this was necessary because Respondent-Complainant was having continuous
vaginal bleeding. However, from the case history of the Respondent-Complainant
which was filed in evidence, we note that the Consultant at the Appellant-Nursing Home
had in fact stated that the Respondent-Complainant had amenorrhoea for 2
months. Amenorrhoea is the absence of menstrual period in a woman of reproductive
age and, therefore, Appellant-Nursing Home’s contention that Respondent-Complainant
was having continuous and incessant bleeding for several days is not borne out by the
medical evidence on record. Even if she had experienced some bleeding for a few
days, there was no medical evidence to indicate that D&C, which is a surgical
procedure under general anesthesia, was necessary in the instant case especially in
view of the normal ultrasound report.
10.
What constitutes medical negligence is now well-established through a catena of
judgments of the Hon’ble Supreme Court of India (e.g. in Jacob Mathew v. State of
Punjab [(2005) 6 SCC 1]) and essentially three principles are required to be followed: (i)
Whether the doctor in question possessed the medical skills expected of an ordinary
skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the
practice (of clinical observation diagnosis – including diagnostic tests and treatment) in
the case that would be adopted by such a doctor of ordinary skill in accord with (at
least) one of the responsible bodies of opinion of professional practitioners in the field
and (iii) whether the standards of skills/knowledge expected of the doctor, according to
the said body of medical opinion, were of the time when the events leading to the
allegation
of
medical
negligence
occurred and not of the time when the dispute was being adjudicated.
11.
Applying these principles to the present case, it is apparent that Appellant-
Nursing Home was guilty of medical negligence in carrying out the D&C procedure in
the absence of any diagnostic or clinical evidence to support the need to conduct this
procedure because of which the Respondent-Complainant suffered a disability. In view
of the above circumstances, we agree with the finding of the State Commission that
there was medical negligence on the part of Appellant-Nursing Home in conducting an
unnecessary surgery and uphold the same in toto.
12.
The present First Appeal is, therefore, dismissed. Appellant-Nursing Home is
directed to pay the Legal Representatives of the Respondent-Complainant a sum of
Rs.50,000/- within a period of 6 weeks.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 714 of 2008
(From the order dated 24.8.2007 in Appeal No. 1100/2005 of Karnataka State
Consumer Disputes Redressal Commission, Bangalore)
Capt. V.P. Mohan (Retd.) S/o late M.S. Nair, No. 118, Prasanthi Nilayam,
Mooapa Layout, Babusapalyam Bangalore – 560084
… Petitioner/Complainant
Versus
1. Dr. M.Shantha Kumar Medical Director, Sathya Hospital, No.1, 199312, 192411,
C. Ramaiah Layout, Kammanahalli Main Road, St. Thomas Town Road, Bangalore –
560084
2. Dr. Raja Reddy Administrative Officer Sathya Hospital, No. 1, 199312, 192411,
C. Ramaiah Layout, Kammanahalli Main Road, St. Thomas Town Road, Bangalore –
560084
3. Sri Muthappa, Mag Security Services No. 42/1, Subannapalya, Banaswadi Main
Road, M.S. Nagar Post, Bangalore – 560033
…Respondents/Opposite Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
Mr. S. Nandakumar, Advocate
For the Respondents
Ex-parte
PRONOUNCED ON 23rd April, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
impugned order dated 24.08.2007 passed by the Karnataka State Consumer
Disputes Redressal Commission,
Bangalore
(in
short,
‘the
State
Commission’)
in Appeal No. 1100/2005 – Capt. V.P. Mohan (Retd.) Vs. Dr. M. Shantha Kumar
& Ors.by which, while allowing appeal, order of District Forum allowing complaint was
set aside and complaint was dismissed.
2.
Brief facts of the case are that complainant/petitioner’s daughter Ms. Seena was
going on scooty with her sister’s son Abhishek on 4.10.2003 and met with an accident
due to negligence and rash driving of four wheeler. Seena and Abhishek sustained
injuries. Public gathered over there and Seena was taken by public in bleeding
condition to the nearest Sathya Hospital. Injured Abhishek gave telephone number to
other persons who informed to the complainant. Then, complainant along with his
friends and relatives went to Sathya Hospital and all of them requested the security staff
to allow admission of Seena for immediate treatment, but security staff refused and
stated that no doctor is available, though, injured reached Hospital at about 2.55
P.M. Then, Seena was taken to Santhosh hospital, who allowed the victim for treatment
but she succumbed to death due to loss of blood. It was further alleged that behaviour
of security staff was indifferent due to instructions of the authorities of Sathya Hospital
to not allow accidental cases without their permission. Alleging deficiency on the part of
OPs/respondent, complainant filed complaint before the District Forum. OPs resisted
complaint, filed written statement and submitted that injured was not brought to the
Hospital and complainant does not fall within the purview of consumer. It was further
alleged that Sathya Hospital has got a separate legal entity, as such, the Medical
Director or the Administrative Officer are not right persons to represent it. It was further
alleged that Mr. Muthappa is not the proprietor of M/s. Mag Security Services; hence,
complaint may be dismissed for non-joinder of necessary parties. Learned District
Forum allowed the complaint and directed OP to pay 3,00,000/- jointly and severally
with cost of Rs.10,000/-. OP filed appeal which was allowed by learned State
Commission vide impugned order against which, this revision petition has been filed.
3.
Respondents did not appear; hence, they were proceeded ex-parte.
4.
Heard Learned Counsel for the petitioner and perused record.
5.
Perusal of complaint reveals that security staff of the OP/Respondent hospital did
not permit the victim to enter inside the hospital. When the victim herself was not
admitted to the hospital and was not provided any treatment and no consideration was
paid or agreed to be paid by the victim or her relatives, complainant does not fall within
the purview of consumer and learned State Commission has not committed any error in
passing impugned order and dismissing complaint.
6.
Record further reveals that complainant has improved his complaint by filing
affidavits of complainant and other witnesses depicting the fact that even request to
nurses for allowing victim to the casualty was disallowed on the pretext that no doctor
was available to provide medical treatment. There is no averment in the complaint that
nursing staff also refused entry of victim in the hospital. It has clearly been mentioned
in Paragraph 7 of the complaint that security staff bluntly refused to allow victim in the
hospital on the ground that no doctor was available. When only security staff refused
entry of victim in the hospital, Respondent Nos. 1 & 2 cannot be held responsible in any
perspective, as neither they, nor their nursing staff refused entry of injured Seena in the
hospital. As per affidavits of witnesses, doctor was not available at that time. As per
complaint, security staff also apprised that doctor is not available in the hospital. In
such circumstances, there was no occasion to allow entry of victim in the hospital, who
was in critical condition and who succumbed to death while taking to another
hospital. Statement of Ravi Kumar recorded by police under Section 161 Cr.PC filed by
the complainant as Annexure P-5, clearly reveals that he took injured first
to Sathya hospital where she was not given any treatment and then he took her in the
same auto to Santosh Hospital. In such circumstances, there was no occasion for the
complainant and other witnesses to affirm this fact in their affidavit that in
their presence nurses on duty did not allow victim in the casualty ward of the hospital
and no reliance can be placed on the statement of complainant and other witnesses.
Learned District Forum also dismissed application for cross-examination of these
witnesses, though, District Forum ought to have allowed this application in the peculiar
circumstances of the case.
7.
When the doctor was not available at the hospital, security staff even if refused
entry of victim in the hospital has not committed any deficiency, as in the absence of
doctor, there was no occasion to allow entry of patient in a critical condition to the
hospital because no medical assistance could have been provided even if admitted in
the hospital. It is unfortunate that victim died while taking to Santosh Hospital. In such
circumstances, there is no deficiency on the part of security staff also.
8.
OPs specifically stated in their written statement that M/s. Sathya Hospital has got
a separate legal entity and Medical Director or the Administrative Officer are not right
persons to represent the Hospital. It was further alleged that Mr. Muthappa is not the
Proprietor of M/s. Mag Security Services. Petitioner has not filed any evidence to prove
the fact that OP Nos. 1 & 2 represent Sathya Hospital and they are responsible for any
deficiency on the part of Sathya Hospital. Petitioner has also not filed any evidence to
prove the fact that Shri Muthappa is the Proprietor of M/s. Mag Security Services and
M/s. Mag Security Services was providing security in theSathya Hospital. In such
circumstances, complaint was liable to be dismissed against OP and learned District
Forum committed error in allowing complaint, but learned State Commission has not
committed any error in allowing appeal and dismissing complaint. We do not find any
illegality, irregularity or jurisdictional error in impugned order passé by learned State
Commission and revision petition is liable to be dismissed at admission stage.
9.
Consequently, revision petition filed by the petitioner is dismissed with no order
as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 127 OF 2006
(Against the order dated 02.01.2006 in Complaint No. 182/2000 of the
Karnataka State Consumer Disputes Redressal Commission, Bangalore)
1. Kasturba Medical College Hospital Manipal-576119 Rep. by its Medical
Superintendent
2. Dr. P. Sripathi Rao Orthopaedic Surgeon Kasturba Medical College Manipal-576119
3. Dr. N.R. Rau Physician Kasturba Medical College Hospital Manipal-576119
…
Appellants
Versus
Mrs. Ruma Kumar W/o Sri Kranti Kumar Residing at No.1-3-43 Street No.5,
Habsigudda Hyderabad-500007
…
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants
: Mr. Vivek Singh, Advocate
For Respondent
: Mr. Rajeshwar Singh, Advocate
Pronounced on 25th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This First Appeal has been filed by Kasturba Medical College Hospital & Others,
Appellants herein and Opposite Parties before the Karnataka State Consumer Disputes
Redressal Commission, Bangalore (hereinafter referred to as the State Commission)
being aggrieved by the order of the State Commission, which had allowed the complaint
of Mrs. Ruma Kumar, Respondent herein and Original Complainant before the State
Commission, alleging medical negligence.
2.
In her complaint before the State Commission, Respondent-Complainant, who
was a teacher at the Bharatiya Vidya Bhavan Vidyalaya, Bangalore, contended that she
approached Dr. Benjamin Joseph of Appellant-Hospital following complaints of stiff pain
in both knee joints because of which she was finding it difficult to carry out her
duties. After
examination,
Respondent-Complainant
advised
to
undergo
three
surgeries, namely (i) right hip total replacement; (ii) total right knee replacement; and (iii)
total left knee replacement. Respondent-Complainant got admitted to AppellantHospital on 17.10.1996 for total right hip replacement surgery and was operated on
22.10.1996 after being administered insulin to control blood sugar. However, soon after
the surgery, she developed a bed sore. She was assured that being a diabetic, there
would be delayed healing. She was discharged after being advised to undergo
physiotherapy. Respondent-Complainant underwent the second surgery for total right
knee replacement on 23.12.1998 and preliminary tests indicated that she was also
suffering from hypertension, of which there was no previous history. Therefore, tablets
were given to control hypertension and blood sugar although Respondent-Complainant
specifically brought to the Doctor’s notice that she was insulin dependent. However,
this information was ignored and subsequently the surgery was undertaken although the
blood sugar levels were not under control. Respondent-Complainant noted that fluid
began to ooze from the scar on her back. However, the Doctors at Appellant-Hospital
failed to take adequate care of the Respondent-Complainant and after the nurses
changed the dressing and cleaned the scar, Respondent-Complainant was discharged
on 06.01.1999 with advice to take antibiotics and do physiotherapy. The third surgery
for total left knee replacement was undertaken on 03.02.1999 after preliminary
investigations were carried out by nurses in a perfunctory and casual manner and again
without taking due care to control her blood sugar levels. Following the surgery
Respondent-Complainant developed severe pain in the operated area. Soon after,
reddish coloured fluid was discharged from the operated area, to which the Doctors did
not pay any heed. After 11 days when the bandage was removed, it was noted that the
sutures at the top of the wound had broken resulting in discharge of the reddish
coloured liquid, the skin had not united and the wound had not healed. Consequently a
culture test was conducted which revealed that staphylococcus infection had set in at
the site of the operation due to the unhygienic and unsafe condition at the operation
theater. The wound was re-sutured and Respondent-Complainant was compulsorily
discharged
on
24.02.1999. When
the
Respondent-Complainant
went
back to
Hyderabad, she found after 10 days that the sutures which had been put at AppellantHospital had again broken and the wound had not healed and, therefore, remnants of
the stitches were removed and the scab that had developed on the operated area was
sent for culture test, which indicated that staphylococcus infection persisted despite
several antibiotics being prescribed by Appellant-Hospital. Respondent-Complainant
also developed severe pain in the left knee apart from the oozing from the operation site
and had great difficulty in banding the knee. On 14.04.1999 Respondent-Complainant
was rushed to Apollo Hospital with swollen left knee and high fever and Doctors there
informed her that the operation site had been severely infected and partial dislocation of
the left knee had occurred. Respondent-Complainant had, therefore, to undergo an
operation to remove the prosthesis after her blood sugar was controlled and the left
knee was permanently fixed with Charley Compression Clamps. After two months of
Respondent-Complainant’s discharge from Apollo Hospital, it was noted that the right
knee had also got similar infection and, therefore, the second prosthesis was also
removed at Apollo Hospital and she was discharged after one month. Because of the
botched surgery in Appellant-Hospital which could only be partially rectified in Apollo
Hospital, Respondent-Complainant became disabled and physically immobilized and
had to depend on others for her day-to-day activities. Being aggrieved by the medical
negligence on the part of Appellant-Hospital and its Doctors, Respondent filed a
complaint of medical negligence against them before the State Commission and listed
the following deficiencies in service :
“a)
failure by Doctors to effectively and completely carry out required
investigations prior to surgery;
b)
entrusting the
duties
of
preliminary
and
other
pre-surgery
investigations … junior Doctors/nurses on duty;
c)
failure to control the blood sugar levels prior to embarking upon
surgery;
d)
failure to consider the specific input of the complainant that she was
a diabetic and had been on insulin for control of blood sugar levels;
e)
failure to ensure appropriate standards of sterility in the operation
theatre leading to infection necessitating removal of both
protsthesis;
f)
failure to exercise due care in preventing the wounds from being
infected;
g)
failure to exercise care, competence and skill in performing surgery
and suturing leading to breaking of the sutures, requiring
resuturing;
h)
failure to exercise care, competence and skill in implanting the two
prosthesis and/or implanting them imperfectly leading to infection
and consequent removal of both prosthesis;
i)
Failure to ensure that the prosthesis and/or surgical procedures
did not leave infection of the nature described in the complaint
and/or failure to ensure sterile and antiseptic operation theatre
and/or instruments thereby resulting infection;
j)
failure to look after the complainant upon admission, both pre and
post operations, including failure by Doctors to monitor the
complainant’s progress in the hospital;
k)
failure to explain to the complainant the risk areas, side effects,
advantages/disadvantages, possible success rate, failure rate,
prognosis of the surgery before imbarking on surgery resulting in
the complainant being unable to give “informed consent”;
l)
failure to take adequate precautions and safety measures to prevent
surgical wounds from becoming infections/septic; and
m)
failure to devote quality time and attention to the complainant and
her medical problems.”
Respondent-Complainant requested the State Commission that since she had lost her
means of livelihood and had become totally dependent, Appellants be directed to pay
her Rs.19,04,894/- as per the following break-up :
“A.
Towards salary and allowances, loss of
Rs.6,04,894.00
Employment
B.
Towards travelling expenses
Rs.80,000.00
C.
Towards cost incurred due to change of
Rs.20,000.00
residential premises
D.
Towards Medical/hospital expenses
E.
Towards compensation
TOTAL
3.
Rs.2,00,000.00
Rs.10,00,000.00
Rs.19,04,894.00”
Appellants on being served filed written reply denying that there was any medical
negligence in the treatment of Respondent-Complainant. It was inter alia stated that the
Appellant-Hospital is a well-known institute of excellence and in the instant case all care
and precautions were taken in respect of the medical treatment of the RespondentComplainant at all times. It was denied that Respondent-Complainant was insulin
dependent diabetic at the time of her first surgery. In fact, she had high blood sugar
from the age of 14 years and she was controlling it through drugs and was not insulin
dependent. Surgeries were conducted after taking due care and bringing her blood
sugar as also hypertension under control before and during the second surgery. The
insulin was started as a precautionary measure prior to the first surgery. Theater
asepsis was meticulously maintained and it was fumigated and UV light sterilized on the
evening before her total joint replacement surgery. All post-operative dressings were
done by Resident Doctors using sterilized surgical gloves and mask and the prosthesis
used were pre-sterilized. There was no problem in the fixation or alignment of the
prosthesis at the time of surgery or post-operatively and the detailed and meticulously
maintained records of the Appellant-Hospital are adequate proof of the same. The
operation
was
conducted
in
hygienic
condition
but
despite
all
precautions
staphylococcus infection had set in which is common among patients of rheumatoid
arthritis. However, Respondent-Complainant was cured in respect of this infection
before being discharged. The subsequent complications which arose were after
discharge of the Respondent-Complainant from the Appellant-Hospital in a satisfactory
condition and the Appellant-Hospital cannot be held responsible for any subsequent
problems that may have subsequently arisen because Respondent-Complainant did not
heed the medical advice regarding the medication, treatment and follow ups.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it, including the medical literature on the subject partly allowed the
complaint by concluding that Appellants had been negligent in the treatment of the
Respondent-Complainant in the course of post-operative care. In this connection, the
State Commission in support of its finding specifically observed as follows:
“The patient was taking oral semidaomil from 04.02.1999 and glycomet
was added on 07.02.1999, on 06.02.99 even though blood sugar PPBS
was 239, Insulin was not prescribed because glycomet was added. He
(Dr. N.R. Rao) has admitted that the patient informed him during surgery
the insulin was administered, which cannot be accepted in view of his
earlier version. No insulin was given during surgery as the patient’s blood
sugar was 85 mg as mentioned in the Ext. R39. Lab report at page 224 at
7.40 AM. He has also admitted that from 10.02.1999 to 14.02.1999 (Ext.
R40), there is no record of prescription of blood sugar test to be carried
out. He has admitted that he relied only upon urine analysis to determine
the diabetes status of the patient during the days, which is not good
indicator of diabetic status as blood sugar. The very accurate test is blood
sugar. On the date of discharge, the sugar fasting 110 mg and PPBS 142
mg and according to him (Dr. N.R. Rao), the diabetes was under
control. At the time of discharge, on the external examination of the
patient, he came to the conclusion that Staphylococcus Aureus infection
had been cured. The above evidence of RW2 points out omissions on his
part in treating the patient after the surgery and also during surgery. For 4
days, blood sugar test was not at all conducted. Very strangely he (Dr.
N.R. Rao) has relied on urine analysis to know the diabetes status which
is not good indicator as admitted by him only, without going for accurate
test of blood sugar. From the above material, it is apparent that OPs have
neglected in the treatment of the complainant in the course of
postoperative care. Even during the stay in the OP1 Hospital, there was
pus formation on the left knee operated area, and there was an infection
also on his back, and the opening of the wound, which all points out to the
imperfect surgery, and the postoperative treatment.”
The State Commission awarded Rs.2 Lakhs as compensation by observing as follows:
“The evidence of the complainant as pointed out above, fully support the
complaint allegations and her suffering as a result of the complication
developed under present condition of immobility, which automatically
result in mobility and helplessness in attending to the day-to-day duty,
naturally results to the mental agony, and continuous suffering of the pain
in operated area. Under these circumstances, the complainant is entitled
for compensation. As per the complaint, she has classified her claim viz,
loss of employment and salary and allowances to the tune of
Rs.6,04,894/-, travelling expenses Rs.80,000/- and the change of
residential premises Rs.20,000/- and hospital expenses Rs.2,00,000/- and
compensation of Rs.10,00,000/-. None of them are supported by any
particulars
and
material. It
looks
to
be
exorbitant. From
the
circumstances and factors of this case, we feel that in the interest of
justice, the reasonable compensation of Rs.2,00,000/- is appropriate.”
5.
Aggrieved by the finding of medical negligence against them, Appellants have
filed the present First Appeal.
6.
Learned counsel for both parties made oral submissions.
7.
Learned counsel for the Appellants concluded that the State Commission erred in
concluding that Appellants were guilty of medical negligence. From the case history of
Respondent-Complainant, which is on record, it is evident that all possible care was
taken in respect of her treatment prior, during and in the post-operative period. It was
denied that Respondent-Complainant was insulin dependent. Medicine to control her
diabetes was prescribed as required after testing her blood sugar levels. For example
at the time of the first surgery when the blood sugar was 85 mg, it was very much within
the normal limit and there was no need to administer insulin. However, post-operatively
when the sugar levels became high at 142 mg, insulin was immediately administered. It
was stated that the question of the prosthesis not being sterilized did not arise because
they come in a pre-sterilized packets and the Respondent-Complainant has not been
able to produce any evidence to show that this was not so. While admittedly
staphylococcus infection did occur, as per medical literature it commonly occurs in
patients with rheumatoid arthritis and it is an admitted risk factor in surgeries on such
patients. On its immediate detection, proper antibiotics on the basis of culture and
sensitivity test of the infection, had been started and at the time of discharge it was very
much under control. The State Commission’s finding that Respondent-Complainant’s
blood sugar was determined on the basis of urine test and not blood test is also not
factually correct as borne out by the history sheet of Respondent-Complainant, where
blood tests were regularly conducted to determine the blood sugar levels but since it is
not desirable on a daily basis to do so and to avoid unnecessary pricking, urine test is
conducted once a clear idea of the blood level is obtained, as happened in the instant
case. It was further pointed out that Apollo Hospital where the RespondentComplainant underwent subsequent treatment for long periods and where purportedly
the prosthesis were removed has not been impleaded as a party since infections
requiring removal of prosthesis could well have occurred in that hospital. Counsel for
the Appellants also brought to our attention the expert opinion of the Medical Board
comprising of Doctors from the All India Institute of Medical Sciences (AIIMS) set up at
the request of this Commission vide its order dated 18.01.2012, which clearly concluded
that there was no negligence in the treatment of the Respondent-Complainant at
Appellant–Hospital
and
that
the
infection
which
had
occurred
on
the fifth operated day was detected and hospital managed it thereafter.
8.
Counsel for the Respondent-Complainant on the other hand stated that the fact
that Respondent-Complainant contracted a serious infection in the Appellant-Hospital
while recuperating from the surgery is an admitted fact. Further, it is also on record that
the prosthesis put at the Appellant-Hospital in both knees had to be subsequently
removed since they had become infected. If indeed due care had been taken, then
infection in a well-equipped hospital with highly trained professional staff should not
have occurred, which clearly points out to deficiency on the part of AppellantHospital. Counsel for the Respondent-Complainant also reiterated that RespondentComplainant had been suffering from other co-morbidities e.g. diabetes and adequate
steps were not taken during the surgery to ensure proper management of these
diseases because of which there were persistent problems like oozing, bed sore and
the non-healing of the wound. All India Institute of Medical Sciences had confirmed that
the Respondent-Complainant had contracted the infection and merely concluded that
there was no “gross” medical negligence. The State Commission had rightly concluded
that there was lack of proper treatment and care particularly in the post-operative
period.
9.
We have heard learned Counsel for the parties and have also gone through the
evidence on record. Admittedly, the Respondent-Complainant underwent surgeries on
three occasions for replacement of both knees as also the hip surgery and as pointed
out by the Counsel for the Appellants, we find force in the contention that had proper
care and attention not been given to the Respondent-Complainant by Doctors and staff
she would not have come back for surgery to the Appellant-Hospital on two subsequent
occasions. Admittedly, soon after the third surgery Respondent-Complainant did
contract staphylococcus infection. However, as per medical literature on the subject,
staphylococcus bacteria is one of the five most common causes of infection after injury
or surgery and since it is present in the environment, even healthy people carry this
bacteria in their system, including under the skin, without even being aware of it*.
(*Source : Centre for Disease Control and Prevention, Atlanta, USA extracted from
Wikipedia USA.gov)
It is further a fact as contended by Appellants that it occurs most commonly in patients
with rheumatoid arthritis. The source of this infection may, therefore, not necessarily be
because of lack of proper sterilization in the operation theater or of surgical
equipments. It was under these circumstances that the Board of medical experts from
AIIMS also concluded that there was no gross medical negligence on the part of
Appellants.
10.
After having gone through the case history on file, we agree that there was no
medical negligence per se in the treatment of the Respondent-Complainant, including in
dealing with her other co-morbidities like diabetes and hypertension and all efforts were
made to check the blood pressure and blood sugar levels before and after the surgery
and as required medication was given. However, the fact remains that RespondentComplainant did contract staphylococcus infection while recuperating from the surgery
and it persisted despite treatment in Appellant-Hospital. Appellants’ contention that
infection was under control at the time of discharge is not factually correct since it
subsequently recurred. Keeping in view this fact we are of the view that there was
some deficiency only in this respect in the post-operative treatment of the RespondentComplainant, because from the case history and other evidence on record, we are
unable to conclude that there was any medical negligence and deficiency in medical
treatment of the Respondent-Complainant either in conducting the surgeries or in the
management
of
her
other
existing
co-morbidities
like
diabetes
and
hypertension. Respondent-Complainant on whom there was onus to do so has also not
produced
any
evidence,
including
any
medical
expert,
to
prove
her
allegations. Therefore, we are unable to accept the finding of the State Commission
regarding medical negligence and deficiency in the treatment and care of the
Respondent-Complainant.
11.
During the course of oral submissions, Appellants’ Counsel stated that as per the
order dated 03.07.2006 of this Commission, Appellants had deposited Rs.3,36,125/with the State Commission, out of which Rs.2,00,000/- had already been released to the
Respondent-Complainant. In view of the fact that Respondent-Complainant admittedly
suffered because of the infection that she had contracted in Appellant-Hospital and
even though there may not be any other deficiency or medical negligence proved in this
case, the above amount may be retained by the Respondent-Complainant on ex-gratia
basis.
12.
To sum up, the order of the State Commission concluding that there was medical
negligence and deficiency in service on the part of Appellant-Hospital in respect of her
post-operative care is set aside. However, the compensation of Rs.2,00,000/- awarded
to the Respondent-Complainant is upheld purely as ex-gratia payment for the reasons
stated in the preceding paragraph. The remaining amount of Rs.1,36,125/- alongwith
accrued interest may be refunded to the Appellants.
13.
The present First Appeal stands disposed of on the above terms.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 201 OF 2008
(Against the order dated 05.02.2008 in CC No. C-80/2003 of the Delhi State Consumer
Disputes Redressal Commission)
Gopal Dass S/o Shri Jetha Ram Through Legal Heirs
1. Smt. Sundri Devi W/o Late Shri Jetha Ram
2. Smt. Laxmi Devi W/o Late Shri Gopal Dass
3. Sunil S/o Late Shri Gopal Dass
4. Manish S/o Late Shri Gopal Dass
5. Renu D/o Late Shri Gopal Dass
All residing at H.No. A/495-II Pandav Nagar New Delhi
…
Appellants
Versus
1. Dr. S.P. Mandal Orthopedic Surgeon Sir Ganga Ram Hospital New Delhi-110005
Second Address: Dr. S.P. Mandal Orthopedic Surgeon Senior Consultant
Ram Lal, Kundal Lal Orthopedics Hospital Parparganj, Delhi-110092
2. Sir Ganga Ram Hospital Old Rajender Nagar New Delhi
…
Respondents
FIRST APPEAL NO. 284 OF 2008
(Against the order dated 05.02.2008 in CC No. C-80/2003 of the Delhi State Consumer
Disputes Redressal Commission)
Dr. S.P. Mandal Orthopedic Surgeon Sir Ganga Ram Hospital Rajinder Nagar, Delhi
Ram Lal, Kundal Lal Orthopedics Hospital Patparganj, Delhi-110092
…
Versus
1. Gopal Dass S/o Shri Jetha Ram Through Legal Heirs
1.1 Smt. Sundri Devi W/o Late Shri Jetha Ram
1.2. Smt. Laxmi Devi W/o Late Shri Gopal Dass
1.3. Sunil S/o Late Shri Gopal Dass
1.4. Manish S/o Late Shri Gopal Dass
1.5 Renu D/o Late Shri Gopal Dass
All residing at H.No. A/495-II Pandav Nagar New Delhi
Appellant
2. Sir Ganga Ram Hospital Rajinder Nagar, Delhi
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For the Appellant (in FA/201/2008) & For
Respondent No.1 (in FA/284/2008)
:
Mr. Soumyajit Pani and
Mr.Rajendra, Advocates
For Respondent No.1 (in FA/201/2008) &
For the Appellant (in FA/284/2008)
:
Mr. Balakrishnan and
Mr. AnjumJaved, Advocates
For Respondent No.2 (in both the
Appeals)
:
Mr. M.S. Rohilla, Advocate
Pronounced 30th April, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
Being
aggrieved
by
the
order
of
the
Delhi
State
Consumer
Disputes Redressal Commission (hereinafter referred to as the State Commission) in
Complaint No. C-80/2003, two cross appeals have been filed. First Appeal No. 201 of
2008 has been filed by Gopal Dass, Original Complainant and First Appeal No. 284 of
2008 has been filed by Dr. S.P. Mandal, Opposite Party No.1. Since the facts and the
parties in both appeals are common/similar arising out of the same consumer complaint,
it is proposed to dispose of these appeals by a common order by taking the facts from
First Appeal No. 284 of 2008. The parties will be referred to in the manner in which they
were
referred
to
in
the
complaint
i.e. Shri Gopal Dass as
Complainant,
Dr.
S.P. Mandal as Opposite Party No.1 and Sir Ganga Ram Hospital as Opposite Party
No.2.
2.
In his complaint before the State Commission, Complainant contended that in
1998 he suddenly developed pain in his right foot while walking and there was also
appearance of some black spots. He, therefore, visited OP-2/Hospital, where he
consulted OP-1 who is an Orthopedic Surgeon. After medical examination, he was
advised surgery since his right toe was enlarged. He was given medicines by OP-1 for
one week and was asked to make up his mind whether to undergo the surgery. Since
Complainant got no relief from his pain despite taking the prescribed medicines, he
again went to OP-2/Hospital, wherein he was informed by OP-1 that the surgery would
cost Rs.20,000/- but if he got it operated from a private clinic being run under the name
of Ram LalKundan Lal Orthopedics Hospital, he would have to pay half the
amount. Complainant, therefore, accepted the advice for the surgery in the private
nursing home and got admitted there on 05.07.1998. The surgery was performed on
06.07.1998 during which OP-1 wrongly cut a part of the enlarged bone. As per the
certificate given by the Ram Lal Kundan Lal Orthopedic Hospital, during the course of
this surgery, OP-1 also fixed a pointed wire joining the great toe and 3 fingers of
Complainant’s right foot but the said pointed wire kept touching the 4 th small toe of the
right foot causing a wound in the small toe of that foot. Complainant informed OP-1,
who noticing the fault asked his staff to remove the same after 10 days while in fact it
was to be removed after 21 days. When the said wire was removed, it was noted that
there was a hole that had developed in the toe of the right foot. However, no dressing
or treatment was given for the same, as a result of which the big toe of the right foot
became septic. After some time it became numb (dead). It was stated that negligence
was there at every stage of the treatment and surgery so much so that even in the
discharge certificate it was stated in the column ‘diagnosis’ that the Complainant was
operated on the left foot whereas in fact the surgery was performed on the right foot. It
was further stated that for the Buerger’s disease with the Complainant which had been
later diagnosed by OP-1, no surgery was required and treatment for this disease
following the Doppler test is an Angiography (i.e. Ballooning) whereby the obstruction in
the artery/vein is removed. Thus, OP-1 committed gross medical negligence and
blunder in performing a non-required surgery as there was no enlarged bone of the toe
and in fact there was only obstruction in the vein of the right foot which required
angiography. Complainant had to be later taken to the emergency in OP-2/Hospital
where he remained admitted from 16.09.1998 to 26.09.1998, during which period
gangrene developed in the right foot and he had to undergo two surgeries which
required amputation of the foot and thereafter the leg upto the knee. As a result of this,
Complainant suffered disability of 80% as confirmed by the certificate issued
by Safdarjung Hospital. Being aggrieved because of the utter neglect and deficiency in
conducting a surgery based on the wrong diagnosis which led to amputation of his leg
below the knee and 80% disability, Complainant filed a complaint before the State
Commission seeking total compensation of Rs.30,00,000/- for the mental agony, torture
and business loss suffered by him on account of the actions of the OPs.
3.
OPs on being served filed a written rejoinder vehemently denying the allegation
that there was any medical negligence. It was stated that the Complainant had
attended
the
free
OPD
of
OP-2/Hospital
and
was
examined
by
several
doctors. Complainant had Post-Polio Residual Palsy (PPRP), because of which he had
difficulty in walking. He had come to the OPs for correction of the deformity and he had
concealed this fact in order to mislead the State Commission. He was thoroughly
examined by OP-1, who is a famous and Senior Orthopedic Surgeon with 35 years of
experience and since he could not afford to pay Rs.20,000/- and there was a long
waiting list in the free general bed in OP-2/Hospital, he was given treatment at
concessional rates at Ram Lal Kundal LalOrthopedics Hospital, which is also a well
reputed charitable hospital registered with Delhi Government. Complainant paid a total
sum of Rs.4900/- for the surgery, during which a wire was inserted from outside so as to
maintain the deformed toe in corrective position. This wire was removed after the
stipulated period. It was further stated that in the discharge certificate because of a
clerical error it was stated that the surgery was done in the left foot. However, this did
not impinge on the merits of the case. Complainant was a chain-smoker but he had
concealed this fact in his complaint before the State Commission. OP-1 came to know
about this only after the surgery and before his discharge on the same day when
Complainant was found to be repeatedly smoking despite being asked not to do so. It
was under these circumstances that a noting was made in the discharge certificate that
there was a suspicion of Buerger’s disease. Had OP-1 known prior to the surgery that
Complainant was a chain-smoker, he would have got the necessary tests conducted for
confirming Buerger’s disease. Complainant’s
surgery
to
correct
the Poliomyetic deformity was conducted as per standard procedure wherein a K-wire
was inserted to keep the big toe in place. There was no complication following the
surgery and no blackening of toes etc. even after one month. OPs further stated
that Buerger’s disease was not caused by any problems due to the first surgery but
because of the Complainant’s prolonged smoking. After the Complainant was detected
with Buerger’sdisease, he and his relatives were informed that the limb may require
amputation and they agreed to the same. It was under these circumstances that the
amputation was done since it was the only remedy for such a disease where circulation
did not improve with conservative treatment. Thus, there was no medical negligence or
deficiency in service on the part of OPs. In fact, it is the Complainant who being a
chain-smoker developed Buerger’s disease and despite being advised to quit smoking
he failed to do so causing further damage to his system. OPs also stated that there was
no defect with the first surgery and they were not responsible for the subsequent
gangrene.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it, partly allowed the complaint by observing as follows :
“22. The real problem of the complainant was pain in right lower leg. He
went to the OP Hospital where he was admitted. As per documents on
the
very
day
of
admission
there
was
a
suspicion
of buerger’s disease. Instead of ruling out the buerger’s disease by
conducting Doppler tests etc. OP went for putting K-wire presumably for
the reason that the patient could not walk because of post polio deformity
in spite of the fact that existence of buerger diseases was given a question
mark. To say putting of K-wire was not a simple process merely because
it did not involve cutting of toe is not that simple particularly in view of
suspected buerger’s disease. Any cut or wound was difficult to be healed,
as the blood supply at the toe zone is the minimal.
23.
K-wire was inserted by making 8” long cut. This K-wire continued for
12 days and created wound in the right foot of the complainant and when
septic occurred in the right foot of the complainant, his toe was weakened
because he was suffering from buerger’s disease, which was confirmed
after a month when angiography was done. By then it was too
late. Initially amputation of toe was done and thereafter, right foot got
completely blackened. The toe being of the body where the flow of the
blood is minimal and perhaps K-wire did not yield result because
ofbuerger’s disease. In the process right foot had to be amputated to save
the life of the patient.
24.
Thus in our view medical negligence was only to the extent that
before putting K-wire, the existence of buerger’s should have been
confirmed particularly when suspicion about such disease was expressed
on the very day of admission. It was not with malafide intention that Kwire was inserted. It was inserted to relieve the patient of the pain and
make him walk because of post-polio deformity. Unfortunately this little
lapse resulted firstly in amputation of toe and subsequently in amputation
of right foot.”
The State Commission in view of the above facts deemed that a lump-sum
compensation of Rs.50,000/- for mental agony and other sufferings arising from
amputation of right foot, besides Rs.5000/- as cost of litigation, would meet the ends of
justice.
6.
Hence, the present two appeals by OPs and Complainant, the latter seeking
enhancement of compensation awarded by the State Commission.
7.
Learned Counsel for parties made oral submissions.
8.
Counsel for OP-1 while reiterating the facts of the case as stated by him in his
written
submissions
stated
that
the
Complainant
was
admitted
in
Ram LalKundan Lal Orthopedics Hospital with a diagnosis of PPRP and he was
operated on 06.07.1998 by a team of highly qualified Orthopedic Surgeons headed by
OP-1 after conducting all the tests required for this type of surgery, including ECG,
Hemoglobin and other tests to confirm that the Complainant was not diabetic or
hypertensive. The surgery was conducted under spinal anesthesia and the standard
medical procedure called Jone’s Procedure was adopted. The toe was stabilized with a
0.045” (0.14 cms.) Kirschner wire (K-wire) and the Complainant was discharged on the
same day evening i.e. on 06.07.1998. At the time of discharge, the Doctors had
observed that there was a possibility of Buerger’s disease because it was noted by the
Duty Doctors and Nurses that even though smoking was not allowed in the hospital,
Complainant could not resist smoking. Buerger’s disease is a not a common disease
and it is generally found in heavy smokers. Complainant was strongly advised to stop
smoking and was called for follow-up after 3 weeks for removal of the K-wire. The postoperative period was uneventful. When Complainant visited the hospital for removal of
wire, it was noted that he had a non-healing wound on the big toe of the right foot and,
therefore, he remained admitted for observation till 06.08.1998 and during the stay he
continued to smoke incessantly. The pulse oxymeter revealed poor circulation in the
limbs and, therefore, the Complainant was advised Doppler test to check whether he
was having Buerger’s disease but he refused the same citing his inability due to
financial condition. Complainant was discharged from the hospital the same day with
an advice to consult vascular surgeons at OP-2/Hospital to diagnose and treat
the Buerger’s disease. When Complainant visited OP-2 on 10.08.1998 various
investigations were conducted, including angiography, which was done free of cost
and Buerger’s disease was confirmed which was apparently caused because of
prolonged chain smoking. AfterBuerger’s disease was confirmed and the problem could
not be redressed through conservative treatment, the vascular surgeon in OP-2/Hospital
opined that amputation of the right limb was the only course of action to save his life
and it was under these circumstances that amputation of the limb had to be carried
out. It was emphasized that the surgery for reformation of PPRP was successful and the
subsequent amputation was not because of any defect or negligence in conducting that
surgery
or
any
other
deficiency
but
because
the
Complainant
had
contracted Buerger’s disease being a chain smoker. It was specifically stated that prior
to
the
PPRP
surgery,
there
was
no
evidence
that
the
Complainant
had Buerger’s disease. The observation to this effect made in the discharge certificate
following the surgery was tentative with question-mark because it was noted that the
Complainant was smoking heavily. Counsel for OP-1 brought to our attention medical
literature on the subject indicating that Buerger’s disease can be mimicked by a wide
variety of other diseases and essentially only one treatment is known to be effective i.e.
complete stopping of smoking. In the instant case, since prior to the surgery, there was
no indication that the Complainant was a heavy smoker, a fact which became known
after the surgery, there was no negligence or deficiency in service in not carrying out the
necessary tests to diagnose the same prior to the surgery. Counsel for OP-1 also
stated that apart from the merits of the case, since the Complainant had died during the
pendency of the proceedings before this Commission, the personal action died with the
death of the Complainant and the case, therefore, abates.
Counsel for OP-2/Sir Ganga Ram Hospital contended that the State Commission
erred in holding it guilty of limited medical negligence since the first surgery did not take
place there and negligence of its Doctor, if any, was that of the individual and not of
OP2.
9.
Counsel for the Complainant stated that from the evidence on record, it was clear
that OP-1 was fully aware that Complainant had Buerger’s disease as recorded in the
case history at Annexure P-4. He challenged the OP-1’s contention that a tentative
diagnosis of Buerger’s disease was made only after the surgery and not prior to it. The
certificate on record (Annexure P-4), wherein it has been clearly recorded under the
caption ‘diagnosis’ that the Complainant hadBuerger’s disease, nowhere indicates that
the diagnosis was made after the surgery. Once a diagnosis was made, even if it was a
tentative diagnosis it was necessary for OP-1 to have conducted at least the Allen’s
test, which is a simple test to check the blood flow through arteries and which is
indicative of the health of the arteries, and thereafter an Angiography. By not doing so
and instead undertaking a surgery of the big toe which was not required and which led
to further problems because of the non-healing of the first surgery, OP-1 was clearly
guilty of total medical negligence and not of limited negligence as ruled by the State
Commission. In view of these facts and because as a consequence Complainant
suffered 80% disability, which also hastened his untimely death, there was a strong
case to enhance the compensation awarded by the State Commission.
10.
We have heard learned counsel for the parties and have also carefully gone
through the evidence on record. Complainant’s visit to OP-2/Hospital following
complaints in the right lower leg and his examination by OP-1 there and later in
Ram Lal Kundan Lal Orthopedics Hospital is not in dispute. It is further admitted that
prior to the first surgery, various tests were undertaken, which, however, did not include
tests to either confirm or rule out Buerger’s disease such as Doppler test, Allen’s test
and Angiography. OP-1 has contended that these tests were not carried out because a
tentative diagnosis of Buerger’s disease was made only after the surgery when it
became known that Complainant was a chain-smoker. In support, OP-1 has relied on
the discharge certificate following the surgery. We have perused the said document
and are unable to accept this contention. We note that in the first place this document
nowhere indicates that it was a discharge certificate. It merely states the date of
admission and the date of discharge on the next day. Further, under the column
‘diagnosis’, it is clearly stated that a diagnosis of Buerger’s disease was made on the
great toe left (the latter was obviously a clerical error since the problem was in the right
toe). It does not indicate that the diagnosis was made after the discharge. Further, we
find it difficult to accept OP-1’s contention that the Complainant being a chronic smoker
became known only after the surgery and not prior to it because he was admitted in the
hospital one day before the surgery whereas following the surgery he was discharged
within a few hours. We also note from the summary of the case, which is on the next
page and is not dated, that it has been clearly recorded that the Complainant who was a
known case of PPRP left (sic) is a chronic smoker. In view of these facts, it was
necessary for OP-1 to have conducted the tests required to diagnose Buerger’s disease
before reaching a conclusive diagnosis that this was merely a case of PPRP for which a
surgery was undertaken. Unfortunately, the tests and Angiography were undertaken
when it was far too late and the Complainant’s toe had become septic and gangrene
had set in, which necessitated the amputation surgeries and Complainant’s 80%
disability. In view of these facts, we find substance in the plea for enhanced
compensation. After looking to the facts and circumstances of the case, including the
monthly income of the Complainant at that time from his three factories amounting to
Rs.16,500/- per month and his disability upto 80%, which seriously impacted on his
business and quality of life, we are of the view that it would be reasonable and justified
to enhance the amount of Rs.50,000/- awarded by the State Commission to
Rs.3,00,000/-.
12.
Counsel for OP-2’s contention that OP-2 cannot be held responsible for any
surgery conducted by OP-1 is not acceptable. This issue has been settled by
the Hon’ble Supreme Court in Achutrao H.Khodwa Vs. State of Maharashtra [AIR 1996
SC 2377], wherein the Hon’ble Supreme Court has held that the State must be held
vicariously liable once it is established that the death was caused due to a negligent act
of its employees. Applying the same principle in this case admittedly since OP-1 was
working in OP-2/Hospital and the initial diagnosis in respect of the Complainant was
made in that hospital we are of the view that OP-2 alongwith OP-1 cannot be absolved
of their liability in this case.
13.
Regarding Counsel for OP-1’s contention that the case abates with the death of
the Complainant, we note that this Commission had already considered this issue on
04.07.2008 when it allowed the application for bringing on record the legal heirs of the
deceased Complainant and carrying out the necessary amendments in the Memo of
Appeals.
14.
To sum up, First Appeal No.201 of 2008 filed by OP-1 is dismissed. First Appeal
No. 284 of 2008 filed by the Complainant is partly allowed and the order of the State
Commission is modified to the extent of enhancement of compensation from
Rs.50,000/- to Rs.3,00,000/-. OPs are jointly and severally directed to pay the legal
heirs of the deceased Complainant awarded amount with litigation costs of Rs.5000/within a period of 12 weeks.
15.
Both the present first appeal stands disposed of on the above terms.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 70 OF 2007
(Against the order dated 03.10.2006 in CC No. C-261/95 of the
Delhi State Consumer Disputes Redressal Commission)
1. Dhingra Maternity & Family Welfare Clinic T-182, Baljit Nagar New Delhi
2. Dr. (Mrs.) K. Dhingra Registered No. 4339 T-182, Baljit Nagar New Delhi
…
Appellants
Versus
1. Miss Heena Joshi
2. Ms. Bhavna Joshi
3. Master Karan All children of Shri Shyam Sunder Joshi
4. Shri Shyam Sunder Joshi S/o Shri K.C. Joshi All residents of E-49/50, West Patel
Nagar New Delhi
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants
For Respondents
: Dr. (Mrs.) Krishna Dhingra, in person
: Mr. Akshat Gupta, Advocate
Pronounced on 3rd May, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
This first appeal has been filed by Dhingra Maternity & Family Welfare Clinic and
its owner Mrs. K. Dhingra, Opposite Parties before the Delhi State Consumer
Disputes Redressal Commission (hereinafter referred to as the State Commission) and
Appellants herein being aggrieved by the order of the State Commission which had
accepted the complaint of medical negligence filed by Miss Heena Joshi & others being
the minor children and husband respectively of deceased Prem Lata(hereinafter
referred to as the Patient).
2.
As per the version of the Respondents/Complainants, Patient was got admitted in
Appellant No.1/Clinic on 17.09.1993 at about 1.00 p.m. with advanced and overdue
pregnancy. She
had
no labour pain
at
the
time
of
admission. She
was
administered Sintocin for inducing labour by Appellant No.2, which resulted in the birth
of
a
male
child
at
2.20
p.m. However,
because
of
the
high
dose
of Sintocin administered at one go instead of gradually and slowly as per standard
medical procedure, there was rupture of the uterus and due to excessive bleeding,
Patient collapsed in Appellant No.1/Clinic. Life-saving drugs such as Haemcasuly-IL
were not available in the clinic and, therefore, Appellants asked Patient to be shifted to
Dr. B.L. Kapoor Hospital or any other hospital but before this could be done she passed
away on 17.09.1995 and was cremated the following day. Being aggrieved by the
medical negligence and deficiency in the treatment of the Patient causing her death,
Respondents filed a complaint before the State Commission and requested for
compensation of Rs.10,00,000/- as also any other relief which was considered
appropriate by the State Commission.
3.
Appellants on being served filed a written rejoinder denying the above
allegations. It was stated that Appellant No.2 is a highly qualified nurse/midwife with
over 30 years’ experience and she handles only normal delivery cases. In the course of
examination, if she arrives at an opinion that the delivery would not be normal, she
refers the cases to either Dr. B.L. Kapoor Hospital or Sucheta Kriplani Hospital. In the
instant case, the Patient was brought to Appellant No.1/Clinic with an overdue condition
of pregnancy and without any previous case records pertaining to any prenatal checkups. When the Patient was placed on the table for examination, she screamed and
went into precipitate labour and Appellant No.2 had no option but to handle the delivery
in her clinic. A male child was born and placenta and membrane were fully
delivered. However, thereafter the uterus became atonic which means that it was not
contracting and there was extensive bleeding. Appellant No.2 proceeded to massage
externally to facilitate uterine contraction and Methergin 0.2 mg was intravenously
administered as also the Dextrose drip. However, on finding that the uterus was still in
an atonic stage, Appellant No.2 as per standard medical procedure put the Patient on a
drip of Pitocin, which also contained Oxytocin as it is universally acknowledged that this
medication is necessary to control hemorrhage before taking the ultimate decision for
hysterectomy. Appellant No.2 also simultaneously contacted nearby hospitals to move
the Patient from her clinic and finally Dr. B.L. Kapoor Hospital, which is a hospital
nearest to the clinic, agreed to receive the Patient and to conduct the required
hysterectomy. According to the Appellant No.2, Patient was taken by the mother and
relatives alive from the clinic of Appellant No.2 even though the excessive bleeding had
not stopped. It was contended that the Patient died at her residence and not in
Appellant No.1/Clinic, which means that the Patient did not heed Appellants’ advice to
take her to the hospital. There was no medical negligence in the treatment of this
Patient and the drugs prescribed to her were after the delivery to check the hemorrhage
and not prior to the delivery to precipitate the labour as wrongly contended by the
Respondents/Complainants.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it allowed the complaint by observing as follows :
“16.
On examining the defence of OPs on the anvil of aforesaid criteria we
find that this is a case of utter and grossest kind of negligence. Firstly the OP
No.2 was not at all a qualified person to undertake the delivery. She was only a
Midwife. Any person who does not possess the requisite skill or qualification is
not entitled to take up the case even if he or she has a wide experience of
dealing with delivery cases. Firstly she should not have taken the case and
secondly she was not competent to confront with the complications arising from
precipitate labour as the deceased was brought in overdue condition of
pregnancy. The precipitate labour is known to be followed by acute hemorrhage
and this situation could not have been anticipated by the OPs who were not well
qualified and skilled for the treatment given by them.
17.
Secondly the OPs administered labour inducing drug Pitocin containing
the dangerous drug Oxytocin in high dose. This drug is always administered
gradually because it has Oxytocin. So it was again medical negligence in
administering drug which had such a risk that its high dose can cause excessive
bleeding. Though the child was delivered after one hour of the arrival of the
deceased at the clinic but this drug was induced within five minutes and as a
result the deceased suffered excessive bleeding which ultimately resulted in her
death in the clinic of the OP itself.
18.
When a woman with overdue pregnancy goes into precipitate labour it
takes some time for delivery to take place and therefore to say that everything
became complicated and unanticipated within five minutes i.e. taking the
deceased to the examination room, putting her on the examination table and then
examining her and her going into precipitate labour is not correct. The deceased
did not go into precipitate labour all of a sudden. She went into
precipitate labour after administering the labour inducing drug Oxytocin in a high
dose that also in one go. Such a treatment is highly unprofessional and
negligent.”
The State Commission, therefore, directed the Appellants to pay a lump-sum
compensation of Rs.1,00,000/- for limited deficiency in administering irrational and high
dose of medicine to precipitate labour and without adequate arrangements for the
treatment of the Patient.
5.
Being aggrieved by the above order, the present first appeal has been filed.
6.
Appellant No.2 (in person) and Counsel for Respondents made oral submissions.
7.
Appellant No.2 while admitting that the Patient had come to her clinic after the
due date of delivery stated that she had no knowledge about her past medical history
since Patient had not brought any papers pertaining to any ante-natal check-ups. She
was 38 years old and this was her fourth pregnancy. She reiterated that
precipitate labour followed within minutes of her examining the Patient and she
delivered a male child thereafter. The placenta and membrane was also completely
delivered by 3.10 p.m. i.e. quite soon after the delivery but since the uterus was not
contracting and the Patient was hemorrhaging, which did not get controlled despite the
abdominal massage of the uterus, Patient was given injection Methergin to initiate
contraction of the uterus. Since this also did not help, 5% Pitocin drip C-20 Units was
administered in the prescribed manner and not as contended by the Respondents/
Complainants in one dose prior to the delivery. These facts are clearly indicated in the
referral
letter
that
she
had
prepared
for
referring
the
Patient
to
Dr.
B.L. Kapoor Hospital. Appellant No.2 also brought to our attention medical literature on
the subject which had also been filed before the State Commission to support her
contention that the treatment undertaken by her was standard case management to
deal
with
Post-Partum
Hemorrhage
(PPH). This
literature
included Mudaliar and Menon’s ‘Clinical Obstetrics’ Ninth Edition, confirming the above
standard treatment. Appellant No.2 further reiterated that although arrangements had
been made to shift the Patient to Dr. B.L. Kapoor Hospital, her husband and relatives
did not heed this advice and took her home where she expired. Under these
circumstances, there was no medical negligence on her part and as a professional
midwife she followed the standard case management and did her best to medically treat
the unexpected PPH that occurred.
8.
Learned Counsel for the Respondents/Complainants on the other hand stated
that Appellant No.2’s contention that Pitocin was given to check the PPH and not to
precipitate labour is not correct. The evidence relied on by the Appellant, namely, the
letter written to Dr. B.L. Kapoor Hospital stating that the Pitocin drip was started after
the delivery cannot be relied on since it is a fabricated document subsequently prepared
as an alibi to counter the allegation of medical negligence because in this letter it is
stated that the delivery and the treatment was done on 19.09.1995 whereas the actual
date of the delivery and the death was admittedly 17.09.1995 itself. Patient was
cremated on 18.09.1995. Therefore, Appellant’s own defence instead of helping her in
fact
indicts
by
confirming
that
she
had produced false evidence to
her own negligence. Clearly, she has not
hide
been able to produce any
credible evidence to prove that she was not guilty of medical negligence.
10.
We
have
heard
Appellant
No.2
in
person
and
Counsel
for
Respondents/Complainants and have also gone through the evidence on record,
including the medical literature on the subject. Patient’s visit to Appellant No.1/Clinic
with an overdue pregnancy is not in dispute. It is further admitted that she delivered a
male child in that clinic and expired the same day. Appellant No.2 has vehemently
denied Respondents/Complainants’ contention that the Patient died because Appellant
No.2, who is a midwife, administered a high dose of Oxytocin not gradually as is
strongly recommended but at one go to induce labour and this resulted in the rupture of
the uterus followed by uncontrolled hemorrhaging and death. After going through the
evidence
and
records,
we
find
substance
in
this
contention
of
the
Respondents/Complainants which was also the finding of the State Commission
because it is not possible to place any reliance on the document produced by the
Appellant indicating that Oxytocin was administered following the delivery and to check
PPH and not to precipitate the delivery. This is because in two places it is clearly stated
in this document in Appellant No.2’s own handwriting that the delivery and
hemorrhaging took place in her clinic on 19.09.1995, which is factually incorrect casting
serious
doubts
in
the
veracity
of
this
document
and
the bonafides of
the
Appellant. Appellant has sought to explain this by saying that the date was wrongly
written by her because of a bonafide error. However, we note that she has not
mentioned this significant “error” in any of the documents filed by her before the State
Commission, including her written submissions nor has she filed any affidavit stating
that the date was wrongly written by her through oversight/error. Appellant No.2 has,
thus, not been able to produce any credible evidence to counter the complaint of
medical negligence on her part.
11.
We have also perused the medical literature on the potential risks of
administering Oxytocin. No doubt it is the drug of choice for making the uterus contract
to induce and accelerate labour and it is also the treatment to stop PPH
bleeding. However, it is also well documented that there are major risks if this drug is
administered too fast to a patient of high parity and late in labour since it could cause
the uterus to rupture*.
(*Source :
Article by Dr. C.M. Zelop, Dr. T.D. Shipp, Dr. A. Kohen et all from the
Department of Obstetrics and Gynecology, Massachusetts General
Hospital, Boston, USA)
In other words, in a pregnant patient Oxytocin is required to be given by intravenous
infusion starting with small doses to be administered gradually. Looking at the present
case and in the absence of any credible evidence produced by Appellant No.2 to
support her contention, we are of the view that the Patient who was at risk being both
high parity and late in labour was given Oxytocin prior to the delivery to
precipitate labour undoubtedly in an irrational manner and not in small and gradual
doses as per standard medical procedure, which caused her uterus to rupture leading
to hemorrhaging and death.
12.
In view of these facts, we agree with the State Commission that the treatment in
this case was “highly unprofessional and negligent”. We, therefore, uphold the order of
the State Commission and dismiss the present First Appeal. Appellants are directed to
pay a sum of Rs.1,00,000/- as compensation to the Respondents/Complainants within
one month, failing which it will carry interest @ 9% per annum from the date of this
order till the date of payment. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4023 OF 2011
(Against order dated 04.07.2011 in First Appeal No. 261 of 2007 of the
Rajsthan State Consumer Disputes Redressal Commission, Jaipur )
1.Goyal Hospital & Research Centre Pvt. Ltd. Through its Managing Director, 961/3,
Residency Road, Opposite Rotary Bhawan, Jodhpur.
2. Dr. Anand Goyal C/o Goyal Hospital, 961/3, Residency Road, Opposite Rotary
Bhawan, Jodhpur.
3. Dr. Sharda Mathur, R/o Happy Home, Sardarpura Police Station, Jodhpur.
4.Dr. Shobha Pareek, R/o, 4F –80, Shashtrinagar, Near Power House Road, Jodhpur.
…Petitioners
Versus
1. Kishan Gopal Shukla S/o Sh. Mool Chand, R/o 1A 4, Madhuvan Colony, Jodhpur.
2. Rajiv Sharma S/o S.S. Sharma, R/o 12, High Court Colony, Jodhpur.
…Respondents
BEFORE:
HON’BLE DR. S. M. KANTIKAR, PRESIDING MEMBER
For the Petitioner(s)
For the Opposite Part(s)
:
:
Dr. Sushil Kumar Gupta, Advocate
Mr. Manish Kumar, Advocate
Pronounced on 7th May, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
This Revision Petition has been filed by the Goyal Hospital & Research Centre
Pvt. Ltd and its doctors Dr.Anand Goyal, Dr.Sharda Mathur and Dr.Shoba Parikh
as Petitioners challenging the Impugned Order passed by State Consumer
Redressal Commission, Circuit Bench, Jodhpur, Rajasthan,(in short State
Commission) order dated 04/07/2011 in which State Commission upheld the
Order of District Forum and further enhanced the compensation from 3,77,000/to 6,82,000/-.
Facts in brief
Facts of the Complainants: Smt. Vibha Sharma (Vibha) wife of Complainant no.
2 Mr Raju Sharma, consulted Dr. Kailash Dubey on 11.02.1999 for her health
problems who diagnosed her as volvular disease of the heart and advised her for
further checkup from some Cardiologist. Accordingly, on 12.02.1999 complainant
took his wife to, as per complainant, Dr. Anand Goyal (OP-2), who claimed
himself a Cardiologist, conducted tests pertaining to heart problems on Vibha
Sharma and diagnosed as Mitral Stenosis with Mitral Regurgitation (MS with MR)
and started treatment. Meanwhile, Vibha became pregnant kept visiting regularly
to Goyal Hospital for her pregnancy checkup with Dr. Sharada Mathur (OP-3)
and for heart problems check up with Dr.Goyal (OP-2) till her 8 months of
pregnancy i.e. till October 1999.During this period there was no improvement in
the health of Vibha. During the course of the treatment, she was admitted twice
to Goyal Hospital from 25 – 27/8/1999 and 21-23/10/1999 for minor
complainants. During 8th month of pregnancy on 27/10/1999 Vibha visited the
Goyal Hospital and the OP-3 referred her to Dr. R.K. Vyas, a Cardiologist for
opinion. Dr.R.K.Vyas who on examination advised urgent hospitalization and
further undergo delivery operation at the earliest. On same day by evening at
about 5 pm OP-3 performed caesarian operation of Vibha and delivered a male
baby. After delivery, Vibha’s condition deteriorated and landed in to coma and
shifted to ICCU after four hours and on the next morning, she was declared dead
on 28/10/1999. It is also stated that after delivery no relatives of Vibha were
allowed to meet her.
Facts of Respondents:1)
Dr. Anand Goyal (OP-2) denied the allegations of complainants that he was
not competent Cardiologist to treat heart ailments. He has not denied the fact
that “Consultant Physician and Cardiologist” printed on his prescription
slip. As per him, he gave proper treatment for heart ailment of Smt. Vibha and
did not commit any negligence. OP-3 contended that she treated Vibha only
for her pregnancy and she had no concern with the heart ailment as well as
role of anesthesia. As per OP-3 she has given correct and proper treatment to
Vibha for pregnancy and time to time referred her to OP-2 for treatment of
her heart ailment. Whatsoever and when on 27.10.99 as per the advice of Dr.
R.K. Vyas, Cardiologist, her caesarian operation was conducted that time
also he had not committed any negligence. As per him, Dr. R. K. Vyas
himself was present during operation. As per him, no negligence was
committed during the operation. He also contended that pre-anesthetic test of
Vibha was done and before operation, her hemoglobin was also fully
known. After operation, Smt. Vibha Sharma regained consciousness. As per
OP-1, no one of them commit any negligence and whatever services required
to be provided in view of illness of Smt. Vibha, no deficiency therein and
prayed for dismissal of complaint.
2)
Aggrieved by the death of Vibha complaint No.496/2005 was filed in District
Forum (DF),Jodhapur alleging medical negligence of the OP No. 1 and other
treating doctors. The DF vide it’s order dated 1/9/2006 held the Opposite
parties guilty of medical negligence the parties and directed OPs to pay Rs.
3, 77,000/- .
3)
Aggrieved by the order of District Forum both the parties filed appeals
before State Commission. The petitioners herein preferred to file an appeal
No.267/2007 while respondents/complainants filed an Appeal No. 94/2006 for
an enhancement of award amount.
4)
During the arguments before State Commission objections OPs raised
objections as below:
“that this complaint is not sustainable because the complainant no. 1 is
father of Vibha Sharma. Vibha Sharma was married, hence, he has no
right to file this complaint. This objection in our opinion is not liable to be
allowed. The entire proceedings before the Distt. Forum and this
Commission are conducted as a summary proceeding. Father of Vibha
Sharma was with her during her treatment right from the beginning and
filing of complaint by him and complainant no. 2 who is her husband
cannot be said to be wrong. This objection was also correctly rejected by
Distt. Forum. The other objection of Opposite parties was that a criminal
case in this matter was also filed in the court of Chief Judicial Magistrate
which was dismissed. In our opinion, dismissal of criminal case does not
put any bar in filing complaint for compensation before the Consumer
Forum”.
2.
The State Commission considering the evidence on record, the entire patient
history and test reports concluded as follows:
“The allegation of medical
negligence leveled by the complainants has been proved. We have discussed
this in detail herein above. In brief, we would like to say that there is no direct
proof available regarding treatment of heart related disease as these facts that
what Line of Treatment was given, what medicines were prescribed are not
available. Why patient was not referred to Cardiologist for up to eight months, Dr.
Goyal himself is not Cardiologist and he had not advised for abortion at the early
stage, he was not available in the operation theatre during delivery option and
nor any other cardiologist was called there. Whereas, it was the duty of Goyal
Hospital to make available Cardiologist at the time of operation of patient
suffering from such serious ailment. After the delivery option, not allowing
relatives to go inside and meet also create doubts. Suddenly after four hours
shifting Vibha Sharma to ICU and declaring her death next day in the morning. ”
The State Commission held respondents liable for deficiency in service and
medical negligence. State Commission allowed another appeal No.94/2006 and
granted enhancement of compensation.
3.
The State Commission by its common order dated 4/7/2011 disposed of both
the appeals and rejected the appeal of petitioners and enhanced the
compensation in favor of the complainants totaling Rs.6,82,000/-
4.
Hence, the present revision is before this Commission.
5.
The learned counsel appearing for both the parties made oral submissions and
vehemently reiterated the submissions made by the two parties before the State
Commission. I have carefully perused the entire material placed on record and
the contentions of both the parties and also written arguments submitted by
learned advocates appearing for both the parties. Several Medical texts,
literature and authorities are referred.
6.
At the outset it is necessary to note the undisputed facts that; on 12/02/1999
Vibha (wife of C-2 & daughter of C-1) suffered difficulty in breathing and
uneasiness and was taken to OP-1 and consulted OP-2. The consultation/
prescription slips and medical records (Annexure 1 to 22) maintained by the
complainant and opposite party hospital amply establish that the patient was
suffering from heart ailment as MS with MI. The OP-2 Dr. Anand Goyal who is
post graduate- Doctor of Medicine (MD Gen Med) was not a Cardiologist who
examined Vibha Sharma on 12/2/1999. After clinical assessment and proper
investigations and by 2 D Echo study , the per Annexure 4,5 & 6 diagnosis in
this case mentioned as “Early Pregnancy and MS with MR, Enlarged LA,
Moderate Non Calcific Mitral Stenosis” and advised Doppler study. In simple
words Vibha was in early pregnancy and suffering from the Heart Valve Disease.
Accordingly, advised her for complete rest and avoid use of salt (Sodium). The
OP-3 Dr.Sharada Mathur a Gynecologist of same hospital (OP-1) diagnosed her
pregnancy of 2 months. Therefore, she was under treatment of OP 2 & 3. During
follow treatment for her pregnancy, she visited Dr.Sharada Mathur (OP-3) on
8/5/1999, 14/6/1999, 15/7/1999 and 19/8/1999. During the follow up period on
account of uneasiness Vibha was admitted for two days 25/8/1999 to 27/8/1999
and 21/10/199 to 23/10/1999. The condition of patient Vibha did not improve but
deteriorated in-spite of treatment of respondents.
7.
On 27/10/1999 the breathlessness and uneasiness increased she was taken to
respondent’s hospital (OP-1). She was examined by Dr. Sharada Mathur who
referred her to Dr.R.K.Vyas,a Cardiologist. The two prescriptions slips are
marked as Annexure 20 and 21 (on page 314,316 and 318 of paper book). On
the page 318 (Ex. 21), the letter head of Dr.R.K.Vyas dated 27/10/99 mentioned
a diagnosis of Vibha as “RHD, Mod.Mitral Stenosis, Mitral Insufficiency with Atrial
fibrillation, CCF” and mentioned the advise for “Hospitalization and plan for
delivery by Caesarean as early as possible with explained risk during
surgery”. Accordingly OP-3 conducted Cesarean Section operation and delivered
male baby, after delivery patient went in to Coma, shifted to ICCU, but
unfortunately died on next day morning of 28/10/1999. Now, under the given set
of facts, I am required to determine as to whether there is medical negligence on
the part of OP no- 2,3 and 4 in the diagnosis, follow up and treatment of young
pregnant woman.
8.
It is also noteworthy that as already discussed supra, the OP 2 himself stated
that he being holder of degree MD was competent to treat heart ailment and he
has not denied the fact “ Consultant Physician and Cardiologist” is printed on
prescription slip. In his objections in para 2(9) specifically admitted that he did not
consider any need for terminating the early pregnancy of Vibha seeing good
condition of her health. Accordingly it becomes an admitted position that without
having any such degree of specialization in heart disease he started treatment
for heart disease (MS with MR) of Vibha from 12.2.99 and continued treating till
her last breath on 28/10/1999.
9.
In my opinion the OP 2 & 3 committed deficiency in service by not proper
referral and treated as a Cardiologist right from the beginning till prior to
27.10.99. In this connection it is very important to observe the evidence given by
Dr. R. K. Vyas on 12/6/2006 which will throw light. Dr.R.K.Vyas is a Cardiologist
qualified as having diploma in cardiology from Vienna City, Austria. Dr. R. K.
Vyas has clearly stated that Dr. Anand Goyal was not a cardiologist. He in this
context stated that “it is correct that any doctor even if he is simple M.D., cannot
claim of being cardiologist i.e. Specialist in Heart Disease.” Dr. Anand Goyal
properly got printed consultant physician as also cardiologist on his letter pad
which he certainly was not competent and qualified to write this and he in this
regard misled and created wrong position.
10. As per Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations 2002 dated 11th March, 2001, the duties and responsibilities of the
physician have been notified.
Clause-B Sub-clause 1.1.3 states as under:
“ No person other than a doctor having qualification recognized by
Medical Council of India and registered with Medical Council Of
India/State Medical Council(s) is allowed to practice Modern System of
Medicine or Surgery.”
Similarly, Clause B-1.2.1 states as under:
“ the physician should practice methods healing founded on scientific
basis and should not associate professionally with anyone who violates
this principle.”
Even otherwise, undergoing several trainings, attending workshops in
Cardiology did not confer qualification of ardiologist. Hence it is not recognized
by MCI or Rajasthan State Medical Council.
OP 2 submitted that on 25/3/1999 Vibha was patient of Mitral
Stenosis with
Mitral Regurgitation Garde I disease which is not safe to do Medical
Termination of Pregnancy (MTP). But in this regard Dr. R. K. Vyas in his
statement on oath stated that “ keeping in view the disease of Vibha and
treatment in this regard and entire condition; it was the safest course for
her to get her M.T.P. performed on 25.3.99 itself i.e. at her early pregnancy
stage itself.” The Annexure 6 denotes Vibha was in early pregnancy. Dr
R.K.Vyas further submitted that it would have been the safest course to get
her M.T.P. done because the risk to the life of patient increases with the
duration of pregnancy stage increasing. Therefore, it is crystal clear that the
OP 2 was well aware and he anticipated the complications of MS/MI during
pregnancy who ought to have advised MTP in early pregnancy or would have
been referred to Cardiologist for proper management By not doing so, it can be
said that there is a Medical negligence on the part of the OP-2.
It is pertinent to note here that the follow up prescriptions slips of Vibha cleanly
disclose that the OP-3 a Gynecologist who was also have not prudently
thought of taking opinion of Cardiologist in early pregnancy of VIbha. or she
whould have prudent enough to advise for termination of pregnancy(MTP). Dr.
Anand Goyal in his reply and affidavit has not stated anywhere that he himself
was present at that time in the operation theatre. He though has stated that he
was present in the hospital.
To arrive a conclusion in this case; I have referred Hon’ble Apex Court’s
rulings , the MCI Regulations 2002 and medical texts and scientific journals,
articles;
11. I may now refer the Medical background on the points
relevant to this case:
To enrich myself regarding treatment aspects of such patients of Pregnancy
with Mitral Stenosis; I have referred several medical texts, research articles,
and references like
i)
A review article “Mitral Stenosis and pregnancy: Current
concepts in anaesthetic practice” cited in Indian Journal of Anaesthesia
2010;54:439-444;
ii)
“Management of Cardiac Disease in Pregnancy” cited in journal
Continuing Education in Anesthesia,Critical Care and Pain Vol 9 ,2,2009
iii)
“Mitral Stenosis before,during and after pregnancy” cited in
Iranian Cardiovascular Research Journal Vol 1,No 1,2007,2. These three
articles elaborately discussed about the care, management and also role
of anesthetist in such patients. Some of important text is as stated below:
Disease and complications:
The Mitral Stenosis is most common cardiac valvular problem in pregnant
women with rheumatic heart disease (RHD) being most important cause.As a
result of hemodynamic changes associated with pregnancy,previously
asymptomatic patients develops symptoms or complications during pregnancy.If
the symtoms persists despite optimal medical treatment invasive treatment shold
be considered like per cutaneous mitral volvulotomy(PMV). The patients with
MS should ideally be evaluated before pregnancy.
Maternal (pregnant) cardiac complications, such as pulmonary oedema and
arrhythmias, occurred in 35% of the pregnancies. The incidence of maternal
cardiac complications correlates with the severity of the mitral stenosis (67% for
severe, 38% for moderate and 26% for mild disease).
Regarding the Surgical managementIf mitral stenosis is diagnosed before pregnancy, percutaneous mitral
Commissurotomy (PMC) is preferred. During pregnancy, the second trimester is
the preferred period for any invasive procedure. Percutaneous mitral
Valvuloplasty (PMV) provides palliation for pregnant women with mitral stenosis,
and the reported success rate is nearly 100%. Successful balloon valvuloplsty
increase the valve area to >1.5 cm 2 without a substantial increase in mitral
regurgitation.Valve replacement is reserved for severe cases with calcified valve
and in mural thrombus where the maternal mortality is 1.5-5% and the foetal loss
is 16-33%.
Regarding Anesthesia in such patients:
The role of the anesthetist is important by providing good labour analgesia. Most
reports have recommended vaginal delivery under epidural anesthesia, unless
obstetrically contraindicated. Caesarean section is indicated for obstetric reason
only. Tachycardia, secondary to labour pain, increase flow across the mitral
valve, producing sudden rises in left atrial pressure, leading to acute pulmonary
oedema. This tachycardia is averted by epidural analgesia without significantly
altering the patient hemodynamics. In a study by Goldszmidt and other, only 2931 % of the 522 women with heart disease required caesarean section and
nearly 70% of them underwent vaginal delivery under epidural analgesia.
General anesthesia has the disadvantage of increased pulmonary arterial
pressure and tachycardia during laryngoscopy and tracheal intubation. Moreover,
the adverse effects of positive-pressure ventilation on the venous return may
ultimately lead to cardiac failure.
12. I may now refer the Law on the points relevant to this case, as laid down by
Hon’ble Apex court as what constitutes Medical Negligence? The judgment of
Hon’ble Supreme Court in Malay Kumar Ganguly Vs Dr. Sukumar Mukharjee
& ors, (2009) SSC 221,III (2009) CPJ 17(SC); wherein it has been observed as
follows:
“Even the matter of determining deficiency in medical service,
it is now well settled that if representation is made by a doctor
that he is a specialist and ultimately turns out that he is not,
deficiency in medical services would be presumed.”
Further the Hon’ble Supreme Court in Jacob Mathew V State of Punjab &
Anr, (2005) 6 SSC 1= III (2005) CPJ 9 (SC) had concluded that,
“ a professional may be held liable on one of two findings : either
he was not possessed of requisite skill which he professed to
have possessed, or, he did not exercise reasonable competence in
given case, the skill which he did possess.”
Therefore the instant case is relevant in respect to OP-2 Dr.Anand Goyal,
and in view of above facts, medical negligence per se is established.
In the Bolam’s case (Bolam Vs. Frien Hospital Management Committee
(1957) 1 WLR 582 it was also held that a doctor is not negligent if he is acting in
accordance with standard practice merely because there is a body of opinion
who would take a contrary view.
(i)
Whether the doctor in question possessed the medical skills expected of an
ordinary skilled practitioner in the field at that point of time; in this present case it
is ‘NO’ the Opposite party- 2 is qualified doctor but not a Cardiologist as per MCI
regulations.
(ii) Whether the doctor adopted the practice (of clinical observation diagnosis –
including diagnostic tests and treatment) in the case that would be adopted by
such a doctor of ordinary skill in accord with (at least) one of the responsible
bodies of opinion of professional practitioners in the field.
(iii)
Whether the standards of skills/knowledge expected of the doctor,
according to the said body of medical opinion, were of the time when the events
leading to the allegation of medical negligence occurred and not of the time when
the dispute was being adjudicated. My view on the points No (ii) & (iii) are “ NO” as
the Opposite Party No 2,3 & 4 did not adopt standard of practice in proper
diagnosis, referral and further management.
13. Applying all the above principles in the instant case, I am convinced that there
was a medical negligence – admittedly, the Opposite parties are qualified doctors
but they have not used their best professional judgment and due care in
treatment of complainant’s wife right from beginning.
14. The State Commission has correctly pointed out the vital evidence and
appreciated the preponderance of probability pointing to the negligence and
deficiency in service of all the Opposite parties and fixed liability on the OP No 2.
15. To summarize the findings in this case; It is clear that as per MCI norms OP-2 is
not qualified to treat Smt. Vibha who was the patient suffering from volvular
disease. It was a risky that a doctor who is not qualified and competent to do so
which amount to therapeutic misadventure. There is no evidence which may
show that the OPs have given proper treatment during course of pregnancy. The
OP-2 if he is a Cardiologist should have performed intervention like Percutaneus
Mitral Valvutomy(PMV) or Commisurotomy. But, on 27/10/1999 at the elevent
hour i.e. after the lapse of 8 months of pregnancy the OP 2 & 3 referred such
critical patient Vibha to Dr.R.K.Vyas, a Cardiologist; this is not acceptable
and not a standard of medical practice at all. I also observe here that some
element of negligence by an anesthetist Dr. Shobha Pareek (OP-4). The patient
Vibha was in CCF (Congestive Cardiac Failure) the standard and preferred
practice to anesthesia spinal anesthesia. But, OP-4 administered General
Anesthesia for Caesarian Section instead of better option of trying vaginal
delivery with Combined spinal-epidural analgesia which would produces good
analgesia without major hemodynamic changes.
Therefore, I am of the firm
view that there is medical negligence by all the opposite parties mainly OP No.2.
All the dreams of the complainant about his deceased wife who was a teacher
were shattered and the child is deprived of mother; it is due to the negligent act
of Opposite Parties. Hence, his pain obviously cannot be compensated
completely in terms of money.
16. Therefore, this revision petition is dismissed and confirm the order passed by
State Commission. However, for the purpose of reducing his financial liability and
in the interest of justice, I, further impose Rs. 1,00,000/-as punitive costs upon
the petitioners for wasting the precious time of this commission and consumer
fora below.
17. Furthermore it is important to discuss that, this case on hand throws ample light
upon rampant unethical medical practices in India. It is most common in present
days that nursing homes, hospitals provide facilities like diagnostic Laboratory,
Radiology or Sonology units without a specialists like Radiologist, Pathologists.
Such units are managed by unqualified or untrained staff. It appears that such
doctors have erased the Hippocratic Oath from their mindset and more active in
a business of profiteering by coercive methods and by creating false impression
in the minds of patients at large. The Apex Court in various judgments has clearly
observed that; unless the person hold a necessary qualification, should not
perform job of the Specialist. I would like to set this as an advisory /direction to
the statutory bodies like Medical Council of India (MCI) and Health Ministry to
initiate steps to strike down such practices of medical professional who are
posing as a specialist or mis- representing as a super specialist without any
approved qualification by statute or controlling authority. In other words it is a
“QUACKRY” that treating the patients in absence of valid degree. Such
misleading display of qualifications or misrepresentation will harm the quality of
health system in India. Subsequently the innocent patients are victimized
financially and also lose their precious life. For such instances the entire medical
fraternity cannot be branded as lacking in integrity or competence “because of
some bad apples”. Copies of this order be sent to Medical Council of India (MCI)
and Health Ministry for information.
In view of the foregoing observations and discussions, I proceed to pass
the following Order:
The petitioners are directed to pay Rs.6, 82,000/- along with additional punitive
cost
of
Rs.1,00,000/-
out
of
which
Rs.
50,000/-
will
go
to
the
complainants/respondents and Rs. 50000/- be deposited with Consumer Welfare
Fund by way of demand draft in favor of “Pay and Accounts Officer, Ministry of
Consumer Affairs”, payable at Delhi, Learned Registrar of this Commission shall
see compliance of the order under Section 25 of the Consumer Protection Act,
1986. This order should be complied within a period of 45 days from today
otherwise it will carry interest at the rate of 9% p.a. till its recovery.
Copies of this order be sent to Medical Council of India and Health Ministry for
information and necessary action.
……………….……………
(DR.S.M. KANTIKAR)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2391 OF 2012
(From order dated 19.03.2012 in First Appeal No. 89 of 2007 of the
State Consumer Disputes Redressal Commission, Uttarakhand, Dehradun )
Dr. Naveen Agrohi Kasturi Nursing Home Nehru Chowk Near B.S.M. Tiraha Roorkee,
District Haridwar
……Appellant/Opposite Party
Versus
Shri Parvas S/o Shri Rashid R/o Village Garhi Sanghipur P.O. Landhaura, Tehsil and
District Haridwar
……Respondent/Complainant
BEFORE:
HON’BLE DR. S. M. KANTIKAR, PRESIDING MEMBER
For the Petitioner
:
For the Respondent
:
Mr. Guruinder Singh, Advocate
Mr. Madhurendra Kumar, Advocate
Pronounced on 7th May, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
2.
This revision petition has been filed under Section 21(b) of
Consumer Protection Act,1986 against the order passed by the
Uttarakhand State Consumer Disputes Redressal Commission , Dehradun
(hereinafter State Commission) in First appeal No89/2007 on 19/03/2012
The facts of the case, in brief
The Complainant Mr Parvas sustained severe injuries due to his scooter
accident on 28.07.2003 while going to Roorkee. Some of people on road
took him to the nursing home of Opposite party -Dr. Naveen Agrohi and
got him admitted there. Dr. Naveen Agrohi, took x-rays of right leg and
diagnosed that there was fracture of right leg of the complainant. The
doctor operated upon the leg and implanted a rod/plate in it. After the
operation, the complainant complained of severe pain in his leg. The OP
took the x-ray of the leg after four days and told that the bolts used for
fixing the rod/plate had loosened. The doctor again operated the leg and
replaced the bolts for which again Rs 1000/- was paid by complainant
apart from more than Rs. 15,000/- which he had already spent in the first
operation. He remained in the nursing home for 23 days and paid Rs.
4,000/- for medicines, Rs. 4,200/- for 7 bottles of blood during this period.
On the day of discharge the complainant complained of the pain in the leg,
but the doctor assured him that it would subside gradually, but the pain
persisted. When he went to the doctor and complained him of the severe
pain, he took the x-ray of the leg and told that the bolts had broken due to
extra tightening of the plate. He remained in the nursing home for three
days and the leg was kept in a stretched position with the help of a
machine, but the pain did not subside. The doctor plastered the leg this
time, but the complainant could not get any relief. The complainant
consulted another doctor named Dr. Ajay Kumar of Roorkee, who took
another X-ray and diagnosed that the leg was not properly operated. The
complainant took this new x-ray plate to the opposite party who did not
listen but scolded him. As a result, he went to Safdarjang Hospital, New
Delhi on 29.01.2004 for treatment. He remained there up to 23.02.2004
and spent a sum of Rs. 40,000/- on treatment. Due to the negligence of
Dr. Naveen Agrohi, his right leg got shortened and started limping. This
led the complainant to file a consumer complaint before the District Forum,
Haridwar and the District forum allowed the complaint and directed the
opposite party to pay to the complainant a sum of Rs 40,000/- towards the
expenses incurred by the complainant in his treatment, Rs. 25,000/- as
compensation and Rs. 1,000/- towards cost of litigation expenses within a
month from the date of the order.
3.
Against the order of district forum respondent filed a FA 89/2007 in the state
commission. The State Commission after hearing the parties and on the
basis of evidence produced before it dismissed the appeal by observing
as follows:
The learned counsel for the appellant vehemently pleaded that the
appellant – doctor has not committed any negligence in the treatment of
the respondent – complainant. According to him, the respondent had
recovered and the fractured bone had healed up. However, for postoperative care, he was advised to visit the appellant after 40 days from the
date of discharge, but he failed to do so. On 25.10.2003, he slipped in the
bathroom and suffered another fracture in the same leg. He was again
treated for the same and was advised to take some medicines as well to
do some exercises. But the respondent, instead of adhering to the
appellant’s advice, went to Safdarjang Hospital, New Delhi. The learned
counsel argued that if the respondent had started limping after the
treatment received from Safdarjang Hospital, then the appellant should not
be blamed for the limpness. The learned counsel further pleaded that the
respondent failed to produce any expert evidence in support of the
allegations made against the appellant”. State commission relied on
several judgments of National Commissison 1. Sarangapani vs. Bone & Joint Clinic; 2008 (1) CPR 380 (NC).
2. Mohd. Istiqar vs. Dr. Rajesh Gupta; 2005 (1) UC 401.
3. V. Mohan Rao vs. Miot Hospitals & Anr. ; 2008 (1) CPR 15 (NC)
4. Abdul Gaffar vs. Dr. Dinesh Sharma & Ors.; 2010 (1) UAD 357.
5. Anil Kumar Gupta vs. Dr. Mukesh Jain; 2008 (2) CPR 213 (NC).
The dispute is with regard to the negligence committed by the appellant in
conducting this surgery. According to the respondent, while implanting the
rod/plate, the appellant had not properly tightened the bolts. The bolts got
loosened and the appellant had to re-operate the leg just after 4 days of
the first operation. Again, when the respondent complained of pain in the
leg, he was told that the bolts had broken as these were tightened more.
But the appellant has not accepted these averments made by the
respondent. In contra, the appellant has averred that he had done
dressing of the leg after 4 days of the operation and had not conducted
any surgery as alleged by the respondent. According to the appellant, the
fractured bone had healed up. If any complication had arisen, it was due
to sustaining injuries on 25.10.2003, when the respondent slipped in the
bathroom. He visited the appellant, who after making necessary
investigation, put him on traction. However, the respondent did not adhere
to the appellant’s advice and went to Safdarjang Hospital, New Delhi. If he
started limping after recovery then it may be due to some negligence
made in treatment by the doctors of the Safdarjang Hospital and it should
not be correlated with the surgery conducted or treatment given by the
appellant. The respondent remained in the nursing home of the appellant
from 28.07.2003 to 19.08.2003. The surgery was conducted on
02.08.2003 and, as alleged by the respondent; he was re-operated after 4
days for tightening the bolts. According to the appellant, he had done only
dressing and not a re-operation. If it was a dressing of the wound, then it
should have been in a regular manner and hospital’s record should show
it, but no such evidence has been produced by the appellant. The
appellant’s contention that the respondent was advised to visit after 40
days and he had not adhered to the advice of the appellant, is also not
tenable because Paper No. 54 shows that the respondent had visited the
appellant on 20.09.2003. The contention of the respondent that the pain
persisted gets support because the appellant has prescribed some
medicines for pain.Even after three months, the respondent’s leg had not
healed up completely because the same right leg had sustained injury.
The respondent’s fall while walking cannot be said incidental, but certainly
it was because of the fact that he was unable to walk properly. The
complication in the injured leg aggravated and after three months, he
decided to go to Safdarjang Hospital, New Delhi. He remained there from
19.01.2004 to 23.02.2004. The surgery conducted and treatment given by
the doctors of the Safdarjang Hospital, New Delhi could ultimately help the
respondent because he has not alleged any complication after this
treatment except some limpness while walking. Therefore, in this case, we
are of the well considered view that the facts of the case speak for
themselves and, therefore, the principle of res ipsa loquitur will apply as
laid down by the Hon’ble Supreme Court in the case of Savita Garg vs.
National Heart Institute; (2004) 8 SCC 56 and which has also been relied
upon by the Hon’ble National Commission in the case of Saroj Chandhoke
vs. Ganga Ram Hospital & Anr.; III (2007) CPJ 189 (NC).
The case laws cited by the learned counsel for the appellant cannot help
him because the facts of above cited cases are quite different from the
facts of the instant case. So far as the sum awarded by the District Forum
as cost of treatment, compensation etc. is concerned, it cannot be said to
be on the higher side, keeping in view the plight of the respondent as
revealed from the facts of the case and, therefore, the order impugned
does not require any interference. For the reasons aforesaid, the appeal is
dismissed and the order passed by the District Forum, Haridwar is
confirmed. No order as to costs.”
4.
Learned counsel appearing for both the parties made oral submissions and
vehemently reiterated the submissions made by the two parties before the
State Commission. I have carefully considered the entire materials placed on
record and the contentions of both the parties and also arguments as also
referred the Medical Literature.
5.
The petitioner is a qualified orthopedic surgeon MBBS,D.Ortho. On perusal
of the hospital case paper which clearly shows that he has diagnosed this
case as Right Sub-trocantric fracture and performed the necessary operation
with the skill and care. The said DHS operation (Dynamic Hip Screw ) is the
most preferred treatment which every orthopedic surgeon performs for Sub
trochantric fracture. He performed dressing only on 4th day and the
allegations of reoperation are baseless. It is to be noted that complainant fell
in the bathroom and due to which again the pain exaggerated and the screws
are broken or loosened. Even otherwise it is most important on the part of
patient to follow up advice of doctor that is strict rest and no weight bearing
for at least 4 weeks. Therefore, if the patient did not follow the instructions
there are likely chances of breaking of screws. The complainant did not prove
the mere averments made in the pleadings like broken screws or shortening
of leg. The state commission opined that the leg was not operated properly,
therefore the respondent given only pain killers to the complainant.
6.
I have perused admission and discharge record whereas there is no
document or any evidence which proves the negligence of the doctor. DHS
surgery require lot of post operative care since healing of sub-trocahntric
fracture takes lot of time. The respondent instructed the complainant to walk
with support.
7.
The complainant thereafter visited Safdurjung Hospital. The hospital records
of Safdurjung Hospital did not mention about wrong treatment during first
surgery but they have corrected the treatment by removal of implant and done
ORIF (Open Reduction with Internal Fixation) which is also another line of
treatment in such cases. The State Commission also did not point out or
mention about shortening of leg. The issue medical negligence is now well
established by number of judgments of this commission and Hon’ble
supreme court. I rely upon an authority “ Martin F. D’Souza vs. Mohd. Ishfaq
AIR 2009 SC 2049” the Hon’ble Apex court observed that “Simply because a
patient has not favorably responded to a treatment given by a doctor or a
surgery has failed, the doctor cannot be held straightway 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”. The
another
authority in
the
case decided
by this
CommissionIn Gaurav v Escorts Medical Centre Ltd & Anr. CPR 182
(NC) which observed that “Medical opinion may differ with regard to course
of action to be taken by a doctor treating a patient, but as long as a doctor
acts in manner which is acceptable to medical profession and Court finds that
he has attended on a patient with due care, skill and diligence and if the
patient still does not survive or suffer a permanent ailment, it would be difficult
to hold doctor to be guilty of negligence”. In another case Dr. Biswanath Das
v Bijoy Sinha Roy and Ors 2008 (1) CPR 282 (NC) this commission observed
as “The doctors have acted in accordance with the practice accepted as
proper by the authors of medical books cannot be held guilty of negligence.”
8.
It is submitted that the good results in an operation can only be achieved
after proper follow-up and compliance of necessary instructions given by the
Doctor to the patient. Therefore, a Doctor cannot be held negligent if he has
performed the operation according to standard norms and medical practice,
but thereafter patient should take due care of himself. It is submitted that in
the present case, it is clear that the Respondent/ complainant had not taken
due care of himself as per the instructions and advices given by the
Petitioner. It is evident from the fact that Respondent suffered fall in the
bathroom leading to DHS plate’s screws broken.
9.
Therefore, in my opinion there is no negligence on the part of appellant who
has done DHS operation. DHS is the most suitable implant for these fractures
cited in Indian Journal of Orthopedics Vol. 34 No. 2 of April, 2000. This
treatise enforces the fact that long plate DHS is the best treatment for
proximal
femoral
fractures
which
was
administered
to
the
Respondent/Complainant by the Petitioner. It is submitted that the DHS
method of treatment for the past many decades since Dynamic Hip Screw
(DHS) began in the 1950s, that DHS allows not only stable fixation of
anatomically reduced trochanteric fractures but also a guided collapse and
impaction of the fragments in the unstable fracture. The implant will therefore
slide distally (remote) and laterally until a new area of bony support is
reached. The fracture will usually unite in spite of some shortening of leg.
Hence, the State commission’s judgment failed to appreciate the medical
treatises in proper perspective. The State Commission and DF erred herein
because both have made observations only based on mere presumptions in
absence of any proper evidence, even there is no document to show the
complainant spent more than Rs.40000/-.
Therefore, I conclude by allowing this revision petition. No costs.
…………………….
Dr.S.M.Kantikar
Member
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 114 OF 2009
(Against the order dated 16.02.2009 in SC Case No. 100/O/2001 of the
West Bengal State Consumer Disputes Redressal Commission, Kolkata)
1. ILS Hospital
Previously known as Institute of Laparoscopic Surgery
Jeewansatya, DD-6
Salt Lake City, Sector-1
Kolkata-700064
2. Dr. Om Tantia
Director
ILS Hospital
Previously known as Institute of Laparoscopic Surgery
Jeewansatya, DD-6
Salt Lake City, Sector-1
Kolkata-700064
…
Versus
Bimal Kumar Ghosh
Residing at No. 107/4
Ultadanga Main Road
Block-7, Flat No.22
Kolkata-700067
…
Appellants
Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants
For Respondent
: Mr. Partha Sil, Advocate
: NEMO
Pronounced on 10th May, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
ILS Hospital and its doctor namely Dr. Om Tantia, Appellants herein and
Opposite Parties before the West Bengal State Consumer Disputes Redressal
Commission, Kolkata (hereinafter referred to as the State Commission) have filed the
present First Appeal being aggrieved by the order of that Commission which had
allowed the complaint of medical negligence against them filed by Bimal Kumar Ghosh,
Respondent herein and Original Complainant before the State Commission.
2.
FACTS:
Respondent had contacted one Dr. Om Tantia/Appellant No.2 following
intermittent pain in his upper abdomen. Dr. Tantia after conducting necessary tests
informed the Respondent that there was a stone in his gall bladder and advised to him
to take admission in Appellant No.1/Institute. He was admitted there on 20.04.2001 and
was advised to undergo laparoscopic operation which was fixed for 25.05.2001. On
that date inside the operation theater Respondent noted that an Anesthetist under the
guidance of the surgeon roughly tried to force an apparatus resembling a cylindrical
pipe
down
his
throat
unsuccessfully
several
times. Respondent
experienced
excruciating pain and in fact after a couple of attempts blood spurted out. But despite
this, attempts to force the pipe down his throat continued. Sometime later the
Respondent was wheeled out of the operation theater without being operated. The area
of his throat which had been ravaged and badly injured was merely patched
up. Respondent’s family was subsequently told that a difficulty was faced in the area of
the throat because of a tumor and, therefore, the operation could not be conducted. On
the next day on the advice of an ENT specialist a CT was conducted which confirmed
serious damage inside the throat with formation of several air pockets. After seeing the
CT scan, Dr. Tantia/Appellant No.2 discharged the Respondent from Appellant
No.1/Institute stating that no further treatment was possible. When Respondent
contacted another doctor i.e. Dr. Ajoy Arya, he expressed surprise about the diagnosis
of tumor since there was no tumor in the Respondent’s throat. Since the Respondent
continued to undergo great physical and mental distress because of the injuries inside
the throat, he took admission at Calcutta Medical Research Institute (CMRI) where
following diagnostic tests, including a CT scan, another operation was conducted, which
took
nearly
5
hours,
during
which
tracheostomy alongwith drainage
of parapharyngeal abscess was done and after intensive medication and treatment,
Respondent was discharged on 07.07.2001. Even thereafter Respondent could not
recover fully and continued to face difficulty in breathing and, therefore, he had to
continue medication for the same. Respondent contended that he had spent well over
Rs.1 Lakh on his treatment from 20.04.2001 till the filing of his complaint and these
expenses are continuing, as a result of which there has been severe trauma to him and
mental distress to his family and he has not been able to resume his professional life
thereby suffering financial losses. Being aggrieved by the improper conduct of
Appellants in injuring his throat by not taking due precautions while preparing him for
the anesthesia and thereafter abandoning him, Respondent filed a complaint before the
State Commission on grounds of medical negligence and deficiency in service and
requested that the Appellants be directed to pay him (i) Rs.1,06,612/- being
reimbursement of medical expenses alongwith interest; (ii) Rs.10,00,000/- as damages
for severe trauma and mental agony; and (iii) any other relief as deemed necessary.
3.
Appellants on being served entered appearance and filed a written rejoinder
denying the averments made in the complaint. It was admitted that the Respondent had
been admitted to Appellant No.1/Institute, during which pre-operative investigations
were carried out and he was advised gallstone surgery. A pre-operative anesthetic
check-up was also done and he was given certain injections in the operation theater
and when he became unconscious intubation was tried but it was difficult due to the fact
that Respondent’s laryngeal opening was found to be high up and anterior, because of
which the endotracial tube could not pass and, therefore, the surgery had to be
abandoned. It was stated that the Respondent, who was suffering from the above
structural problem in the throat, had not disclosed this fact to Appellants. Since it is not
the standard medical norm to enquire about the throat condition of a patient who is to
undergo surgery under general anesthesia Appellants cannot be blamed for any
negligence. It was further denied that the Respondent was abandoned by the
Appellants when the surgery could not be done. In fact it was at the instance of the
Appellants that Respondent was examined by an ENT specialist where the problem was
diagnosed. It was further stated that in view of the fact that the problem occurred not
because of any medical negligence but because of an anatomical/structural defect
inside the throat of the Respondent, which was not disclosed by him and which resulted
in an unsuccessful intubation, which is also not uncommon, the Appellants cannot be
held guilty of either medical negligence or deficiency in service.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it, allowed the complaint by observing as follows :
“… we are of opinion that when it is the case of the Ops that unsuccessful
intubation is not uncommon to the Medical World, the Ops ought not have
left the matter for disclosure by the patient. We do not think medical ethics
is founded on the principle of Patient’s Disclosure Theory as claimed by
the Ops. It would not be off the track to hold that when a patient
approaches a doctor upon payment of requisite fees for medical help, it is
incumbent upon the doctor to see so that the patient does not suffer
unnecessarily. In this connection, we further hold that onus of the doctor is
not discharged and shifted upon the patient unless some contrary action is
proved on the part of the patient. Plea of non-disclosure is thus not
accepted by us.
The present world is being governed by the principles of
consumerism. The pleas of the Ops that in all cases of surgeries some
risks are there and any unforeseen event that may crop up during surgery
should be accepted with a smile do not hold much water in the present
age. When there is no denial of the fact that intubation failed after several
unsuccessful attempts which in its turn rendered the gall stone operation
for which the complainant got himself admitted under the Ops abandoned,
it was not proper on the part of the Ops to avoid the responsibility by
putting up some pleas which are not at all acceptable.
We do support the contention of the Ld. Advocate for the Ops that
complainant must prove his allegations by producing cogent and reliable
evidence and that the complainant’s case must stand independently. At
the same time, we are not unmindful to the proposition that in order to
succeed in a case under Consumer Protection Act, degree of proof is not
similar to that of a court proceeding of civil nature. Keeping in mind this
proposition we are of opinion that the materials that have come before this
Commission is sufficient for the purpose of the Act and that the present
case may be adjudicated upon those materials.
From the foregoing discussions we are constrained to hold that the
manner in which the operation of the complainant was abandoned and
subsequently the complainant was released by the Ops tantamount to
both deficiency in service and medical negligence as claimed by the
complainant. In this regard the plea taken by the OP No. 2 to the effect
that it was theanaesthetist, who inserted the pipe inside the throat of the
complainant, should be taken into task does not hold much water as
admittedly under the leadership of the OP No. 2 the operation was being
conducted.”
The State Commission, therefore, directed the Appellants to jointly and severally pay
the Respondent (i) Rs.77,023/- towards expenditure upto 30.05.2001; (ii) Rs.70,000/- as
damages; and (iii) Rs.10,000/- as litigation costs within a period of 45 days from the
date of the communication of the order.
5.
Being aggrieved by the above order, the present first appeal has been filed.
6.
Learned Counsel for the Appellants was present. Neither Respondent nor his
counsel was present. However, since the service is complete, the case was heard exparte.
7.
Counsel for the Appellants made oral submissions, wherein he reiterated that
there was no medical negligence or deficiency in service on the part of
Appellants. Respondent’s problem of having a stone in the gallbladder was correctly
diagnosed and prior to the surgery he was subjected to the required diagnostic and
other tests, including pre-anesthesia tests. However, it is not standard medical
procedure in the case of pre-anesthesia test to check for any structural abnormality in
the throat. In the instant case, the Respondent had a pre-existing anatomical problem
in the structure of his throat, because of which it was not possible to conduct successful
intubation for anesthesia. This is known to occur in some cases and it was for the
Respondent to have informed the Appellants about this pathological problem. The
unfortunate injury to his throat because of the unsuccessful intubation was, therefore,
not as a result of any medical negligence or deficiency in service since the Appellants
had taken all possible steps as per standard medical procedures. The operation was
rightly abandoned in the interest of Respondent’s health and thereafter the Respondent
was treated by an ENT specialist following detailed tests, including a CT scan
confirming that there was a structural problem inside the throat. Further, the
Respondent has not discharged his burden of proving medical negligence against the
Appellants through any expert evidence in his support. The State Commission,
therefore, erred in concluding that there was medical negligence on the part of
Appellants without appreciating the above facts.
8.
We have considered the submissions made by learned Counsel for the
Appellants and have gone through the evidence on record. It is an admitted fact that the
Respondent was admitted for gallbladder surgery in Appellant/Institute and as a part of
the anesthesia procedure a cylindrical pipe was inserted inside his throat and since it
could not be placed in the desired position despite several attempts, the operation had
to be abandoned. It was later confirmed that the intubation was unsuccessful because
of a jutting cartilage inside the throat which was a pre-existing structural problem in the
Respondent’s throat. Appellants’ contention that it was for the Respondent to have
disclosed this problem to them does not convince us because there is no evidence
whatsoever that Respondent was ever aware about this structural defect in his
throat. On the other hand, it was for the Appellants as medical professionals to have
got all the tests done and once there was a problem with the intubation, they should not
have made repeated attempts to thrust the pipe, which resulted in serious injuries
leading to other complications. From the evidence on record, we note that though the
Appellants did get the Respondent examined by an ENT specialist, thereafter once the
problem was diagnosed he was not treated for the same but discharged. It was under
these circumstances that Respondent had to seek treatment for his problem at the
Calcutta Medical Research Institute fromDr.Milon Kumar Chakraborty. We also note
from the affidavit filed in evidence by the above Doctor that the Respondent had
developed a life threatening condition because of the pharyngeal tear close to larynx
and multiple air filled cavity in Appellant No.1/Institute and that even after his treatment
at Calcutta Medical Research Institute, some problems continued. Keeping in view the
above facts, we agree with the finding of the State Commission that the due and
reasonable care was not taken by the Appellants in the treatment of the Respondent
while intubating the cylindrical pipe in connection with the anesthesia. While the
problem was apparently caused because of a structural defect in the Respondent’s
throat, severe damage could have been averted or minimized if the Appellants had
been more sensitive and careful and not insisted in pushing the tube several times
despite knowing that there were problems. There is no other explanation for the
extensive and severe injuries caused inside the Respondent’s throat. We are also
unable to accept the contention of the Appellants that the onus was on the Respondent
to have disclosed the relevant facts regarding structural defects since there is no
evidence that he was aware of this problem. If indeed he had been aware, there was
no reason for him to have withheld this fact.
9.
In view of the above facts, we agree with the order of the State Commission that
Appellants did not exercise the reasonable degree of care and caution in the treatment
of the Respondent which amounts to medical negligence and deficiency in service as is
well settled by a number of judgments of this Commission as also ofHon’ble Supreme
Court of India, including in Indian Medical Association Vs. V.P. Shantha [(1995) 6
SCC 651]. We, therefore, uphold the order of the State Commission directing the
Appellants to jointly and severally pay the Respondent a total amount of Rs.1,57,023/-.
10.
Counsel for the Appellants state that Appellants had deposited a total sum of
Rs.85,000/- i.e. Rs.35,000/- with this Commission at the time of filing of present appeal
and Rs.50,000/- with the State Commission in compliance of this Commission order
dated 08.07.2009. If that be so, this Commission and the State Commission are
directed to release the aforesaid amounts with accrued interest to the Respondent. The
Appellants are directed to jointly and severally pay the Respondent the balance amount
within a period of six weeks from the date of this order.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3006 OF 2012
(From order dated 23.02.2012 in First Appeal No. 1195 of 2010 of the
State Consumer Disputes Redressal Commission, Andhra Pradesh, Hyderabad)
Dr. R.G.V. Reddy S/o Mr.V.R. Ganesan, O/o Bharati Hospital, Yerramukkapalli Circle,
R.S. Road, Kadapa District, A.P.
……Appellants
Versus
1. Shaik Anjaman W/o Late /Mohd. Rafi, R/o D.No.8/47-S, Sainagar, Rajampeta
Town, Kadapa District, A.P.
2. Dr. D.B. Sasidhar Reddy, Super Speciality Hospital, T-S 82, Sai Ram Street, Near
Bhavani Nagar, Tirupathy, Chittoor Dist., A.P.
3. Christian Medical College, Rep. By Its Managing Direrctor, Vellore City, Tamil
Nadu
……Respondents
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner
:
Mr. Chandan Mishra, Adv.
Pronounced on 14th May, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
The
brief
facts
of
the
case
are
that
in
April
2009
the
Complainant/Respondent’s husband by name Shaik Mohammad Rafi aged
45
years
who
was
having
abdominal
problem
approached
the
Respondent/Petitioner herein for treatment. The petitioner prescribed some
medicines and advised him for Ultrasound Scan. He prescribed some
medicines again after seeing the scan Report. But, there was no relief to the
patient,
therefore
the
petitioner
suggested
surgical
treatment.
On
05.05.2009 the Laparoscopic Cholecystectomy was done with the help of
senior Chief Surgeon and the senior anesthetist from RIMS who attended at
the time of surgery. On 06.05.2009, the patient complained of difficulty in
breathing and therefore he suggested the patient to go for a higher
management center to Tirupati. Therefore, on 07.05.2009 as per the advice of
petitioner
for better treatment Complainant’s husband went to Tirupati in OP
No. 2 Hospital, but from there she was advised shift her husband (patient)
immediately to CMC, Vellore and he was shifted to CMC (OP No. 3)
on 08.05.2009 at 4.30 a.m. .After resuscitation the patient was shifted to
Surgical Intensive Care Unit, injection Dopamine was given to bring up the
blood pressure and intravenous fluids. Three operations were conducted by
at CMC Hospital on 08.05.2009, 09.05.2009 and 04.06.2009 and the
abdomen was washed.
In the CMC Hospital, the patient underwent re-
laperotomy on 09.05.2009 and perforation was reclosed with falcifarum
ligament and once again abdominal cavity was washed with saline and
multiple drains placed and the patient continued to be in a state of sepsis,
developed seizures and continued to have sero-purulent discharge from his
wound and all supports were given to maintain his B.P. Another laperotomy
was conducted on 04/06/2009 which showed pus collection in the Pelvis and
right Paro-colic Gutter, but despite of best treatment the patient died on
06.06.2009.
The Complainant/Respondent who is wife of the patient filed a complaint
before the District Forum, Kadapa contending that initial damage was done by
the petitioner as surgery performed by the petitioner caused damage to the
gall bladder and the bile was oozing from the abdomen. If the petitioner
performed the surgery carefully on the deceased, there would not be any
need or necessity for her to approach the OP No. 2 and 3;thereafter, OP-2 &
3 could not rectify the defect caused by the petitioner and could not save her
husband’s life.
All the respondents denied the allegations made by complainant and
contended
that
the
patient’s
condition
after
treatment
was
known
complications of surgery and denied there is any deficiency of service while
treating the patient.
2.
The complainant filed a complaint No.128/2009 before District Forum,
Kadapa for negligence of the Respondent / Doctors and severe mental agony
and prayed for compensation of Rs.14, 63,167/- including medical expenses
and mental agony.
3.
The District forum considering the oral and documentary evidence and by
referring several authorities held OP1 and OP3 for negligence and
directed the OP No 1 to pay Rs.56,000/- towards operation and other
expenses and Rs.4 lakhs towards compensation for loss of dependency and
Rs.5,000/- towards costs totaling to Rs.4,61,000/-. Further opposite party no.3
is directed to pay and amount of Rs.6,56,965/- towards operation, medicines
and other expenditure. Case against opposite party no.2 is dismissed without
costs.
4.
Aggrieved by the said order of District Forum, Kadapa, Three appeals were
filed before the A. P. State Consumer Disputes Redressal Commission,
Hyderabad (in short State Commission) namely F.A.No.1044/2011 is
preferred
by
the
complainant
for
enhancement
of
compensation.
F.A.No.1195/2010 is preferred by OP-1 and FA No 972/2010 by OP
No.3. The State Commission disposed of those three appeals by common
order.
The State Commission relying upon the material on record made following
observations;
“The OP-1 during his cross examination deposed before District forum
that, The doctor deposed that there was no chance of perforation of
duodenum and there were no injuries to the common bile duct and that there
was no chance of septicemia before the surgery. He also denies the entire
stones in the gall bladder were not removed during the surgery. Exfacie it is
contradictory to the ‘DISCUSSION’ in Ex. A6, which is the Death Summary of
opposite party no.3 in which they clearly stated there were ‘multiple stones
spilled within the subhepatic’ , it is also stated in Ex. A6 Death Summary
report that there was “Injury to CBD’. We also observe from the record that
opposite party no.1 did not file the informed consent given by the patient.”
“Exfacie we find that the observation of the District Forum with respect to
difference in writing of opposite party no.1 in his prescription which is almost
illegible with that of his Case Sheet Ex.B3, does not warrant any interference.
Ex.A6 clearly evidences that there was common bile duct injury with
perforation in the first part of the duodenum. Therefore, the contention of
opposite party no.1 that there was no injury in CBD is unsustainable. The
Expert has also confirmed this opinion. The contention of opposite party no.1
that there was a delay in subsequent treatment which resulted in multi organ
failure is also unsustainable as the patient was already in high risk condition
by the end of the operation on 06.05.2009 and within a gap of one day joined
opposite party no.3 hospital on 08.05.2009. the documentary evidence read
together with expert opinion clearly evidences that the injury to CBD was
done together with perforation in opposite party no.1 hospital which led to all
the subsequent complications. There is also contradiction in the contention of
appellant/opposite party no.1 When he states that the sugar levels were
normal at the time of operation which is also evidenced in diagnostic test
performed prior to the operation (Ex. A1record) but the same opposite party
no.1 in his deposition contends that it was only because of hyper tension and
diabetes that the patient did not recover. We are unable to agree with this
contention on account of the afore mentioned reasons and we find that first
opposite party doctor is negligent in performing the operation and consequent
injury to the common bile duct which led to post-operative complications like
multi organ failure and septicemia.”
Therefore, the state commission after the going through the evidence in
detail and referring several judgments of Hon’ble Apex Court and National
commission held OP-1 alone liable for negligence and OP 2 & 3 were
exempted from liability. The state Commission by common judgment;
dismissed appeal FA 1195/2010 filed by OP-1; an appeal FA 972/2010 filed
by CMC, Vellore (OP-3) was allowed and appeal FA 1044/2011 filed by
complainant for enhancement was dismissed. State Commission modified
the District Forum order as directing OP-1 alone to pay Rs.56,000/- towards
operation and other expenses and Rs.4 lakhs towards compensation together
with costs of Rs.5000/5.
Being aggrieved by impugned order of State Commission petitioner herein
filed this revision petition on 14/8/2012.
6.
We have heard the learned counsel for both the sides and perused the
evidence on record before district forum and state commission.
On careful observation of affidavit evidence of both the parties cleared the
dust on many issues.
The
opponent-1
has
operated
the
patient
for
Laparoscopic
Cholecystectomy on 05.05.2009. During the post-operative period the
patient hadsudden chest pain and difficulty in breathing on 06.05.2009
therefore; pulmonary embolism was suspected by OP-1 who advised the
relative of patient to shift the patient to the higher center immediately. The
OP-1 contended that as the patient was diabetic who was prone for postoperative infections therefore he was given antibiotics and some higher drugs
to control the infection. OP-1 reiterated three expected complications of
diabetics; Peripheral neuropathy, Diabetic nephropathy (degeneration of
kidney) and Diabetic retinopathy. The OP-1 also contended that the
uncontrolled hypertension leads to over load of heart, which leads to difficulty
in breathing, and long term diabetes, which leads to hypertension and
multiple organ problems which deteriorates the patient’s health. The opposite
party took the cardiologist’s opinion and complete blood examination was
done with chest X-ray, ECG, Echo Ultra Sound of abdomen and also took
help of senior Chief Surgeon and anesthetist RIMS hospital and took all
possible care. OP-1 reiterated that the patient had multiple organ problems
and any stone in Gall bladder may lead to infection like septicemia to a
diabetic patient. The patient was monitored closely and was referred to a
higher center for better care and he died in CMC hospital for which OP-1
cannot be held liable. The Doctor reiterated in his counter that the patient had
chronic diabetes, gallstone peptic ulcer, untreated peptic ulcer, which led to
perforation of duodenum and therefore led to complications. There was no
injury in CBD and no injury in the Gallbladder and therefore OP-1 cannot be
made liable for negligence and therefore seek dismissal of the complaint with
costs.
7.
The OP-2 in evidence reiterated that no treatment was given to the patient
who was in-turn referred to higher tertiary care center i.e CMC, Vellore on
same day and patient went there on 8.5.2009 to OP-3 and thereafter further
course of treatment carried out by doctors at OP-3.
8.
The OP-3 also stated in written version that, “the patient was brought on
08.05.2009 at 01.30 a.m. in a state of shock with a tube in throat for artificial
breathing. As per the Glasgow Coma Scale 2T and abdominal examination
show evidence of bile leak through the drain. He was also having acute renal
failure and serum creatinine levels being 4.9 mg% and he was also in
coagulopathy. The patient had severe acidosis with respiratory
complaints. The patient was shifted to Surgical Intensive Care Unit after
resuscitation with injection Dopomine to bring up the BP and intravenous
fluids on 08.05.2009 at 05.45 a.m. the patient also required ventilator support
for his breathing. The OP-3 in their affidavit submitted that the patient
underwent an emergency operation which showed large volume of bile
contamination in the whole abdominal cavity. The operation was converted to
laperotomy where there was a 1 c.m. perforation (hole) in the first part of
the duodenum and multiple gallstones spilled within the subhepatic
space and 5 litres of bile. The abdominal cavity was washed with saline and
omentum was used to close the perforation. Multiple drains were placed in
the abdominal cavity for drainage. The operation was converted into a
laparotomy. There was 1 cm perforation (hole) in the first part of the
Duodenum and multiple Gall stones. The perforation was closed and the
abdominal cavity was washed and the multiple drains were placed in the
abdominal cavity for drainage. He was then transferred back to surgical
intensive care unit. The patient continued to have bile in the drain and he
underwent re laparotomy on 09.05.2009. This time perforation was closed
again with falciform ligament. He continued to be monitored in surgical
intensive care unit and continued to be in sepsis. He also suffered from
ventilator associated pneumonia and developed seizures. The patient
continued to be in a state of sepsis, developed seizures and continued to
have Seropurulent discharge from his wound and all supports were given to
maintain his B.P. He underwent CT Scan and was treated with high doses of
antibiotics and underwent another Laparotomy on 4/6/2009 was conducted
which showed pus collection in the Pelvis and Parocolic Gutter.”
It was the contention of OP-3 that in-spite of their best efforts the patient died
on 06.06.2009.
9.
We find herein that the respondent/Complainant’s husband (a patient) was
diagnosed as Cholelithiasis (Multiple Galls stones) and operated on for
laparoscopic cholecystectomy and subsequently on next day developed
breathlessness and referred to higher centre at Rama Devi Super Specialty
Hospital, Tirupati (OP-2) who in turn further referred the same case to tertiary
care centre i.e. CMC, Vellore (OP-3) where the patient undergone three
operations and subsequently died. Hence, it is absolutely clear that the
patient was at high risk and in a state of shock, was unable to breath; there
was bile leak, renal failure, coagulopathy, and severe metabolic and
respiratory acidosis. In such serious condition patient was brought and
admitted at OP-3 on 08.05.2209 and three emergency operations were
performed on 08.05.2009, 09.05.2009 and 04.06.2009. The patient was
continuously monitored which has been confirmed by the entries in the case
sheets. Therefore complainant failed to establish deficiency in service and
carelessness on the part of OP-3 in treatment and lack of standard skill and
knowledge in the line of treatment followed by OP-3. We rely on the judgment
of this Commission in Shantaben Muljibhai Patel Vs. Breach Candy Hospital
reported in 1(2005) CPJ 10 NC held that if the patient is a high risk patient
and the hospital has done its best and followed all standards of normal
medical parlance and still the patient dies, it cannot be held liable for
negligence merely because the patient dies.
As contended by the petitioner we have perused the evidence Dr. T.
Reddaiah who was MBBS only and retired from Government hospital. He
was not a specialist or super specialist like a surgeon or a gastroenterologist
to be considered as an expert.
10. It is pertinent to note that, the patient deteriorated after 1 st surgery
performed by OP-1 who was in serious condition of shock referred to CMC,
Vellore. OP-3 is highly reputed institute in India and a known for best referral
and tertiary care centre. On exploration of abdomen by the team of doctors at
OP-3 found that huge collection of bile in the abdomen (about 5 liters)
and spillage of multiple gallstones and perforation of duodenum. Hence,
it’s “Res Ipsa Loquitor” i.e. the things speak on its own. Such consequences
are
only
due
to
negligence
of
OP-1
in
performing
laparoscopic
cholecystectomy. The petitioner defends himself by correlating such
happening to the complications of diabetes or hypertension. The petitioner
was aware that the patient was diabetic and petitioner who anticipated the
complications should have very careful during laparoscopy. The statements
of OP-1 appear that OP was trying to shift his negligence and cause of death
on OP-2 and OP-3.
11. Therefore, we find after considering entire evidence of both parties that OP-2
has not given any treatment to the patient but only referred to CMC Vellore
(OP-3); hence there was no negligence by OP-2. Also we do not find any
negligence by OP-3 in treatment of the patient who they followed highest
degree of skill and standards of medical practice. OP-3 has taken proper care
as they had team of doctors and are experts in the respective fields. .
12. Therefore, to conclude, we uphold the order of State Commission
that the Petitioner /OP-1 is guilty of medical negligence and ultimately the
patient lost his life. Therefore we pass an ORDER The revision petition is dismissed. The petitioner (OP-1) alone is
directed to pay Rs.56000/- towards operation and other expenses and Rs.4
lacs towards compensation together with cost of Rs.5000/- within 45 days
failing
which
it
will
carry
interest
@
9%
till
recovery.
..…………………..………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(S.M. KANTIKAR)
Mss
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4923 OF 2012
(From the order dated 02.08.2012 in First Appeal No. 49 of 2008 of the State Consumer
Disputes Redressal Commission, Haryana,Panchkula)
Dr. Ved Prakash Yadav
Dr. Ved Prakash Surgical & Laparoscopic Centre Old Court Road Model Town Rewari
… Petitioners
Versus
1.
Nihal Singh Village Kaldawas Tehsil Bawal District Rewari
2. United India Insurance Co. Ltd. Branch Office-4 16-M, Gole Market Maha Nagar
Lucknow
… Respondents
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner
: Mr. M.C. Gupta, Advocate
For the Respondent
: Mr. Nihal Singh, In-person
Pronounced on 16th May, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
On
17-2-2005,
the
Respondent/Complainant
came
to
the
Petitioner/Respondent with severe pain in the abdomen. He brought with him an
X-ray and an ultrasound report advised by another doctor. On the basis of those
reports the complainant was diagnosed as a case of peptic ulcer, which had
perforated and caused peritonitis and needed immediate life-saving surgery. The
diagnosis and proposed surgical treatment and its urgency and likely outcome
were explained to him and he gave informed consent for surgery. Surgery was
performed under anesthesia given by a qualified anesthetist. The duodenum was
found to be perforated. There was pus in the abdomen. The perforation was
surgically closed. The pus was removed. The operation was successful and the
Complainant’s life was saved. He was discharged from the Hospital on
26.02.2005 in a healthy condition. A modest fee of Rs.10,000/- was charged for
various services from 17.02.2005 to 26.02.2005; Surgeon’s fee; Anesthetist’s
fee; OT charges; medicines and disposables.
2.
The complainant came for follow up review on 29.02.2005 and again on
04.03.2005 when stitches were removed. His condition was healthy. He had no
complaints.
3.
After lapse of 9 months complainant developed incisional hernia. He consulted
at Hindu Rao Hospital during 11/11/2005 to 18/11/2005. The doctors of there at
Hindu Rao Hospital who examined him for the incisional hernia stated that the
operation conducted by Dr. Ved Yadav (OP) was wrong due to which he has to
suffer. Alleging the medical negligence a complaint was filed in District Consumer
Disputes Redressal Forum (herein District Forum).
4.
The District forum on appraisal of pleadings of parties and evidence on record
dismissed the complaint. Against the order of District Forum complainant filed an
appeal No 49/2008 before State Commission
5.
The State Commission heard both the parties and perused all the documents
on the file related to treatment chart of OP and other hospitals but State
Commission was not in opinion of occurrence medical negligence by the OP.
Also there was no expert opinion on the file that the treatment given by OP was
not up to the medical standards. State Commission considered the reference
made by District Forum who relied upon standard medical book on “Principles of
Surgery” and on perusal of the same clearly reads as under: “ Incisional hernias result of a healing failure of a prior abdominal wall
surgical closure. Although estimates of incidence vary, careful
investigation shows that they occur in at least 10 to 15% of all
laparotomy incisions. Incisional hernias may be asymptomatic or
present with pain, incarceration, or strangulation. Risk factors for the
development of a ventral incisional obesity, immuno suppression, and
chronologically increased intra-abdominal pressure.”
6.
7.
8.
The state Commission concluded the case with observations as
follows: “Having taking into consideration the facts and circumstances of the case
and the documents available on the record, we do not find any kind of medical
negligence and deficiency in service on the part of the treating doctor-opposite
party No.1. However, at the same it has to be kept in mind that the appellantcomplainant has appeared before us. We have physically seen the operated
portion where tissues of the complainant become weak. The complainant is a
poor person and needs medical treatment again because the operation
conducted by the opposite party No.1 could not give desired result. Under the
facts and circumstances of the case we feel that the complainant, who is a poor
person and cannot afford the expenses of second operation, should be
compensated enabling him to get further treatment as a goodwill gesture. In our
view whatever fee has been paid by the complainant to the opposite party no.1
i.e. Rs.16, 000/- be refunded to him as a goodwill gesture.”
State Commission ordered the OP to pay Rs.16000/Against the order of State Commission, this revision.
9.
We have heard arguments of counsel of the petitioner and the complainant
who was present in person.
10. There was no dispute that OP operated the patient and after 9 months
complainant developed incisional hernia. We have perused the evidence of the
parties on file and the standard medical texts, books.
11. The evidence of OP suggested that occurrence of Incisional Hernia was a known
complication and due to healing defect of patient; and there was no
negligence. At the first instance the condition of patient was Peptic perforation
and peritonitis. Pus was also removed from abdomen. Therefore, it is clear that
OP conducted the operation with standards of medical practice. As, there was
peritonitis some patients show delayed healing of operated wound which is one
of the cause for incisional hernia. This textbook paragraph cited supra clearly
reveals that the incisional hernia was the result of healing failure of a prior
abdominal wall surgical closure.
12.
After 9 months during the occurrence of incisional hernia the complainant
was given an opportunity by OP to operate the complainant again but the
complainant wanted to take benefit of his abnormal physical condition and
further his refusal to take any treatment from the doctor itself suggests that he
himself is not interested to cure his problem. The complainant consulted Hindu
Rao Hospital, which is a Government Hospital where treatment is done free.
Accordingly pre anesthetic checkup of complainant was performed on
18/11/2005 but he did not undergo surgery at the said hospital with an ulterior
motive.
13.
Therefore, we do not find any element of medical negligence on the part of
OP. The State Commission ordered payment of Rs.16000/- on the basis of
Goodwill Gesture; which is not prescribed under any law. Therefore we set
aside the order of State Commission.
14.
The revision petition is accordingly accepted. No costs.
..…………………..………
(J.M. MALIK) J
PRESIDING MEMBER
……………….……………
(S.M. KANTIKAR)
MEMBER
Mss
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4891 OF 2012
(Against order dated 29.09.2012 in First Appeal No. 666 of 2003 of the
Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)
1. Dr. Prabha G. Nair Gyneacologists, KVM Hospital, Cherthala, Alappuzha, Kerala
2.
Dr. V.V. Haridas, Medical Officer, KVM Hospital, Cherthala, Alappuzha, Kerala
3.
M.P. Mathew Present Administrator KVM Hospital, Cherthala, Alappuzha,Kerala
…Petitioners
Versus
1. Sri. Mohanan, Kunjithayyil House, Kadakkarapally Panchayat Ward-8, Thaikal
P O Cherthala, Alappuzha, Kerala
2. Saish, S/o Mohanan, Kunjithayyil House, Kadakkarapally Panchayat Ward-8,
Thaikal P O Cherthala, Alappuzha, Kerala
3. Anish, S/o Mohanan Kunjithayyil House, Kadakkarapally Panchayat Ward-8,
Thaikal P O Cherthala, Alappuzha, Kerala
…Respondents
BEFORE:
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner(s)
:
Mr. Sheji P. Abraham, Advocate
Pronounced on 20th May, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
The Revision Petition is filed under section 21(b) of the Consumer Protection
Act 1986 (The Act) against the final order dated 29.09.2012 passed by the
Consumer Disputes Redressal Commission, Trivandrum, Kerala state (herein
State Commission) in Appeal No. 666/03.
2.
Facts in brief
The Petitioners were opposite parties in original compliant in District Forum file
No 83/1997 and the Respondents were Complainants as husband and two
children of deceased Shobhana.The Petitioners/Opposite Parties (OP) No 1
is Gynecologist and the Petitioner/OP No 2 is Chief Medical
Officer
and Petitioner/OP No 3 is Administrator of the Hospital. The patient Sobhana
wife of Respondent/Complainant undergone delivery on 04.12.1995 at night
12.45 p.m. The duty doctor informed the OP-1 that delivery by vaccum extractor
has failed. By 09.00 p.m. the OP-1 conducted episiotomy followed by forceps
delivery and a still born baby was delivered. The baby was died by cord
compression. Immediately after the delivery the patient had profused
bleeding along with expulsion of placenta and due to fatal injury to uterus. The
patient Sobhana died on 8/12/1995 at 5.20 pm .The death of male baby and
Sobhana was due to reckless act o f OP-1. The OPs did not inform the critical
condition of Sobhana relative even after repeated enquiries. Further OPs did not
allow the relatives to transfer the patient to the medical college hospital.
Subsequently on 08.12.1995 due to severe low blood pressure the patient died at
05.00 p.m. Thereafter, the complainant filed a complaint No.432/95 registered in
the local Police Station under Section 304 of IPC. The Complainant also filed the
Consumer Complaint No. OP/83/1997 in the District Consumer Disputes
Redressal Forum, Alapuzha (hereinafter referred to as the District Forum)
claiming an amount of Rs.4, 75,000/- with interest and cost for having lost the
affectionate and dedicated wife and children lost their mother. The opposite
parties filed a joint version and contented that there are complicated questions of
fact and law which need elaborate enquiry and matter is to be decided by Civil
Court.
3.
On the basis of evidence and the Post mortem report the District Forum held
OP 1& 2 for deficiency in service as they have failed to diagnose cause of
profuse bleeding earlier and their treatment fell below the standard of medical
practice and not taken reasonable care during conducting delivery causing the
death of the patient i.e. the wife of Complainant No.1 and mother of Complainant
No.2 & 3. The District forum passed an award of Rs.1,60,000/- with
10% interest from the date of petition and cost of Rs.4,000/-.
4.
The Session Court acquitted the first Petitioner for the charge of Section 304A
of IPC. Against the acquittal a Criminal Appeal No. 203/08 was preferred by
complainant before the Hon’ble High Court of Kerala. The Appeal was dismissed
on 08.08.2012.
5.
The Petitioner preferred an appeal No.666/2003 before the Kerala State
Consumer Disputes Redressal Commission Thiruvananthapuram (hereinafter
referred to as State Commission).
6.
State Commission after hearing the counsel of both parties and on the basis of
post mortem report ascertained the relevant important point as cause of death of
Sobhana ; the relevant para reproduced as follows;
“ 9. Postmortem examination on the body of Shobhana was conducted at
the Medical College, Alappuzha on 08.12.1995 itself. Ext. P2 is the copy of the
postmortem certificate. The opinion as to cause of death given is that the death
of Shobhana happened due to complications following rupture of gravid uterus.
Of the ante mortem injuries, the 3rd injury noted in Ext.R4 is important. It reads:“Rupture of uterus 15 X 10cms obliquely placed involving its full thickness
including peritoneum on the posterior surface of the lower segment of uterus
communicating at its lower part with the injury no.2, it edges were thinned out
with blood clots, dark red in colour.” Injuries 2 & 4 were apparently caused when
episiotomy was done. So, the cause of death was complications that followed
rupture of gravid uterus. The doctor who conducted postmortem examination is
examined as PW2. He affirmed the cause of death.
11.According to PW2 who conducted the postmortem examination if
forceps is applied by inexperienced hands, rupture can occur. The suggestion
was that rupture of uterus can occur due to complications of delivery. The
complication is suggested in the light of the ill health of the woman. If that was
the case the 1st appellant should have been extra cautious in applying forceps. It
was also suggested that rupture can occur when the size of the baby and the
size of the uterus is disproportionate. But this contradicts the case of the
appellant that child was suffering from IUGR and was not normal size. It is
pertinent to notice that the appellants did not even note the birth weight of the still
born baby.
13. The survival of patient closely depended on early detection of the
rupture of uterus once that happened. PW3 is a radiologist. According to him
3rd injury noted on Ext.P4 can be diagnosed using ultra sound scanning. If there
is strong bleeding also the injury can be revealed through scanning. By scanning
it can be revealed whether there is fluid inside the abdomen and that fluid could
be blood. The suggestion put to PW3 is that there are many possibilities for the
cause of bleeding. These are rupture due to tubal pregnancy rupture of uterus,
bleeding disorders etc. but the context in which bleeding occurred rules out the
possibility of tubal pregnancy which was never suspected. It was a delivery after
full term. Bleeding disorders were never suspected. Then the only possibility was
rupture of uterus. Though the PW3 is not a Gynecologist his version that
collection of fluid in the abdomen can be revealed through ultra sound scanning
cannot be questioned.
7.
The State Commission dismissed the appeal FA 660/1999.
8.
Hence, aggrieved by the order of State Commission this present Revision
Petition filed.
9.
Learned counsels appearing for both the parties made oral submissions and
vehemently reiterated the submissions made by the two parties before the State
Commission.
10. We have carefully considered the entire materials placed on record, the
contentions of both the parties and also referred several standard medical texts.
OP 1 contended that, the mortality rate in babies with IUGR is about 6 times
more than the normal newborns. Most of the babies die within 24 hours. Anaemia
is one of the causes for maternal death. The patient Sobhana was died because
of numerous complications which was mostly due to the irresponsible acts and
omissions on the part of the lady and her husband who did not care for anemia.
Hence, the complainants were not entitled to get any compensation and there
was no negligence on the part of the opposite parties.
11. On perusal of evidence on file and the post mortem report ; question before us
that whether the OP 1 is negligent? Whether the doctors at OP hospital acted
reasonably in accordance of Standards of Medical Practice? Whether act of OP
was a negligent act?
The hospital case sheet and notes reveals the sequence of events which led to
deaths of two lives a baby and mother.
12. OP-1 was` examined as RW-1 deposed as Sobhana was 3rd para (
3rd pregnancy) consulted OP-1 on 18/9/1995 with the history of 30 weeks
pregnancy but the clinical assessment by OP-1 revealed uterus was of 26
weeks size. Patient was anemic i.e. in poor state of health. She was treated for
anemia by injection Inferon ,vitamins and dietary supplements and one uint of
blood transfusion was given prior to delivery. On 4/11/1995 a patient was in
labour room with full monitoring ; at 9 pm duty doctor called OP-1 as vaccum
delivery failed. Thereafter, OP-1 carried out outlet forceps delivery and delivered
still born baby with cord tight around neck. The anesthetist tried to resuscitate
baby but did not help. To stop the bleeding of Sobhana injection IV
Methergin was given and injection Pitocin drip was started and cervical tear was
repaired and blood transfusion also given. During cross examination OP 1 did
not answer the questions specific to diagnosis of rupture of uterus and it’s
management.
13. On perusal of Annexure A 8 , the case sheet placed on page case
notes reveled the condition of patient as follows;
4/11/1995 :
9.10 pm
baby delivered by outlet forceps by OP1 Placenta
9.30 pm
expelled entire, bleeding within normal limit.
On examination cervical tear +,Rt fornix
tear seen.
While suturing patient went in to shock.
Pulse feeble. Xxxxxxx.
5/11/1995 :
12 (00hrs):
Patient still bleeding,xxxxxxx.
12.20 am Under General anesthesia, cervical tear sutured. Vaginal pack
with 3 roller gauze and one sponge. Bleeding
controlled.
1245 am: xxxxxxxxxx. Patient had Tachycardia and tachypnea. Xxxxx,
Ryle’s tube aspiration to reduce distension.
9.20 am Patient has dyspnoea, Tachycardia, tachypnea.
9.45 am
Bilateral crepts+,acidosis +
4.30pm
Patient dyspoenic.
On 6 -7/12/1995
the periodic entries in case paper showed
that patient has dyspneoic episodes and there was Tachycardia ( Pulse
rate was more than 120/ min) and tachypnoea (Respiratory rate was more
than 40/min)between and there was distension of abdomen still persisted.
On 7/12/1995,
at 6pm as per Dr.Bhat’s opinion patient was diagnosed as ‘Extra renal
uremia, septicemia. There was polymorphonuclear leukocytosis (Total
count = 28,000/cmm; Granulocytes 94%). At 8.15 pm did ultra sound scan
which showed bilateral pleural effusion,free fluid in peritoneal cavity.. At
9pm, USG guided pleural tapping done by Dr.Divekar which showed
aspiration of 120 ml on Rt side and 80 ml on left sided serosangunous
fluid aspirated. Patient was having tachycardia and tachepnoea,
distension of abdomen..
On 8/12/1995
at 12.30 am the CMO seen the patient , the patient was continuously
dyspnoeic, ultimately died at 5.20am.
14. Careful analysis of events stated in para (13 supra) it is apparent that OP was
negligent and liable for the death of Sobhana and her baby.
i)
The patient Sobhana was in critical condition during delivery
on 4/11/1995 because of tears in Cervix and Rt fonix tear with
bleeding. Usually , such tears are not possible in hands of the
experienced obstetrician like OP Dr. Prabha Nair. The experienced
doctor will apply forceps only after full dilation of cervix. In the case
on hand it appears that, the duty doctor applied the forceps due
to which the cervix pulled by traction leading to extension of
cervical tear up to the fundus of uterus i.e. rupture of uterus. The PM
report confirms the antemortem injuries as No.1 & 2 as rupture.
Further, OP has not produced any evidence to establish the
qualification and experience of duty doctor. If we presume the OP
has performed forceps delivery after getting call from duty doctor; it
is clear that she was negligent in application of forceps which
resulted in cervical tear subsequently rupture of uterus. Hence, the
submission of OP that she herself conducted forceps delivery is not
trustworthy
ii)
After delivery, the OP should have initially assessed the cause
of cervical taer and possibility of rupture of uterus. The patient had
pain , distension of abdomen , tachypnoea and tachycardia for 5
days i.e till her death The blood test showed polymorphonuclear
leuocytosis ( 90% ) which is the diagnostic features of peritonitis due
to rupture of uterus. It indicates the OP failed to diagnose such
complication in early stage. The ultrasound and X-ray findings
clearly revealed the hemorrhage in abdominal cavity and also fluid in
pleural cavity. Despite of all above clinical signs of perforation the
OP continued to treat the patient vaguely for 5 days without arriving
proper diagnosis. ; which is negligence on the part of OP-1
who failed to take reasonable care to diagnose the rupture of
uterus.
15. Another important point for discussion is evidence of PW 2 (Annexure A4) the
doctor Dr.P.Babu
,Assistant
Professor
in
Forensic
Medicine,Medical
College,Kottayam who conducted the post mortem of deceased Sobhana and
issued the PM report (Exhibit P2).
Dr.Babu in his evidence stated that “The
cause of death-death was due to complications following rupture of gravid
uterus in respect of injury no.3. Gravid uterus means in the stage of
pregnancy. Ext. P4 true copy of the original signed by me. It may also
happen if forceps are applied by inexperienced hands.”
The PM report describes findings of injuries as follows:
B.
INJURIES (ANTEMORTEM)
Multiple infected superficial lacerations over an area involving the right labia
minora.
C
1.
Sutures infected lacerated wound 4 cm long obliquely placed on
the right posterior surface of the cervix.
2.
Rupture of uterus 15 X 10 cm, obliquely placed involving full
thickness including peritoneum on the posterior surface of the lower
segment of uterus, communicating at its lower part with the injury
No.2. It’s edges were thinned out with ragged appearances. The ruptured
area was seen covered with blood clots, dark red in colors.
3.
Sutured infected surgical episiotomy wound 5 cm. on the right mediallateral part of the vagina.
OTHER FINDINGS
Abdominal cavity contained 2.5 ltrs of fluid blood and 500 gm. of blood
clots (dark red colour). Air passages pale anmd contained illegible frothy
fluid. Right and left chest cavities contained 100 and 90 ml of straw
coloured fluid respectively.
After going through all records, deposition of witnesses on both sides, we are in
opinion that the death of Sobhana was due to not proper care and diagnosis of
crucial complication. The OP -1 is Specialist as Gynecologist and also
few doctors of in OP-3 hospital including CMO have seen the patient but
nobody suspected commonest
cause
of
distension
of
abdomen
by
hemoperitoneum . The early diagnosis in this case was needed and would have
saved life of patient. At least OP should have taken second opinion to know the
cause of distension of abdomen from any other specialist or from Medical
College which was located in their own city. But , the OPs failed
to diagnose rupture of uterus and treated casually for five days.
16. The death of baby is due to non prudent approach of OP-1. As the baby was of
IUGR and patient was anemic why the OP-1 did not prefer elective Cesarean
Section operation and allowed vaginal delivery. The fetal heart sounds (FHS)
were noted till 8.30 pm and thereafter disappeared upon which the OP should
have performed LSCS in such fetal distress. The vaccum failure and forceps
application in this patient was a wrong decision. Several medical texts denotes
that early diagnosis complication of forceps delivery and prompt management is
life saving for mother and
baby. The baby was not sent for Post mortem
therefore, delivery of dead baby also creates suspicion of negligence by OP
during forceps application.
17. The principles of what constitutes medical negligence is now well established
by number of judgments of this commission as also the Hon’ble Supreme Court
of India, including Jacob Mathew vs State of Punjab[(2005) 6 SSC 1] and in
Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651]. One of the
principles is that a medical practioner is expected to bring a reasonable degree of
skill and knowledge and must also exercise a reasonable degree of care and
caution in treating a patient. This Court in Dr. Laxman Balakrishna Joshi vs. Dr.
Trimbak Bapu Godbole & Anr. AIR 1969 SC 128, laid down that a Doctor when
consulted by a patient owes him certain duties, namely, (a) a duty of care in
deciding whether to undertake the case; (b) a duty of care in deciding what
treatment to give; and (c) a duty of care in the administration of that treatment. A
breach of any of these duties gives a cause of action for negligence to the
patient.
18. Therefore, we are in view that there is deficiency in service by OPs leading to
death of mother and baby. This is a deficiency in service resulted in medical
negligence for which OP are liable for the loss of two lives ,mental agony and
psychological trauma. Hence, pass the following ORDER;
The revision petition is dismissed. The petitioners herein are directed to pay
Rs.1,61,000/- with interest @ 10% per annum from 11/3/1997 i.e. the date of
filing complaint before District Forum and cost of Rs.4,000/- . The petitioners
have wasted the precious time of District Forum, State Commission and this
Commission. We therefore impose punitive cost of Rs.1,00,000 which is to be
paid to the complainants within 45 days ,failing which it will carry interest @ 9%
till the recovery.
..…………………..………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(S.M. KANTIKAR)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL No 275 of 2007
(Against the order dated 5/4/2007 in Complaint No.55/2004;Karnataka State Consumer
Disputes Redressal Commission,Bangalore)
1. M/s Manipal Hospital Bangalore, (A Unit of Medical Relief Society of South Kanara,
(Regd.), No. 98, Rustom Bagh, Airport Road, Rep. by R. Basil, Chief Executive
Officer Bangalore-56043
i)
Medical Relief Society of South Kanara, Manipal EDU, University Building,
Manipal -576104
2. Dr. Meera Ramakrishnan, Pediatrician, Pediatric Intensive Care Unit.
3. Dr. Vasudeva Rao, Vascular Surgeon,
4. Dr. Arvind Shenoy, Consultant Pediatric
5. Dr. Jayanth Iyengar, Pediatric Surgeon
… Petitioners
Versus.
1. Mr. Alfred Benedict,
2. Mrs. Rani Benedict Both residing at No. 18, Trinity Blossom Geddalahalli, Hennur
main Road, Bangalore-56043
….Respondents
FIRST APPEAL No 178 of 2008
(Against the order dated 5/4/2007 in Complaint No.55/2004;Karnataka State Consumer
Disputes Redressal Commission,Bangalore)
1.
Mr. Alfred Benedict, S/o Mr. Edwin Tobbias No.18, ‘Trinity Blossom’ Geddalahalli,
Hennur Main Road, Bangalore-43
2.
Mrs. Rani Benedict, Parents of Sandria Rinu Benedict(Baby Sandria) No.18,
‘Trinity Blossom’ Geddalahalli, Hennur Main Road, Bangalore-43
…….. Petitioners
Versus
1. M/s Manipal Hospital Bangalore, (A Unit of Medical Relief Society of South Kanara,
(Regd.), No. 98, Rustom Bagh, Airport Road, Rep. by R. Basil, Chief Executive Officer
Bangalore-56043
ii)
Medical Relief Society of South Kanara, Manipal EDU, University Building,
Manipal -576104
2. Dr. Meera Ramakrishnan, Pediatrician, Pediatric Intensive Care Unit.
3. Dr. Vasudeva Rao, Vascular Surgeon,
4. Dr. Arvind Shenoy, Consultant Pediatric
5. Dr. Jayanth Iyengar, Pediatric Surgeon
….Respondents
BEFORE:
HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON’BLE MRS. VINEETA RAI, MEMBER
HON’BLE Dr. S.M. KANTIKAR, MEMBER
For Appellant
:
For Respondent 1 & 2
Mr. Vivek Singh, Adv.
:
Mr. Joshna Samuel Adv.
Pronounced on ……..May 2013
ORDER
PER DR. S.M. KANTIKAR
1.
Two cross-appeals are filed, namely, First Appeals No. 275 of 2007 and
F.A.178 of 2008, have been filed by M/s Manipal Hospital Bangalore and Mr.
Alfred Benedict and Anr. Opposite Party and Complainant respectively before the
Karnataka State Consumer Redressal Commission, Bangalore (hereinafter
referred to as the State Commission) challenging the order dated 05.04.2007 of
that Commission. Since the facts and the parties in both first appeals are
common/similar arising out of the same consumer dispute, it is proposed to
dispose of these appeals by one common order by taking the facts from First
Appeal No. 275 of 2007. The parties will be referred to in the manner in which
they were referred to in the complaint i.e. Mr. Alfred Benedict and Anr. will be
referred to as “ Complainant” and the M/s Manipal Hospital Bangalore and ors
as “ Opposite Party.”
2. Complainants took their two-year-old daughter who was suffering from cold and
cough to opposite party No. 4-doctor who advised them to admit her in opposite
party No.1-hospital. On admission she was taken to pediatric intensive care unit
and diagnosed that she was suffering from cold & cough as well as from
pneumonia. She was given intravenous fluids by inserting needle on the dorsal
aspect of right wrist from Aug. 26, 2002 to Aug. 28, 2002: however, the baby
developed gangrene initially in the finger tips which spread to the portion of the
hand below wrist joint due to blockage of blood supply. The complainants further
contend that on 29.08.2002 and 30.08.2002, OPs 2 to 4 conducted Angiogram
and confirmed that there was complete blockage of blood supply to the right
forearm. The Opposite parties conducted operation on the right forearm to
restore blood supply but the same could not be restored and, eventually, the
daughter of the complainant had to lose her right forearm. It is alleged that the
complainants, thereafter, came to know that the needle was wrongly inserted into
artery instead of vein due to which the blood supply was blocked. Thus, imputing
the opposite parties of negligence and deficiency in service, complaint was filed
before the State Commission praying compensation of Rs. 1,00,00,000/- as the
complainants’ daughter has to spend the rest of her life without the right forearm.
2.
OPs contended that the gangrene of right forearm was due to septic shock. They
contend that what happened to the patient in this case was a known complication
and it’s not a case of negligence in any treatment given in their hospital. They deny
that there was any negligence on the part of the OPs. They also deny liability to pay
compensation.
3.
The OPs have filed common version before the State Commission
contending that at the time of admission in the hospital the baby was not only
suffering from cold & cough, but also suffering from pneumonia. It is further
contended that the baby was having microcephaly and recurrent seizures and was
being seen by Dr. S.R. Suresh Rao Aroor for seizures and developmental delay.
According to the OPs,the baby was also suffering from Pharyngitis. She was found
toxic coupled with fever and was having weak cry due to worsening Pharyngitis.
They further contended that she was drowsy, irritable & had developed signs of
Broncho pnenumonia. They have denied that the child was conscious or alert when
she was admitted in the hospital; OPs have admitted that when the patient was in
Pediatric Intensive Care Unit (PICU), oxygen was administered and I.V. fluids were
administered with intravenous cannula. In the early morning of 27.08.2002, the
patient was diagnosed to have metabolic acidosis. Blood pressure started dropping,
for which, bolus of normal saline was given. At about 2.30 PM, the patient was seen
by OP2 who started the patient on injection dopamine. At 3.30 PM, BP was not
recordable by non-invasive means due to septic shock. Hence, right radial arterial
line was started by Dr. Sandra and arterial BP monitoring started. Throughout that
day, BP remained low and dopamine had to be increased. It is contended that only
single use cannula was used for administration of I.V. Fluids and intra radial use.
4.
OP-2 has admitted that at about 8.00 AM on 28.08.2002, the right index
and little fingers of the patient were found to be cyanosed and swollen. However,
they contend that it was noticed by the nursing staff and not by the Complainants.
They further contended that at about 8.10 AM, Dr. Venkatesh on information saw the
child followed by OP2 at 10.00 AM and cannula was removed. The patient was
referred to the vascular surgeon Dr. Vasudeva Rao-OP No. 3, who examined the
patient and advised elevation of the right forearm and infusion of heparin. It is
contended that no surgery could be done because it was only the microvasculature
that was affected. They further contend that OP3 decided to continue heparinisation
and elevation of the limb. Doppler study showed presence of arterial pulsation till the
level of wrist. On 29.08.2002, OP3 advised angiography and the same was done by
Dr. Subhash Chandra, a consultant Invasive Cardiologist, which showed no flow
beyond the brachial artery. OP No 3 contended that it was due to intense spasm of
all the vessels and an aberrant right sub clavian artery; and that after injecting
vasodilators (Pepaverine and Nitroprusside), some flow was seen in the radial and
ulnar arteries and palmar arch and situation was duly explained to the Complainants
by OP3. Fasciotomy was also done on 29.08.2002 which means opening up of the
covering of the muscles of the arm in order to relieve pressure and to establish
better blood supply. OPs, however, contend that there was no question of any
situation for amputation. On 30.08.2002, the patient was seen by OPs 2 & OP-5
being a consultant pediatric surgeon; having gone through the records, advised to
do Right Cervical Sympathetic Nerve Block was performed in consultation with Dr.
Parameshwara, Consultant Anesthetist. Following this, there was improvement in
the cold area of the upper arm, which became warm below the elbow. The
procedure was repeated on 31.08.2002.The patient was managed conservatively till
the line of demarcation became apparent. On 14.12.2002 the complainants had
informed OP5 about the falling of the gangrene part. The patient was brought to OP5
who noticed that a little edge of bone was jutting out. The patient was readmitted on
16.12.2002 and dressing was done. Subsequently, the patient was regularly seen by
OP5 and the wound was dressed regularly till it healed fully. The OPs contend that it
was unfortunate that complications had taken place and the patient was being
resuscitated for septic shock which could have been fatal.
5.
The State Commission after hearing the parties and on the basis of
evidence produced before it allowed the complaint by observing as follows:
I.“According to the OPs, the gangrene that affected the right fore arm of the
child had nothing to do with the Hospital or the Doctors or the treatment given by
them and it was due to septic shock. But, OPs have made an attempt to improve
their case in the affidavit filed by OP4-Dr. Aravind Shenoy, who, at para 21 of his
affidavit has stated that infection which started with Pharyngitis spread to the
lungs to cause pneumonia and subsequently increased so much resulting in the
fall of blood pressure. When blood pressure falls, blood supply to non-vital
organs other than the brain, heart & kidneys is reduced or cut off resulting in the
severe reduction of blood supply to the limbs. If the reduction in the blood supply
is very severe as it was in this case, as proved by Angiography, gangrene could
occur in spite of all possible measures, which were very promptly taken by the
concerned specialists in the Hospital. Such instances though rare are
known. This case is one such typical case where despite best efforts of the
Doctors, limb could not be saved.
II.
OPs have not produced expert evidence or medical literature to show that
this explanation is acceptable. The OPs, therefore, have failed to rule out the
possibility of having caused cyanosis on account of cannulation or arterial
invasion. This is a case where res ipsa loquitor applies. We, therefore, hold that
the treatment given to the baby Sandria at OP1 hospital suffers for want of
proper care and in other words, the treatment was deficient.
III. Cannulation and arterial invasion was done as per the advice of OP2. There
is no clear cut evidence as to who exactly was the person who did the
cannulation and arterial invasion, because that was done in the ICU and the
complainants being the parents of the child were outside the ICU. However, OP1
being employer is vicariously liable for the negligence committed by the doctors
and the nursing staff working in the hospital.
The complainants have claimed compensation of Rupees One Crore under various
heads. According to the complainants, they and the child have suffered physically
& mentally and also incurred heavy expenses for the treatment of the child. They
have produced bills, which are marked as Ext. C3, which go to show that they have
spent more than Rs. 1,10,000/- for the treatment of the child. They have also
produced at Ext. C13, a letter from Otto Bock Health Care, which shows that more
than Rs. 12.00 lakhs are required for providing artificial limb to the child who has
lost the right fore arm.”
6.
State Commission in the order dated 5/4/2007 therefore directed the
opposite party No.1 to pay Rs.500000/-to the complainants which shall be
spent for the rehabilitation of baby Sandria by providing artificial limb and
proper education and care. OP-1 was further directed to pay Rs.10000/- to
the complainants towards the cost of litigation. Order be complied within 30
days failing which the same shall carry interest @ 10% p.a. from August
25,2004 till the date of payment.
7.
Against the order of State Commission two separate appeals have been
filed. Appeal FA No.275/2007 is filed by the respondents in which they have
challenged the order of State Commission. The complainant filed appeal FA
No 178/2008 for enhancement of compensation amount. Both the appeals
are disposed of by this single order.
8.
Learned Counsel for opposite party essentially reiterated the facts as stated
by them in the rejoinder filed before the state commission. We have carefully
gone through the evidence and records of PICU made on 26-28 August 1993,
which has brought some element of suspicion in our mind about the treatment
of baby Sandria.
It is not disputed that Baby Sandria was admitted in PICU under treatment of
OP 2-5 for treatment of Pneumonia and who subsequently suffered septic
shock. It is apparent that patient required an immediate attention and proper
care. The medical record placed on file shows that patient was on IV lines,
Oxygen supply and Blood pressure monitoring. Therefore, at this juncture it
important to discuss;
Why gangrene had developed only in the Right hand?
Was there any negligence by the OPs in PICU?
Whether OPs failed in performing their duties as per standards of
medical practice?
Could it be labeled as a medical negligence?
Point No.1: As contented by OP-3 that during septicemia, when blood
pressure falls, blood supply to non-vital organs other than the brain, heart &
kidneys is reduced or cut off resulting in the severe reduction of blood supply
to the limbs. For recording of Blood pressure the OP performed Rt radial
artery cannulation; but they have ignored that the use of arterial catheter may
contribute mechanical obstruction to the blood flow also. Therefore, only the
right hand in which cannulation was performed showed gangrenous changes
and other limbs did not show any signs of gangrene even-though there was of
severe reduction of blood supply.
Point No.2: The records show that the right hand was swollen; but the reason
for it was not recorded in the case sheet. As per medical literature during
septicemic shock; there will be severe collapse of peripheral veins and
therefore it will be difficult to administer the IV fluids. The baby Sandria was in
septicemic shock and was advised several IV medications. Due to collapsed
veins it was difficult to locate veins despite several attempts, and such
multiple pricks led to rupture of veins or small arteries of the right hand during
IV medication. In such instance infusion of fluid in subcutaneous tissue
instead of veins leads to swelling of hand.
Point No.3: Radial arterial cannulation procedure itself needs expertise and
it should be performed by a doctor who has expertise and experience in such
procedures. As per the standards of medical practice, it the duty of a doctor to
maintain all the records in detail pertaining to treatment, any procedures,
interventions under his signature as to time, name of person performing the
procedure, site of cannulation, technique of puncture (transfixation/direct
fixation technique), method adopted, the size and type of cannula/catheter
(teflon or polypropylene) etc.
Though the OP 2 contended in her version that with her advise Dr.Sandra
started Rt radial artery line but, we did not find any cogent evidence or any
entries in the case sheet about the procedure performed by Dr.Sandra. The
complainants being the parents of the child were outside the ICU. Therefore,
who exactly was the person who did the radial artery cannulation in the ICU is
matter of concern. Hence, we can reach the conclusion that the nursing
conducted the radial arterial cannulation.
Point 4: Furthermore, OPs contended that, due to septicemia baby
Sandria’s Blood pressure (BP) was not recordable therefore Right Radial
Arterial line was started to monitor the blood pressure (BP) of patient. Since,
that Manipal Hospital is one with international standards having sophisticated
ICU infrastructure etc. It is expected that , the PICU will have facilities like
Multi-parameter monitors (which can record ECG, Pulse, SPO2, Invasive BP
recording graphs etc). As the patient was in PICU on admission it is more
surprising that OP did not produce any acceptable records like the ICU
electronic BP recording graphs/ charts, Pulse oxymeter/SPO2/ABG records.
We have observed the manual recordings made in continuation sheets, which
are not a substitute for automatic electronically monitored records like graphs,
printouts or photographs. Such manual records can be created any point of
time.
Point No 5: Early recognition of gangrene is the most important means to
reduce permanent injury. The patient herein was catherised in the afternoon
at about 3 pm and next day morning at 8 am the hospitals staff noted the
bluish discoloration of fingers i.e. after 17 hrs. Throughout night, if the PICU
staff would have vigilant such delay would have been prevented. Transient
blanching and cyanosis of the lower extremeties are the most common
ischemic manifestations and should serve as a warning sign and an indication
for catheter removal In our opinion to prove their case the Ops failed to
produce several concrete records pertaining to hand Doppler study and
Angiography study by the way of graphs, printouts etc. Even we did not see
the detailed procedural aspects of Cervical Sympathetic Block or Fascioctomy
which the respondents performed. The entries made in the progress sheet
should be supported by proper records, printouts, graphs or films etc.
We have relied upon several medical texts, literature and reviews:
In the article titled “Radial Artery Cannulation: A Comprehensive Review
of Recent Anatomic and Physiologic Investigations” (Anesth An alg
2009:109:1763-81) it is clarified that the radial artery is the preferred site for
arterial cannulation as it has consistent anatomic accessibility, ease of
cannulation and low rate of complications. A combination of profound
circulatory failure, hypotension and high dose vasopressor therapy may
increase in the risk of hand ischemia , the Table No 6 of the article also
highlighted the several risk factors assessment before radial artery Catheter
Placement (catheterization).
Under the heading of catheter and placement technique the related risks are
stated as:
Inexperienced operator
Hematoma at punctured site
Vasospasm of radial artery precipitated by manipulation of catheter
Other factors likeNumber of puncture attempts
Large indwelling catheters(> 20 guage)
Polypropylene catheter (In comparison of teflon catheter)
Female gender
Infiltration of local anaethetic aroud radial artery precipitating
vasospasm
Transfixation cannulation technique(In comparision to direct
puncture cannulation technique).
Recannulation of previously cannulated artery.
In another review article published in The South African Journal of
Critical Care, Vol. 4, No.1,1998 titled “Complications Of Arterial
Lines”discussed.
The various complications of arterial lines discussed in this review should
be incorporated into management algorithms for critically ill patients.
Complications of arterial monitoring lines are uncommon but can produce
serious morbidity. Constant awareness and early recognition are the key
to reducing this morbidity. Arterial cannulation for pressure monitoring and
blood gas analysis is a common procedure in critically ill patients. The
radial artery is the most frequently used, but other arteries are also used.
Hand Ischemia Following Radial Artery Cannulation:Prolonged cannulation, Catheter size and, arterial and the insertion
technique have been implicated as predisposing to ischaemia. Thus, the
femoral artery has been recommended for prolonged catheterization. In
the shocked patient on vasoactive drugs, where radial artery catherization
carries a high risk of ischaemia the femoral artery may also prove safer.
Whenever the question of ischaemia arises, prompt removal of the
catheter is mandatory, as these changes are often reversible after decannulation.. The usual tendency is to temporize and treat the patient
conservatively because spontaneous recannalization of the thrombosed
artery can be expected. Proximal intra-arterial injection of papaverine or
reserpine and sympathetic ganglion blocks have been tried in attempts to
overcome peripheral vasoconstriction, which is, believed to contribute to
ischaemic damage. Intravenous heparin and dextran have also been
used.It is unclear whether these empirical measures are of any benefit.
In a Case report cited in S.Afr Med J 1985;68;491-492 titled as Gangrene
of the hand and forearm after inadvertent intra-arterial injection of
pyrazole : explains about ;
The inadvertent intra-arterial injection of solutions meant for intravenous
use results in arterial injury, a situation which is being recognized with
increasing frequency. In recent years, many reports describing one or
several cases of intra-arterial injection of various drugs have underlined
the disastrous effects. Prevention of intra-arterial injections is of
paramount importance.
11.
9.
The OPs did not substantiate their ground to prove their contention that
there was no negligence because it appears they have not followed the
standards of medical practice when conducting the arterial cannulation on
the patient.
10.
The principles of what constitutes medical negligence is now well
established by number of judgments of this commission as also the Hon’ble
Supreme Court of India, including Jacob Mathew vs. State of Punjab [(2005)
6 SSC 1] and in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC
651]. One of the principles is that a medical practioner is expected to bring a
reasonable degree of skill and knowledge and must also exercise a
reasonable degree of care and caution in treating a patient (emphasis
provided). In the instant case, it is very clear from the facts stated in
forgoing paragraphs that a reasonable degree of care was not taken in
treatment of patient in PICU.
Medical records revealed that patient was on higher antibiotics and
several IV medications. We have referred to medical literature, which clearly
state that inadvertent intra-arterial injection in the radial artery was the main
cause of gangrene of the hand or fingers. It is also to be noted that the Right
little finger also showed signs of gangrene. Thus, there was also injury to
ulnar artery. The swelling of the right hand is due to multiple pricks for IV
lines and further damaging the arterial circulation. We, therefore, hold that
due care was not taken during the invasive procedure i.e. Right radial
arterial cannulation to baby Sandria in PICU which ultimately resulted in
gangrene. This clearly constitutes medical negligence and deficiency in
service.
12.
Therefore on the basis of medical texts and reviews on the arterial
cannulation it is apparent, as stated earlier that not maintaining proper
records of invasive procedures, charts, graphs is the deficiency in medical
treatment. Apart from this the doctors from appellant hospital have not able
to explain how the gangrene of Right hand occurred. Therefore the instant
case is case of res ipsa loquitur where medical negligence is clearly
established and for which OPs are liable. OP1 being employer is vicariously
liable for the negligence committed by the doctors and the nursing staff
working in the hospital.
13.
In the first appeal 178/2008 the complainant prayed for enhancement
of compensation. We agree that complainant suffered mental agony and
spent more than Rs.1,10,000/- for the treatment of the child as bills
produced. Considering the facts that the child has to spend the entire life
without her right forearm, we feel that interest of justice requires that
compensation of Rs. 5,00,000/-, in the least, has to be granted in favour of
the complainant.We therefore, agree with the order of State Commission
and up hold the same and pass the ORDER as follows:
The present both the appeals FA No.275/2007 and FA No. 178/2008 are
dismissed. The Appellants are directed to pay Rs.500000/-to the
complainants which shall be spent for the rehabilitation of baby Sandria by
providing artificial limb and proper education and care. OP-1 was further
directed to pay Rs.10000/- to the complainants towards the cost. Order be
complied within 45 days failing which the same shall carry interest @ 9%
p.a. from the date of this order till the date of payment.
…..…………………
(ASHOK BHAN J.)
PRESIDENT
…..………………..
(VINEETA RAI)
MEMBER
…..…………………
(Dr. S. M. KANTIKAR)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.4441 OF 2012
(From the order dated 09.08.2012 in F.A. No.1996/2005 of the Rajasthan State
Consumer Disputes Redressal Commission, Jaipur)
1. Dr. Suresh Gupta Liberty Hospital, O-18, Durga Path, Ashok Marg, C-Scheme,
Jaipur, Rajasthan
2. Dr. Smt. Suman Rawat, Managing Director, Liberty Hospital, O-18, Durga Path,
Ashok Marg, C-Scheme, Jaipur, Rajasthan
3. Dr. Sudhir Bansal, Surgeon, Liberty Hospital, O-18, Durga Path, Ashok Marg, CScheme, Jaipur, Rajasthan
4. Dr. Mradula Kulsrestha, Liberty Hospital, O-18, Durga Path, Ashok Marg, CScheme Jaipur, Rajasthan
.
………Petitioner(s)
Vs
Vinod Kumar Rawat S/o Shri P.K. rawat, R/o 34/378 Pratap Nagar, Sanganer, Jaipur,
Rajasthan
…….. Respondent(s)
BEFORE :
HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HON’BLE DR.S.M.KANTIKAR, MEMBER
For the Petitioner
:
Ms. Aishwarya Bhati, Adv.
Mr. K. Singh, Adv.
For the Respondent
:
Mr. Naresh Chandra Goyal, Adv.
Pronounced on ….. May, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
The Petitioners have filed the instant Petition under Section 21(b) of the
Consumer Protection Act, 1986 against the impugned order dated 09.08.2012
passed by the Hon’ble State Consumer Disputes Redressal Commission,
Rajasthan, Jaipur in Appeal No. 1996 of 2005.
2.
The brief facts ;
On 24.06.1999 a notification was issued in a newspaper by the Liberty hospital
for conducting free camp for laparoscopic operations in the liberty hospital by the
Petitioners (doctors) from 4th July, 1999. The complainant’s wife Suman Rawat (
in short Suman) after consultation with the respondents/ petitioners (herein as
the petitioners’) operated on 4/7/1999 for stone in the gall bladder. Soon after
the operation, the wife of the complainant died and the complainant filed a
complaint No.671/2005 before the District Consumer Disputes Redressal Forum
II, Jaipur ( in short as District Forum) which was dismissed vide order dated
26.10.2005.
3.
Against the order of District Forum the complainant preferred an appeal before
State Commission on the ground that the learned District Consumer Forum
erred in exonerating the respondent doctors without considering medical board
report which clearly shows the negligence and carelessness by doctors leading
to death of his wife during and after operation.
4.
The State Commission after hearing counsel of both parties and relying upon
the report of medical board held the respondent doctors for medical negligence.
The State Commission in it’s relevant observation stated in ;
Para 6.
“Though no post-mortem was done on the deceased, but from the
report of the Medical Board, which is prepared on the basis of bed head ticket
and other documents submitted by the hospital, it is evident that no
conclusive or specific cause of death has been assigned in the matter and
three possible causes of death i.e.
(1) Intra-abdominal hemorrhage
(2) Acute Massive myocardial infarction
(3) Choking of the respiratory passage due to aspirated vomiting.
On the basis of the report of Medical Board, it appears that patient Smt.
Suman Rawat died about two hours after the operation at around 2.15 a.m.
and before the death, she complained a nausea, vomiting and slight pain at
2.20 a.m. the report of the Medical Board also suggests that there was
great disparity in medical case sheet record i.e. the Bed Head Ticket and
the patient was not adequately assessed properly in view of mildhypertension, mild cardiomegaly and changes for ECG, which reflects that
the non-petitioners were thoroughly careless and negligent in assessing
the fitness of the patient for surgery. There is no evidence to show that the
patient died of intra-abdominal hemorrhage or acute massive myocardial
infraction but in the other hand, it is evident from the report of the Medical
Board that the patient had vomiting just before her death and which
resulted in choking of respiratory passage. This possible cause of death
has been mentioned in the report of the Medical Board and this fact is also
corroborated by the fact that the patient had vomiting just before her
death.”
Para 8 : “the report of the Medical Board clearly shows that bed head ticket
did not mention that who attended the patient, when she complained of pain
and vomiting and no details of post operative care were mentioned in it. The
bed head ticket also showed that the patient was again taken to the
operation theatre one hour after the death, but no reason was assigned for
shifting the patient to the operation theatre. Thus, from the report of the
Medical Board, it is evident that the non-petitioners were grossly careless
and negligent before, during and after operation of Suman Rawat, the
deceased. Pre-operative negligence and carelessness of the non-petitioners
is also clear from the report of the Medical Board which reveals that she
was not adequately and properly assessed for hypertension, cardiomegaly
and ECG changes and after operation she was not taken care of properly by
the doctors”.
The State Commission allowed the appeal and awarded Rs.10 lacs as
compensation and Rs.25,000/- as a cost to the Complainant.
5.
Hence, aggrieved by the order of State Commission the present revision.
6.
We have heard the learned counsel of both sides who argued vehemently
argued and reiterated the submissions made before the State Commission . We
have perused the evidence on file and referred several medical texts.
7. It was admitted fact that, on 4/7/199 at 6pm patient Suman admitted in Liberty
Hospital for laparoscopic cholecystectomy (removal of gall stones). On same
day she was operated in late night between 11.30 pm to 12.15 am.
We have noted the chronology events in this case were as;
Petitioner (OP1) operated the patient from 11.30pm to 12.45 am under
general anesthesia. At about 2.20 am the patient complained of nausea
and vomiting, slight pain at operated site, thereafter, at 2.30 am copious
vomiting and breathlessness for which the duty doctor administered inj.
Atropine, phenergan, dopamine and Oxygen; but condition deteriorated
and subsequently patient died at 2.55 am.
8.
The OP contended that patient died due to known complication of surgery and
anesthesia i.e. postoperative vomiting and aspiration pneumonia. The Post
mortem was not conducted as the complainant and relatives were satisfied with
the cause of death; therefore took the body for cremation. After gap of 2
½ months i.e. on 25/9/1999 filed FIR No 202/90 in Ashok Nagar Police Station,
Jaipur with the allegation of medical negligence by the OPs. On request of SHO,
Police Station Ashok Nagar, on 1/11/1999 the Medical Board issued the a
report.
9. The medical Medical Board comprised of the seniors like Dr.D.K.Khandelwal
,Professor and Head of Department of Surgery and Dr.A.P.Veram,Professor of
Anesthesia Dept. in SMS Medical College,Jaipur and others. They verified all
the concerned hospital records of deceased Suman including lab , ECG,X ray
and ultrasound reports. Also verified the FIR and death certificate. The medical
board concluded with following discussion:
i)
It appears that the deceased Smt. Suman Rawat was
not adequately
assessed properly in view of
Mild hypertension
Mild Cardiomegaly
ECG changes
ii)
She was admitted on 04/07/1999 at 6 p.m. and thereafter
she wanted to leave for home and come next morning. What
was the emergency under which she was operated in the
night? (No evident on record)
iii)
Whether the patient was fasting or not – not evident from
record
iv)
Whether hemodynamic monitoring/cardiac status during
operation was done- not evident from record.
v)
Two LSCS with big hernia B/L divarication of recti makes
the laparoscopic cholecystectomy relatively contraindicated.
vi)
The dead body was not sent for post-mortem for
examination by the police.
vii)
The possible causes of death could be
a.
Intra-abdominal hemorrhage
b.
Acute massive myocardial infarction.
c.
Choking of the respiratory passage due to aspirated
vomits.
10. The Learned Counsel for the petitioners argued that cause of vomiting was due
to taking of food after operation by the patient against the advice of the doctors.
As the operation was performed at around 11.30 p.m. on 04.07.1999 and it
might have taken around one hour in the surgery, but soon after shifting the
patient from the operation theatre to the ward, she complained of pain and she
also vomited. We rely upon the medical texts as the patient during recovery
after general anesthesia usually has nausea and vomiting. Hence, the OP’s
contention was quite impossible for the deceased to take food Roti Sabzi soon
after the operation, which was still under influence of anesthesia and not
recovered completely. Hence we do not agree with such the allegations of
petitioner and not acceptable which are false. The patient was shifted to the
ward after surgery; but it is pertinent to note that the nursing staff in ward was
not vigilant in monitoring the post-operative patient . Also, there was no other
evidence to show that the patient took any food soon after her operation. So
relying of the words of the OP that she was given bread and butter by the
husband is totally unacceptable.
11. Even if we consider that, the petitioners did not charge any fees from the
complainant for the operation of his wife, but no evidence has been produced by
Liberty Hospital that it provides free medicines for all patients, therefore, in
absence of this if charges are recovered from some of the patients and not all
patients are treated free. The OP has charged for certain laboratory tests, Ultra
sound ECG investigations. This has been well established by decisions of
Hon’ble Apex court in Indian Medical Association Vs V.P.Shantha [(1995)
6SSC 651]. Therefore in our opinion patient is consumer under CP Act 1986.
12. It is pertinent to note that on filing of FIR; the Medical Board was constituted in
November, 1999. The entire record which was in the custody of the OP was
called. The Medical Board pointed out number of discrepancies in the record
which have caused death of the wife of the complainant.
13. We are in opinion that the conduct of OP is questionable on following points;
i)
The OP advertised for Free Surgical Camp which ought to
have fixed timings. The deceased Suman was not an emergency
patient to be operated. The medical board made the observations
that patient under her signature on 4/7/99 stated on BHT as “Hum
ghar ja rahe hain, subah aa jayenge” . Despite this request , the OP
operated her in late night in odd hours. OP should have performed
the said operation on next day morning. It appears fishy that What
ii)
iii)
iv)
was the intention and hurry for the OP conducted such operation at
00.00 hrs?
Medical board also made a reference of “There was no record
about pre-anesthetic fitness , or any operative notes.
After operation OP should have monitored patient during
recovery phase from anesthesia. But, it is careless attitude to send
patient to the ward without any proper assessment; this is a
negligence. The OPs did not perform their duties with reasonable
prudence which resulted in to death of complainant’s wife Suman.
The conduct of OP again made us suspicious that the patient
Suman died at 2.55 am on 5/7/1999. The OP forcibly sent the dead
body in the ambulance during the night itself to the residence of
the complainant. The respondent did not inform the police and did
v)
not get the Post mortem done. It was the bounden duty of hospital
to report the police for such unnatural deaths and PM should be
conducted. This is a deficiency in service and negligence by OP.
Therefore, it is pertinent that because of such
negligence there is every possibility that “cause of death could
be -Intra abdominal hemorrhage/ Acute massive myocardial
infarction/Choking of the respiratory passage due to aspirated
vomitus” as stated by Medical Board.
14. Moreover, the entire record reveals that the deceased was in good health. Her
lab reports, x ray, ECG reveal that she was not suffering from any decease
except from gall stones ( chronic cholecyctitis with cholelithiais.) It is well settled
that it is the Complainant who is to carry the ball in proving that there is initial
negligence on the part of the Doctors. However, in the case a healthy woman,
who remained fit till eleventh hour, how could she die? Certainly, the onus of
proof shifts to the OPs. The cause of her death was not known; but the medical
board in their opinion clearly mentioned three possibilities for death as
discussed in previous para. Hence, Anesthetist and the Surgeon are liable. This
is an admitted fact that the lady had walked to the operation theatre of her own,
without anybody’s help.We agree that the submission made by the Counsel for
the Complainant that this is a clear dereliction of duty by all OPs.
15. Hon’ble Supreme Court laid down the principles of what constitutes medical
negligence is now well established by number of judgments of this commission
as also the Hon’ble Supreme Court of India, including Jacob Mathew vs State
of Punjab[(2005) 6 SSC 1] and in Indian Medical Association Vs
V.P.Shantha [(1995) 6SSC 651]. One of the principles is that a medical
practioner is expected to bring a reasonable degree of skill and knowledge and
must also exercise a reasonable degree of care and caution in treating a patient
(emphasis provided).
16. According to Halsbury’s Laws of England, 4th Edition, Re-Issue Vol. 30(1) Para
197 to establish liability on that basis, it must be shown:
that there is usual and normal practice;
that the defendant has not adopted it; and
that the course of fact adopted is one and no professional man of
ordinary skill would have taken had he been acting with ordinary care.
17. An quoted passage defining negligence by professionals, generally and not
necessarily confined to doctors, is to be found in the opinion of McNair, J
in Bolam Vs. Friern Hospital Management Committeee, WLR p.586 in the
following words-(ALL ER p.121 D-F)
'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
not is not the test of the man on the top of a Clapham omnibus, because
he has not this special skill. ... It is well-established law that it is sufficient
if he exercises the ordinary competent man exercising that particular art’
Further, in Para 20, the Court cited with approval that:
The water of Bolam test has ever since flown and passed under several
bridges, having been sited and dealt with in several judicial pronouncements,
one after the other and has continued to be well-received by every shore it has
touched as a neat, clean and a well-condensed one. After a review of various
authorities Bingham, L.J. in his speech in Eckersley Vs. Binnie summarized the
Bolam test.
18. In this context we rely upon few authorities of Hon’ble Supreme Court and this
commission.
In Post Graduate Institute of Medical Education and Research, Chandigarh,
Vs. Jaspal Singh & Ors., II (2009) CPJ 92 (SC)=(2009) 7 SCC 330, it was laid
down that the failure to perform the duties with reasonable competence amounts
to negligence.
In Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka &
Ors., II (2009) CCR 61 (SC)=III (2010) SLT 734=(2009) 6 SCC 1, it was held that
once the initial burden has been discharged by the Complainant by making out a
case of negligence on the part of the hospital or the doctor concerned, the onus
then shifts on to the hospital and the attending doctor to satisfy the Court that
there was no lack of care or diligence. Same view was taken in Smt. Savita
Garg Vs. Director, National Heart Institute, IV (2004) CPJ 40 (SC)=VI (2004)
SLT 385=AIR 2004 SC 5088.
In the original petition No170/1999 decided on 6/2/2013 in the case Prem
Prakash Rajagaria Vs Nagarmal Modi Seva Sadan & ors; I(2013)CPJ
672(NC) Hon’ble Mr. Justice J.M.Malik held the Opposite parties jointly and
severally liable for medical negligence due to dereliction of duty by OPs.
19. Therefore, considering all evidence on record and above discussions we are in
firm opinion that the petitioners/OPs have to be held guilty of medical negligence
/deficiency in service on several counts as mentioned above. They are negligent
in performing their duties and lack in the standards of medical services. The
OPs are liable for the deficiency in service causing death due to medical
negligence in treatment and care.
20. The compensation awarded by State Commission is just and proper; therefore
the present revision petition is dismissed. The petitioners are directed to comply
the order of state commission in to- to within two months; failing which it will
attract interest @ 9% till the date of recovery.
..…………………..………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(S.M. KANTIKAR)
Mss
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 65 OF 2008
(Against the order dated 28.11.2007 in CC No. C-305/1998 of the Delhi State Consumer
Disputes Redressal Commission)
1. G.K. Sabharwal
2. Smt. Jaishree Sabharwal Both r/o A-3/78, Varun Aptt. Plot No.12, Sector-9, Rohini
Delhi-110085
…
Appellants
Versus
1. Dr. Satish Virmani, MBBS Clinic-QU 69-A, Pitampura Delhi-110034
2. Dr. Rajiv Chawla, MD Consultant Physician Cardiologist 180, Jai Apartment, Sector-9
Rohini, Delhi-110085
3. Santham Hospital D-5, Prashant Vihar Outer Ring Road Delhi-110085
4. Dr. Randhir Sood Gastroenterologist Sir Ganga Ram Hospital Rajinder Nagar New
Delhi.
5. Sir Ganga Ram Hospital Rajinder Nagar New Delhi
…
Respondents
FIRST APPEAL NO. 72 OF 2008
(Against the order dated 28.11.2007 in CC No. C-305/1998 of the
Delhi State Consumer Disputes Redressal Commission)
1. Dr. Rajiv Chawla, MD Consultant Physician Cardiologist 180, Jai Apartment, Sector-9
Rohini, Delhi-110085
2. Santom Hospital D-5, Prashant Vihar Outer Ring Road Delhi-110085
…
Appellants
Versus
1. G.K. Sabharwal & Smt. Jaishree Sabharwal A-3/78, Varun Aptt., Plot No.12, Sector-9
Rohini, Delhi-110085
2. Dr. Satish Virmani, MBBS Clinic-QU 69-A, Pitampura Delhi-110034
3. Dr. Randhir Sood Gastroenterologist Sir Ganga Ram Hospital Rajinder Nagar, New
Delhi
4. Sir Ganga Ram Hospital Rajinder Nagar, New Delhi
…
Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellants in FA/65/2008
: Mr. Sunil Malhotra, Advocate with
& R-1 in FA72/2008
Mr. G.K. Sabharwal (in person)
For Appellants in FA/72/2008 & R-2
& 3 in FA/65/2008
:
Mr. Neeraj Jain, Sr. Advocate with
Ms. Roohi Kohli, Adv. and
Mr.Pradhan, Advocate
For R-1 in FA/65/2008 &
R-2 in FA/72/2008
:
Mr. Vipin Jai, Advocate
For R-4 & 5 in FA/65/2008 &
R-3 and 4 in FA/72/2008
:
Mr. Subhash Kumar, Advocate
Pronounced 22nd May, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
First Appeal No. 65 of 2008 has been filed by Shri G.K. Sabharwal and another,
Original Complainants before the Delhi State Consumer Disputes Redressal
Commission (hereinafter referred to as the State Commission) being aggrieved by the
order of that Commission, which had granted them lesser compensation of Rs.50,000/and Rs.10,000/- towards litigation costs against their claim of Rs.20,00,000/- and
dismissed the complaint of medical negligence against OPs No.1, 4 and 5.
First
Appeal
No.
72
of
2008
has
been
filed
by
Dr.
Rajiv Chawla and Santom Hospital, OPs No. 2 and 3 before the State Commission,
being aggrieved by its order holding them guilty of negligence in not conducting proper
investigations in the medical treatment and directing them to jointly and severally pay
the Complainants a lump-sum compensation of Rs.50,000/- alongwith Rs.10,000/- as
costs. Since the facts and the parties in both appeals are common arising out of the
same consumer complaint, it is proposed to dispose of these appeals by a common
order by taking the facts from First Appeal No. 65 of 2008. The parties will be referred
to
in
the
manner
in
which
i.e. Shri G.K. Sabharwal and
they
were
referred
to
in
Smt. Jaishree Sabharwal as
the
complaint
Complainants,
Dr. Satish Virmani as OP-1, Dr. RajivChawla as OP-2, Santom Hospital as OP3, Dr. Ranghir Sood as OP-4 and Sir Ganga Ram Hospital as OP-5.
2.
In their complaint before the State Commission, Complainants had contended
that their daughter Miss Sonal Sabharwal (hereinafter referred to as the Patient) aged
about 19 years was running a fever of 103 on 03.10.1997 and was taken for medical
treatment to one Dr. Satish Virmani/OP-1, who gave her medication and advised blood
tests
for
Malaria,
Hepatitis,
Typhoid
etc.
The
tests
were
negative
for
Malaria, Bilurubin as also Typhoid but since platelet counts were below normal limits,
and Patient’s condition did not improve, OP-1 advised Complainants to take her to OP2, who was a Specialist. After examination of the Patient, OP-2 advised the
Complainants to admit the Patient to Santom Hospital/OP-3 for necessary investigations
and treatment. It was contended that although the blood tests conducted there were
again negative for Malaria, all other symptoms, including very low platelet counts and
high temperature were clearly indicative of Malaria but OP-2 did not give any medication
for Malaria and on the other hand diagnosed it to be a case of viral hepatitis, for which
treatment was given to the Patient till she was shifted to Sir Ganga Ram
Hospital/OP5. Even in that hospital, there was delay on the part of OP-4 (Doctor of OP5/Hospital) in starting the treatment since the Patient was brought at 8.30 a.m. on
07.10.1997 and by the time her treatment was started, her platelet counts had come
down to 48000. She was detected with Cerebral Malaria at a very late stage and even
though Mefloquin was administered, it was too late. Patient was not put on life support
nor was she taken to ICU. Because of the negligence on the part of all the OPs, the
Patient could not be saved. Being aggrieved, Complainants filed a complaint before the
State Commission requesting that they be awarded compensation of Rs.20,00,000/with interest @ 24% per annum from the date of death of the Patient till realization for
the irreparable loss suffered by them.
3.
OPs on being served filed their written rejoinders. OP-1 contended that he had
treated the Patient only for one day and after giving the required medication and
advising blood tests immediately referred the Patient to a Specialist namely OP-2. OP2 contended that he first saw the Patient on 05.10.1997 and since he was only having a
consulting chamber without the required facilities for investigations and tests, he
referred her to OP-3/Santom Hospital, where all the necessary investigations/tests were
carried out. It was contended that the Patient had told OPs that she had gone to
different hospitals and had completed a full course of anti-malaria (Chloroquinine) at
Mangalore. OP-2 further got conducted several investigations both clinical and
diagnostic, including three consecutive slides for Malaria, which indicated that it was
negative
for
the
same. In
this
background
coupled
with
gradually
increasing Bilurubin levels, low platelet counts and with an ultrasound abdomen report
suggesting viral hepatitis and encephalopathy, medical treatment was accordingly
started. Further, that the clinical symptoms of the Patient were not peculiar to Malaria
and could occur in a number of other illness including viral hepatitis, viral encephalitis,
dengue fever and enteric fever and in view of these facts and since all 3 slides were
negative
for
Malaria,
there
was
no
reason
to
suspect
that
Patient
had
Malaria. However, when the Patient’s condition did not improve, a Specialist
Gastroenterologist was called and on his advice to rule out Malaria or Encephalitis
Patient was immediately referred to OP-5/Hospital, which is a superspeciality hospital
with advanced facilities. OP-4 (a Doctor of OP-5/Hospital) also denied any deficiency or
negligence on their part. It was stated that Mefloquin, which is safe drug of choice, was
immediately administered when the Patient was detected with Cerebral Malaria
following a series of tests, including blood tests. There was no need for any life
support equipments or ICU care since the only life-saving drug available for Cerebral
Malaria had been administered to the Patient. The Patient remained in OP5/Hospital for only one day before she passed away.
4.
The State Commission after hearing the parties and on the basis of evidence
produced before it, concluded that OPs 1, 4 and 5 who had treated the Patient for only
one day each were not guilty of medical negligence. However, the State Commission
found OPs 2 and 3 guilty of medical negligence in not conducting proper investigations
by observing as follows :
“28. … At no stage the patient had full course of antimalarial chloroquine when she was brought to OP No.2 and 3. Any
reference in this regard is of doubtful nature as OP No.2 and 3 should
have ensured that patient had full course of anti-malarial chloroquine on
perusing the previous prescription. Thus OP No.2 and 3 are guilty of
negligence in either not conducting the tests properly or not giving the
proper treatment.
31. In the result, we find only OP No.2 and 3 guilty for negligence in not
conducting proper investigation by believing though it was emphatically
denied by complainant that the deceased had already taken anti-malarial
treatment and not giving the proper and requisite treatment. In the given
facts
and
circumstances
of
the
case
we
deem
that lumpsum compensation of Rs. 50,000/- and Rs. 10,000/- towards cost
of litigation shall meet the ends of justice. Remaining OPs are absolved
from the charge of negligence.”
6.
Hence, the present two appeals by OPs and Complainant, the latter seeking
enhancement of compensation awarded by the State Commission.
7.
Learned Counsel for all parties made oral submissions.
8.
Learned Counsel for OP-1 stated that the State Commission had rightly
concluded that there was no medical negligence on his part. The Patient had been
brought to him with high fever and after examining the clinical symptoms manifest in the
Patient and prescribing the required blood tests, including for Malaria, Complainants
were immediately advised to take the Patient to OP-2, who was a medical specialist.
9.
Counsel for OPs 2 and 3 contended that the finding of the State Commission
holding them guilty of medical negligence on the ground that they did not conduct the
required tests properly and give proper treatment is not borne out by the voluminous
evidence, including the case history of the Patient, which is on record. A perusal of this
evidence clearly indicates that right from 04.10.1997 when OP-2 first examined the
Patient and after preliminary examination and tests advised admission on the next day
in OP-3/Hospital, a number of diagnostic tests were conducted to check the
hematological and biochemistry parameters of the Patient. These tests included TLC,
DLC, Platelet Counts, Bilurubin, Cholestrol etc. In this connection, even though an
earlier blood test report which the Patient had brought indicated that she was negative
for Malaria, she was tested for Malaria Parasite 3 times during her brief stay of less than
3 days in OP-3/Hospital. This was specifically done to rule out Malaria since it is
common that often the Malaria Parasite is not confirmed by one blood test and
particularly if a patient has taken Chloroquine. It was only after the blood tests indicated
that platelet counts were very low and Bilurubin was high and an ultrasound of the
abdomen indicated that there were some signs of infective hepatitis that the OP-4
stated treatment for hepatitis. As is well documented the symptoms for Malaria are not
peculiar to it and are often found in other viral infections as well, including viral hepatitis,
enteric fever etc. It was further contended that as a matter of abundant caution on the
3rd day, OP-4 called a Specialist Gastroenterologist-Dr. Vivek Bhatia to see the Patient
and on his advice to rule out Cerebral Malaria/encephalopathy the Patient was without
delay referred to OP-5/Hospital. It was also pointed out that even in that hospital the
blood tests conducted on the Patient indicated that she was negative for Malaria
Parasite and Cerebral Malaria was detected only after a series of 6 blood
tests. Looking at the above facts and as detailed in the case history of the Patient a
large number of investigations were conducted including specifically in respect of
Malaria and, therefore, the State Commission’s finding that the OPs 2 and 3 were
negligent in not properlyconducting the tests and not giving the proper treatment is not
borne out by the evidence on record.
10.
Counsel for OPs 4 and 5 contended that the State Commission has rightly
exonerated them of any medical negligence and deficiency in service. The Patient had
remained with them for only one day in OP-5/Hospital during which time OP-4 got
conducted a series of tests on the Patient, as a result of which diagnosis for Cerebral
Malaria was confirmed and the life-saving drug of choice i.e. Mefloquine was
immediately administered. The fact that the Patient died because the disease was at an
advanced stage cannot be attributed to any medical negligence or deficiency in service
on the part of OPs 4 and 5.
11.
Counsel for the Complainants in his oral submissions challenged the above
contentions and stated that the clinical symptoms with which the Patient had reported
were clearly indicative of Malaria especially she was suffering from very high fever. He
brought to our attention a notification of the Government of India issued in 1995 wherein
it was clearly advised that to reduce morbidity and mortality in Patients reporting with
high temperature, headache etc., presumptive treatment for Malaria must be given. In
the instant case, the Patient had reported with all the clinical symptoms clearly
indicative of Malaria and particularly because she had come from Mangalore, which is a
coastal area where Malaria is endemic, treatment for the same should have been
given. It was further contended that it is well known that initially blood tests may be
negative for Malaria in a Patient having Malaria and, therefore, a series of blood tests
should have been done consecutively as was done in OP-5/Hospital, which the OPs 2
and 3 failed to do. Further, as per medical literature on the subject to rule out Malaria
particularly Falciparum Malaria (Cerebral Malaria) a bone marrow test is also
necessary, which was not done in the instant case. The fact that the Patient died of
Cerebral Malaria is confirmed in the death certificate and, therefore, OPs were clearly
guilty of medical negligence and deficiency in service in not correctly diagnosing the
Patient’s illness and giving treatment for the same. Had proper treatment for Malaria
been given from the time of admission based on a correct diagnosis or if the Patient had
been immediately referred to OP-5/Hospital, then her life could have been saved. The
State Commission while concluding that there was medical negligence in the treatment
of the Patient because of which she could not be saved, erred in granting only a token
compensation to the Complainants for the irreparable loss caused to them due to the
death of their daughter who was a promising B.Sc. student.
12.
We have heard learned Counsel for the parties and have carefully considered the
evidence on record. So far as OPs 1, 4 and 5 are concerned, we agree with the finding
of the State Commission that they were not guilty of medical negligence for the reasons
recorded in the order of the State Commission, namely, these OPs had examined the
Patient on only one day each and during this short period the required tests and
medication was administered to her.
13.
So far as OPs 2 and 3 are concerned, the State Commission has found them
guilty of medical negligence in not correctly diagnosing that the Patient had Malaria and
giving her treatment for the same instead of treatment for viral hepatitis, which she did
not have. After going through the case history and the medical records filed in evidence,
we are unable to support this finding of the State Commission. We note that right from
04.10.1997 when the Patient was seen by OP-2, he got blood tests conducted to rule
out Malaria and on the next day referred her to OP-3 where again a battery of
hematological and biochemistry tests were conducted to check the Patient’s TLC, DLC,
ESR, Platelet Counts, Blood Urea, Sugar, Bilurubin, Cholestrol etc. Most importantly,
even though Patient had brought an earlier blood test report done on the advice of OP1 which showed that it was negative for Malaria, Typhoid etc., OP-2 again got blood
tests conducted on 3 consecutive occasions from 5 thto 7th of October, 1997 to check
whether she had Malaria. On all 3 occasions the results of the blood tests clearly
indicated that the blood was negative for the Malaria Parasite. Since it is medically well
established that most of the clinical and diagnostic symptoms of Malaria are similar to
those for other viral infections*
(Source : (i) Malaria Vector Research Centre – www.killmosquito.org; (ii)
Pathogenesis of Malaria and Clinically Similar Conditions www.ncbi.nlm.nih.gov, July 2004, Ian A. Clark; (iii) Malaria – Medical
Microbiology – NCBI Bookshelf - www.ncbi.nlm.nih.gov)
and the ultrasound report also indicated that the Patient may be having viral hepatitis
apart from the high Bilurubin and low platelet counts indicated in the blood tests, OPs 2
and 3 cannot be faulted for having concluded that the Patient had viral hepatitis rather
than Malaria; this was the indication both as per the clinical symptoms and the
diagnostic tests as discussed above.
14.
Counsel for the Complainants has contended that since the Patient had come
from a Malaria endemic area (Karnataka), as per the Government of India 1995
notification presumptive treatment for Malaria should be given. We have perused this
notification and we note that Karnataka was not included as one of the Malaria endemic
State.
15.
What constitutes medical negligence is now well established through a number of
judgments of this Commission as also of the Hon’ble Supreme Court. Based on the
touchstone of the Bolam’s test, one of the principles is that whether the doctor adopted
the practice (of clinical observation diagnosis – including diagnostic tests and treatment)
in the case that would be adopted by such a doctor of ordinary skill in accord with (at
least) one of the responsible bodies of opinion of professional practitioners in the
field. Looking at the facts in the instant case, it is evident that OP-2, who is a wellqualified medical specialist, had taken due care in respect of both the clinical
observation and diagnostic tests in the treatment of the Patient as per his best
professional knowledge and skills. Unfortunately, because of the nature of the illness
(Falciparum Malaria) which is often not detected till an advanced stage through blood
tests, the Patient could not be saved. However, this unfortunate death cannot be
attributed to any medical negligence on the part of OPs. We are, therefore, unable to
sustain this finding of the State Commission.
16.
We, therefore, set aside the order of the State Commission and allow the First
Appeal No. 72 of 2008. First Appeal No. 65 of 2008 stands dismissed. No costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 548 OF 2013
(Against the order dated 12.09.2012 in Appeal No.A/08/1087 of the State Commission,
Maharashtra)
Arzoo Yusuf Bagwan (Through Her Naturarl Gardian) Smt. Nafisa Yusuf Bagwan R/o
593, Ganpati Ali, Taluka Wai, Dist- Satara, Maharashtra
……….Petitioner
Versus
Dr. Prashant Pol R/o Pol Hospital 588 – A, Ganpati Ali, Near Municipal Council, Wai,
Taluka Wai, District – Satara, Maharashtra
.........Respondent
BEFORE
HON’BLE MR. JUSTICE J.M. MALIK,
PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner
: Mr. Keshav Ranjan, Advocate
For the Respondent/
Caveator
: Mr. Sudhanshu S. Chaudhari, Advocate
PRONOUNCED ON: 24 May 2013
ORDER
PER MR.VINAY KUMAR, PRESIDING MEMBER
The matter in the consumer complaint related to a 12 year old girl, who was taken
to the OP, Dr. Prashant Pol with an ear complaint. She underwent surgery on
10.2.2007. But, the problem did not end with it. Her complaint before the District Forum
was that she was not given proper medical treatment and therefore, had to spent over
Rs.2 lakhs in further treatment elsewhere, yet never regain her hearing power. She,
therefore, demanded a compensation of Rs.9 lakhs for the treatment undergone and to
be undergone as also for mental and financial hardship suffered.
The District Consumer Disputes Redressal Forum Satara, allowed the complaint and
awarded compensation of Rs.3 lakhs. However, the Maharashtra State Consumer
Disputes Redressal Commission allowed the appeal of the doctor and dismissed the
complaint. Complainant Arzoo Yusuf Bagwan has now filed this revision petition
against the order of the State Commission
3.
We have carefully considered the records and heard two counsels. Mr. Keshav
Ranjan Advocate has been heard on behalf of the RP/Complainant and Mr. Sudhanshu
S. Chaudhari on behalf of respondent/OP.
4.
The District Forum has observed that the respondent has admitted that the
applicant suffered from meningitis and that he advised her to approach a pediatrician for
treatment of meningitis. The Complainant was suffering from vomiting and headache,
which are indications of meningitis. The District Forum has therefore, addressed the
question whether there was any connection between the ear infection and meningitis in
this case. The District Forum has apparently relied upon the statement of Dr. Bokil that
the problem of Meningitis was because of the presence of bacteria. It has therefore held
that—
“There is no doubt that the applicant since beginning has stated that
the respondent removed the bandage of her ear and a strip of bandage and
cotton put inside and when it was shown to the respondent it was wet and
water was oozing from her ear and it was also stinky. There was septic in
the ear. As per the documents at Exhibit 30 filed by the applicant regarding
the information as to meningitis, it is clear that when there is infection of
bacteria there is pus. There was pus in the ear of the applicant which
was operated. It is established that infection of bacteria has emerged
from the middle ear of the ear as a result of which the applicant
suffered from meningitis. There is no doubt that before the operation
of ear, there was no infection meningitis. The respondent also does not
dispute that the applicant has lost hearing ability as a result of
meningitis. However, his case is that there is no connection of the
respondent therein. However, from perusal of the documents submitted by
the applicant and the respondent, the negligence of the respondent is
established. MRI of the brain of the applicant is at Exhibit 5/1. On perusal
thereof, there is no reference about middle ear. The blood report of the
applicant is also available at Exhibit 5 and it is clear that the infection of
bacteria is not through blood. The applicant has filed the papers with
respect to her examination and treatment in Hearing Health Care Service at
Exhibit 5/15. There is a remark in her audiogram [no response even at
highest level (2)] ear and “bill profound hearing loss”. (emphasis supplied)
5.
On the other hand, the State Commission has noted that according to the OP
meningitis which the Complainant suffered from had nothing to do with the ear operation
conducted by him. The Commission has referred to the affidavits of Dr. Jaywant
Manohar Thoke (1.5.2008) and Dr. Shrikant Anil Bokil (also 1.5.2008). It has noted that
affidavit of Dr. Bokil speaks about the pathological examinations conducted on
26.2.2007 and 5.3.2007, which confirmed that the Complainant was suffering from
meningitis, which was due to bacterial infection. But his evidence does not establish any
nexus of the said conditions of the Complainant with the surgery performed by the
OP. Per contra, the evidence of Dr. Jaywant Manohar Thoke was that as per the report
of 21.2.2007 from Jeevan Jyoti Laboratory Complainant Arzoo was suffering from
meningitis. But he has categorically stated that he did not find any infection in the
ear. Therefore, the Commission held that meningitis suffered by the Complainant, had
nothing to do with the earlier surgery performed by the OP. It observed that—
“Learned District Forum while assessing the evidence on oath given
by Dr. Jaywant Manohar Thoke to the effect that on examination of the
Complainant Aarzoo, he had not found any ear infection in her made on
affidavit to contradict the same with the statement/observation appearing in
the case-papers, supra, but without giving any opportunity to Dr. Thoke to
explain the observations recorded (Obviously by somebody else other than
Dr. Thoke). Thus, it would be improper to discredit the evidence on affidavit
of Dr. Jaywnt Manohar Thoke on that count. Whatever it may be but as to
whether there was an infection present in the Complainant Aarzoo’s
ear or not, one thing is certain and there is no dispute about it, namely,
meningitis conditions which the Complainant Aarzoo developed on
20/2/2007 or on 21/2/2007 had nothing to do with the ear operation
carried out on her by the Opponent on 10/2/2007. In view of such
situation and in absence of any other evidence to contradict the evidence of
Dr. Jaywant Thoke, we find no reason to disbelieve the evidence of Dr.
Jaywant Thoke. Reasons recorded by the District Forum to discredit the
evidence of Dr. Jaywant Thoke are not only inadequate contrary to the rules
of evidence and thus, can be categorized as perverse appreciation of
evidence on record.” (emphasis supplied)
6.
It is argued on behalf of the revision petitioner that the State Commission should
have appointed an expert instead of adopting a hyper-technical approach. It is also
contended that while the affidavit evidence of Dr. Thoke was considered by the State
Commission. The affidavit evidence of Dr. Srikant Anil Bokil was not considered. He
could have been examined by the State Commission to ascertain whether the
Complainant suffered from meningitis and whether it was caused by bacterial infection.
7.
The central question addressed by the District Forum as well as the State
Commission is whether the condition of meningitis, which the Complainant had
developed, was caused by the ear infection following the operation conducted by the
OP. The District Forum has held that it was caused by the bacteria in the infected ear.
But this finding is based on an assumption that there was no other infection.
8.
At this point, it is significant to note that as per evidence on record the ear surgery
was performed on 10.2.2007. Ten days later, the patient was found to be suffering from
meningitis, as seen from the report of 21.2.2007 from Jeevan Jyot Hospital. In the case
paper of this hospital, referred to by the State Commission, the record of 22.2.2007
notes ‘No active middle ear or mastoid infection’. But, it also says ‘Right Otitis Externa
(infection of external ear). It would mean that infection in the external ear existed, as of
22.2.2007. Significantly, the record also carries an advice “To review patient after 48-72
hours to find out connection between ear infection and meningitis.” It is thus clear that
further observation for 2 to 2 and half days was required to establish or rule out the
connection between ear infection and meningitis. The State Commission has however,
chosen to go by the opinion of Dr. Thoke of 22.2.2007 itself about absence of any active
ear pathology/infection.
9.
The contention of the revision petitioner that the State Commission should have
sought expert opinion is to be seen in the above context. However, it is not the case of
the petitioner that a prayer in this behalf was made and rejected by the State
Commission. The law does not require appointment of an expert in every case. It was
held by Hon’ble Supreme Court of India In V. Kishan Rao Vs. Nikhil Super Speciality
Hospital, (Civil Appeal No. 2641 of 2010) decided on 8.3.2010
“In the opinion of this Court, before forming an opinion that
expert evidence is necessary, the Fora under the Act must come to a
conclusion that the case is complicated enough to require the opinion
of an expert or that the facts of the case are such that it cannot be
resolved by the members of the Fora without the assistance of expert
opinion. This Court makes it clear that in these matters no mechanical
approach can be followed by these Fora. Each case has to be judged
on its own facts. If a decision is taken that in all cases medical
negligence has to be proved on the basis of expert evidence, in that
event the efficacy of the remedy provided under this Act will be
unnecessarily burdened and in many cases such remedy would be
illusory.”
10.
Therefore, the decision of the State Commission cannot be faulted merely on the
ground that independent medical expert opinion was not sought. But, at the same time,
the State Commission should have considered the professional assessment of the
treating doctors after the recommended observation of 2 to 2 and a half days. Due to
this reason, the impugned order cannot be sustained.
11.
Therefore, the order of Maharashtra State Consumer Disputes Redressal
Commission in First Appeal No.A/08/1087 is set aside. The matter is remanded to the
State Commission for fresh consideration and decision in the light of the observations
made above. No order as to costs.
.……………Sd/-……………
(J. M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-…………….
(VINAY KUMAR)
MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 161 OF 2008
(Against the order dated 25.10.2007 in Original Case No.57/01 of the
M.P. State Consumer Disputes Redressal Commission, Bhopal)
Dr. Sunil Bhandari D. Ortho, C/o Fracture Clinic Near Punjab National Bank
Trimulgiri, Secunderabad-500115 Andhra Pradesh
…
Appellant
Versus
1. Ku. Pooja Kori D/o Shri Mohanlal Kori R/o Near Pisanhari Ki Madhya
Kori Mohalla, Purwa Jabalpur, Madhya Pradesh
2. Laxmi Narayan Hospital Through Director Madan Mahal, Opp. Belasing School
Nagpur Road, Jabalpur, Madhya Pradesh
… Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant
For Respondents
: Ms. Swati B. Sharma, Advocate
: Mr. Narendra Chauhan, Advocate for R-1
Pronounced on 27th May, 2013
ORDER
PER VINEETA RAI, MEMBER
1.
Dr. Sunil Bhandari, Appellant herein and Opposite Party No.1 before the M.P.
State Consumer Disputes Redressal Commission, Bhopal (hereinafter referred to as the
State Commission) has filed this appeal challenging the order of that Commission which
had found him guilty of medical negligence in the complaint filed by Ku. Pooja Kori
(hereinafter referred to as the Patient) through her father Shri Mohan Lal Kori, Original
Complainant before the State Commission.
2.
In his complaint, Mohan Lal Kori, father of the Patient, had stated that he had
taken his daughter (the Patient) who had a mild deformity in her left leg diagnosed as
Post-Polio Residual Paralysis (PPRP) to Appellant-Dr. Sunil Bhandari, an Orthopedist,
in response to an advertisement that patients who required surgery for disability would
be operated by Appellant-Doctor in Laxmi Narayan Hospital (Opposite Party No.2) on
payment of Rs.7000/-. After examining the Patient, a surgery was recommended by the
Appellant-Doctor and Complainant was advised to deposit Rs.8000/- as charges for
hospital, operation etc. On 08.01.2001 the surgery was performed on the Patient under
general anesthesia. After the surgery, Patient continued to complain about the
excruciating and agonizing pain in her operated leg but she was discharged the next
day without being examined by the Appellant-Doctor and without adequate postoperative care, advice and treatment. Appellant-Doctor only advised analgesic for the
pain and asked her to come for a review check-up on 09.02.2001. 2 or 3 days after the
surgery, there was blue colouration on the operated leg, which started spreading
accompanied with pain and, therefore, Appellant-Doctor was contacted on phone who
stated that he would examine the Patient on his next visit to Jabalpur and that there was
nothing to worry. When the Patient was brought to Appellant-Doctor for review checkup on 09.02.2001 the operated leg had become completely black with loss of sensation.
Appellant-Doctor, however, did not give any satisfactory explanation for this
development and only admitted that the operation had not been successful. He
thereafter reapplied the plaster on the operated leg. However, since the health of the
Patient kept deteriorating, she was taken to Netaji Subhash Chandra Bose Medical
College, Jabalpur, where Dr. H.S. Verma, Orthopedic Surgeon, after examining the
Patient informed that gangrene had developed because of cessation of blood supply in
the operated limb. The report of the Colour Doppler examination of the arteries of the
left lower limb conducted at Charak Diagnostic & Research Centre, Jabalpur suggested
that there was possibility of resistance of flow in the left popliteal artery, which is
indicative of deficiency of blood supply. Because of the development of gangrene, the
operated leg of the Patient had to be amputated leaving her totally and permanently
handicapped and her aspiration to become an athlete or a police officer was no longer
possible impacting on her entire quality of life. A legal notice was sent to AppellantDoctor in this regard but because of the unsatisfactory response, Complainant filed a
complaint before the State Commission on grounds of medical negligence and
deficiency in service and requested that Appellant-Doctor and OP-2/Hospital be directed
to pay a compensation of Rs.18,99,000/- to the Complainant.
3.
Appellant-Doctor on being served filed a written rejoinder denying that there was
any medical negligence or deficiency in service. It was stated that he had performed
the surgery on the Patient free of cost at a camp organized for this purpose by an NGO
called the Help Disabled Organisation Hyderabad in OP-2/Hospital. The surgery was
performed after taking the written consent and informing the Complainant about the
risks involved. Instructions for post-operative care were also given, including the
instruction to the Complainant to contact the family physician in case the Patient had
any problem post-surgery. Specific instructions were also given to get the plaster
removed in case of severe pain and swelling but these instructions were not followed by
Complainant. It was denied that there was any damage to the blood vessel of the leg
during the surgery conducted using the Soutter & Yount’s procedure, which is a
worldwide accepted surgical procedure. Appellant-Doctor also contended that it was he
who diagnosed the development of gangrene, which was unrelated to the surgery. If
there had been any damage as alleged to the popliteal artery, which is located near the
knee and away from the site of the surgery, then the entire leg from the knee
downwards would have been affected which was not the case. Thus, the cause of the
gangrene was a blood clot (arterial thrombosis) which was not attributable to the
surgery and was caused because of negligence in post-operative care by Complainant.
4.
OP-2/Hospital contended that the entire camp was organized by an NGO. They
had only rented out the operation theatre and general ward of the hospital and,
therefore, neither had they any connection/knowledge about the surgery conducted on
the Patient nor had they received any money from the Complainant. Thus, no service
was provided to the Patient/Complainant.
5.
The State Commission on the basis of submissions made before it and the
evidence on record, allowed the complaint by observing as follows:
“12. On record there is only a single prescription of Dr. Bhandari. After
performing the surgery, the doctor discharged the patient. His prescription
only advises some antibiotics, painkillers and a cryptic noting “deformity
completely corrected – review on 9th Feb”. There is no mention anywhere
if any plaster was put. There are no operation notes filed. We do not
know what happened in the Operation theatre, and whether there was any
damage to the Popliteal artery during the surgery. No x-ray has been
advised after the surgery, nor has any x-ray report been filed. We do not
know on what basis the doctor said that the deformity was completely
corrected. The Colour Doppler report of 13.3.01 states – “findings suggest
the possibility of resistance to flow in left popliteal artery”. Obviously, the
blood flow in the popliteal artery was not proper, resulting in the
development of gangrene. The doctor has not explained why this
happened. It is not his case that gangrene is a complication of the
Soutters and Yount procedure. A prima facie case against the respondent
has been made out by the complainant. It is for the respondent to rebut
the prima facie case, which he has not been able to do.
13.
Dr. Bhandari states that when the complainant contacted him, he
told him to cut the plaster and put the leg in the preoperative stage. Had
he actually said this, we see no reason why the complainant would not
have done so. Apparently, the plaster was too tight. Along with the
damage to the popliteal artery it led to the development of gangrene.
14.
When a doctor undertakes to perform a surgery, he also
undertakes to provide due care after the surgery. He is not expected to
disappear immediately after the operation, without any backup doctor, who
can be contacted by the patient in case of any problem. There is no
record as to how long the doctor kept the patient and provided postoperative care. According to the complainant, Ku. Pooja was discharged
the next day. This has not been denied by the respondent doctor. There
is no noting as to what her condition was at the time of discharge. Who
was to give the post-operative care and regular checkup necessary after
the surgery? The respondent lured handicapped patients with promises of
a better life after surgery, and after receiving the money and performing
the surgery he left the down, with no consideration of the patient. In fact, if
he had no support systems and backups to continue with the treatment
and care once he left, he should not have performed the surgery at all.”
The State Commission held only Appellant-Doctor guilty of deficiency in service and
absolved OP-2/Hospital since it had only given the operation theatre and general ward
on rent to the camp organizers. It, therefore, directed Appellant-Doctor to pay the
Complainant a sum of Rs.2.00 Lakhs as compensation since after amputation the
Patient would require prosthesis and further treatment. This amount was directed to be
paid within one month of the date of receipt of the order, failing which it was to carry
interest @ 9% per annum from the date of order till payment. Rs.1000/- were awarded
as cost.
6.
Being aggrieved by the order of the State Commission, the present first appeal
has been filed.
7.
Learned Counsels for both parties made oral submissions.
8.
Learned Counsel for the Appellant-Doctor contended that the State Commission
erred in holding him guilty of medical negligence and deficiency in service. It was
contended that a surgical procedure had been conducted on the Patient through the
Soutter & Yount’s procedure, which is a universally accepted procedure and it was
never assured that the deformity would be completely eliminated because the Patient’s
lower limb was totally dysfunctional. However, the surgery was necessary to correct the
deformity to the extent so as to enable the Patient to walk with the help of aids such as
calipers. The surgery was successfully conducted by the Appellant-Doctor, who is a
highly qualified orthopedic surgeon and he had given a prescription for post-operative
care and advised follow-up visit a few days later. The surgical procedure, it was pointed
out, did not involve any touching or incision in the area of the popliteal artery blood
vessel which is located near the knee and not at the level of the ankle where the
surgery was conducted. Thus, the gangrene that had set in at the level of the ankle and
which was detected by the Appellant-Doctor during the follow up visit could not under
any circumstances be attributed to the surgery. It probably occurred because of
formation of a blood clot in the artery which is not linked to the surgery. It was further
contended that this could be because of negligence on the part of Complainant in the
post-surgery care of the Patient. Counsel for the Appellant-Doctor also pointed out that
the State Commission had sent the case papers to a medical expert i.e. Dr. H.K.T.
Raza, Professor and Head of Department, Department of Orthopedics, Medical College,
Jabalpur, who had opined that the procedure done on the Patient i.e. Soutter & Yount’s
procedure was a correct one. The onus to prove that there was any medical negligence
or deficiency in service was on the Complainant, who has failed to do so.
9.
Counsel for the Complainant on the other hand reiterated that the gangrene was
caused because of neurovascular damage during the surgery when undue pressure
was put on the knee in a bid to straighten it and after which a tight plaster was cast by
the Appellant-Doctor causing a tear in the popliteal artery and ultimately resulting in
gangrene. Further, no post-operative care was provided since the Appellant-Doctor
went away to Hyderabad after performing the surgery in Jabalpur. In his post-operative
directions, the only advice given was that in case of pain the Patient may be given
antibiotics and painkillers and that the deformity was completely corrected. In fact no xray or any other diagnostic procedure was carried out to confirm that the deformity had
been corrected. On the other hand, Patient continued to experience excruciating pain
and discomfort and the Colour Doppler test dated 13.03.2001 confirmed that there was
a possibility of resistance to blood flow in the left popliteal artery. This occurred soon
after the surgery and the Appellant-Doctor did not give any plausible explanation to
support his statement that the surgery was successful and that the gangrene that set in
was not caused as a consequence of the surgery and lack of post-operative care. The
State Commission in its detailed order has dealt with these issues and rightly concluded
that the Appellant-Doctor was guilty of medical negligence in the medical treatment of
the Patient, including post-operative care. Further, the Appellant-Doctor’s contention
that the medical expert to whom the papers were referred had stated that he had
conducted the correct procedure did not, however, absolve him of medical negligence
since the medical expert had categorically stated that in the absence of all the
necessary medical documents, he could not give any specific finding in this respect.
The fact that the Patient’s leg had to be amputated for the gangrene in another hospital
in Jabalpur is adequate proof of the medical negligence on the part of the AppellantDoctor.
10.
We have heard learned Counsels for the parties and have also gone through the
evidence on record. Patient’s surgery by Appellant-Doctor to rectify the deformity
caused because of Post-Polio Residual Paralysis (PPRP) at OP-2/Hospital is not in
dispute. It is further a fact that after conducting the surgery, the Appellant-Doctor went
back to Hyderabad where he is based. From the evidence on record we note that postsurgery he had advised only some antibiotics and painkillers and made a noting
that “deformity completely corrected – review on 9th Feb.”. However, we note that no
detailed operation notes were filed and nor was there any diagnostic test on the basis of
which the Appellant-Doctor had concluded that the deformity had been completely
corrected. There is no evidence of any other advice written or otherwise as to what the
Patient or Complainant should do and which doctor they could contact in Jabalpur in
case of any complication.
It is not disputed that the Patient post-surgery had excruciating pain with slight
blue colouring of the leg and in fact Appellant-Doctor during the review visit on
09.02.2001 had himself detected the gangrene. However, we note that no treatment
was advised or undertaken on how to deal with the onset of gangrene and plaster was
merely put back. It was only at the Medical College, Jabalpur where the Patient was
taken when there was further blackening of the operated leg that the leg had to be
amputated as a result of the gangrene. From the narration of the above facts, we find
force in the contention of the Complainant that due post-operative care was not
provided by the Appellant-Doctor, particularly since no medical records or notes of
surgery were produced by the Appellant-Doctor before the State Commission to counter
the
prima
facie
case
of
negligence
made
out
against
him
by
the
Complainant. Appellant-Doctor’s contention that the medical expert Dr. Raza to whom
the papers were sent had ruled out medical negligence is not factually correct since a
perusal of the opinion clearly indicates that he had refrained from giving any opinion
regarding medical negligence since the documents sent to him were incomplete. In the
instant case, following the surgery gangrene had set in which the Appellant-Doctor has
not been able to satisfactorily explain except to state that the popliteal artery could not
have been damaged during the actual surgery which was away from the site of this
artery. On the other hand, there is evidence based on the Colour Doppler test
conducted little over a month after the surgery that confirms that there was resistance of
blood flow in the left popliteal artery. Complainant has contended that the situation was
aggravated because the plaster had been very tightly put and no advice was given to
remove it in case of pain etc. The State Commission, we note, had gone into all these
facts and vide its well-reasoned order, which has been cited in para-5, concluded that
Appellant-Doctor was guilty of medical negligence and deficiency in service by failing to
provide due care to the Patient, particularly post-surgery care. We are in agreement
with this finding of the State Commission. In all surgeries, particularly in orthopedic
surgeries, post-operative care is very important to ensure full recovery and
rehabilitation. In the instant case, the Appellant-Doctor by not being available to the
Patient post-surgery and not giving the required written instructions of what is to be
done in case of any complications or untoward developments was undoubtedly guilty of
medical negligence by not providing reasonable care and caution which was required of
him as a good medical professional. We are of the view that for the reasons stated
above the Appellant-Doctor was guilty of medical negligence and deficiency in service
by failing to provide the required post-operative care to the Patient, the unfortunate
result of which was the amputation of her leg causing life long disability apart from
mental agony and heavy financial expenditure on her subsequent treatment. The State
Commission taking into account all these facts had awarded a sum of Rs.2.00 Lakhs to
be paid by the Appellant-Doctor. We are of the view that under the circumstances this
compensation is reasonable and justified.
11.
To sum up, we agree with the finding of the State Commission that Appellant-
Doctor is guilty of medical negligence and deficiency in service. The present first
appeal is dismissed and Appellant-Doctor is directed to pay a sum of Rs.2.00 Lakh to
the Complainant within a period of one month, failing which it will carry interest @ 9%
per annum from the date of the order till payment, alongwith Rs.1000/- as costs.
Sd/(ASHOK BHAN, J.)
PRESIDENT
Sd/(VINEETA RAI)
MEMBER
Mukesh
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3807 OF 2011
(From order dated 13.09.2011 in First Appeal No. 39 of 2009
Consumer Disputes Redressal Commission,Jharkhand, Ranchi)
of the State
Dr. Mrs. Nargis Paul W/o Sh. C.H. Madhai St. Paul Healthways, Sector-IV Bokaro Steel
City, District Bokaro
… Petitioner
Versus
Smt. Mamta Kumari W/o Sri Pawan Kumar Or. No. D-116, D.V.C. Colony, At+
P.O.,+P.S.-Chandrapura, District-Bokaro (Jharkhand)
… Respondent
BEFORE:
HON’BLE
MR.JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner
For the Respondent
:
:
Ms.Binita Shahi, Advocate
Nemo
Pronounced on 29th May, 2013
ORDER
PER DR. S.M. KANTIKAR
1.
2.
This Revision Petition has been filed by the petitioner Dr. Mrs. Nargis Paul
assailing orders passed by the Hon’ble State Commission on 13.09.2011 in the First
Appeal 39/2009.
Facts in brief of this Case are:
From 24.10.2006 Smt. Mamta Kumari, the Respondent/complainant (OP) for her
first pregnancy was followed Antenatal care (ANC) under Dr. Nargis Paul who is the
Petitioner herein. On 4/2/2007 she was admitted with labour pain in St.Paul
Healthways, Ranchi. The petitioner performed Caesarean Section (LSCS) operation
and delivered a healthy baby .She remained in hospital up to 12/2/2007. As per
complainant she felt continuously febrile (fever) by negligence of Petitioner. It was
also alleged that she had to shift to Bangalore and was under treatment up to
5th March 2007.According to the complainant Dr.Paul hastily conducted LSCS and
left her without completing the process to proceed on picnic. It was also asserted
that fever was kept subsided with injection to cover-up her deficiencies and faults in
treatment. For which complainant filed as complaint in District Consumer Disputes
Redressal Commission (in short “District Forum”) for compensation of Rs.
5,00,000/- as monetary loss, 1,00,000/- for physical and mental agony with cost of
litigation Rs.10000/- against the Respondent/Appellant. Dr.Paul appeared before
District forum and denied any deficiency and negligence in treatment and LSCS was
performed with utmost care and caution. The compliant was discharged on
12.02.2007 after complete recovery. It was contended that any pelvic infection
detected at Bangalore on 22/02/2007 may be due to unhygienic condition of Smt
Mamata.
The District Forum held the petitioner for negligence observing as follows:
7. While going through the entire case records and documents it
is observed that the decision of OP-Doctor to go for LSCS operation of the
Complainant. In case of breech presentation found was not an act of
negligence and deficiency in service on part of Complainant. But an
appreciation of the treatment reports in connection with the Complainant’s
treatment at Manipal Hospital at Bangalore during the period from
22.02.2007 to 21.03.2007 has led us to conclude that the symptoms of
UTI. Bilateral gluteal antibioma and pelvic infection developed to the
Complainant after her caesarean operation by the OP doctor were on
account of her negligence and deficiency in service provided to the
Complainant during the caesarean operation and also posts operatively. In
view of the above we, therefore, hold OP liable to pay compensation to the
Complainant.
3.
Thereafter two appeals were filed in State Commission as the complainant filed
appeal No.63/2009 for enhancement of compensation a while the petitioner Dr.Paul
filed First appeal No. 39/2009 for dismissal of order. The State Commission after
hearing the parties and evidence on record uphold the order of District Forum and
dismissed the FA 39/2009 and also dismissed FA 63/2009 for enhancement of
award of compensation.
4.
Aggrieved by the order of State Commission the petitioner preferred this revision
petition.
5.
We have heard the learned counsel for petitioner who asserted that there was no
negligence and also brought our notice that the State Commission has not found any
negligence or deficiency on part of petitioner; but confirmed the said order passed by
District Forum and awarded compensation of Rs.50000/-.
6.
We have examined the entire material on record and relied upon several medical
texts, literature and decisions of Hon’ble Supreme Court and this commission.
7.
The case sheet record of St Paul’s Healthways perused from the date of
admission as 4.2.2007 to date of discharge on 12.2.2007 which narrated entire
treatment aspect, operative details, TPR (temperature, pulse records) etc; accordingly
It’s clear that the patient (complainant) was comfortable and temperature records were
ranging from 96 to 98F which is within normal range. Even on the date of discharge
complainant was Afebrile (No fever) and she was in good health. She was discharged
with an advice to take proper rest and some medication as per discharge summary.
Further, she was advised to come for review after a month or earlier if any problem
occurs. This is correct and as per standards of medical practice; hence we do not find
any deficiency or negligence in medical services by petitioner.
8.
It is contended that father of complainant took her to petitioner for c/o fever who
flatly denied treating her. Therefore, her condition deteriorated day by day, she went to
Bangalore by air then on 22.02.2007 taken treatment at Manipal Hospital, Bangalore.
Suffering from fever is not critical issue and not an emergency. It is the fault on the part
of complainant and her father that instead of traveling thousands of kilometers, a long
distance to Bangalore, she should have taken to other major hospitals nearby (Bakaro
General Hospital) who deals with such critical patients. Therefore, such built up story
and false submission of complainant is unacceptable.
9.
We have perused the documents of Manipal Hospital, Bangalore like then
Discharge Summery and various tests reports. Our observations reveal that
complainant was admitted in Manipal Hospital from 22/2/2007 to 5/3/2007. The final
diagnosis mentioned as “URINARY TRACT INFECTION. BILATERAL ANTIBIOMA,
PELVIC INFECTION.” After proper treatment she was discharged on 05.03.2007; but
the OP again got admitted on 10.03.2007 in Manipal Hospital, Bangalore with pain and
fever over surgical wound at anterior abdominal wall which was treated and discharged
on 21.03.2007. There was no reference or any mention about the cause of fever was
due to previous LSCS in the records of Manipal Hospital. We have referred several
medical literatures which did not reveal the LSCS is one of the direct cause of antibioma
or Urinary Tract Infection/Pelvic Infection. Such infections are common due to
unhygienic condition of patient and other several causes and health condition of patient.
Manipal Hospital did not mention at the time of admission the patient’s condition was
critical; hence the complainant’s say is absolutely false one.
10. On the point of law the State Commission in its order duly observed and
acknowledged that the Complainant/OP has not brought any evidence in support of
the negligence by the Petitioner nor to prove that she left the OP with open surgical
wound and went for a picnic. It is also observed that the OP has not brought on
record any evidence to show that the treatment provided by the Petitioner to the OP
during her one week stay (4-12.2.2007) at St Paul’s Healthways was not in
accordance with established practices of an ordinary skilled doctor.
11. It is explained that petitioner is a reputed Obstetrician and Gynecologist working
as In charge of St Paul’s Health ways, a hospital for women by women since 1991
and awarded for her best services and charity. In this case we would like to rely
upon Hon’ble Supreme Court’s judgment which laid down certain principles in Jacob
Mathew’s Case Vs State of Punjab (2005) 6 SSC 1 and in another case Kusum
Sharma & ors Vs Batra Hospital and Medical Research & ors (2010) 3 SCC 480;
Hon’ble Justice Dalveer Bhandari discussed the issue of medical negligence and
protection of medical professionals the relevant text from the judgment as:
“The medical professionals are entitled to get protection so long as they
perform their duties with reasonable skill and competence and in the
interest of the patients. The interest and welfare of the patients have to
be paramount for the medical professionals.
In our considered view, the aforementioned principles must be kept in
view while deciding the cases of medical negligence. We should not be
understood to have held that doctors could never be prosecuted for
medical negligence. As long as the doctors have performed their duties
and exercised an ordinary degree of professional skill and competence,
they cannot be held guilty of medical negligence. It is imperative that the
doctors must be able to perform their professional duties with free
mind.”
12. Therefore, we apply well-settled principles enumerated in the preceding paragraphs
in dealing with cases of medical negligence, the conclusion becomes irresistible that
petitioner’s act was not a medical negligence. The impugned orders of the District
Forum and State Commission have miserably failed to appreciate the facts on
record which indicates that they have not based their findings on any cogent or
convincing reasons. The conduct of complainant is evidently deplorable and should
not have escaped the attention of State Commission.
13. Based on the above discussion, it is very clear that the Complainant/OP is not
entitled for any compensation. Even if she has suffered by her ill health which has
no nexus with previous LSCS operation. The material placed on record makes very
clear that there was every intention on the part of complainant to mislead the
consumer Fora and harass the doctor. Therefore, we allow this Revision Petition
and set aside the order of State Commission. However, there shall be no order as to
cost.
..…………………..………
(J.M. MALIK J.)
PRESIDING MEMBER
……………….……………
(S.M. KANTIKAR)
MEMBER
Mss
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2758 of 2008
(From the order dated 21.01.2008 in Appeal No.A-236/05 of the State Consumer
Disputes Redressal Commission, Delhi)
1. St. Stephens Hospital Through C.M.O., Near Tis Hazari Court, Delhi –
110054.
2. Dr. (Mrs.) V. Bhalla, Family Planning Department St. Stephens Hospital Near
Tis Hazari Court, Delhi – 110054
… Petitioners/Opp.Parties (OP)
Versus
Smt. Shalini W/o Shri Vinold Kumar R/o H.No.994, Alipur, Delhi
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner
:
Mr. Sahil Bhalaik, Proxy Advocate for
Mr. Rajeev Sharma, Advocate
For the Respondent :
Mr. P.C. Thakur, Advocate
Mr. Lave Kumar Sharma, Advocate
PRONOUNCED ON
31st May, 2013
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner against the impugned
order dated 21.1.2008 passed by the State Consumer Disputes RedressalCommission,
Delhi (in short, ‘the State Commission’) in Appeal No.A-236/05 – St. Stephens Hospital
& Anr. Vs. Smt. Shalini by which, while dismissing appeal, order of District Forum
allowing complaint was upheld.
2.
Brief facts of the case are that complainant/respondent got herself admitted in
OP/petitioner’s hospital on 25.1.1998 for the purpose of delivery. She delivered a
female child on 26.1.1998 and she was advised for abdominal tubectomy operation to
become tension free. On 28.1.1998, operation was done and OP assured complainant
and her husband that successful sterilization has been performed and she would not
conceive any child in future. In September-October, 2000, complainant felt pregnancy
and contacted Hindu Rao Hospital, where pregnancy was confirmed and ultimately, she
gave birth to a female child on 27.7.2001. Alleging medical deficiency in sterilization
operation on the part of OP, complainant filed complaint for claiming Rs.25,000/towards general expenses for delivery, etc., and Rs.4,00,000/- for bringing up the
unwanted child, her residence, medical attendance, treatment, day-to-day general
expenses and her marriage. OPs contested complaint, filed written statement and
submitted that sterilization was performed with utmost skill, due care and caution by
doctor, who was possessing necessary qualifications and experience for performing the
procedures. On opening the abdomen, the right fallopian tube could not be identified
due to dense adhesions and right fallopian tube could not be legated. The fact was
explained to the respondent and she was warned that there was a possibility of a
pregnancy later in view of herunlegated right tube. It was explained to the respondent
and her mother that the respondent should adopt other contraceptive methods or her
husband should undergo vasectomy. The possibility of failure was recorded in the
hospital records and the same were signed by the respondent and her mother affixed
her thumb impression thereon. This fact clearly shows that there was no negligence on
the part of the OP, as the complainant and her mother were told that due to dense
adhesions the right fallopian tube could not be identified and therefore there was a
chance of pregnancy and prayed for dismissal of complaint. Learned District Forum
after hearing both the parties allowed complaint and awarded Rs.1,00,000/- as
compensation and Rs.2000/- as cost of litigation. Appeal filed by the petitioner was
dismissed by learned State Commission vide impugned order against which, this
revision petition has been filed.
3.
Heard Learned Counsel for the parties and perused record.
4.
Learned Counsel for the petitioner submitted that, as right fallopian tube could not
be identified and legated, respondent was advised that her husband should undergo
vasectomy and further submitted that sterilization is not 100% safe and secure for
preventing pregnancy, even then, learned District Forum committed error in allowing
complaint and learned State Commission further committed error in dismissing appeal;
hence, revision petition be allowed and impugned order be set aside. On the other
hand, learned Counsel for the respondent submitted that Annexure ‘A’ is a forged
document and petitioner assured that operation had been successful and, as even after
operation, respondent conceived child, learned State Commission has not committed
error in dismissing appeal; hence, revision petition be dismissed.
5.
It is admitted case of the parties that respondent delivered a female child in
petitioner’s hospital on 26.1.1998 and on 28.1.1998, petitioner-doctor performed
abdominal tubectomy operation of respondent. This fact is not denied that respondent
gave birth to a child after operation on 27.7.2001. The core question to be decided in
this matter is whether; firstly was there any medical negligence in performing operation
and secondly, whether; sterilization is 100% safe and secure procedure for not
conceiving child in future.
6.
As far medical negligence is concerned, learned Counsel for the petitioner has
drawn our attention towards Annexure ‘A’ in which it has been mentioned that one tube
could not be identified and in such circumstances, her husband should undergo
vasectomy. Almost the same thing has been repeated in Annexure ‘A’ in other person’s
handwriting, which bears signatures of respondent and thumb impression of
respondent’s mother. Learned Counsel for the respondent does not dispute signatures
of the respondent on Annexure ‘A’. It is true that Annexure ‘A’ contains same
particulars in two different handwritings, but merely because same thing has been
repeated in other person’s handwriting, it cannot be inferred that this document is forged
one particularly when it bears signatures of respondent. Perusal of Annexure ‘A’ clearly
reveals that on account of dense adhesions, right fallopian tube could not be detected
and it was clearly mentioned that operation may be unsuccessful and her husband
should go for vasectomy. In such circumstances, no medical negligence can be
imputed on the part of petitioner and respondent is not entitled to get any
compensation. Learned Counsel for the petitioner has also placed reliance on (2005) 7
SCC 1 – State of Punjab Vs. Shiv Ram and others, which has also been referred by
learned State Commission in its judgement in which it was observed as under:
“28. The methods of sterilization so far known to medical science
which are most popular and prevalent are not 100% safe and
secure. In spite of the operation having been successfully
performed and without any negligence on the part of the surgeon,
the sterilized woman can become pregnant due to natural causes.
Once the woman misses the menstrual cycle, it is expected of the
couple to visit the doctor and seek medical advice. A reference to
the provisions of the Medical Termination of Pregnancy Act, 1971 is
apposite. Section 3 thereof permits termination of pregnancy by a
registered medical practitioner, notwithstanding anything contained
in the Indian Penal Code, 1860 in certain circumstances and within
a period of 20 weeks of the length of pregnancy. Explanation II
appended to sub- section (2) of Section 3 provides :
"Explanation II. ____ Where any pregnancy occurs as a result of
failure of any device or method used by any married woman or her
husband for the purpose of limiting the number of children, the
anguish caused by such unwanted pregnancy may be presumed to
constitute a grave injury to the mental health of the pregnant
woman."
29. And that provides, under the law, a valid and legal ground for
termination of pregnancy. If the woman has suffered an unwanted
pregnancy, it can be terminated and this is legal and permissible
under the Medical Termination of Pregnancy Act, 1971.
30. The cause of action for claiming compensation in cases of failed
sterilization operation arises on account of negligence of the
surgeon and not on account of child birth. Failure due to natural
causes would not provide any ground for claim. It is for the woman
who has conceived the child to go or not to go for medical
termination of pregnancy. Having gathered the knowledge of
conception in spite of having undergone sterilization operation, if
the couple opts for bearing the child, it ceases to be an unwanted
child. Compensation for maintenance and upbringing of such a child
cannot be claimed”.
In the light of aforesaid judgment, it becomes clear that sterilization is not 100% safe
and secure and after getting knowledge of conception in spite of having undergone the
sterilization operation, if the couple opts for bearing the child, it ceases to be an
unwanted child and compensation for maintenance and upbringing of such a child
cannot be claimed. Learned State Commission has not given any reasoning for not
agreeing with the aforesaid judgment.
7.
After confirmation of pregnancy, respondent should have filed complaint
immediately, but she waited till delivery and it appears that as female child was
delivered, she filed complaint, which is not fair on her part.
8.
In the case in hand, after sterilization operation, when respondent felt pregnancy
in September-October 2000, if she was not willing to bear the child, she could have
terminated it as this is legal and permissible under the Medical Termination of
Pregnancy Act, 1971 and if she opted for bearing the child, she cannot opt for
compensation for bringing up of the child and expenses to be incurred on her marriage.
8.
In the light of aforesaid discussion, we are of the view that learned District Forum
has committed error in allowing complaint and granting compensation and learned State
Commission further committed error in dismissing appeal and revision petition is to be
allowed.
9.
Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 21.1.2008 passed by learned State Commission in Appeal No.A-236/05 –
St. Stephens Hospital & Anr. Vs. Smt. Shalini is set aside and complaint is
dismissed. There shall be no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2349 OF 2011
(Against the order dated 24.06.2010 in Appeal No. A/10/267
of the State Commission, Maharashtra)
Ms. Raika Bandukwalla D/o Abdeali 25, Colaba causeway Mumbai – 400039
....... Petitioner
Versus
1.
Dr. Anuradha Nayyar Samaj Ayurvedic Centre 14, Kohinoor Road Dadar East
Mumbai – 400014
2.
Dr.G.R. Verma The Arya Vaidya Pharmacy (Cbe) Ltd. 8-A/42, W.E.A. Karol Bagh
New Delhi-110005
3.
Ayurvedic Trust & Research Centre Division of the Arya Vaidya Pharmacy (Cbe)
Ltd. Through its President 984 Trichy Road, Ram Nath Puram, Coimbatore –
641045
4.
Dr. Ram Kumar Ayurvedic Trust & Research Centre Division of the Arya Vaidya
Pharmacy (Cbe) Ltd. 984 Trichy Road, Ram Nath Puram, Coimbatore – 641045
5.
Dr. Varsha Ayurvedic Trust & Research Centre Division of the Arya Vaidya
Pharmacy (Cbe) Ltd. 984 Trichy Road, Ram Nath Puram, Coimbatore – 641045
6.
Dr. Indulal Ayurvedic Trust & Research Centre Division of the Arya Vaidya
Pharmacy (Cbe) Ltd. 984 Trichy Road, Ram Nath Puram, Coimbatore – 641045
7.
Dr. Vinod Ayurvedic Trust & Research Centre Division of the Arya Vaidya
Pharmacy (Cbe) Ltd. 984 Trichy Road, Ram Nath Puram, Coimbatore – 641045
8.
Dr. Mahadevan Ayurvedic Trust & Research Centre Division of the Arya Vaidya
Pharmacy (Cbe) Ltd. 984 Trichy Road, Ram Nath Puram, Coimbatore – 641045
…... Respondents
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner
:
In person
Pronounced on : 4th June, 2013
ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER
Being aggrieved by impugned order dated 24.6.2010, passed by Maharashtra
State
Disputes Redressal Commission,
Consumer
Mumbai
(short,
“State
Commission”),Petitioner/Complainant no.2 has filed the present revision petition.
2.
Brief facts are that, initially Complainants namely Ms.Mohsena (since deceased)
and Ms.Raika Bandukwalla-petitioner herein (who is niece of Ms.Mohsena and resides
with
her)
filed
a
complaint
before
District
Consumer
Disputes
Redressal
Forum, Kashmere Gate, New Delhi (short, “Delhi Forum”) on the grounds that
Ms. Mohsena is a patient of breathlessness, leg pain in both legs and skin discoloration,
being influenced by the advertisement of Respondent No.3/O.P. No.3, Ms.Mohsena got
treatment at Taj Centre, Calicut from Respondent Nos.1 and 3 to 8/O.P. Nos.1 and 3 to
8 for above mentioned ailments for 35 days at a cost of Rs.1,26,906.35 paisa. It is
stated that it was the petitioner who had paid fees to respondent no.3. Instead of
improvement in the condition of Ms.Mohsena, her condition had deteriorated. None of
the respondents took the deteriorating condition of Ms.Mohsena seriously. The
suffering of Ms. Mohsena continued. Finally, respondent nos.1 and 3 to 8 referred
Ms. Mohsena to Respondent No.2/O.P. No.2 being their franchise in Delhi. It is further
alleged that Ms.Mohsena visited respondent no.1 on 26.9.2002, who after complete
check-up prescribed medicine on the same day with assurance that she would get relief
soon. However, all the assurance of respondents failed. It is alleged that by making
false representation, respondents cheated Ms.Mohsena and it amounts to deficiency in
service on the part of the respondents. Ms.Mohsena prayed for direction to the
respondents to pay a sum of Rs.17,04,621/- on several grounds.
3.
On appearance, respondent no.2 (Dr.G.R.Verma, before the Delhi Forum) filed
reply stating that he has been impleaded in the complaint only to bestow jurisdiction of
Delhi Forum. It was further alleged by respondent no.2 that nothing has been pleaded
against him and he denied any relationship with respondent nos.1 and 3 to 8 and
prayed for dismissal of complaint.
4.
Respondent nos.1 and 3 to 8 (before the Delhi Forum) filed joint reply and denied
the jurisdiction of Delhi forum and also denied any deficiency of service on their part.
5.
Delhi Forum, vide its order dated 4.7.2007, rejected the prayer of respondent
nos.1 and 3 to 8 to decide the issue of territorial jurisdiction first. Against that
order, respondent nos.1 and 3 to 8 moved to State Commission, Delhi, which vide
order dated 26.9.2007, directed Delhi Forum to decide the application of the
respondents first in view of section 11 of the Consumer Protection Act, 1986 (short,
“Act”).
6.
Delhi Forum, vide order dated 10.12.2007, allowed the application of respondent
nos.1 and 3 to 8 and dismissed the complaint against them for want of jurisdiction, with
liberty to the Complainant No.1 to proceed against respondent nos.1 and 3 to 8 in a
Competent Forum, if so desired.
7.
Thereafter, Ms. Mohsena and Petitioner filed Consumer Complaint (No.50 of
2008) before Central Mumbai District Consumer Disputes Redressal Forum (short,
Mumbai Forum). During pendency of the complaint, Ms. Mohsena - complainant no.1
died on 25.11.2008. However, it appears that name of complainant no.1 was not
deleted by Mumbai Forum. Be that as it may, Mumbai Forum, vide order dated
15.2.2010 dismissed the complaint.
8.
Being aggrieved by the order of Mumbai Forum, petitioner filed an appeal before
the State Commission, which was dismissed, vide impugned order.
9.
Petitioner herself has appeared in person and argued her case and has also filed
written arguments.
10.
We have gone through the record carefully.
11.
It is stated by the petitioner that she had filed the complaint jointly
with Ms.Mohsena during her life time and petitioner being the niece and only relative
and legal heir ofMs.Mohsena, does have the right to continue with the case. Further, it
is she who had paid the amount for the treatment of Ms.Mohsena. As such, present
petition is maintainable and she is entitled to claim the amount spent over the treatment
of Ms.Mohsena.
12.
The first question which arise for consideration is as to whether Delhi Forum had
the jurisdiction to try the complaint. In this regard, it was held by Delhi Forum ;
“The forum perused the prescription of OP-1. It is Annexure filed by
the complainant. This prescription slip clearly proves that this
prescription slip was on the letterhead of the Arya Vaidya Pharmacy
(Coimbatore)
Ltd. The
complainant
took
treatment
from Ayurvedic Trust and Research Centre, Coimbatore. O.P. nos.2
to 8 are the persons who are related to Ayurvedic Trust and Rese
arch Centre.
Shri Mahipal, learned counsel for complainant submitted that
both Ayurvedic Trust
and
Research
Centre
and Arya Vaidya Pharmacy (Coimbatore) Ltd. are the same concern
for the following reasons;
1.
E-mail address of both companies are the same.
2.
Founder trustee of the OP-3 is Shri P.R.Krishan Kumar,
who
is
the
son
of
late Shri P.V. Mamavarier. Arya Vaidya Pharmacy was also
headed
by
lateShri P.V. Mamavaier. Hence,
OP-
8 is the offspring of AVP. But, the forum is not convinced
with the contentions of Shri Mahipal. OP-3 is the juristic
person
created
under
Indian
Trust
Act. While Arya Vaidya Pharmacy (Coimbatore) Ltd. is a
juristic person created under companies. These are two
independent entitled. An individual may be director of
several juristic entitles but all enjoy separate independence.
There is no evidence to suggest that OP-1 is the branch office of OP3.
In view of the above discussion, the application of OP-2 to 8 is
allowed.
The complaint against OP-2 to 8 is hereby dismissed for want of
jurisdiction, with liberty to complainant to proceed against OP-2 to 8 in a
Competent Forum, if so desired.”
13.
The State Commission, while dismissing the appeal has observed ;
“Now
coming
to
the
locus standi of
appellant/complainant
no.2 Ms.Raika Bandukwala, it is not disputed that Ms. Raika was not
present at all at Calicut when late Mohsena had received a
treatment there. She preferred to receive the treatment as per the
medical facilities available at Taj Ayurvedic Centre, which is a part
and
parcel
of Taj Residency
Hotel
at
Calicut. The
bills
of Taj Residency, copies of which are produced on record, for the
relevant period accordingly charged late Mohsena for her stay in the
hotel mentioning Ayurvedic Centre as one of the facilities provided
there. Said spa or Ayurvedic centre is managed by the Hotel with
the Ayurvedic expertise of ‘Ayushman Ayurvedic Trust, Coimbatore’
as reflected from the letter head which is Annexure-E at page 210 of
the
appeal
compilation. Neither Taj Residency,
Calicut
nor
‘Ayushman Ayurvedic Trust’ are made parties to the consumer
complaint. All these parties are distinct juridical persons within the
meaning of section 2 (1) (m) of the Consumer Protection Act, 1986.
Only
because
after
receiving
the Ayurvedic treatment,
if
late Mohsena did not get desired results then, certainly, that ipso
facto will not amount to any deficiency in service on the part of
treating doctors vis-à-vis medical negligence on the part of treating
doctors. There is absolutely no material placed on behalf of the
complainant to substantiate their case for any such medical
negligence. Therefore, forum was right in making observation to
that effect.
Appellant/complainant no.2 – Ms.Raika Bandukwalla has described
herself as relative to late Mohsena. She is not near relative of
late Mohsena. The alleged deficiency in service is in respect of
treatment received by late Mohsena. Therefore, after death of
late Mohsena whether
appellant/
complainant
no.2
–
Ms.Raika Bandukwalla can continue the consumer complaint and
her locus standi to continue either as original complainant or
appellant can be well questioned. From the material placed on
record, we find that appellant - Ms.Raika Bandukwalla herself
cannot be treated as ‘Consumer’ within the meaning of the Act in the
background the present case.
Considering all these aspects, we find that appellant failed to make
out any case to admit the appeal. No reason to disturb the
impugned order passed by the forum. We hold accordingly and
pass the following order :ORDER
Appeal is not admitted. Appeal stand dismissed”.
14.
It would be pertinent to point out, that initially complaint was filed before Delhi
Forum
and
subsequently,
complaint
was
filed
before
Mumbai
Forum. But,
both fora had no territorial jurisdiction to try the complaint. Late Ms.Mohsena in her
complaint has stated that she had undergone Ayurvedic treatment in the year 2001, at
Calicut, Kerala. Further, as per Ms.Mohsena’s case, she did not get desire relief
for treatment, hence,
she
came
to
Mumbai
and
had
undergone
some
treatment. Thereafter, she shifted to Delhi for further treatment. The mere fact that
Ms. Mohsena after getting her initial treatment at Calicut, got further treatment at
Mumbai and Delhi will not give these two fora any territorial jurisdiction. Hence, on this
short point alone, consumer complaint ought to have been rejected.
15.
The second question for consideration is as to whether petitioner has any
locus standi to file the present revision petition. It is an admitted case that it was
late Ms.Mohsena,
who
initially
had
under
gone
medical
treatment
provided
by Taj Residency at Calicut. There is nothing on record to show that petitioner is the
legal heir of Ms.Mohsena, as per Hindu Succession Act. Moreover, it has nowhere
been stated by the petitioner as to when parents of Ms.Mohsena died, nor their death
certificates have been filed. Thus, we have no hesitation in holding that petitioner is not
the legal heir of Ms.Mohsena and as such she does not fall within the definition of
“Consumer” as defined in the Act.
16.
Next question to be seen is as to whether complaint was filed within the period of
limitation.
17.
As observed hereinabove, Ms.Mohsena got her initial treatment in Taj Residency,
Calicut, in the year 2001. However, complaint was filed only in the year 2008 before the
Mumbai forum. Thus, the complaint was hopelessly barred by limitation. With
advantage,
we
rely
upon
decision
of
Apex
Court
on
this
point
in Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another,
2009 CTJ 951 (Supreme Court) (CP) where Court took view of the observations made
in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP)
= JT 2009 (4) SC 191, as under:
“12.
Recently, in State Bank of India Vs. B.S. Agricultural
Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court,
while dealing with the same provision, has held:
“8.
It would be seen from the aforesaid provision that it is peremptory
in nature and requires consumer forum to see before it admits the
complaint that it has been filed within two years from the date of
accrual of cause of action. The consumer forum, however, for the
reasons to be recorded in writing may condone the delay in filing
the complaint if sufficient cause is shown. The expression, ‘shall not
admit a complaint’ occurring in Section 24A is sort of a legislative
command to the consumer forum to examine on its own whether
the complaint has been filed within limitation period prescribed
thereunder. As a matter of law, the consumer forum must deal with
the complaint on merits only if the complaint has been filed within
two years from the date of accrual of cause of action and if beyond
the said period, the sufficient cause has been shown and delay
condoned for the reasons recorded in writing. In other words, it is
the duty of the consumer forum to take notice of Section 24A and
give effect to it. If the complaint is barred by time and yet, the
consumer forum decides the complaint on merits, the forum would
be committing an illegality and, therefore, the aggrieved party would
be entitled to have such order set aside.”
18.
It is well settled that under Section 21 (b) of the Consumer Protection Act, 1986
(for short ‘Act’), the scope of revisional jurisdiction is very limited. Under Section 21 of
the Act, this Commission can interfere with the order of the State Commission where
such State Commission has exercised a jurisdiction not vested in it by law, or has failed
to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally
or with material irregularity.
19.
Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India
Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the
National Commission are derived from Section 21 (b) of the
Act, under which the said power can be exercised only if there
is some prima facie jurisdictional error appearing in the
impugned order, and only then, may the same be set aside. In
our considered opinion there was no jurisdictional error or
miscarriage of justice, which could have warranted the National
Commission to have taken a different view than what was
taken by the two Forums. The decision of the National
Commission rests not on the basis of some legal principle that
was ignored by the Courts below, but on a different (and in our
opinion, an erroneous) interpretation of the same set of
facts. This is not the manner in whichrevisional powers should
be invoked. In this view of the matter, we are of the considered
opinion that the jurisdiction conferred on the National
Commission under Section 21 (b) of the Act has been
transgressed. It was not a case where such a view could have
been taken by setting aside the concurrent findings of
two fora.”
20.
Thus, no jurisdictional or legal error has been shown to us to call for interference
in the exercise of powers under Section 21 (b) of Act. Since, two Fora below have
givendetailed and reasoned orders which does not call for any interference nor they
suffer from any infirmity or erroneous exercise of jurisdiction.
21.
Petitioner who was having no locus standi to file the complaint has been pursuing
this meritless litigation from day one, just to harass eight respondents out of whom
seven are doctors. During last ten years, petitioner has taken the respondents to
different consumer fora by filing one petition or the other, just to cause harassment to
them.
22.
Under these circumstances, present revision petition is liable to be dismissed with
punitive cost. Accordingly, we dismiss the present revision petition with punitive cost of
Rs.40,000 (Rupees Forty thousand only).
23.
Petitioner is directed to remit Rs.5,000/- to each of the respondents, by way of
demand draft in their respective names, within eight weeks from today. In case,
petitioner fails to remit the aforesaid cost within the prescribed period, then she shall
also be liable to pay interest @ 9% p.a., till realization.
24.
List on 16.8.2013 for compliance.
…………………..………..J
(V.B. GUPTA)
PRESIDING MEMBER
…………………..………..
(REKHA GUPTA)
MEMBER
Sonia/