Survey
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
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/