State Consumer Disputes Redressal Commission
.A.Venkata Chalam,East Godavari ... vs 1.Apollo Hospital, Rep. By Its ... on 27 December, 2013
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD C.C.No.36/2011 Between: 1.A.Venkata Chalam, S/o.Late A.Pothu Raju, Aged about 63 years, Indian, Occ:Retd. Asst.Foreman, R/o.H.No.2-336/1, Cheediga, Kakinada-7, East Godavari District. 2.A. Srikant Chakrapani, S/o.A.Venkata Chalam, Aged about 35 years, Indian, Occ:Software Engineer, Flat No.404, AVK Homes, Kaikomadanahally, Bangalore. 3.A.Rajasekhar, S/o.A.Venkata Chalam, Aged about 34 years, Indian, Occ:Private Service, R/o.H.No.2-336/1, Cheediga, Kakinada-7, East Godavari District. 4.Dr.(Smt.) S.Supriya, D/o.A.Venkata Chalam, Aged about 30 years, Indian, Occ:Medical Practitioner, Flat No.401, L.B.Towers, Opp:Century Club, Maharanipeta, Visakhapatnam. Complainants And 1.Apollo Hospital, Main Road, Kakinada 533 001, East Godavari District, A.P., Rep. by its Administrator 2. Dr.Hemant Behera, MD., DM., Consultant & Interventional Cardiologist, Apollo Hospital, Main Road,Kakinada-533 001, East Godavari District , A.P., 3.M/s. Samudra Health Care Enterprises Ltd., (Wholly owned Subsidiary Unit of Apollo Hospitals Enterprise Ltd.,) Main Road,Kakinada, East Godavari District , Rep. by its Managing Director. 4.Appollo Hospitals Enterprises Ltd., Jubilee Hills, Hyderabad, Rep. by its Chairman & Managing Director. Opp.parties Counsel for the Complainants : M/s. V.Gowrisankara Rao Counsel for the Opp.parties : M/s.Indus Law Firm QUORUM:SRI R.LAKSHMI NARASIMHA RAO,HONBLE INCHARGE PRSIDENT, AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
FRIDAY, THE TWENTY SEVENTH DAY OF DECEMBER, TWO THOUSAND THIRTEEN .
Oral Order: (Per Sri S.Bhujanga Rao, Honble Member) *** This is a Consumer Complaint filed by the complainants, under Sec.17(1)(a)(i) of the Consumer Protection Act, seeking direction to the opposite parties, to pay compensation of Rs.25 lakhs and to pay costs of Rs.25,000/- alleging medical negligence.
The averments of the complaint in brief are as follows:
The complainant no.1 is the husband, the complainant nos.2 and 3 are the sons and the complainant no.4 is the daughter of the deceased patient Smt.A.Bhagyalaxmi who admitted to Yashoda Hospital, Somajiguda, Hyderabad on 01.09.2010 with a complaint of weakness and pain in her lower limb and difficulty in walking since 10 days. Dr.Devender Singh, Consultant Vascular and Endo Vascular Surgeon and other doctors attended on her. On 02.09.2010 CT Peripheral Angiography test was done. It was diagnosed that Smt. Bhagyalaxmi was suffering from Peripheral Occulusive Vascular disease. On 04.09.2010 Smt.Bhagyalaxmi was discharged from Yashoda Hospital by prescribing certain drugs by advise to come for review after one month. It is further stated that on 22.09.2010 Smt.Bhagyalaxmi visited opposite party no.1 hospital. Dr.G.Mahesh, MD., DM., Cardiologist advised the patient to undergo Cardiac Catheterization test. The Cardiac Catheterization test report dt.22.09.2010 revealed/diagnosed that the patient was suffering from single vessel disease of the heart and PVD of the legs. Dr.G.Mahesh recommended the patient to undergo PTCA operation for heart and PTA for the legs with two stents. The opposite party no.2 Dr.Hemanth Behera examined the same Cardiac Catheterization Report dt.22.09.2010 and advised the patient to undergo PTA (Percutaneous Transluminal Angioplasty) operation for the legs and sent to bilateral CIA/Left SFA (with 4 stents). The opposite party no.2 clearly informed that there was no necessity to undergo PTCA Operation for the heart.
It is further stated that on 03.10.2010, the patient visited Apollo Hospital, Visakhapatnam with the complaint of fatigue, heart problem, Peripheral Vascular disease and leg pains. She was treated for 3 days diagnosing that she was suffering from Coronary Artery Disease and PVD Claudication Class III and discharged on 05.10.2010 with an advise to undergo only PTA operation for legs.
On 13.10.2010, Smt.Bhagyalaxmi was admitted to opposite party no.1 hospital with the complaint of Claudication Pain and for undergoing PTA operation for left leg. She was taken to Cathlab at about 4.00 p.m. and Angioplasty was performed by opposite party no.2 upto 7.00 p.m. and three stents were implanted and she was shifted to ICU. At about 12.00 noon on 14.10.2010, the opposite party no.2 Dr.Hemanth Behera has taken the patient to Cathlab to assess the post angio condition. Dr. Hemant Behara informed that she had slight bleeding from the stent placed area of the thigh and that blood clots were observed. He later informed that the bleeding was stopped. Opposite party no.2 performed complete cleaning of the tube and started clearing the blood clots upto 4 p.m. Later the patient was shifted to ICU.
On 15.10.2010 at about 10.00 a.m. the patient was shifted to Cathlab to examine the condition of the left leg. The opposite party no.2 Dr.Hemanth Behra informed the attendants that the blood clots were found throughout the leg and started cleaning the tube. Suddenly, a decision was taken by opposite party no.2 to perform the surgery, to clear the blood clots. Dr.Hemanth Behera informed the complainant no.1 that the blood clots need to be removed within 9 hours to save the leg. The opposite party no.1 took sole decision and a Surgeon Dr.K.Vishnu Murthy (M.S.Surgery, DNB Plastic Surgery) was called to attend the surgery to the left thigh, to remove the blood clots. The opposite party no.2 assessed that the blood circulation was restored upto the knee and the blood clots were found only between knee and ankle and then shifted to ICU.
It is further stated that another surgery was performed by Dr.K.Vishnu Murthy and opposite party no.2 to the left leg of the patient. The complainant no.1 was not informed of any life risk to his wife, during or after any of the surgeries. Neither the life risk factor nor financial burden was informed to the complainant no.1 at any stage.
Gangrene formation or leg infection after surgery were never informed to the complainant no.1.
On 16.10.2010 and 17.10.2010 treatment was given at ICU. On 17.10.2010 the complainant no.1 requested opposite party no.2, to allow them to shift his wife to Yashoda Hospital, Hyderabad, as the complainants were not satisfied with the treatment. Opposite party no.2 assured that there would be no risk to the life of the patient and that the opposite party no.2 was only trying to save her leg from further damage. On 18.10.2010, the patient was put on ventilators since morning. Opposite party no.2 told the complainant no.1 that the patient went into septic shock. She never opened her eyes after septic shock. The opposite party no.2 told the complainant no.1 that the patient went into septic shock. The opposite party no.2 and Dr.Vamsi (Pulmonologist) continued her on ventilators. At 7 p.m. it was informed that infection to the left lung developed. At 11 a.m. on 19.10.2010, the opposite party no.2 informed the attendants of the patient that her right lung was completely infected. The complainant no.1 requested to call a consultant Nephrologist from other hospital, but he did not pay any attention. No Nephrologist visited the patient till her death.
On 20.10.2010, the patient was continued on ventilators. The opposite party no.2 informed the attendants that her liver started getting infected and kidneys were also damaged to certain extent. On 21.10.2010 at 22 a.m., the opposite party no.2 informed the complainant no.4 that the respiratory response of the patient has gone too low and pulse rate was going too high and B.P. was falling down and her survival chances were almost bleak. At 5.15 p.m. the patient was declared dead. The opposite party no.2 informed that the cause of death was due to cardiac arrest, septicemic shock, severe pneumonia, ARDS and acute renal failure.
It is further stated that at the time of taking away the dead body of the patient, the opposite parties 1 and 2 have not given Death Summary except Death Certificate. The opposite party no.1 raised a bill for Rs.5,65,000/-, which was rounded of only to Rs.5 lakhs due to the death of the patient. On the representation of complainant no.1, on 22.01.2011 the opposite party no.1 provided only the case sheets and the CD of angioplasty was not given to the complainant no.1. After going through the case sheets, investigation reports of various hospitals and analysing all the aspects involved in the case, the complainant came to the conclusion that Smt.A.Bhagya Laxmi expired only due to gross negligence, incompetence and deficiency in service rendered by opposite parties. The opposite party no.2 has not properly explained the procedure, not suggested the alternatives available for the surgery much less explained the risks involved. The opposite party no.2 is only an interventional cardiologist and not a Vascular surgeon. Opposite party no.2 ought not to have entertained the patient, since the PTA operation was meant for clearing the stenosis of the blood vessels of the leg and nothing to do with the heart. The patient died only due to lack of care, skill, competence and failure to manage post operated complications and deficiency in service on the part of the opposite parties 1 and 2 resulted in the death of the patient. The opposite parties 3 and 4 are also jointly and severally liable along with opposite parties 1 and 2 being the owners of the hospital to pay the compensation.
It is further stated that the patient was only 54 years at the time of her death. She was successfully discharging her duties as a house wife. The complainant no.1 lost his consortium. Her children, the complainants 2 to 4 lost their maternal love and affection forever and that the complainants have been subjected to serious inconvenience, hardship, and mental agony. The mental agony to which the complainants have subjected to cannot be actually measured in monetary terms. Therefore, the opposite parties are liable for the deficiency in service. Hence the complaint.
Resisting the complaint, the opposite parties filed their version denying the material allegations made in the complaint and contended that one Mrs.Bhagya Laxmi who was a known case of diabetic mellitus, hypertension, old history of CVA(brain stroke) two times in the past and CT Angio( Hbd) came to the 1st opposite party on 22.09.2010 on the referral of Dr.P.Naresh Kumar (relative of the complainants), Chief Cardiothorasic Surgeon, Apollo Hospital, Visakhapatnam for peripheral angio. Dr. G.Mahesh was consulted and the patient had complained of pain at rest in legs especially the left leg since 15 days. Taking note of her condition and after examination, Dr.Mahesh did angiogram which reported critical narrowing of blood channel of both legs and therefore, he advised PTCA of leg arteries. Upon such advice, the patient again consulted Dr.P.Naresh Kumar, who after going through the reports advised Peritoneous Transluminal Angioplasty (PTA) of leg arteries.
It is further contended that Dr.P.Naresh Kumar called upon the 2nd opposite party and after explaining the condition of the patient, he requested the opposite party no.2 to see the patient. The patient , the 1st complainant and 4th complainant approached the 2nd opposite party on 06.10.2010. Accordingly, the opposite party no.2 saw the patient and after examining the report and condition of the patient, he also concurred with the view of doing PTA on the left leg of the patient. The patient, the 1st complainant and 4th complainant requested him to take up the case. Due to Dr.Naresh Kumars request and after taking consent from Dr.Mahesh, the opposite party no.2 took up the case and thus the patient got admitted in the 1st opposite party hospital on 13.09.2010. The patient and her husband were explained in detail about the angioplasty procedure, the risks involved during and after the procedure. The patients husband was informed that due to the health history of the patient and especially being a chronic diabetic and being anaemic, she was more prone for infections, which may also lead to death. Thereafter, consent for PTA was taken. The said procedure went on for three hours. The procedure was done through right groin. As whole leg artery was affected with critical atherosclerotic blockages, first the lesion in the down below the leg was tackled, to improve the flow to the left foot. After the below knee part was over, the left thigh was tackled. One stent was placed in artery and left groin region and other stent was planned in the second sitting, as the patient was having discomfort in the back due to prolonged surgery. The procedure was uneventful and the patient was shifted to ICU. As the patients condition was stable and conducive, the 2nd opposite party conducted second PTA to left lower thigh region. There was no ischemic pain on the leg after PTA .
The opposite parties further contend that on 15.10.2010 the patient developed mild fever. Dr.Manohar, general physician also examined the patient and gave her appropriate medication. The patient was subjected to Doppler USG of leg and it revealed that there was no blood flow in the stent. Thrombotic occlusion above and in the stent at groin was noted. In the interest of the patient, opposite party no.2 considered doing (Fogarty Embolectomy). This is a small surgical procedure done under local anaesthesia.
After the skin is cut artery is cut ( by 1 cm.), on its surface the balloon catheter is advanced through the mouth of the opened artery to the extremes of it and then the balloon is inflated and dragged slowly to pull all the clots out of the artery. This was to extract the clots and save the leg from being amputated. After explaining the said procedure, consent was taken and thereafter opposite party no.2 has subjected the patient to the above mentioned procedure at around 3 p.m. The said surgical Thrombo Embolectomy was done through left femoral artery route by using fogarty. A repeat Doppler USG of left leg artery done at 8.30 p.m. revealed very sluggish flow through the stents in the thigh. At 10.30 p.m. no flow was seen through the stents. Therefore, the opposite party no.2 planned for another surgical extraction of the clot from the artery from behind the knee joint route. As on 15.07.2010, the sugar was uncontrolled and the total urine output was adequate. There was no breathing difficulty to the patient and no signs of infection was found anywhere in the body.
The opposite parties further contended that on 16.10.2010, the opposite party no.2 after taking consent, conducted surgical extraction (Fogarty Embolectomy +) at 2 a.m.. However, at 4 a.m. it was noticed that no flow could be established at the left leg. As the patient was not responding to the above treatment and her fever was also subsisting, the opposite party no.2 planned to administer clot dissolving injection through the clots and further to electively amputate the leg after stabilization of her general condition. Amputation could not be considered at this stage as the same would be life risky, given the condition of the patient. This was clearly explained to the patient and her attendants. Meanwhile, the patient also developed chest infection and fever was also continuing. However, urine output was adequate.
On 17.10.2010, the patient developed breathlessness and chest infection was also progressing, apart from the persistence of the fever. More antibiotics were added for controlling the infection. Urine out put was more than 1970 ml. As the patient had progressive pneumonia. Dr.Vamsi Pulmonologist also saw the patient and concurred with the ongoing treatment. The patients attendants were informed that if the situation of the patient does not improve she may have to be assisted with ventilation through ventilator.
On 18.10.2010, the patients respiratory distress became intense and pneumonia also worsened and the patient was not responding to the anti biotic treatment. In view of the same, the patient was intubated and is put on ventilator. The husband and son of the patient were shown the serial chest X-rays before ventilator support was planned. They were clearly explained that for better management of the chest infection, ventilator support is essential. Thus the attendants of the patient were explained all the steps supposed to be taken, in respect of the patient and only then the opposite parties proceeded with the further treatment. At no point of time, any decision has been taken or procedure was started without explaining pros and cons of such decision/procedure. Antifungal antibiotics were also started. Despite the above measures, the patients blood pressure was coming down which is the sign of severe infection. Urine output was 1250 ml.
On 19.10.2010 the lung infection was worsening without any signs of improvement and the blood pressure remained on the lower side. Urine output was 1100 ml. On 20.10.2010, the patient was having high grade fever and there was gradual reduction of urine output serum creatinine level was just above the border line.
However, dialysis support was not considered by Dr.Manohar, General Physician as she was in established multi organ failure state with low blood pressure and as such the patient cannot withstand the dialysis. Eventually, the patient expired on 21.10.2010 due to cardiac asystole, septicemic shock, severe pneumonia, acute respiratory distress syndrome and acute renal failure. These opposite parties assert that there was neither negligence nor deficiency in service in treating the patient. They therefore, deny their liability to pay any amounts claimed by the complainants. The complaint is therefore devoid of any merits and liable to be dismissed with costs.
During the course of enquiry, in order to prove their case, the complainants examined 1st complainant as PW.1 and got marked Exs.A1 to A15. On behalf of the opposite parties, opposite party no.2 Dr.Hemanth Behra was examined as RW.1 and got marked Exs.B1 and B2.
We heard the counsel for both the parties and perused the entire material placed on record along with written arguments filed by them.
Now the points that arise for consideration are :
1.
Whether there is any deficiency in service on the part of the opposite parties as alleged by the complainant ?
2. Whether the complainants are entitled to the reliefs sought for?
3. To what relief?
The relationship between the deceased patient Smt.A.Bhagyalaxmi and the complainants is not disputed by the opposite parties and the same is also established by the evidence of the complainant no.1 A.Venkatachalam. The case of the complainants and evidence of PW.1 Venkatachalam, the 1st complainant herein is that Smt.A.Bhagyalaxmi was suffering from weakness in her lower limb and difficulty in walking, pain in her lower limbs since 10 days. As such, on 01.09.2010, she was admitted to Yashoda Hospital, Somajiguda, Hyderabad. Dr.Devender Singh, Consultant, Vascular & Endo Vascular Surgeon and other doctors attended on her. On 02.09.2010 CT Peripheral Angiography test was done. It was diagnosed that the patient was suffering from Peripheral Occulusive vascular disease. On 04.09.2010, the patient was discharged from Yashoda Hospital by prescribing certain drugs with an advise to come for review after one month.
The above case of the complainants is neither denied nor admitted by the opposite parties. The above case is also proved by Ex.A.11, Discharge Summary dt.04.09.2010 and Ex.A12 CT Peripheral Angiography report dt.02.09.2010 of Yashoda Hospital, Hyderabad.
As seen from Ex.A1 Cardiac Catheterisation Report issued by Apollo Hospitals, Kakinada, it is proved that on 22.09.2010 , the wife of the complainant no.1 visited the opposite party no.1 hospital.
The Cardiologist Dr.G.Mahesh M.D., D.M., advised the patient to undergo cardiac catheterisation test and Ex.A1 report revealed/diagnosed that the patient was suffering from single vessel disease of the heart and PVD of legs. Dr. G.Mahesh recommended her to undergo PTCA operation for heart and PTA for the legs with two stents, CIA/left SLA with 4 stents.
From the contentions of both the parties and evidence adduced by them, the admitted facts are as below:
Mrs.Bhagyalaxmi was a known case of diabetes mellitus, hyper tension, old history of CVA (brain stroke) two times in the past and had done CT Angio (Hbd). Dr.P.Naresh Kumar, relative of the complainant referred the patient to the 1st opp.party hospital for Peripheral Angio. Dr.Mahesh did angiogram and advised PTA of leg arteries. The patient again consulted Dr.P.Naresh Kumar, who after going through the reports advised Perutaneous Transluminal Angioplasty(PTA) of the leg arteries. On the advise of the Dr.Naresh Kumar, the patient Mrs.Bhagyalaxmi and her husband approached the 2nd opposite party, who after examining the reports and condition of the patient, concurred with the view of doing PTA on the left leg of the patient. It is also an admitted fact that the complainant no.1 addressed a letter dt.09.06.2010 to the hospital administrator, requesting for transferring the patient to the 2nd opposite party. Due to Dr.Naresh Kumars request and after taking consent from Dr.Mahesh, the 2nd opposite party took up the case. Later, the patient got admitted herself into the opposite party no.1 hospital on 13.09.2010.
As seen from Ex.A3 Discharge Summary dt. 29.10.2010, the patient i.e. the wife of the complainant no.1 was admitted in opposite party no.1 hospital with the complaint of claudication pain and for undergoing PTA ( Perutaneous Transluminal Angioplasty) to left SFA and PTA/ATA. Opposite party no.2 conducted first PTA procedure through the right groin and the second PTA was conducted to left lower thigh region. Ex.A3 also proved the case of the opposite parties that on 15.10.2010, the patient developed mild fever. Dr.Manohar, general physician also examined the patient and gave her appropriate medication and the patient was subjected to Doppler USG of leg and it revealed that there was no blood flow in the stent. The patient was also subjected to surgical Thrombo Embolectomy done through left femoral artery route by using fogarty to extract the clots and save the leg from being amputated. But the same was failed. The patient was also subject to some other procedures, which are mentioned in Ex.A3. However on 17.10.2010 she developed breathlessness and chest infection was also progressing apart from persistence of the fever. On 18.10.2010 the patients respiratory distress became intense and pneumonia also worsened and the patient was also not responding to the antibiotic treatment. The patient found to have increased renal parameters and decreased urine output suggestive of ARF. The patients condition was further deteriorated. She could not respond inspite of all resuscitative measures. She could not be revived and finally declared dead on 21.10.2010. Infact all the above facts are admitted facts.
The learned counsel for the complainant submitted that after going through the case sheet, investigation reports of various hospitals and analysing all the aspects involved in the case, the complainants came to the conclusion that the patient expired only due to gross negligence, incompetence and deficiency in service rendered by the opposite parties. He further submitted that peripheral vascular occlusive disease of the left leg of the patient is only a chronic disease and not an emergency condition. Opposite party no.2 neither properly explained the procedure nor suggested the alternatives available to the surgery, much less, explained risks involved. The opposite party no.2 is only an interventional cardiologist and not a vascular surgeon. The opposite party no.2 ought not to have entertained the patient since the PTA operation was meant for clearing the stenosis of the blood vessels of the leg and nothing to do with the heart. The patient was relatively normal for her age and disease status. The patient was ambulatory. The opposite party no.2 has not properly evaluated the pre-existing diabetes and hypertension prior to surgery. The opposite party no.2 never explained about the risks of infection, formation of gangrene, which are the life threatening risks.
The opposite parties 1 and 2 ought to have conservatively treated the patient like Yashoda Hospital and Apollo Hospitals, Visakhapatnam instead of PTA operation. Inspite of requests of the attendants to shift the patient to some other super speciality hospital while the condition of the patient was deteriorating, the opposite party no.2 falsely assured that the patient would recover in his hands and not discharged or referred the patient to a higher centre.
The learned counsel further submitted that refusing to supply the CD of angioplasty cast any amount of doubt, on the performance of surgery by opposite party no.2. Because of the failure on the part of the opposite parties 1 and 2, lung infection, septicemia, ARDS and renal failure occurred, resulting in pre-mature death of the patient. The peripheral vascular occlusive disease of the leg is not an acute and dangerous disease killing the patient if immediate PTA was not performed. The learned counsel finally submitted that entertaining the patient beyond the competence of the doctors not only amounts to deficiency in service, but also amounts to unfair trade practice.
The complainant has also made several other allegations against the opposite parties 1 and 2 in their complaint and in the evidence affidavit.
From the averments of the complainant and evidence affidavit of the complainant no.1, it is evident that the complainants are not aggrieved by the conduct of the procedures on the deceased.
The opposite parties have denied all the allegations made against them in their written version and also in the evidence of the opposite party no.2 as RW.1.
The complainant no.1 who was examined himself as PW.1 was cross examined. During his cross examination he has categorically admitted that himself, his son and his daughter were informed the line of treatment adopted by the opposite party no.2, he adds that they were never disclosed the seriousness. The complainants have not adduced any evidence to show that they were not disclosed the seriousness of the treatment adopted by the opposite party no.2.
Further, in his cross examination, PW.1 admitted that at pages 16 to 24 and 29 of Ex.B2 Case Sheet, which are the consent forms, are signed by him and that page nos.25, 26 and 27 of Ex.B2 medical record contained the signature of the 2nd complainant and that page no.28 of Ex.B2 contained the signature of complainant no.4, who is a doctor. The pleadings of the complainant proceeded on the premise that nothing was explained to the complainants. The above answers are elicited from the cross examination of PW.1. The counsel for the complainants suggested to RW.1, the opposite party no.2 that consent was not taken from the patient and that signatures on the consent forms were taken as a formality and nothing was explained to them about the procedure and the alternatives. It is the case of the opposite parties and the evidence of 2nd opposite party RW.1 that the patient and her husband were explained in detail about angioplasty procedure, the risk involved during and after the procedure and only thereafter, the consent was taken.
It is elicited from the cross examination of RW.1 Dr.Hemanth Behara that the patient was conscious even on 18.10.2010 and no signature of the patient was obtained in the consent form dt.16.10.2010 and the consent form dt.18.10.2010, similarly in the consent form dt.19.10.2010 for blood transfusion etc. Basing on the said evidence of RW.1, the learned counsel for the complainants submitted that there is no proper consent to conduct the procedure on the deceased.
He placed his reliance on the decision of the Honble Supreme Court in Samira Kohlis case reported in 1 (2008 ) CPJ 56 (SC) which was to the effect that the consent is to be given by the patient and not by her mother. In the said judgement at para 18, the Honble Supreme Court has extracted the medical ethics which is as follows:
We may also refer to the code of medical ethics laid down by the Medical Council of India (approved by the Central Government under Section 33 of Indian Medical Council Act,1956). It contains a chapter relating to disciplinary action which enumerates a list of responsibilities violation of which will be professional misconduct Clause 13 of the said chapter places the following responsibility on a doctor.
As per Clause 13 which referred to in the above judgement of the Honble Supreme Court, the husband is competent to sign the consent form on behalf of his wife. In this case, the complainant no.1 who is the husband of the deceased patient, proved to be signed on the consent form. Therefore, the above said judgement of the Honble Supreme Court is not applicable to the facts on hand.
As regards the competence of the opposite party no.2 in conducting PTA on the patient, the opposite party no.2 in the written version and also in his chief affidavit has specifically elaborated his competence to conduct the PTA on the patient. Infact the opposite party no.2 is trained from the Premier Institute i.e. AIIMS and worked 3 years in the same hospital. The AIIMS is one of the very few institutes where there is specialist department for vascular interventions and as such opposite party no.2 was exposed to best opportunities as a student itself. The opposite party no.2 has done nearly 4000 angioplasties in Kakinada. The complainants have not adduced any cogent evidence to establish that the opposite party no.2 is not competent to perform the PTA surgery or discredit what has been stated by him in his evidence. When specific question was put to PW.1 i.e. complainant no.1 as to the qualifications required for interventional cardiology and vascular surgery, the complainant no.1 has stated that he has not known what are the qualifications required for interventional cardiologist and vascular surgeon. Even the complainant no.4 who is the doctor did not examine herself. It is significant to note that the complainants relative one Dr.Naresh Kumar Chief Cardiothorsic surgeon has also advised the complainant no.1 to approach the opposite party no.2 for the purpose of PTA procedure. Under these facts and circumstances, the complainants cannot be heard to say that opposite party no.2 is not qualified and competent to perform the PTA surgery.
It is elicited from the cross examination of RW.1 that he ought to have taken the assistance of vascular surgeon with regard to the said statement made by RW.1 in his cross examination, the learned counsel for the opposite parties submitted that usually the surgeons remain stand by for management of any kind of complications developed during the procedure and also to treat surgically, if the surgical option is feasible to the failed PTA case. The assistance of skilful vascular surgeon having experience in PTA is extremely rare in India. However, any cardiac and vascular surgeon can definitely treat the complication( the damaged blood vessel repair, PTA wound site complication etc). relating to the procedure.
There is no reason why the above submissions of the learned counsel for the opposite party should not be accepted. There is no material on record to reject the above submissions of the learned counsel for the opposite parties. That apart, the entire case of the complainant is that opposite party no.2 is not competent to do the procedure and it is only the vascular surgeon who is competent and suggestion is put to RW.1 Dr. Hemanth Behera indicating that he is competent to do, but should have taken the assistance of Vascular surgeon. Thus, the complainants are only taking chances without basing their case on any cogent material. At any rate, it has not been established as to what difference it would have made, if vascular surgeon was present.
With regard to the allegation about non availability of Nephrologist it is submitted by the learned counsel for the opposite parties that there was no need of any immediate attention from Nephrological point of view as the patient was in ICU.
That apart, from opposite party no.2, general physician was treating the patient. Even blood test conducted on her on 19.10.2010 revealed that her kidney was in a stable state. The above submission of the learned counsel for the opposite parties is strengthened by Ex.B2 medical record containing the case sheet. Therefore, we are inclined to accept the above submission of the learned counsel for the opposite parties that there was no need of any immediate attention from Nephrological point of view.
Admittedly the cost of the entire treatment was Rs.5,50,041/- . It is also an admitted fact that in view of the relationship of the complainants with Dr.Naresh Kumar, who is also with Apollo Hospital, Visakhapatanm an amount of Rs.23,800/- was deducted. Thus, the complainants are liable to pay Rs.5,26,241/- out of which, an amount of Rs.2,98,572/- was paid through the insurance company. Now the complainants are liable to pay Rs.2,27,669/-. Though the complainants did not disclose the same in the complaint, the complainant no.1 as PW.1 admitted in his cross examination that an amount of Rs.2,27,669/- is still due to be paid to the opposite party no.1.
The learned counsel for the opposite parties submitted that when the complainants approached the opposite parties for the medical record and the CD, the personnel of 1st and 3rd opposite parties requested for payment of the above said balance amount. Thereupon, it was represented to the opposite parties that the dues will be cleared, in due course and volunteered to take the said material after making the payment. In order to not to deny the medical record, copy of the same was furnished to them by the opposite parties without charging anything from the complainants and as the said CD was in the Cathlab and the concerned person was immediately not available, the complainants were requested to come thereafter and were further asked to clear the dues when they visited the hospital on the next occasion for CD. Thereafter, the complainants did not turn up. Only to preempt the opposite parties from making recovery of the said amounts, the complainants have filed the present complaint.
The opposite parties have pleaded the above case in their version and stated in the evidence affidavit, but the complainants did not deny the same in the evidence affidavit of the complainant no.1. The opposite parties have filed the said CD along with medical record which is marked as Ex.B2. Though the said CD has been filed before this Commission, the complainants did not point out any negligence or like against the opposite parties. Under these circumstances, non furnishing of the CD of PTA operation to the complainants, immediately after the operation, does not establish any negligence or deficiency in service on the part of the opposite parties.
From the evidence of opposite party no.2 as RW.1 and Ex.B2 Medical Record, it is established that there was no alternative except peripheral angioplasty. The patient was in advanced stage of artery blockage( already she was in class III which means pain and discomfort at rest) she also had few small non healed skin ulcer lesions ( due to lack of blood supply in the left leg and sole) Clause III is indication for intervention by angioplasty by surgical repair. In the similar case surgery was not preferable as there was involvement of whole leg artery diffusely. Admittedly, the patient was tried with medical treatment one month by the doctor from Yashoda Hospital, Hyderabad also two doctors i.e. Dr.Mahesh, Cardiologist and Dr. Naresh, Cardio Thorasic Surgeon, both advised PTA rather than medical treatment in this case. Under these circumstances, we are not inclined to accept the allegation made against the opposite parties that the opp.parties ought to have conservatively treated the patient like doctors at Yashoda hospital and Apollo Hospital, Visakhapatanm without subjecting the deceased to PTA operation, as it is a baseless allegation. Except the interested statement in the complaint and in the evidence affidavit of PW.1 that the patient was forced by opposite party no.2 for the surgery, the complainants have not adduced any evidence in proof of the said allegation, which is denied by the opposite parties. Had it been the case, the complainants could have not brought the patient to PW.2. Just because, the patient has died, the complainant cannot turn around and project their theories on opposite party no.2, which are bereft of any material.
As evident from the statement of complainant no.1, Dr.Devender Singh referred the patient to the Cardiologist and advised them to come back, which the complainants did not do so. As such, it is absurd to allege that Dr.Devender Singh did not dare to conduct angioplasty. Despite the categorical denial of the said allegation by the opposite parties, the complainants did not choose to examine Dr.Devender Singh in this case.
It is settled law that where there are two modes of treatment, the doctor can choose one and if anything goes wrong for adopting such procedure, he cannot be blamed on the ground that he ought to have gone for the other mode.
In the present case, the procedure adopted by opposite party no.2 admittedly is a recognised mode, as such, he cannot be found fault with. Once the treatment was given by opposite party no.2 is a recognised and acceptable one, the complainants cannot attribute negligence to the opposite parties, on the ground that the said line of treatment did not yield desired result. Further, it is settled law that the burden of proof lies on the complainant to substantiate his allegations of negligence against the doctor. In the present case, the complainant grossly failed to discharge this burden and as such, no evidence was let in to show that opposite party no.2 was negligent. In Martin F.D Souza case reported in (2009) 3 SCC 1 , the Honble Supreme Court dealt with doctrine of Res Ipsa Loquitor and held that Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straight away liable for medical negligence by applying the doctrine of res ipsa loquitor. No sensible professional would be at stake.
A single failure may cost him dear in his lapse In this case, the opposite parties have categorically explained the line of treatment adopted by them and the reasons for the complications. None of them have disputed nor has been discredited by any cogent evidence. The complainant did not produce any evidence what so ever to hold that the opposite parties were negligent in discharging their duties. The complainants have not filed any expert opinion to show that the line of treatment adopted by the opposite parties is not established procedure .
For the afore said facts and circumstances, we are of the view that the complainants have failed to prove the negligence on the part of the opposite parties in treating the patient and in conducting the operation by opposite party no.2. Therefore, the complainants have failed to establish that there is deficiency in service on the part of the opposite parties. Hence the complaint fails.
In the result, the complaint is dismissed, but without costs in the circumstances of the case.
INCHARGE PRESIDENT MEMBER Pm* Dt.27.12.2013 APPENDIX OF EVIDENCE Witnesses examined Evidence affidavit of complainant no.1 filed.
Chief Affidavit of 2nd opp.party filed.
Exhibits marked on behalf of the complainant :
Ex.A1 :
Cardiac Caherisation Report.
Ex.A2 :
Catherisation Check List and order dt. 13.10.2010 issued by Apollo Hospitals , Kakinada.
Ex.A3 :
Discharge summary issued by Appollo Hospitals,Kakinada.
Ex.A4 :
Death Certificate issued by Appollo Hospitals,Kakinada.
Ex.A5 :
Fax copies of Medi Assist Insurance Co.
ExA6 : Inpatient Bill 22.10.2010 issued by Apollo Hospitals.
Ex.A7 :
Lr.dt.05.01.2010 from complainant no.1 to opp.party no.1.
Ex.A8 :
Lr.dt.13.01.2010 from O.P.No.1 to complainant no.1.
Ex.A9 :
Lr.dt.25.02.2011 from complainant to O.P.No.1.
Ex.A10:Colour Doppler study of both lower limbs-arterial issued by Sathya Scan Centre.
Ex.A11 :
Discharge Summary issued by Yashoda Hospital.
Ex.A12 :
CT Peripheral Angiography report issued by Yashoda Hospital.
Ex.A13 :
Cardiac Catherisation Report issued Apollo Hospitals,Kakinada.
Ex.A14 :
Discharge Summary issued by Apollo Hospitals,Kakinada.
Ex.A15 :
Discharge Summary dt.5.10.2010 issued by Apollo Hospitals, Visakhapatnam.
Exhibits marked on behalf of the opp.parties :
Ex.B1 :
Lr.dt.09.10.2010 from complainant no.1 to opp.party no.1.
Ex.B2 : Original Medical Record and seven CDs.
INCHARGE PRESIDENT MEMBER PM* 27.12.2013.