State Consumer Disputes Redressal Commission
Verma Hospital vs Charanjit Kaur on 29 July, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No134 of 2013.
Date of Institution: 08.02.2013.
Date of Decision: 29.07.2013.
1. Verma Hospital, 11 Gujral Nagar, near T.V. Studio, Jalandhar
through its Proprietor Dr. Ravinder Verma.
2. Dr. Ravinder Verma S/o Sh. Ishar Dass, Proprietor, Verma
Hospital, 11 Gujral Nagar, near T.V. Studio, Jalandhar.
.....Appellants.
Versus
Charanjit Kaur wife of Sh. Sukhchain Singh Atwal, Resident of Village
and Post Office Bhagopuran, District Nawanshahr (Shaheed Bhagat
Singh Nagar).
...Respondent.
First Appeal against the order dated
27.12.2012 of the District Consumer
Disputes Redressal Forum,
Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. J.K. Khetarpal, Advocate, counsel for the appellants.
Smt. Charanjit Kaur, respondent in person.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Verma Hospital, 11 Gujral Nagar, near T.V. Studio, Jalandhar through its Proprietor Dr. Ravinder Verma and another, appellants/opposite parties (In short "the appellants") have filed this appeal against the order dated 27.12.2012 passed by the learned First Appeal No.134 of 2013 2 District Consumer Disputes Redressal Forum, Jalandhar (in short "the District Forum").
2. Facts in brief are that Smt. Charanjit Kaur, respondent/ complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants, on the grounds that she contacted appellant no.2 in his hospital for routine check-up and appellant no.2 advised Thyroidectomy as the best possible treatment available in the case of the respondent, or it may aggravate to cancer. It was also assured that it is the safest surgery, although it is very common, but if the surgery is performed by experienced surgeon, it will have lower rate of complication. The respondent relied upon the assurances of appellant no.2 and approached appellant no.1 on 16.10.2007 along with her husband Sh. Sukhchain Singh. The respondent noticed that there was shortage of qualified staff. There was only the receptionist and driver, who carried the respondent to operation theatre and even helped appellant no.2 in performing the surgery upon the respondent. Appellant no.2 failed to take pre-operative measures, like sterilization, giving of proper medicines, anti-biotics, performing of required tests and performing Thyroidectomy without due diligence and taking proper measures. There was no experienced staff. It was mandatory on the part of appellant no.2 to separate the trachea from glands to avoid any chance of mis-happening, but the same has occurred in the present case.
3. Appellant no.2 failed to perform the surgery with precision as there was lapse in following the proper procedure and the norms. The condition of the respondent worsened after the performance of Thyroidectomy. It was sheer negligence and incompetency in First Appeal No.134 of 2013 3 performing and handling of surgery by appellant no.1, as a result of which Trachea of the respondent was blocked due to which the level of the oxygen in the body decreased from the desired level and edema of brain happened. There was delay on the part of appellant no.2 in taking pro-active steps like intubation and draining of fluid inside pre-Tracheal area and appellant no.2 failed to handle the emergency situation arisen out of the Thyroidectomy and took the respondent back to the operation theatre and re-opened the wound and found that the Trachea (wind- pipe) of the respondent was blocked and it was due to the lapse on the part of appellant no.2 in performing the surgery.
4. The condition of the respondent further worsened and with the passage of time, she had lost senses breathlessness and lower respiration rate and when appellant no.2 failed to take care of the respondent, he called Neurologist for help and on his advice, the respondent was shifted to ICU in Tagore Hospital on the next day early morning. There was delay on the part of appellant no.2 in referring the respondent to a well equipped medical centre and that made her life miserable. She is suffering from trauma out of Thyroidectomy and has become handicapped. She cannot stay alone, stand, rest, walk, urine, sit, and sign etc. till today. She has become bedridden and dependent upon others and she is entitled to recover from the appellants the following amounts:-
a) Refund of fee paid to appellants Rs.90,000/-
b) Mental harassment and loss on Rs.6.00 lacs
account of sufferings
c) Expenditure incurred upon her Rs.8.00 lacs.
During treatment with future
expenses.
TOTAL Rs.14.90 lacs
First Appeal No.134 of 2013 4
5. It was prayed that the complaint may be allowed and the appellants be directed to pay Rs.14,90,000/- along with costs of complaint.
6. In the written version filed on behalf of the appellants, preliminary objections were taken that the respondent has not approached the District Forum with clean hands and has suppressed material facts. There is no cause of action arisen and the complaint is bad for non-joinder of necessary parties. National Insurance Company Limited is necessary party and Dr. Ravinder Verma is fully insured under the Hospitalization Benefit Policy.
7. The Verma Hospital is an ISO certified hospital and is having all the facilities, for example Oxygen supply in all the rooms with monitor and Pulse Oxymeter. The staff is experienced. Dr. Ravinder Verma is Post Graduate from All India Institute of Medical Sciences (AIIMS) and is practicing since 1979. He has conducted a number of operations/surgeries. He is the pioneer in bringing the latest technology to the city of Jalandhar. He is the only surgeon of this time, who started head and neck cancer surgery in Jalandhar.
8. On merits, it was submitted that the respondent consulted Verma Hospital vide registration No.77239 on 06.10.2007 with the complaints of swelling neck which was increasing in size for the last more than one and a half years. On examination, she was found to be suffering from Toxic Thyroid Nodules which was controlled with appropriate medicine and after that, she was advised operation.
9. True facts are that the respondent was admitted to the hospital for surgery on 16.10.2007 at 8.00 a.m. after proper investigation. The operation was conducted with the assistance of experienced staff and even the services of Dr. Rajesh Mahajan, M.D., First Appeal No.134 of 2013 5 who is a famous Anesthesiasit at Jalandhar, were taken. The respondent was successfully operated under general anesthesia with Dr. Rajesh Mahajan and thereafter, she was shifted to the room. There were no immediate post-operative complications. All the proper steps were taken during the surgery and prior to that also. Dr. Ravinder Verma saved the life of the respondent. The respondent developed respiratory distress which is a rapidly developing hematoma i.e. collection of blood which ultimately caused pressure over the wind pipe. With his presence of mind and due diligence, Dr. Verma put bilateral drain on both the sides while closing the wound to avoid collection of blood post-operatively. Since hematoma was rapidly expanding, so it led to respiratory distress. It is already a proven fact in medical literature that post operative hemorrhage or hematoma formation can occur in some cases inspite of taking all precautions.
10. Oxygen was provided to the patient and when the respiratory arrest took place, Dr. Ravinder Verma himself gave mouth to mouth respiration to the respondent. The Anesthesiast Dr. Mahajan put the tube in the windpipe and the patient was on spontaneous respiration with blood oxygen rising to 98% within minutes which showed that the level of oxygen increased and the patient was shifted back to the operation theatre. The wound was re-opened, blood clots were removed and bleeding vessels were caught and ligated. Tracheostomy was done which is opening in the windpipe in the neck. The wound was closed with drawing in layers. The patient was on spontaneous respiration and was shifted back to ICU, Oxygen Inhalation was continued. Call was sent to Dr. Sandeep Goyal (Neurologist) to assess the patient. Dr. Goyal is MD (DM) Neurology. At 9.00 p.m., Dr. Goyal examined the patient and prescribed some First Appeal No.134 of 2013 6 medicines which were given to the patient. The patient was again examined at 9.00 a.m. on the next day i.e. 17.10.2007 by Dr. Goyal and at 2.00 p.m. it was decided to shift the patient to Tagore Hospital, Jalandhar. Even prior to shifting her to Tagore Hospital, she was re- assessed. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
11. Parties led evidence in support of their respective contentions by way of affidavits and documents.
12. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the appellants failed to take reasonable steps to relieve the patient of respiratory distress/arrest in time which resulted in damage to the brain of the patient due to lack of oxygen. In the opinion Ex.C-11 of doctors of PGI, Chandigarh, it is mentioned that the damage to the brain was caused due to ongoing hypoxia during the time of respiratory distress which is responsible for her present condition. Appellant no.2 was responsible for the condition of the patient and anticipating that the respondent may not take any action against him, forgave the treatment charges and obtained writing Ex.O-8 to defend himself in the event any legal action is taken against him. The patient was shifted to Tagore Hospital and she must have spent considerable amount. Her brain was damaged and she became handicapped and cannot stand, walk, urine etc. She has spent on future treatment also. Consequently, the complaint was allowed and the appellants were directed to pay Rs.5.00 lacs as compensation and Rs.5,000/- as litigation expenses.
13. Aggrieved by the impugned order dated 27.12.2012, the appellants have come up in appeal.
First Appeal No.134 of 2013 7
14. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellants as well as the respondent, who was present in person.
15. The respondent visited appellant no.2 and after medical- examination, appellant no.2 advised the respondent that Thyroidectomy is the treatment which will suit her and the operation has to be conducted. The surgery for the same is very common and the same shall be performed by the experienced surgeon and assured that there will be no complications or very less complications.
16. The respondent got herself admitted in the appellant no.1- hospital on 16.10.2007 and appellant no.2 conducted the surgery, but failed to follow the proper procedure and the trachea of the respondent was blocked and the supply of the oxygen to the body decreased which resulted into edema of the brain. Appellant no.2 failed to take immediate steps and ultimately, she was taken back to the operation theatre and the wound was reopened and it was noticed that the windpipe of the respondent had blocked, which occurred due to the surgery performed by appellant no.2. Appellant no.2 took the help of neurologist and finding the condition of the respondent critical, he was shifted to ICU in Tagore Hospital but in this process, she became handicapped and cannot walk. Ex.C-4 is the report of appellant no.1- hospital in this regard. Ex.C-5 is the discharge summary of Tagore Hospital Private Limited. The District Forum wrote a letter to the Director, PGI, Chandigarh, seeking the opinion of the Board in case of the respondent and the same was sent vide Ex.C-9. It was opined as follows:-
First Appeal No.134 of 2013 8
"Considering all above, we fell the patient has had a complication of respiratory distress due to reactionary hemorrhage after thyroidectomy and it is a known, but rare complication".
17. Although, the medical board has tried to save appellant no.2-doctor, but also admitted that the complication is rare. It was also opined that ongoing hypoxia during the time of respiratory distress produced a hypoxic ischemic damage to the brain which is responsible for her present condition. The MRI done in October, 2007 shows effect of hypoxic ischemic damage to the brain in the form of cortical atrophy.
18. Appellant no.2 ought to have taken due precaution, so that the hypoxic ischemic damage to brain should not have been done due to lack of oxygen supply. The negligence of appellant no.2-doctor is clear from the facts that immediately after the operation of Thyroidectomy, the windpipe of the respondent was blocked and oxygen level in the body decreased which resulted in damaging the various parts of the body and she became handicapped and became unable to stand, rest or walk and is bedridden. Appellant no.2 has to reopen the wound and to operate the respondent again and on reopening of the wound, the windpipe of the respondent was found to be blocked. Till the reopening of the wound, appellant no.2 did not bother to call any other expert or the neurologist, but when the condition of the respondent worsened, then he called neurologist, but by that time, everything has been lost and the damage had been done. Referring the respondent in critical condition to the Tagore Hospital, was nothing else but the act was shifting of the burden/baby. Dr. Rajesh Mahajan, Anesthesiast vide his affidavit Ex.OPW-1/A has tried to help appellant no.2, by deposing that the appellant gave mouth to mouth First Appeal No.134 of 2013 9 respiration and blood oxygen level rose. He has further deposed that the wound was reopened, blood clots were removed and bleeding vessels were caught and ligated. All this further proves the negligence on the part of appellant no.2 in performing the operation, or else there was no question of blood clots or bleeding vessels if the surgery would have been performed with due care and caution. The affidavit of Dr. Sandeep Goel, Neurologist Ex.OPW-2/A is again reflective of the opinion given by the appellant. As per Ex.O-3, the medical literature, the incident of hemorrhage after Thyroid surgery is low (0.3-1%), but the surgeon must be aware of this potentially fatal complication. The medical literature relied upon by the appellant further prove that the incident of hemorrhage is the rarest and the surgeon has to be careful even for the same, but in the present case appellant no.2 has taken it very casually and even did not take help of any neurologist or any other competent surgeon at the time of performing the operation. The authorities relied upon by the appellants i.e. "Kusum Sharma & Ors. Vs Batra Hospital & Medical Research Centre & Ors.", 2010 (2) Recent Civil Reports-161 (SC) and "V.N. Shrikhande Vs Anita Sena Fernandes", 2011(1) Civil Court Cases-272(SC) are not applicable to the facts and circumstances of the present case, because in the present case, it is not an error in judgment, but it was gross negligence in performing the operation which led to making an healthy person, an handicapped one.
19. In view of above discussion, the order passed by the District Forum is legal and valid and there is no ground to interfere with the same.
First Appeal No.134 of 2013 10
20. Accordingly, the appeal filed by the appellants is dismissed and the impugned order under appeal dated 27.12.2012 passed by the District Forum is affirmed and upheld. No order as to costs.
21. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.2,27,500/- vide receipt dated 15.03.2013 in compliance of the order dated February 28, 2013 passed by this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the respondent/complainant, by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
22. Remaining amount as per the order of the District Forum shall be paid by the appellants to the respondent/complainant within 45 days of the receipt of copy of the order.
23. The arguments in this appeal were heard on 21.07.2013 and the order was reserved. Now the order be communicated to the parties.
24. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member July 29, 2013.
(Gurmeet S)