National Consumer Disputes Redressal
Dr. R. M. Gautam vs Master Nav Khshitij (Minor) & Anr. on 25 May, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 408 OF 2012 (Against the Order dated 23/04/2012 in Complaint No. 03/2006 of the State Commission Himachal Pradesh) 1. DR. R. M. GAUTAM Prop., S.R. Hospital & Surgical Centre, Near New Bridge Parla Bhunter, Tehsil and S.R. Hospital National Highway 21, District Kullu Kelehli (Bajawra) Kullu Himachal Pradesh ...........Appellant(s) Versus 1. MASTER NAV KHSHITIJ (MINOR) & ANR. Through Guardian, R/o. Ram Shilla, Akhara Bazar, Kullu, Tehsil and Distt. Kullu Himachal Pradesh 2. NATIONAL INSURANCE CO. Through its Divisional Manager, Moti Bazar, Mandi H.P ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE MR. DR. B.C. GUPTA, MEMBER For the Appellant : Dr. M.C. Gupta, Advocate For the Respondent : Mr. Tungesh, Advocate Mr. Parvesh Sharma, Advocate R-1 Dr. Sushil Kumar Gupta, Advocate, R-2 Dated : 25 May 2015 ORDER In this case of alleged medical negligence, First Appeal No. 408/2012 has been filed by the opposite party (OP) doctor, challenging the order dated 23.04.2012 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission (hereinafter referred to as 'State Commission') in consumer complaint No. 03/2006, vide which, the said complaint was allowed, and the appellant doctor was directed to pay a sum of ₹13,26,286/- with interest @9% p.a. from the date of the complaint to the complainant; out of which a sum of ₹3,30,572/- alongwith proportionate interest was to be the joint and several responsibility of the OP Doctor and respondent No. 2, the National Insurance Company. A sum of ₹_20,000/- was also allowed as cost of litigation.
2. The facts of the case are that the appellant Dr. R.M. Gautam runs his own clinic at Bhunter in District Kullu in the State of Himachal Pradesh. The consumer complaint, in question, was filed by Ms. Jyoti Dogra (since deceased) who stated her to be a practising Advocate at Kullu since 1994. She has one son, Master Nav Kshitij who is stated to be her sole class I heir and he is now respondent no. 1, representing his late mother. At the time of the death of his mother, he was still a minor and is represented in the present proceedings by his guardian and foster father Yaduvender. Ms. Jyoti Dogra died during the pendency of the complaint before the State Commission and her son filed the amended complaint before the State Commission as sole legal heir, seeking damages claimed by his deceased mother. The said amended complaint has been decided by the State Commission vide impugned order.
3. Ms. Jyoti Dogra filed the consumer complaint in question saying that she suffered from continuous bleeding in her vagina for a number of days and she got herself examined from Dr. Sumedh Kaul, a gynaecologist at Regional Civil Hospital, Kullu. Dr. Kaul gave the opinion that the complainant may be suffering from cancer of the cervix and referred her for biopsy vide OPD slip dated 23.03.2004 and advised her to visit Indira Gandhi Medical College (IGMC) Shimla for further treatment. However, the complainant sought second opinion from Dr. Mrs. Anjana Naru at Kullu who got the CT scan done and concurred with Dr. Kaul vide her prescription slip dated 24.03.2004 and advised her biopsy in order to confirm the diagnosis. Dr. Naru referred her to P.G. Institute of Medical Education and Research (hereinafter referred as PGI, Chandigarh). On the very next date, i.e., 25.03.2004, the complainant in the company of Dr. Sarita Sood, who was her friend, visited the clinic of OP Dr. R.M. Gautam, and showed the prescription slips of Dr. Kaul and Dr. Naru and CT scan to Dr. Gautam. As per the complainant, Dr. Gautam advised her that surgery was required to be conducted immediately as any delay could threaten her life. Feeling scared and disturbed on getting such advice, she got herself admitted to the clinic of OP the same day and she was operated upon at 9:00 PM on 25.03.2004 itself. She remained in the clinic of the OP till 3rd April 2004. During the operation, the OP Doctor removed her uterus and also ovaries, fallopian tubes and ureters. Since there remained no passage for draining out urine after the removal of ureters, the OP made holes in abdomen for draining out urine. However, since her condition deteriorated from day to day, she went to PGI Chandigarh on 07.04.2004 where she was admitted and remained as indoor patient till 16.04.2004. She was attended upon by Dr. A.K. Mandal, Professor and Head, Department of Urology. Dr. Mandal was of the opinion that surgery should not have been conducted by the OP Doctor at Bhunter without first ascertaining the stage of the cancer. The complainant was operated upon twice at the PGI and was finally discharged on 16.04.2004. However, she was asked to report at the OPD of the Radiotherapy Department of PGI on 21.04.2004 for further management of cancer. The radiation exposure was started from 23.04.2004 and continued till 22.05.2004. She came back to Kullu on 23.05.2004, but returned to the PGI following some complications in the form of blockage of B/L PCN. She was discharged from the PGI on 30.05.2004 after correction of the blockage, but directed to report for further radiation shots at PGI which were given from 16.06.2004 to 01.07.2004. She again had to report back to PGI on 12.07.2004 and remained there till 23.07.2004. She was told to report back on 30.11.2004 for substitution of ureters and finally, she was operated upon on 24.12.2004 for substitution of ureters and part of bladder and she was discharged on 22.01.2015. The complainant had to visit the PGI again from time to time and had to incur heavy expenditure on her treatment. She filed the consumer complaint in question, on 16.10.2006, alleging that due to negligence in conducting the surgical operation by the OP Doctor, her life expectancy had been reduced and she had to incur heavy expenditure on treatment, travelling expenses, servant charges, etc. The complainant has been stated to be admitted at PGI again on 31.01.08, where she died on 07.02.08.
4. The complaint was resisted by the OP Doctor/appellant by filing his reply in which he stated that the complaint was beyond limitation, because the cause of action had arisen on 3.04.2004 whereas the complaint was filed in June 2006, which was beyond the period of limitation as prescribed under section 24(A) of the Act. The OP Doctor also stated that the complainant had misrepresented that she was a practicing Advocate ; in fact, she was working as a teacher in a school in District Kullu. The OP stated that he was fully competent to conduct surgeries as he had acquired the necessary qualification after appearing in the All India Level Test of the DNB (Diplomate National Board) which works under the direct control of the Ministry of Health and Family Welfare, Government of India. Before that, he had done his MBBS from the IGMC, Shimla. He was, therefore, a qualified surgeon and competent to perform such surgeries. The OP further stated that when the complainant visited him, he advised her to undergo the tests as earlier advised by the doctors, but she made a request that her bleeding may be stopped in any manner so that her life could be saved. The OP Doctor performed the surgery after obtaining her consent and removed the malignant parts. She was advised to have radiotherapy at IGMC, Shimla. The OP Doctor stated in his written submissions before this Commission that he had done the emergency surgery in the nature of radical hysterectomy with exteriorization of uretus. Dr. Sarita Sood, who was a friend of the complainant was present in the operation theatre throughout the surgery. As per the procedure planned, the ureters were to be fixed later on and the same was done at the PGI. It was not correct to say that he had shown negligence of any kind, rather he did his best to save the life of the complainant.
5. Both the complainant and OP-1 Doctor adduced evidence before the State Commission. However, the OP-1 Doctor absented himself after attending some hearings before the State Commission and was proceeded against exparte by the said Commission.
6. The State Commission examined two doctors from the PGI, namely, Dr. Mandal from the Department of Urology and Dr. Firoza Patel from the Department of Radiotherapy of PGI. The State Commission also recorded the statements of Dr. S.M. Bose, former Professor and Head of Department of Surgery at PGI, Dr. Sarita Sood, Dr. Sumedh Kaul and Dr. Anjana Naru. After examining the entire evidence on record, the State Commission held that the OP doctor was guilty of medical negligence as alleged, and they awarded a total sum of ₹13,26,286/- to the complainant with interest @9% p.a. from the date of the complaint till realisation. It was also ordered that out of the said sum, a sum of ₹3,30,572/- with proportionate interest shall be the joint and several responsibility of the OP Doctor and the Insurance company. A sum of ₹20,000/- was also allowed as litigation cost. Being aggrieved against this order, the appellant is before us by way of the present appeal.
7. It has been stated that criminal proceedings were also instituted in the Court of Chief Judicial Magistrate, Kullu in the case at the instance of the complainant. In the said proceedings, vide order dated 28.03.2011, the OP Doctor was convicted and sentenced under section 338 IPC for medical negligence. However, the said order was set aside in criminal appeal 28/2011 decided on 22.11.2011 by the Court of Sessions Judge, Kullu. At the time of hearing before us, the learned counsel for the complainant stated that an appeal against the said order of the Sessions Judge was still pending in the Hon'ble High Court at Shimla, but no papers etc. was shown in support of this contention.
8. During hearing before us, the learned counsel for the appellant/OP Doctor stated that the Doctor had not shown any negligence in carrying out surgical operation upon her, rather it was clear from the facts on record that she remained alive for 4 to 5 years after the surgery. The OP Doctor was fully qualified to perform such surgeries. A prominent doctor from the PGI, Dr. S.M. Bose, who retired as Senior Professor and Head, Department of Surgery at PGI, had clearly stated that the treatment given by OP Doctor was on the expected line of treatment in such like patients. The learned counsel for the appellant stated that the patient was in a critical condition when brought to their hospital and she could have died if the surgery had been delayed.
9. The learned counsel for the complainant/respondent no. 1 stated that the opposite party doctor/appellant performed major surgery upon the mother of complainant no. 1 without the help of an Anaesthetist, which leads to the conclusion that the said procedure was performed without exercising due care and caution on the part of the opposite party doctor. Further, it was the duty of the opposite party doctor to ensure that proper investigations should have been conducted before performing the surgery. The extent of disease suffered by the complainant could have been known only if biopsy had been done as advised by Dr. Kaul and Dr. Anjana Naru. The Opposite party doctor did not even bother to have even an MRI done. The learned counsel vehemently argued that had biopsy been done and the necessary investigations conducted, the stage of cancer could have been known and the line of treatment would have been different, depending upon such stage of disease. The learned counsel referred to copies of medical literature produced on the subject, saying that for treatment of premalignant and malignant disorders of the uterus, different kinds of treatment had been prescribed for different stages of the disease. The learned counsel has drawn attention to the statements made by Dr. A. K. Mandal, Professor and Head of Department at Urology at PGI, Chandigarh, in which he stated that during the surgery performed by opposite party doctor, two ureters connecting kidneys to the urinary bladder were injured. During operation, the two ureters were taken out. Dr. S. K. Mandal stated that the operation should not have been conducted looking at the stage of disease. The learned counsel stated that the allegation of medical negligence against the opposite party doctor stood fully proved from the material on record. The order passed by the State Commission was, therefore, in accordance with law and should be upheld.
10. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
11. The material on record including the version given by the OP Doctor shows that certain facts of the case are undisputed. The deceased complainant first went to Dr. Sumedh Kaul, working as gynaecologist at Zonal Hospital, Kullu, who advised biopsy, suspecting it to be a case of cancer of cervix and asked her to go to IGMC, Shimla. The complainant then consulted Dr. Anjana Naru, who gave similar opinion and advised her to go to PGI, Chandigarh. However, when she went to the OP doctor, he performed surgery on the same day, without getting any biopsy or proper investigations done. In his written version, the OP Doctor has stated that his diagnosis was also the same as made by the previous doctors, but still he preferred to perform surgery without getting the investigations conducted. It is also not disputed that the surgery was done by the OP doctor without the help of any expert Doctor in anaesthesia.
12. A perusal of the statement made by Dr. A.K. Mandal, who was Professor and Head of the Department of Urology at PGI, shows that during the process of surgery carried out by the OP Doctor, the ureters connecting kidneys to the urinary bladder were injured. The two ureters were joined and brought out. As stated by Dr. Mandal, the condition of the patient was miserable when she came to PGI due to continuous leakage of urine. At the initial stage, they put two fine tubes for collection of urine from the kidneys, so that the patient remained comfortable and also dry. Later on, they reconstructed the urinary tract and joined it to the urinary bladder. Dr. Mandal has stated that the investigations should have been done first to find out the extent of disease and then to plan the further line of action. If the cancer of cervix is properly treated with proper investigations, the patients can be cured of cancer and such patients could survive for 10 to 15 years. The surgery undertaken by the OP Doctor meant wrong understanding of the disease by the Doctor. Dr. Mandal had further stated that if the Doctor has undertaken operation and found that the disease had gone out of its origin, affecting other parts of the body like urinary bladder, he should not have ventured into removal of other parts. Such removal was not justified keeping in view the nature as well as stage of the disease. Dr. Firoza Patel, Professor in the Department of Radiotherapy also stated that based on her experience, this type of operation should have been done by an expert in the branch of Gynaecology.
13. The statement of Dr. S.M. Bose, former senior Professor and Head of Department of Surgery at PGI, Chandigarh has also been recorded before the State Commission. Dr. Bose has opined that the treatment given to the patient was on accepted lines, but he has stated that to treat cervix cancer, staging has to be undertaken, but it was not clear from the documents whether staging had been done. Dr. Bose has further stated that before carrying out treatment for cancer of cervix, the necessary investigations have to be done on the patient. In the instant case, it was a cancer of stage-III, which is a moderately advanced stage/locally advanced stage for cancer. Dr. Bose further stated that every surgery for cancer was a major surgery. Regarding his relationship with the OP Doctor, Dr. Bose stated that he knew OP-1 for the last two years and he had met him for the first time, when he arranged a conference of surgeons at Kullu in H.P.
14. The copies of medical literature on the subject have been filed by the appellant, one of which is entitled, "Current Obstetric & Gynecologic, Diagnosis & Treatment," Alan H. DeCherney & Lauren Nathan, ninth edition. Under the head, "Cancer of the Cervix", the line of treatment for various stages of the disease have been mentioned. For treatment of cancer stage-IIB to IVA, it has been stated that the patients with such locally advanced cervical cancer are best treated with primary radiation (external beam plus brachytherapy) with concomitant chemotherapy. In one of the stages, the process of radical hysterectomy has also been mentioned. A perusal of the literature brought on record, brings out clearly that different treatments have been prescribed for different stages of cancer of cervix. It was, therefore, essential to know the stage of the cancer before venturing into any radical surgery, as was done by OP-1 Doctor. Even the statement of Dr. Bose, who tried to defend OP-1 doctor, says that proper investigations should have been conducted to know the stage of the disease. The version given by Dr. Mandal and Dr. Patel, therefore, gets strengthened by the statement of Dr. Bose that proper treatment should have been planned after the investigations had been carried out. It is also clear from the opinions given by the first two examining doctors, Dr. Sumedh Kaul and Dr. Anjana Naru that it was not a case of acute emergency. Both these doctors advised biopsy and the same should have been carried out, before the OP-1 Doctor performed surgery upon the patient. The version of the OP Doctor that the life of the patient could have been in danger, had the surgery not been performed on the same day, is not established from the facts on record. It was not a case of such acute emergency, resulting from an accident or heart condition etc., that immediate surgery was required.
15. The subject of medical negligence has been discussed in detail in a number of judgments given by the Hon'ble Apex Court and this Commission from time to time. In "Jacob Mathew versus State of Punjab & Anr." [(2005) 6 SCC 1], the Hon'ble Apex Court while dealing with negligence as tort referred to the Law of Torts, Ratanlal & Dhirajlal (24th Edn. 2002, edited by Justice G.P. Singh), in which it is noted as follows:-
"Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.....the definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
16. In the instant case, the treatment given at the PGI from time to time suggests that the patient suffered extensive damage due to the operation done by the OP Doctor at Bhunter itself without proper investigations. Had biopsy been conducted and the stage of cancer known, the treatment could have been planned in a better way and that could have prolonged the life of the patient. According to Dr. Mandal, many patients in similar situations get cured or their life span is extended by 14 to 15 years. The allegation of medical negligence against the OP Doctor, therefore, stands established, based on the entire set of facts and circumstances of the case. It is also clear that he carried out a major surgery on the patient without the help of an anaesthetist, which shows grave negligence on his part. We, therefore, tend to agree with the conclusion arrived at by the State Commission that the OP-1 Doctor is guilty of medical negligence.
17. The State Commission vide impugned order, awarded a total sum of ₹13,26,286/- to the complainants, out of which the complainant submitted bills for a sum of ₹3,26,286/- for treatment at PGI, Chandigarh from 2.04.2004 to 29.11.2005. A sum of ₹1 lakh was awarded for travelling from Kullu to Chandigarh and stay at Chandigarh in connection with the treatment taken at the Department of Radiotherapy, PGI Chandigarh. In addition, the State Commission awarded a sum of ₹7 lakh on account of pain, suffering and shortening of life expectancy etc. A further sum of ₹2 lakh has been awarded on account of actual loss of earnings. The total sum awarded has therefore, been computed as ₹13,26,286/-. The State Commission concluded that out of this sum, it shall be the responsibility of the OP Doctor and the Insurance Company jointly and severally to pay a sum of ₹3,30,572/- with proportionate interest. The State Commission also awarded a sum of ₹20,000/- by way of cost of litigation.
17. Based on the facts and circumstances of the case, when the allegation of medical negligence and mishandling of the case has been established, we do not find any justification to differ with the findings of the State Commission in so far as the amount of compensation awarded is concerned. The order passed by the State Commission is, therefore, upheld. The present appeal is ordered to be dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER