National Consumer Disputes Redressal
Dr. Farhat Begum & Ors. vs Raj Kumar Agarwal & Ors. on 25 May, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 209 OF 2010 (Against the Order dated 12/05/2010 in Complaint No. 50/2006 of the State Commission Andhra Pradesh) 1. DR. FARHAT BEGUM & ORS. H.No. 16-11-20/1/B,
Saleem Nagar Colony,
Malakpet Hyderabad Andhra Pradesh 2. DR.HISAMUDDIN H.No.16-11-20/1/B,Saleem Nagar Colony, Malakpet Hyderabad Andhra Pradesh 3. DR.BASHEER AHMED KHAN H.No.17-1-388/P/62 & 65, Poornodaya Colony, Saidabad Saidabda Andhra Pradesh ...........Appellant(s) Versus 1. RAJ KUMAR AGARWAL & ORS. Flat No.106, 11-20-16/106,
Sravanti Apartments, Huda Complex,
Saroor Nagar Hyderabad Andhra Pradesh 2. YASHNA AGARWAL (MINOR) R/o. Flat No.106, 11-20-16/106, Sravanti Apartments, Huda Complex,Saroor Nagar Hyderabad Andhra Pradesh 3. NAMAN AGARWAL (MINOR) R/o. Flat No.106, 11-20-16/106, Sravanti Apartments, Huda Complex,Saroor Nagar Hyderabad Andhra Pradesh 4. YASHODA Hospital, Nalgonda 'X' Roads, Malakep Hyderabad Andhra Pradesh 5. DURGABAL DESHMUKH HOSPITAL Andhra Mahila Sabha, Vidyanagar Hyderabad Andhra Pradesh 6. THE SENIOR DIVISIONAL MANAGER The New India Assurance Co., Ltd., No.6-3-862/A/B,II Floor, Lal Bunglow, Green Lands, Ameerpet Hyderabad Andhra Pradesh ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE MR. DR. B.C. GUPTA, MEMBER
For the Appellant : MS. T. ANAMIKA For the Respondent : MR. ATULESH KUMAR MR. ATULESH KUMAR MR. ATULESH KUMAR
Dated : 25 May 2015 ORDER
These two cross-appeals as described in the heading above have been filed, challenging the order dated 12.05.2010, passed by the Andhra Pradesh State Consumer Disputes Redressal Commission (hereinafter referred to as State Commission) in consumer complaint No. 50/2006 vide which, the said complaint filed by the complainants/appellants in FA No. 234/2010, Raj Kumar Agarwal & others against the OPs/respondents Dr. Farhat Begum & others (FA No. 209/2010) was partly allowed and the OPs were directed to pay a sum of ₹3 lakh with cost of ₹2,000/-.
2. Briefly stated, the facts of the case are that the complainants Raj Kumar Agarwal and others filed CC No. 50/2006 alleging medical negligence on the part of the OPs in handling the maternity case of the deceased Rekha Aggarwal, who was wife of complainant no. 1 and mother of complainant no. 2 & 3. She was admitted in OP-1 hospital on 19.03.2006, where a caesarean section was done upon her on 20.03.2006 and a male child (complainant no. 3) was delivered. The complainant no. 2, who is the first child of the said couple had also been born in the same hospital. She was taken to the operation theatre at 9:00 AM on 20.03.2006 and a male child was born around 10:30 AM. However, the mother/patient was not brought out of the operation theatre even after 2 hours of the caesarean operation. The staff of OP-1 Hospital informed complainant no. 1 at 12:30 PM that his wife had developed some breathing problems and manual oxygen was introduced to her, because the Hospital did not have automatic oxygen-inhaling system. It has been alleged by the complainants that they were never informed that the deceased had suffered cardiac arrest and a cardiologist had visited to see her. At about 4:00PM, the OPs told the complainants that since there was no regular or automatic ventilator and since due to breathing problems, the ventilator was a necessity, the patient was being shifted to another hospital called Yashoda Hospital. The complainant no. 1 was persuaded by them to give his consent towards shifting of his wife from OP-1 Hospital to Yashoda Hospital. On reaching the Yashoda Hospital, the complainant No. 1 was informed for the first time that since the deceased was given excess anaesthesia during caesarean operation, there was a consequent cardiac arrest. The OPs also summoned another anaesthetist Dr. R. Rama Krishna and on his advice, she was shifted to Yashoda Hospital. On 24.03.2006, Dr. K. Krishnareddy and Dr. M. Ramkrishnan of Yashoda Hospital informed complainant no. 1 that there was hardly any hope for the survival of his wife. Complainant no. 1 then sought opinion from the doctors of Durga Bai Deshmukh Hospital, who gave similar opinion but promised to make some efforts. On 25.03.2006, the deceased was got discharged from Yashoda Hospital and taken to Durga Bai Deshmukh Hospital, Hyderabad but she died at that hospital after 5 days of treatment.
3. The complainant also stated that he lodged a complaint with the Police also, upon knowing that there was negligence on the part of the OPs and a case of medical negligence was registered vide crime No. 91/2006 dated 21.03.2006. The Police raided the OP - 1 Hospital and seized some documents. The complainants have also stated that the post-mortem examination performed on the deceased on 01.04.2006 revealed that death was due to 'complications of anaesthesia'. The complainants alleged that general anaesthesia was given by OP-3 doctor, whose services were engaged by OP-1 & 2. All the OPs were jointly and severally responsible for compensation and damages because they were under obligation to undertake proper medical care during the course of operation. The complainants demanded a sum of ₹32,25,000/- as compensation which included medical as well as legal expenses.
4. The complaint was resisted by filing a written reply before the State Commission by OP-1 in which it was stated that the OP-1 Hospital, i.e., Farhat Hospital was represented by Dr. Farhat Hisamuddin who had an experience of about 31 years as obstetrician & gynaecologist. During all these years, she worked in a Government hospital and also in Saudi Arabia as obstetrician and gynaecologist. She was fully qualified doctor, with degrees of MBBS and MD to her credit. The OP-1 Hospital was also fully equipped with instruments for anaesthesia and surgery as well as a clinical lab for routine investigations. The caesarean section was performed by Dr. Farhat herself under general anaesthesia given by OP-3 Doctor Basir Ahmed Khan who is a qualified anaesthetist. However, while shifting the patient from operation theatre table to trolley, it was noticed by the anaesthetist that the patient was cyanosed and he called Dr. Farhat. Dr. Farhat assisted OP-3 in resuscitating the patient and monitored the vital signs, i.e., pulse rate, blood-pressure etc. Dr. Farhat also informed complainant no. 1 and the attendants about the complications and told them that the patient could be shifted to a super-speciality hospital, if need arose.
5. Dr. Mukesh Rao, a cardiologist was called from Yashoda Hospital and following his advice, an ambulance with ventilator support was arranged and it was decided to shift the patient to Yashoda Hospital after obtaining the written consent of the complainant at about 3:30PM. The OPs have explained that they were not guilty of any negligence as complications do arise at the time of such surgeries. OP-1 doctor has also stated in her reply that their detailed explanation was asked by the A.P. Medical Council with regard to the treatment given to Mrs. Rekha Agarwal and the same was duly submitted. The matter was considered by the Ethical and Malpractices Committee of the said Medical Council and the observations of this Committee were placed before the General Body of the Council and it was stated that there was no negligence on the part of the Doctors of all three hospitals, where treatment was given to the deceased.
6. The OP-2 Dr. M. Hisamuddin filed his reply in which he stated that he was only an MBBS Doctor, and also handing the administration of Farhat Hospital. He had not given any consultation on obstetrics and Gynaecology. The said consultation was given by his wife Dr. Farhat Begum, OP-1 and the caesarean section was also performed by her. The OP-2 Doctor has reproduced the version given by OP-1 Doctor in his reply. He also stated that on receiving information that the patient had developed some complications, he rushed to the operation theatre where he saw that the anaesthetist (OP-3) and the obstetrician (OP-1) were resuscitating the patient. He was told by the Anaesthetist that the patient had suffered cardiac arrest. The OP-3 Doctor who is an anaesthetist stated in his reply that he did diploma in Anaesthesia in the year 1976 and MD (Anaesthesia) in the year 1978 from Usmania University and then he worked as such at different hospitals. He carried out the pre-operative assessment of the patient on 20.03.2006 morning and checked her pulse rate, blood pressure etc. and found it to be normal. The OP-3 Doctor has given details of the general anaesthesia given to the patient and also the details of the medicines given during reversal, after the surgery was over. OP-3 also stated that the allegation that excess anaesthesia was given was not correct, as the patient would have developed cardiac arrest instantly, if excess anaesthesia had been given. The allegations regarding tampering with record were not correct.
7. The State Commission after examining the evidence placed before it, partly allowed the complaint and directed OPs 1 to 3 to pay a sum of ₹2,000/-. The operative part of the order passed by the State Commission is as follows:-
"In the result the complaint is partly allowed directing the opposite parties no.1 to 3 to pay a sum of Rs.3 lakhs together with costs of Rs.2000/-. On deposit of the amount, a sum of Rs.2.50 lakhs shall be invested in fixed deposit with any nationalized bank by the office in the name of the complainants no.2 and 3 till they become major and the complainant no.1 is entitled to withdraw the balance amount of Rs.50,000/- and interest accrued on the amount deposited in the name of the complainants no.2 and 3. Time for compliance four weeks. The complainant against the opposite parties no.4 to 6 dismissed."
8. Being aggrieved against the order passed by the State Commission, both the parties have filed the present cross-appeals before us. The complainants have prayed that the compensation given to them by the State Commission should be enhanced. On the other hand, the OP 1, 2 & 3 have stated that there was no medical negligence done by them and hence, the complaint should be dismissed.
9. During hearing before us, the learned counsel for the OP (appellants in FA No. 209/2010) submitted that the complainants had mainly raised three issues in the case, namely, general anaesthesia was given in preference to spinal anaesthesia, the dose of anaesthesia given was excessive, and that, proper consent from the complainants was not taken, before shifting the deceased to Yashoda Hospital.
10. The learned counsel submitted that there was no negligence at any stage on the part of the OP Doctors. The OP-1, Dr. Farhat Begum was a qualified obstetrician and gynaecologist and she had herself performed the operation with active assistance of OP-3 anaesthetist and Dr. Geeta. A healthy male baby had been delivered after the caesarean operation and there was nothing wrong with the surgery performed. However, the patient did develop complications after the surgery was over, for which they tried their best to manage her condition. The learned counsel stated that general anaesthesia was preferred looking at the condition of the patient because she had already undergone two previous abdominal surgeries. The doctors could choose any mode of anaesthesia, depending upon the previous history of the case. The learned counsel further stated that it was not correct to allege that the dose of anaesthesia given was excessive. Regarding the consent for shifting the patient to Yashoda Hospital, the learned counsel explained that the condition of the patient was properly explained to the complainants and their consent was obtained before shifting her. The learned counsel also referred to copies of medical literature on the subject placed on record, saying that the treatment given to the patient was in accordance with regular medical procedure.
11. The learned counsel for the complainants (appellants in FA No. 234/2010) explained that the patient was quite healthy at the time of her admission. It was only a result of mishandling on the part of OPs and giving her excessive anaesthesia that her condition worsened. The learned counsel has drawn our attention to the report of the post-mortem examination which says that the cause of death was due to 'complications of anaesthesia'. The learned counsel further stated that the hospital did not have an automated system of giving oxygen, a fact that had been admitted by them. He stated that the compensation awarded by the State Commission should be suitably enhanced.
12. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
13. The facts and circumstances on record, show that the first child (complainant No. 2) of the complainant no. 1 and his deceased wife was delivered at OP-1 Hospital by Dr. Farhat Begum, who is a qualified obstetrician and gynaecologist. The second child who is complainant no. 3 before us, was also born at the same hospital by caesarean section performed by the same Doctor. However, the complications arose after the delivery had been done when the patient suffered cardiac arrest. The report of the post-mortem examination says that the death took place due to 'complications of anaesthesia'. The basic issue for consideration before us is whether any negligence was shown by OP-1, OP-2 or OP-3 Doctors in handling the patient during the entire procedure performed upon her, following her admission into the OP Hospital.
14. The first issue to be examined is whether the patient should have been given general anaesthesia or spinal anaesthesia before it was decided to perform the caesarean operation. It has been stated that in such cases, spinal anaesthesia is usually given considering it safer than the general anaesthesia. The OPs have, however, explained that looking at the previous case history of the patient that she had undergone two previous abdominal surgeries, it was decided that she should be given general anaesthesia. The details of the medicines given have been explained in the replies filed before us by the OPs. On this issue, we do not find any evidence of medical negligence, because the doctors attending on the patient were properly qualified and it is presumed that they took decision to administer general anaesthesia, based on their experience and good judgment.
15. Regarding the question whether excessive anaesthesia was given, we do not find any material on record or evidence to support the version that the dose of anaesthesia given was excessive by any standards. We, therefore, do not find any ground to hold that excessive anaesthesia was given to the patient.
16. The main point for consideration before us is whether the management of the patient following the caesarean operation was done properly by OP-1, 2 & 3 or not and whether there was any negligence shown in handling the case. As already stated, the patient died due to complications of anaesthesia. It is also clear from the facts of the case that the OPs called a cardiologist Dr. Mukesh Rao and Dr. Rama Krishna, an anaesthetist from the Yashoda Hospital, since the patient suffered cardiac arrest after the operation, and under their supervision, the patient was shifted to Yashoda Hospital. It is not clear as to why the OPs decided to call an expert in anaesthesia in addition to a cardiologist. In case there was no complication due to the administering of anaesthesia, there was no need to call for another doctor having specialisation in anaesthesia. In this regard, the State Commission have also observed as follows:-
"The opposite parties no.1 to 3 have not made any whisper in regard to the complications that arose on account of the administration of anesthesia to the deceased wife of the complainant no.1. This attitude of the opposite parties no.1 to 3 is exhibited by suppression of the purpose of visit of Dr.Rama Krishna, Anesthetist who had transferred the patient from opposite party no.1 hospital to opposite party no.4 hospital. The version of the opposite parties no.1 to 3 is that they had called for Dr.Mukesh Rao, Cardiologist of opposite party no.4 and followed his advice from 12 noon till 3.30 p.m. in such case, the question as to why the anesthetist from opposite party no.4 hospital was required to come to the opposite party no.1 hospital is left unanswered."
17. As stated earlier, the facts of the case show that the condition of the patient became critical a short-while after the caesarean operation was performed upon her. However, there is no plausible explanation furnished by the OPs, who claim to be experts in their respective fields as to under what circumstances, the patient suffered cardiac arrest, following the operation. It is admitted that there was no automated system of supply of oxygen to the patient in such condition. The OPs have not been able to explain whether the patient was given the required supply of oxygen when complications were noticed in her condition.
18. It has been held in a catena of judgments given by the Hon'ble Apex Court and the National Commission in cases of medical negligence that a reasonable degree of care and attention is expected from the medical professionals while handling such cases and that too, when it was a young patient only 31 years old. It has been stated by the Hon'ble Apex Court in the case of "Savita Garg v/s Director, National Heart Institute" as reported in 2004 (8) SCC 56, as follows:-
"Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/ or hospital. Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of
their responsibilities."
19. The complainants have also drawn our attention to a case with similar facts decided by this Commission as "Rajiv Sharma & Ors. vs. Helvetia Klinic Pvt. Ltd. & Ors." as reported in 2010 (4) ALD (Cons.) 1 (NC), in which it was observed as follows:-
"Principle of Res Ipsa Loquitur
................................
Except for the normal procedural treatment, delivery of the baby was normal and also the baby was normal unfortunately, Mrs. Sharma, due to wrong mode of dosage of anaesthesia given by OP No. 3, who did not properly observe her and failed to properly administer correct dosage of anaesthesia, she had gone into a critical condition. The entire record shows that the reversal from anaesthesia was not successful, the patient became hypoxic and never came out of it from that time, till her death. It is a fit case of "Res Ipsa Loquitur" facts speak for themselves'. Opposite parties did not explain, what happened in the operation theatre and the events/parameters of the patient time-wise to us during the arguments. Op No. 3 opted to defend or adopt arguments of OP No. 2 and OP No. 1 and did not clarify as to the allegations of negligence/deficiency in service against him. OP No. 2 clearly stated herself away as to when she noticed indication of hypoxia or any other abnormality or what went wrong with her patient during the surgery and post surgery.
........................................
49. A normal healthy woman with all parameters being normal, died clearly due to anaesthetic dosage given to her and the anaesthetist did not reverse it properly. From the operation theatre onwards patient's condition just remained critical and deteriorated as the time passed by.
...........
51. In view of the fact that she had died at the early age of 39 years, loss of love, affection and care for complainant No. 2 and specially for complainant No. 3 a new born baby, who was denied mother's care, and also to complainant No. 1 for loss of dependency and consortium of the company of the spouse, we direct as given below. OP Nos. 1 and 3 are directed to pay :
I. To complainant No. 1:
(a) For the medical expenses incurred ₹1,15,754/-
(b) For loss of love and affection for his wife ₹1,00,000/-
II. To complainant Nos. 2 & 3:
A lump sum amount of ₹10,00,000/-"
20. The facts of the present case are almost similar to the facts of the case mentioned above and hence, the principal of Res Ipsa Loquitur is applicable in the present case as well as OPs have not been able to explain as to why they were not able to properly manage a normal healthy women with all parameters being normal after the caesarean section was done under general anaesthesia.
21. In the instant case, when OP-1 and OP-3 claim to be medical experts with many years of experience in the fields of obstetrics & gynaecology and anaesthesia respectively, it was expected from them to furnish proper explanation as to why they could not handle the condition of the patient, following the caesarean operation as a result of which she suffered cardiac arrest which led to her death a few days later. This is more so because the cause of death has been stated to be the complications of anaesthesia and hence reasonable explanation should have been furnished by the OP doctors to prove beyond any doubt that the death was not due to such complications.
22. It is held, therefore, that OP-1, 2 & 3 have not been able to discharge the burden to justify that there was no negligence on the part of the treating doctors or hospital. This is more so in view of the notes recorded by the cardiologist Dr. Mukesh Rao of the Yashoda Hospital that the patient suffered post-operative cardio respiratory arrest immediately after the surgery as the patient was extubated and shifted on trolley when the anaesthetist noticed cyanosis with feeble pulse and un-recordable blood pressure.
23. Based on the discussion above, we do not find that the OP-1, 2 & 3 can be absolved of the allegation of medical negligence, looking at the facts and circumstances of the case. FA No. 209/2010 filed by the OP-1, 2 & 3 is, therefore, ordered to be dismissed.
24. The State Commission vide impugned order has allowed a sum of ₹ 3 lakh as compensation to the complainants, although they demanded a sum of ₹32,25,000/- under various items including the medical expenses, legal expenses, loss of motherly superintendence for complainants No. 2 & 3 etc. However, we do feel that the amount of compensation seems to be just and reasonable, looking at the entire facts and history of the case. The cross appeal, i.e. FA No. 234/2010, filed by the complainants is also ordered to be dismissed therefore. The impugned order passed by the State Commission is upheld with no order as to costs.
25. The statutory amount alongwith accrued interest, if any, be returned to the respective appellants.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER