State Consumer Disputes Redressal Commission
Vishnu Priya Giri vs The P.S Health &Family; Welfare Dev. on 14 June, 2016
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 14.06.2016 Complaint Case No. 246/2007 In the matter of: Smt. Vishnu PriyaGiri W/o Sh. MadhusudanGiri R/o 82-D, Sec-4 PushpVihar New Delhi-110017 .........Complainant Versus The Principal Secretary Health & Family Welfare Development ITO, Delhi-110092 The Secretary Delhi Medical Council Room No. 356 and 357 Maulana Azad Medical College Bahadur Shah ZafarMarg New Delhi-110002 The Director Directorate of Health Service Govt. of NCT of Delhi F-17, Karkardooma, Shahdara Dr.Vinay J. Lazarus Director (Admn.& PR) G.M.Modi Hospital Research Centre for Medical Sciences Press Enclave Marg, Saket New Delhi-110017 Dr.A.K.Panigrahi M.S.Consultant General &Laproscopic Surgery G.M.Modi Hospital Research Centre for Medical Sciences Press Enclave Marg, Saket New Delhi-110017 Dr.Anjum G.M.Modi Hospital Research Centre for Medical Sciences Press Enclave Marg, Saket New Delhi-110017 Dr. Manoj Malik Medical Superintendent & Consultant Orthopaedic Surgeon G.M.Modi Hospital Research Centre for Medical Sciences Press Enclave Marg, Saket New Delhi-110017 .......Opposite Parties CORAM N P KAUSHIK - Member (Judicial) 1.
Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes N P KAUSHIK - MEMBER (JUDICIAL) Judgement
Facts of the complaint are that the original complainant Ms. Vishnu PriyaGiri, since deceased was having recurrent pain in her stomach. She consulted her CGHS Doctor who referred her to G.M.Modi Hospital and Research Centre (in short the 'OP') for treatment. She was diagnosed to be suffering from Mucoceleof gall bladder with Mirizzi's syndrome (obstruction of CBD which may lead to jaundice). After investigation dated 03.02.2006 (MRCP- Magnetic Resonance Cholangio-Pancreatography), she was admitted to G M Modi Hospital Research Centre for Medical Sciences Press Enclave Marg, Saket New Delhi (in short OP-7 hospital) on 05.02.2006. She was operated upon on 06.02.2006.
As per re-anesthesiarecord dated 06.02.2006 of OP-7 hospital, the deceased was proposed to be operated for Lap-Cholecystectomy (Laproscopic) for which the consent of the husband of the complainant was obtained. During the course of operation for removal of gall bladder, Dr.A.K.Panigrahi (OP-5) disclosed that the hysterectomy (removal of uterus) of the deceased was also done. Husband of the deceased had no option but to give consent for the same as the patient was on the operation table.
Next grievance of the complainant is that Dr.A.K.Panigrahi (in short OP-5) without informing and without consent,carried out CBD (Common Bile Duct) exploration. The reason for CBD exploration remained unclear as there was no evidence after pre-operative investigation and examination of the patient that there was any obstruction/blockage in CBD requiring direct operative intervention. OP-5 did not discuss the possibility of the CBD exploration as per pre-operation report. Complainant submitted that Mirizzi's syndrome alone requires CBD exploration which was not the case of the deceased. CBD surgery was unnecessary as there was no emergency situation for the same and also no prior consent was taken.
Next submission of the complainant is that OP-5 without consent of the complainant or her attendants decided to carry out Lap-Assisted Small Bowel Resection which thereby caused injury. Complainant further alleged that the OP-5 fraudulently mentioned to have carried out Salpingo-Oophrectomy (removal of fallopian tubes & ovary). However the aforesaid operation was actually not carried out. It was shown only to raise the bill with the connivance of the Hospital and to cause wrongful loss to the deceased.
On the basis of aforesaid facts, complainant stated that OP-5 and OP-7 hospital played fraud upon her and were negligent in service. They charged undue amount and OP-5 & OP-7 were quite inhuman and unethical.
Complainant referred to the report of the DelhiMRI Scan Centre dated 25.03.2006 where it was mentioned that (after the surgery in question) both the ovaries were seen: Right ovary measured 1.7 x 1.3 cms and left ovary showed a simple cyst measuring 2.7 x 2.7 cms. Ovaries were not removed but charges for the same were taken from the deceased.
Grievance of the complainant is that surgically removed organs were not shown to the complainant or her relatives as per protocol. The removed organs (viscera), are to be subjected to Hystopathological Examination. Only uterus was sent for examination and removed gall bladder was not sent for examination. Contention of the complainant is that the gall bladder at the time of operation got punctured and the biles stored in the gall bladder splitted inside causing irreparable damage to the organs. Since the gall bladder was removed in parts, the same was intentionally not sent for Hystopathological Examination. Even after surgery of gall bladder, pain in the abdomen was persisting. Ultrasound and MRCP (Magnetic Resonance Cholangio-Pancreatography) of the deceased were carried out and the patient was admitted to Ram ManoharLohia Hospital, Delhi. Doctor mentioned in the OPD card that the reason for those surgeries were not clear. Patient was thereafter referred to AIIMS New Delhi.
Contention of the complainant is that had the visera (gall bladder) been sent for Hystopathologicalexaminationthe long term post-operation follow-up and treatment could have been different which could have restrained the development of Metastic-carcinoma (i.e. spread of cancer). In its ultrasound report Dr.Acharya mentioned that there was a large mass in the gall bladder which was suggestive of the fact that gall bladder was not removed properly. Finally Dr.Acharya after necessary clinical check up came to the conclusion that the deceased was suffering from cancer (advance stage). The deceased was time and again admitted to Rottery Cancer Hospital and finally discharged. Doctors were of the opinion that the patient was at the last stage. Ultimately on 21.01.2008, the Doctor came to the residence of the deceased. After examination, he declared her dead.
Principal Secretary, Health and Family Welfare Development Govt. of NCT of Delhi, Secretary Delhi Medical Council, The Director of Directorate of Health Services Govt. of NCT of Delhi and Dr.Vinay J. Lazarus Director (Admn. & PR) of G.M.Modi Hospital Research Centre for Medical Sciences (OPs-1,2,3& 4 respectively) remained absent despite service of notices upon them. They were proceeded against ex-parte vide orders dated 21.02.2013. Dr.Anjumof G.M.Modi Hospital Research Centre for Medical Sciences Delhi OP-6, was dropped from the arena of parties, by the complainant (Orders dated 18.03.2008). Dr.A.K.Panigrahi and Dr. Manoj Malik (OP-5 & OP-7) respectively filed their written versions.
In its defence Dr.A.K.Panigrahi(OP-5) admitted that the complainant was referred by CGHS. She was diagnosed to be suffering from Mucocele of gall bladder with Mirizzi's syndrome with fibroid uterus. Ultrasound dated 23.01.2006, CT scan dated 23.01.2006 and MRCP test dated 03.02.2006 were conducted. Reports were prepared by Max Medcentre, Panchsheel Park, New Delhi. OP-5 further admitted that the complainant was admitted to G.M.Modi Hospital Research Centre for Medical Sciences vide admission No. 566/06 on 05.02.2006 with a clear finding of Mirizzi's syndrome and multiple fibroid of uterus. Diagnosis was based on clinical tests none of which were conducted by G.M.Modi Hospital &Research Centre for Medical Sciences. These were the findings of the independent medical agencies.
Next submission of OP-5 is that the complainant was successfully operated upon for LaproscpicCholecystectomyfor Mucocele Gall Bladder Type 1 with Multiple fibroid uterus. She also underwent CBD exploration necessitated due to evidence of blockage and Laproscopic Assisted Vaginal Hyseterectomy (LAVH)for fibroid uterus. Consent was duly given for these procedures. OP-5 submitted that the complainant was discharged from G.M.Modi Hospital on 12.02.2006 after due post-operative care. OP-5 Dr.A.K.Panigrahi further submitted that the complainant visited RML Hospital New Delhi on 22.09.2006 i.e. after almost seven months, complaining of stomach pain. She was examined by the Head of Department of Surgery. CT Scan conducted there revealed tumours. After a period of further three months, complainant was referred to Department of Surgical Gastroentology, AIIMS on 14.02.2007. After examination, she was referred to an oncologist. OPs pleaded that the referral to oncologist was made after one year of date of surgery. Complainant after subsequent medical check-ups, was diagnosed with liver cancer (advanced stage) which had rapidly spread in her abdomen region. Complainant thereafter started receiving treatment for cancer at Dr.B.R.Ambedkar Institute Rotary Cancer Hospital AIIMS New Delhi. OP-5 admitted that the complainant sent notice to OP-1 to OP-7 under Section 80 of CPC calling upon them for payment of compensation.
Next submission of the OP-5 is that the Delhi Medical Council (OP-2), erroneously directed for suspension of his (OP-5's) license for 12 weeks for having not discharged the duties with adequate care and reasonable skill. Order was dated 27.07.2007. On 30.07.2007, honorary attachment of the OP-5 withG.M.Modi Hospital was discontinued. OP-5 contended that in appeal before Medical Council of India, orders of Medical Council of Delhi dated 27.07.2007 were erroneously upheld. (vide order dated 06.10.2008).
Defence raised by the OP-7 i.e. Dr. Manoj Malik Medical Superintendent of G.M.Modi Hospital is that no relief is claimed against OP-7. Allegations pertain to OP No. 5 & OP No. 6 only. OP-7 simply maintained all the necessary records of treatment given to the complainant as per norms of the hospital. Next submission of the OP-7 is that immediately after receipt of the orders of the Delhi Medical Council dated 27.07.2007, OP-5 was removed from the service of the hospital vide letter dated 30.07.2007. OP-7 contended that Dr.A.K.Panigrahi (OP-5) had submitted that before Delhi Medical Council that the sample (for biopsy) was handed over to the patient's relative and the report should be available with the said relative. No permission of OP-7 was taken before handing over the sample to the patient which was a total breach of protocol. In relation to the uterus sample, OP-7 submitted that the said sample report was handed over to the patient's relative by the OP-7 which was duly received by the relative against acknowledgment.
Parties filed their affidavits in respect of their evidence. Written arguments have also been placed on record by the complainant, OP-5 & OP-7, seperately.
Ms. Vishnu PriyaGiri(since deceased) made a complaint to the Directorate Health Service Govt. of NCT of Delhi who forwarded the same to the Delhi Medical Council. Delhi Medical Council examined the complaint and gave its report dated 27.07.2007. Delhi Medical Council in its report held OP No.5 Dr.A.K.Panigrahi guilty of negligence especially when it did not bother about the histopathological report of the gall bladder. Delhi Medical Council also held the hospital highly negligent in providing adequate manpower for the services. No sense of record keeping,particularly for important events like collection of surgically removed tissues, their dispatch for hystopathological examination, collection of report for follow up action etc., has been found in the Hospital. It was held that laparoscopic bowel resection was not done. The same was mentioned to claim money from CGHS as the hospital did not have package for CBD exploration. This finding was given on the basis of the admission made by the surgeon Dr.A.K.Panigrahi. Delhi Medical Council held that Dr.A.K.Panigraphi failed to perform his duties with reasonable degree of skill, knowledge and care. Dr.A.K.Panigrahi's name was directed to be removed from the State Medical Register for a period of 12 weeks. He was barred from practicing medicine during this period. He was directed to attend at least 15 CME programmes to update his knowledge.
Both Dr.A.K.Panigrahi(OP-5) and G.M.Modi Hospital (OP-7) filed appeal against the orders dated 27.07.2007 of Delhi Medical Council. Ethics Committee of Medical Council of India dealt with the appeal.Dr.Bhupender Kumar Jain, Professor & HOD, Deptt. Of Surgery, U.C.M.S. Shahdara, Delhi and Dr.M.C.Mishra, Professor & HOD, Department of General Surgery, All India Institute of Medical Sciences, New Delhi assisted the Ethics Committee. Ethics Committee of Medical Council of India unanimously decided and upheld the decision of Delhi Medical Council dated 27.07.2007. It was also held by the Ethics Committee that there was medical negligence on the part of Dr.A.K.Panigrahiand also complicity of the hospital. Report of the Delhi Medical Council dated 27.07.2004 and the appeal against the same as decided by the Medical Council of India (vide its order dated 02.12.2008) are reproduced below:
Report of Delhi Medical Council dated 27.07.2007:
"The Delhi Medical Council examined a complaint of Ms.VishnupriyaGiri, forwarded by Directorate of Health Services, alleging medical negligence on the part of Respondent 1 to 3 in the treatment administered to the complainant Ms.VishnupriyaGiri (referred hereinafter as the patient) at G.M.Modi Hospital (Admission No. 566/06, D.O.A. 05.02.2006). The Delhi Medical Council perused the complaint, written statements of respondents i and 3, medical records of G.M.Modi Hospital, other documents on records and heard the following in person:-
Madhu Sudan Giri (husband of the complainant) Mr. Ajay Kumar Giri (Son of the complainant) Dr.A.K.Panigrahi, G.M.Modi Hospital Dr. Manoj Malik, Medical Superintendent, G.M.Modi Hospital Respondent No. 2 did not participate in the proceedings. Respondent No. 3 informed that Respondent No. 2 had left the country and that they were not aware of his whereabouts.
Ms.VishnupriyaGiri was admitted in G.M.Modi Hospital on 05.02.2006 with the diagnosis of Mucocele Gall Bladder Type I with multiple fibroid uterous. She was operated upon on 06.02.2006 Laproscopic cholecystectomy with Exploration of CBD with Laparoscopic Assisted vaginal Hysterectomy by Respondent No. 1 (Surgeon).
Issues raised by the complainant:-
Unwarranted CBD exploration without any scientific need for the same.
Lap assisted small bowel resection was done as a complication which developed during CBD exploration.
Lap assisted vaginal hysterectomy with Salpingo-opherectomy was done without pre-operative planning. The small bowel injury was not informed.
Post-operative MRCP shows presence of Ovaries and Tubes, hence the money charged for salpingo-opherectomy was fraudulent.
Surgically removed parts were not shown to the patient or her relatives.
No hystopathological examination was done on the removed viscera except the uterus.
Presently the patient undergoing treatment in AIIMS Cancer hospital with Chemotherapy etc. In his written statement, the surgeon Dr.A.K.Panigrahi stated that he explained the surgical plan to both the complainant and her husband for which they gave written consent. The findings in the pre-operative MRCP scan showed mirzzi's syndrome which justified the cholecystectomy and CBD exploration. The complainant had underwent Hysterectomy and salpingo-opherectomy and not oopherectomy. However, as in the CGHS, packages for salpingectomy alone is not available, they have charged for salpingo-opherectomy without doing oopherectomy. Regarding histopathology report of Gall Bladder, he submitted before the Delhi Medical Council that the sample was handed over to the patient's relative and the report should be available with the patient's relative. He did not bother to know about the report, although he did think about malignancy while operating. However as per patient's relatives no specimen were handed over to them.
The Delhi Medical Council observes that:-
The entire management of the patient in G.M.Modi Hospital was in a very lackadaisical manner and not at all in the true spirit of patient care for such clinical conditions.
The diagnosis, plan for surgery, post-operative care, long term follow up of the patient are such components which should have been clearly and categorically incorporated in the plan of management. This did not happen and all treatment protocol were ignored and the hospital and the surgeon blatantly violated the required norms for such services.
Complete and correct recording of events pertaining to the patient's admission, provisional diagnosis, investigation report including hystopathological report, final diagnosis, treatment provided including surgical operations performed, post-operative care given and advise for long term follow up were all missing.
There has been serious lapses on the part of the treating surgeon who did not record the operative findings properly and adequately. It is not possible even to determine what has actually been done on the complainant by looking at the medical records.
The surgical management plan appears to have lost site of the important probable diagnosis of malignancy which would have restricted the surgeon from handing the organs in the present fashion.
Histopathological report is always an important report for such cases specially when one suspects malignancy, for the future course of treatment to the patient. The surgeon has been very negligent in not bothering about the report. That is why he has not been able to provide adequate long term follow up services and missed the diagnosis of malignancy that has delayed initiation of treatment.
Hospital management has been very negligent in providing adequate manpower for the services which has resulted in complete lack of coordination in the service areas. No sense of record keeping particularly for important events like collection of surgically removed tissues, their dispatch for hystopathological examination, collection of report for follow up action etc, has been found in the Hospital.
Laparoscopic bowel resection was not done, only laparoscopic CBD exploration was done. However, bowel resection was mentioned to claim money from CGHS as it does not have package for CBD exploration, as told by the surgeon.
Conclusion: The Delhi Medical Council is of the opinion that the surgeon Dr.A.K.Panigrahi has failed to perform his duties with reasonable degree of skill, knowledge and care required for such clinical situations. Hence, Dr.A.K.Panigrahi's (DMC Registration No. 20432) name is to be removed from the State Medical Register for a period of 12 weeks. During this suspension period, he is barred from practicing medicine and directed to attend at least 15 CME programmes to update his knowledge and submit the compliance report to the Delhi Medical Council. This temporary removal of name from State Medical Register shall become effective after 30 days from the date of this Order.
Further, the hospital has failed to provide adequate manpower comensurating to the services it provides to the public. The management of the hospital has also not responded well to the needs of various services. Directorate of Health Services may be informed to review the registration of G.M.Modi Hospital and take immediate steps so that all norms are complied with.
Copy of the order may also be sent to Central Government Health Scheme who may like to review empanelment of G.M.Modi Hospital for CGHS beneficiaries in view of the misrepresentation of facts for the sake ofmoney."
Relevant portion of the o rders of Medical Council of India (in appeal) against the orders of Delhi Medical Council:
The Ethics Committee noting the above considered the matter alongwith the opinion of Dr.Bhupendra Kumar Jain, Professor & HOD, Deptt. Of Surgery, U.C.M.S. Shahdara, Delhi.
The Conclusion of Dr.Bhupendra Kumar Jain is as under:-
"In view of the facts stated above, the appeals made by Dr.A.K.Panigrahi through letter dated 24.08.2007 and Director, GM Modi Hospital (GMH), New Delhi through letter dated 16.08.2007 has no merit against the order dated 27.07.2007 of Delhi Medical Council which is based on evidence on record and is appropriate with regards to findings, conclusion and penalty imposed."
The Ethics Committee also requested Dr.M.C.Mishra Prof. & HOD, Deptt. Of General Surgery, All India Institute of Medical Sciences, New Delhi to assist the Ethics Committee of the Medical Council of India in this case with his opinion. He has sent the opinion and the conclusion parts of the opinion is reproduced as under:-
Observations of Delhi Medical Council based upon the findings of the Disciplina Committee of the Delhi Medical Council are appropriate against the hospital and the treating surgeon.
Patient though unfortunately suffered from cancer gallbladder and has a poor outcome, we pray for her recovery.
But it is pertinent to mention that an emergency situation was created to get treatment of an otherwise elective condition in a CGHS recognized Private Hospital. For making an emergency case all the parties-Hospital, Doctors (Both of CGHS and G.M.Modi Hospital and the patient/husband be reprimanded. For patient herself there may not be second chance but surgeon and hospital must be warned of severe action if they are found again indulging in unethical clinical practices.
After going through all documents and the opinion of the 2 above mentioned specialists, the Ethics Committee discussed about the case in detailed and arrive their unanimous decision that there is medical negligence on the part of Dr.A.K.Panigrahi and also complicity of the hospital.
The Ethics Committee therefore unanimously decided to uphold the decision of the Delhi Medical Council dated 27.07.2007."
Dr.A.K.Panigrahi (OP-5) in response to different issues raised by the complainant (mentioned in the report of Medical Council of Delhi) against him filed arguments in writing. In relation to unwarranted CBD exploration, OP-5 Dr.A.K.Panigrahi stated that ultrasound and CT scan dated 23.01.2006 and MRCP test dated 03.02.2006 were indicative ofmucocele of gallbladder with Mirizzi's syndrome. The area around CBD was explored to separate gallbladder from CBD.
In respect of bowel resection, Dr.A.K.Panigrahi stated that the preparation of bills was the responsibility of the hospital and the same could not be used to attach liability on him. It may be mentioned here that lap assisted small bowel resection was admittedly not done. Contention of Dr.A.K.Panigrahi is that the said surgery was stated to have been done only to enable the complainant to claim money from CGHS as there was no package for CBD exploration.
In response to Lap Assisted Vaginal Hysterectomy (LAVH) with salpingooopherectomy, Dr.A.K.Panigrahi stated that the complainant had multiple fibroids in her uterus which warranted LAVH. Admittedly salpingooopherectomywas not done. Delhi MRI Scan Centre in its report dated 25.03.2006 showed that both the ovaries were present. Dr.A.K.Panigrahi stated that salpingooopherectomywas mentioned in the bill to assist the complainant in claiming money from CGHS as there was no package for lap assisted vaginal hysterectomy. Here again,Dr.A.K.Panigrahi submitted that preparation of bill was the responsibility of the hospital authorities and not his prerogative.
As regards not showing the surgically removed parts to the relatives, Dr.A.K.Panigrahi stated that no complaint was made in this behalf for over more than a year after surgery. He further stated that the said surgically removed parts were duly shown to the family of the complainant and handed over to the hospital/OT staff for sending them forhystopathological examination. He further submitted that only the labelling of the sample container is done in the presence of the operating doctor and thereafter the doctor proceeds for operation. Actual physical act of sending the sample for hystopathological examination was the duty of the hospital staff and not the doctor. Lastly Dr.A.K.Panigrahi submitted that the patient was detected with liver of secondary cancer after 1½ years of surgery. Malignancy in gallbladder cannot be attributed at the time of its removal. For this purpose Dr.A.K.Panigrahihas relied upon the case of Vinitha Ashok (SMT) v. Lakshmi Hospital and Anr. 2001 (8) SCC 731. The Apex Court held that in case there were no signs of malignancy in the pre-operative investigation, not sending the organ for hystopathological report after its removal (after surgery) would not amount to medical negligence. He, therefore, contends that it was not obligatory on his part to send the gallbladder for hystopathological examination. Perusal of 'ultrasound whole abdomen report' dated 23.01.2006 shows that the gallbladder was grossly distended with sludge like material within. Cystic duct and CBD could not be evaluated. Patient was advised MRCP for further evaluation. CT scan report dated 24.01.2006 shows distended gallbladder with mild central IHBR dilatation. Patient was advised MRCP and USG correction. MRI Cholangiography (MRCP) report dated 03.02.2006 shows Mucocele of gallbladder with Mirizzi's syndrome. It was advised to correlate the report with LFT and consider HIDA scan. It clearly goes to show that the pre-operative investigation was not clearly normal. Case law relied upon by Dr.A.K.Panigrahi thus does not help him.
Before proceeding further, it may be mentioned here that no consent was obtained either from the patient or his relatives for performing laproscopic assisted vaginal hysterectomy. The consent pertained only to removal of gallbladder through laproscopy procedure. Doctrine of informed consent has developed for protecting the patient's right to control his medical treatment. No medical procedure can be undertaken without patient's consent, obtained after providing sufficient information to the patient to evaluate the risk and benefits of proposed treatment. In the case of Samira Kohliv.Dr.PrabhaManchanda,(2008) CPJ 56 (SC), the Apex Court held that there was unauthorised removal of reproductive organs. Unauthorised additional surgery may be beneficial to the patient but it is no ground of defence for negligence. Coming to the case in hand, the consent given by the patient for removal of gallbladder was not sufficient for Dr.A.K.Panigrahi to perform LAVH (Laproscopic assisted vaginal hysterectomy).
OP-5 Dr.A.K.Panigrahi has failed to place on record any material to upset the findings given by the Medical Council of Delhi and confirmed in appeal by the Medical Council of India. Dr.A.K.Panigrahi has been found highly negligent in not sending the gallbladder for histopathological report. It may be mentioned here that the plea of Dr.A.K.Panigrahi that he gave all the removed parts to the relatives of the patient is falsified by the fact that the sample of ovary has been sent for hystopathological examination whereas no such proceedings were conducted in respect of gallbladder. Bowel resection has been shown to have been done only for the purpose for raising bill. Similarly oopherectomy (removal of ovaries) was shown to have been done for the purpose of raising bills. In a subsequent report, as discussed above, ovaries of the patient were found intact in an MRI Scan. Medical Council of India has thus rightly held that there was complicity between Dr.A.K.Panigrahi (OP-5) and G.M.Modi Hospital (OP-7). Both have been found guilty.
Hon'ble Supreme Court in the case of Nizam Institute of Medical Sciences v. Prashant S. Dhananka and Ors., [2009 (7) Scale 407] held as under :
"32....We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.
G.M.Modi Hospital (OP-7) washed its hands off and tried to wriggle out of the 'mischief' committed by it. It showed surgeries having been done which were never done. There is no dispute with the proposition that the profession of a doctor is the noblest one. Only for the purpose of raising bills, unnecessary surgeries have been done and certain surgeries have been shown to have been done which were not done.
In Samira Kohliv. Dr.PrabhaManchanda and Anr., The Supreme Court discussed at length the impact of consent on doctor's liability and reviewed extensively the law in U.S. and U.K. It observed, "In India, majority of citizens requiring medical care and treatment fall below the poverty line. Most of them are illiterate or semi-literate. They cannot comprehend medical terms, concepts, and treatment procedures".
"The stark reality is that for a vast majority in the country, the concept of informed consent or any form of consent and choice in treatment, have no meaning or relevance."
"People in India still have great regard and respect for Doctors. The Members of medical profession have also, by and large, shown care and concern for the patients. There is an atmosphere of trust and implicit faith in the advice given by the Doctor. The Indian psyche rarely questions or challenges the medical advice. Having regard to the conditions obtaining in India, as also the settled and recognized practices of medical fraternity in India, we are of the view that to nurture the doctor-patient relationship on the basis of trust, the extent and nature of information required to be given by doctors should continue to be governed by the Bolam test rather than the 'reasonably prudential patient' test evolved in Canterbury (supra)"
In the present case while removing the gall bladder,hysterectomy (removal of uterus) was also done. Husband of the complainant had no option but to accord consent. Dr.A.K.Panigrahi without informing and without consent, carried out CBD exploration. Dr.A.K.Panigrahi again without consent carried out lap assisted small bowel resection. He also fraudulently mentioned to have carried out salpingo oophorectomy (removal of fallopian tubes and ovaries). It was done to raise bill with the connivance of the OP-7 hospital.
A doctor has a pious duty to perform. Patient entrusts his body life and soul to the doctor. He considers the doctor, if not equal to God, immediately next below to God. The entrustment made by the patient to a doctor has no parallel in this world.Entrustment of property or wealth is incomparable to the patient's entrustment. In the operation theatre, it is the patient alone being attended upon by the treating doctor. Any betrayal of entrustment is a worst betrayal on this planet. It is an unpardonable sin.
Coming to the quantum of compensation, complainant has claimed an amount of Rs. 50,00,000/- which keeping in view the parameters laid down by the Hon'ble Supreme Court in the case of Dr.KunalSaha v. Dr.Sukumar Mukherjee and Ors., VIII (2013) SLT 513, is not on the higher side. I am of the considered opinion that awarding compensation of Rs. 50,00,000/- to the complainant (now the LR's of the complainant who have stepped into her shoes after her death) would meet the ends of justice.
The role of G.M.Modi Hospital, as discussed above has been highly deplorable. It must not have been the first case where unnecessary surgeries have been performed and surgeries have been shown to have been done for raising bills. There are thus a large number of patients who have not come to this court with such complaints. It is a matter of common knowledge that only 0.3% of the aggrieved consumers approach the courts of law in India. Relevant law is provided under Section 14(1)(hb) of the Consumer Protection Act 1986 for imposing penalty on the guilty for causing injury to those large number of consumers who are not identifiable conveniently. G.M.Modi Hospital (OP-7) is hence directed to deposit costs of Rs. 1,00,00,000/- (Rs. One CroreOnly) in Consumer Welfare Fund of the State maintained by this Commission. To sum up, the following directions are passed:
OP-7 G.M.Modi Hospital is directed to deposit an amount of Rs. 1,00,00,000/- (Rs. One CroreOnly) in Consumer Welfare Fund of the State maintained by this Commission within a period of sixty days from today. Failure to pay the amount within the stipulated period shall carry interest @ 9% per annum.
OP-5 Dr.A.K.Panigrahi and OP-7 G.M.Modi Hospital are jointly and severally directed to pay compensation to the tune of Rs. 50,00,000/- to the complainant within a period of sixty days from today alongwith interest @ 9% p.a. from the date of surgery i.e. 06.02.2006 till the date of its realisation.
litigation charges to the tune of Rs. 2 lacsshall be paid to the complainant.
Complaint is accordingly disposed of.
Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
(N P KAUSHIK) MEMBER (JUDICIAL)