State Consumer Disputes Redressal Commission
1.Pawan Kumar,2.Bishanber, vs 1. Kakkar Maternity & Nursing Home on 26 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint No.24 of 2006 Date of Institution: 25.8.2006 Date of Decision: 26.11.2012 1. Pawan Kumar son of Sh. Arjun Dass, Resident of Gurudwara Gali, Tohana, District Fatehabad. 2. Bishanber son of Sh. Arjun Dass, Resident of Gurudwara Gali, Tohana, District Fatehabad. 3. Anil son of Sh. Arjun Dass, Resident of Gurudwara Gali, Tohana, District Fatehabad. 4. Gurmeet wife of Sh. Deepak Monga and daughter of Sh. Arjun Dass, Resident of Gurudwara Gali, Tohana, District Fatehabad. Complainant VERSUS 1. Kakkar Maternity & Nursing Home, through its Proprietor, Dr. Rajesh Kakkar, Tohana, District Fatehabad. 2. Dr. Rajesh Kakkar C/o Kakkar Maternity & Nursing Home, Tohana, District Fatehabad. 3. Dr. Abhishek Kakkar son of Dr. Rajesh Kakkar, Medical Officer, Civil Hospital, Tohana, C/o Kakkar Nursing Home, Tohana, District Fatehabad. 4. Dr. Sunil Bajaj, Medical Officer, Ist address: C/o Civil Hospital, Tohana, District Fatehbad. 2nd address: C/o Kakkar Maternity & Nursing Home, Tohana, District Fatehabad. 5. Dr. Anant Ram, Janta Hospital, Barwala, District Hisar. 6. Indra Prastha Apollo Hospital, through its Director, Mathura Road, Sarita Vihar, New Delhi. 110076. Opposite Parties. BEFORE:- Honble Mr. Justice R.S. Madan, President. Sh. B.M. Bedi, Judicial Member.
Present:- Mr. Rohit Goswami, Advocate for the complainants.
Mr. Neeraj Sharma, Advocate for the opposite parties No. 1 to 3.
Defence of opposite parties No.5 was struck off.
Opposite parties NO. 4 and 6 were proceeded exparte.
O R D E R B.M. Bedi, Judicial Member:
Present complaint has been filed by the complainants being the legal heirs of deceased Smt. Asha Rani Girdhar who died on 6.4.2006 for grant of a compensation of Rs.29 lacs on account of gross medical negligence and deficiency in service rendered by the OPs No.1 to 5 while treating Smt. Asha Rani Girdhar.
In brief, the facts of the present complaint are that Smt. Asha Rani Girdhar (hereinafter called as the patient) aged about 54 years was having pain in her abdomen since June, 2005 for which she visited the opposite party No.1 on 14.12.2005 and as per the Ultrasound report given by the OP no.2 there was a stone in the right kidney of the patient and her left kidney was working alright. Thereafter, on the same day patient got herself checked up from Rajasthan Medical Centre, Tohana and another Ultrasound of the patient was got done from the aforesaid hospital on 28.1.2006 and as per ultrasound report it was revealed that the right kidney was gross hydro-nephrotic and there was stone of 18 MM and left kidney was normal in shape. Thereafter, on the advice of OP no.2, the patient was examined by OP no.4 and on their advice IVP test of the patient was conducted on 18.2.2006. The IVP report confirmed a bit stag horn calculii in the right kidney region and thus the patient was a case of right renal calculii with non-functioning of right kidney and that normal urinary bladder. Thereafter, Dr. Subhash Gupta of Rajasthan Medical Centre, Tohana advised that in view of the size and nature of the calculiii the patient should be got operated from some other institution. As per version of the complainants, after going through all the medical records of the patient, Dr. Sunil Bajaj- OP No.3 had opined that he would remove the calculii and there was no requirement of removal of the kidney having expertisation of such cases from USA.
The patient would feel safe in case the patient was operated in the hospital of OP no.1 with the assistance of Dr. Abhishek Bajaj where all modern and latest medical facilities are available. Thereafter, the patient was admitted in the hospital of the OP no.1 on 2.3.2006 and an amount of Rs.50,000/- was deposited but no receipt was issued. Operation was conducted upon the patient by the opposite parties no.2 to 4. After conducting operation within 10 minutes the patient felt problem in breathing, her pulse was missing and the eyes stopped blinking. As per version of the complainant there was no facility of ICU, Oxygen and ventilator with the opposite parties despite the assurance given by them. The condition of the patient did not improve even on the next day i.e. 3.3.3006. It is further averred by the complainants that despite requests, the OPs did not refer the patient to PGI. However, OP no.5 was called from Barwala and after sometime patient was shifted in the hospital of OP no.5 on the pretext that all facilities were available with opposite party No.5 and patient would be alright. According to the complainant after taking one day treatment, there was no improvement in the health of the patient and ultimately the patient was referred to Apollo Hospital, Delhi but without providing any case summary. The patient was admitted in the Apollo Hospital, Delhi on 4.3.2006 but she could not recover and died on 6.4.2006. FIR No.118 dated 17.4.2006 was registered at Police Station, Tohana under section 304-A IPC at the instance of the complainant. It is further pleaded by the complainants that OPs have acted in connivance with each other to make it a case that all possible treatment was given to the patient, whereas factually the OPs did not have the requisite expertise, facilities and medical equipment, which were required as per the prognosis and serious condition with which the patient was suffering at the time of operation. Thus, alleging it a case of medical negligence and deficiency in service on the part of opposite parties, complainants have invoked the jurisdiction of this Commission.
Upon notice, the opposite parties No.1 to 3 appeared and contested the complaint by filing their respective written statements. Opposite Party No.1 in his written statement stated that complaint is liable to be dismissed on the ground that complainants have concealed the true and material facts from this Commission. The episode of surgery and alleged inapt handling has been seriously and thoroughly investigated by the competent authorities of the State of Haryana qua the allegations of negligence and carelessness as well as dereliction of duty and the said authorities after a fact finding inquiry have concluded that there was absolutely no attribution of act of negligence or departure from the standards of Established Medical Procedure which could raise a presumption of any deficiency in service as alleged by the complainants. It is further pleaded by the opposite parties No.1 that an Expert Medical Board of Doctors of PGIMS, Rohtak has submitted its report dated 31.5.2007 wherein the Board of Doctors have denied any kind of medical negligence or carelessness in treating the patient. The said report clearly and categorically exonerates the opposite parties No.1 to 5 from any sort of explicit or implied liability, relevant excerpt of the same is reproduced as under:-
..Since doctors at the Kakkar Nursing Home explained the risk of surgery to patients relatives and they had given high risk consent, they cannot be held responsible for negligence. Patient was shifted to Anant Ram, Hospital for purpose of Artificial Breathing which was provided to her in that hospital till she remained admitted there, no negligence occurred in that hospital as well. Subsequently patient was shifted to Apollo Hospital in a critical condition. Since no records of Apollo Hospital are available, it is not possible to comment about negligence in that hospital.
It is further averred by the opposite parties No.1 that the case of the complainants revolves around the alleged complications arising out of the Surgery of the patient at the opposite party no.1 by the opposite party no.4, who was admittedly assisted by one Dr. Harinder, the concerned Anesthetist, as well as staff nurse/sister Bela. In the present complaint the complainants have refrained from impleading the said Anesthetist as well as the Para-Medical Sister Bela who were present throughout the said operation on 2.3.2006 and were skillfully assisting the opposite party No.4 while operating the patient. Denying any kind of deficiency in service, OP No.1 prayed for dismissal of the complaint.
Opposite parties No.2 in his written statement has stated that complainants have filed the present complaint alleging inapt handling of the patient by the OP No.2 as well as the other opposite parties, on the premise that since the operation of the patient conducted on 2.3.2006, post which she was shifted to the premises of the OP no.5 on 3.3.2006, followed by her departure to the OP No.6, on 4.3.2006; and had an uneventful stay of over 32 days thereafter she passed away on 6.4.2006, could not be attributed to the operation on 2.3.2006 at the opposite party no.1 by the OP no.4. Sadly, the complainants have not been able to connect the acts and deeds of the OP no.2 herein in any manner to the conduct of the said surgery as well as the Post Operative Procedure & Follow-up in the opposite party no.1. Opposite parties no.2 further corroborated the version taken by the opposite parties no.1 in his written statement and prayed for dismissal of the complaint.
Opposite parties no.3 in his written statement supported the version of opposite parties no.1 and 2 and prayed for dismissal of the complaint.
Opposite parties No.4 and 6 were proceeded against exparte and the defence of opposite parties no.5 has been struck off.
Complainants in their evidence tendered affidavit of Bishamber complainant No.3 and documents Annexure C-1 to Annexure C-24 and closed their evidence.
Opposite parties No.1 to 3 in their evidence tendered affidavit of Dr. Rajesh Kakkar Ex.R1, affidavit of Dr. Abhishek Kakkar EX.R2 and closed their evidence.
We have heard the learned counsel for the parties and perused the case file.
Learned counsel appearing for the complainants has vehemently argued that this case was examined by Special Medical Board which consisted Doctors of P.G.I.M.S. Rohtak, who observed against the treating doctors-opposite parties while operating the patient (now deceased). In support of his argument learned counsel for the complainants has drawn our attention towards the report of Medical Board, the relevant part of which is reproduced herein below:-
2. The Surgery was performed on 2-3-2006 under General Anaesthesia and stone was removed. As per operation notes the Kidney was found to be functioning during surgery and was not removed. There was no excessive bleeding & no complication occurred during the Surgery. After surgery patient was shifted in the ward where in the postoperative period immediately after the surgery, she went into hypotension. Her BP fell down to 60 mm of Hg and she became unconsciousness due to hypoxia because of the hypotension. Doctors again put tube in her trachea to provide the artificial breathing. Drugs & blood transfusion were also given to normalize her blood pressure.
The day following surgery, on 3-3-06 she was shifted to Anant Ram hospital at Barwala for the purpose of ventilatory support (Artificial Mechanical Breathing) and then shifted to Apollo Hospital, N. Delhi next day. At the time of admission to this hospital, she was diagnosed to be suffering from acute renal failure with respiratory failure, disseminated intravascular coagulation and peripheral circulatory failure. She was kept on artificial breathing (ventilatory support) and iono-tropie support (to maintain the blood pressure). She survived for one month but ultimately died due to multi-organ failure on 6.4.06.
4. In the opinion of the board Mrs. Girdhar should not have been operated for renal stone in this situation at a non institutional hospital, since she was a high risk patient for major surgery under General Anaesthesia due to obesity and uncontrolled hypertension. This fact was also very well known to the doctors who operated upon this patient. As per record they have also conveyed this to the patients attendant and even asked them to take her to tertiary level hospital for Surgery but they operated the patient, since patients attendant gave well informed high risk consent for her surgery. Following surgery under general anesthesia, she had drop in Blood Pressure and had anoxia secondary to sudden hypotension due to drugs used to lower down the blood pressure during surgery. She become unconscious and required mechanical ventilation. Later on she had acute renal failure which was precipitated by the hypotension. Subsequently she developed multi organ failure which is a known complication of prolonged mechanical ventilation.
Since doctors at the Kakkar nursing home explained the risk of surgery to patients relatives and they had given high risk consent, they cannot be held responsible for negligence. Patient was shifted to Anant Ram, hospital for purpose of Artificial Breathing which was provided to her in that hospital as well. Subsequently patient was shifted to Apollo hospital in a critical condition. Since no records of Apollo hospital are available, it is not possible to comment about negligence in that hospital.
On the other hand learned counsel for the opposite parties have argued that as per the opinion of the Medical Board, there was no medical negligence on the part of the opposite parties and even the Case Summary Annexure R-2 reflects that the attendants of the patient were explained the risk for operating the patient but as they had wanted to get operated the patient at the hospital of the opposite party No.1, no negligence can be attributed to the opposite parties.
Having considered the facts of the case, evidence produced on the record and the rival contentions of the learned counsel for the parties, we find it a case of clear negligence on the part of the opposite parties. The perusal of the case summary Annexure R-2 shows that the operation on the person of patient was of high risk but still the opposite parties operated the patient. Though the attendants of the patient had showed their willingness for the same, yet the treating doctor was under an obligation to keep in mind the postoperative risks of patients life. Therefore, the negligence on the part of the opposite parties cannot be absolved on the ground that the attendants/relatives of the patient were willing to get operated the patient at the hospital of the opposite party No.1. It was not a case of emergency surgery, rather the case was of elective planned surgery. The relevant part of the Case Summary is reproduced herein below:-
Keeping in view of hypertension borderline diabetes, and obesity, risk of surgery was explained by me and anesthetist Dr. Harindar at length to the family and advised them to get her operated at higher center like Delhi. Surgery was deferred for family discussion regarding potential high risk to the patient life during and after surgery.
Thus, the above stated facts shows that the operation of the patient at the opposite party No.1 (Institution) was of high risk. Meaning thereby, the risk was taken by the opposite party No.1 while operating the patient despite the fact that the opposite party No.1 (Institution) was not having proper facilities for the said operation. This fact has been made clear in the report of Special Medical Board, in the following manner:-
4. In the opinion of the board Mrs. Girdhar should not have been operated for renal stone in this situation at a non institutional hospital, since she was a high risk patient for major surgery under General Anaesthesia due to obesity and uncontrolled hypertension. This fact was also very well known to the doctors who operated upon this patient..
The report given by the Medical Board clearly reflects that the treating doctors at opposite party No.1 Institution had taken such a risk which engulfed the life of the patient. The Board has opined that Mrs. Girdhar-patient should not have been operated for renal stone in this situation at a non intuitional hospital, since she was a high risk patient for major surgery under General anaesthesia due to obesity and uncontrolled hypertension. Admittedly, the opposite party No.1 was not adequately equipped professionally to undertake the surgery in question. The Case Summary discussed herein before establishes that the opposite party No.1 was not equipped adequately for conducting operation of the patient (since deceased). Thus, the opposite parties cannot escape their liability for carrying out the operation of patient without proper infrastructure even if may be with the consent of the attendants. It cannot be ignored that the consent/willingness of patient/attendants in such a case obviously cannot absolve the doctor from the apparent professional negligence on the part of the doctor. Thus, the report of the Medical Board being self contradictory, the opposite parties cannot be absolved from their liability in view of law settled by Honble Supreme Court cited as V. Kishan Rao versus Nikhil Super Specialty Hospital and another, 2010 CTJ 868 (Supreme Court) (CP) wherein it has been held that:-
Experts opinion is needed to be obtained only in appropriate cases of medical negligence and the matter may be left to the discretion of the Consumer Forums especially when the retired Judges of the Supreme Court and High Courts are appointed to head the National Commission and the State Commissions.
There cannot be a mechanical or strait jacket approach that each and every case of alleged medical negligence must be referred to experts for evidence.
Time has come to reconsider the parameters set down in Bolam test as a guide to decide cases on medical negligence and specially in view of Article 21 of the Constitution of India which encompasses within its guarantee, a right to medical treatment and medical care.
In para 13 of V. Kishan Raos case (Supra) the Honble Supreme Court has observed that:
13. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.
Para No.25 of V. Kishan Raos (Supra) is reproduced as under:-
25. Chief Justice Lahoti also relied on the speech of Lord Porter in Riddell v. Reid [(1943) AC 1 (HL)] to further identify the difference between the two concepts and which I quote:
A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.
The Honble Supreme Court in case Achutrao Haribhau Khodwa & Ors. V. State of Maharashtra & Ors, I(1996) CLT 532 (SC) held that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable. The facts of the instant case are attracted to V. Kishan Raos case (Supra) and Achutrao Haribhau Khodwas case (Supra).
In view of the above, we hold that the opposite parties are liable for medical negligence due to which the patient died.
As a sequel to our aforesaid discussion, this complaint is accepted and keeping in view the suffering undergone by the complainants and the entirety of the other facts and circumstances of the case and also taking into consideration that the deceased was only of 50 years age would certainly have been a helping hand to the family and companion to her husband in old age, we think it appropriate to direct the opposite parties to pay a compensation of Rs.6,00,000/- (Rupees Six Lacs) to complainants No.1 to 3 alongwith interest @ 9% per annum from the date of filing complaint till its realization. Complainant No.4 Gurmeet, being married daughter of the deceased is not entitled for any compensation.
Announced Justice R.S. Madan, 26.11.2012. President.
B.M. Bedi, Judicial Member