State Consumer Disputes Redressal Commission
Neelam vs Dayanand Medical College on 19 April, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Misc. Application No.390 & 391 of 2018
In/and
Consumer Complaint No.175 of 2018
Date of institution : 09.03.2018
Date of decision : 19.04.2021
1. Neelam, aged around 52 years, wife of late Sh. Ajit Kumar,
resident of backside LIC Office, Ferozepur Road, Zira, District
Ferozepur-142047.
2. Sania, aged around 30 years, daughter of late Sh. Ajit Kumar,
resident of House No.55, Street No.3, Kirat Nagar, Old Cantt.
Road, Faridkot.
3. Gagandeep Dhamija, aged around 28 years, son of late Sh.
Ajit Kumar, resident of backside LIC Office, Ferozepur Road,
Zira, District Ferozepur-142047.
4. Vikas Dhamija, aged around 24 years, son of late Sh. Ajit
Kumar, resident of backside LIC Office, Ferozepur Road, Zira,
District Ferozepur-142047.
5. Agyawanti, aged around 72 years, mother of late Sh. Ajit
Kumar, resident of backside LIC Office, Ferozepur Road, Zira,
District Ferozepur-142047.
....Complainants
Versus
1. Dayanand Medical College & Hospital, Tagore Nagar, Civil
Lines, Ludhiana, Punjab, through its Medical Superintendent.
2. Dr. Jaspal Singh, Professor & Head General Surgery,
Dayanand Medical College & Hospital, Ludhiana.
3. Mr. Abhishek, OSD, Dayanand Medical College & Hospital,
Ludhiana.
4. The United India Insurance Company Limited, Rajender
Complex 2, Civil Lines, Church Road, Saharanpur-247001,
Uttar Pradesh, through its Divisional Manager/Branch
Manager.
5. The United India Insurance Company, Savitri Commercial
Complex-I, G.T. Road, Dholewal, Ludhiana-141003, Punjab,
through its Divisional Manager/Branch Manager.
....Opposite Parties
Consumer Complaint No.175 of 2018 2
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member.
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
Argued By:-
For the complainants : Sh. Surinder Garg, Advocate
For OPs No.1 to 3 : Sh.B.B.S. Sobti, Advocate
For OPs No.4 & 5 : Sh. Munish Goel, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT
Misc. Application No.390 of 2018 (Joint Complaint) The complainants, being legal heirs of deceased Ajit Kumar, the application is allowed.
Misc. Application No.391 of 2018 This application has been filed by the complainants, along with the complaint, for directing opposite parties No.1 to 3 to produce on record medical/treatment record of deceased Ajit Kumar.
Heard.
The entire medical/treatment record of deceased Ajit Kumar has already been produced by opposite parties No.1 to 3, along with their reply and in evidence as Ex.OPP-2/1(colly.), containing Page-1 to Page-674; which is sufficient to decide the dispute between the parties. Even otherwise, opposite parties No.1 to 3, along with their written arguments, have produced copy of order dated 05.09.2017 passed by the State Information Commission, Punjab, Annexure-B; Consumer Complaint No.175 of 2018 3 which shows that the complainant (Vikas Dhamija), who was present before the said Commission on that date had stated that he had received the required information from the opposite parties and requested to close his case. Hence, the said case was closed and disposed on the basis of his statement. Even as per receipt signed by complainant No.4 on his application, Page-674 of medical record, Ex.OPP-2/1 (colly.), the entire record had been received by him on 18.07.2017 itslef. In such circumstances, there is no need to issue any further direction to opposite parties No.1 to 3 to produce any record. Hence, the application filed by the complainants is dismissed as infructuous.
Main Case
The instant complaint has been preferred by the
complainants, who are legal heirs of late Sh. Ajit Kumar (hereinafter to be referred as "patient"), under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), against the opposite parties alleging medical negligence and deficiency in service on the part of opposite parties No.1 to 3. Following reliefs have been sought:
i) The opposite parties be held guilty of rendering deficient service and adopting unfair/restrictive trade practice;
ii) Call for the entire record of the case and thereafter constitute a Medical Board, who can verify and adjudicate about the deficiencies committed by the opposite parties;
iii) The opposite parties be directed to pay compensation of ₹45,00,000/- towards hospital charges, besides pain and sufferings, loss of love suffered by the complainants; Consumer Complaint No.175 of 2018 4
iv) To compensate the complainants to the tune of ₹30,00,000/- on account of loss of business suffered by them due to negligence of the opposite parties, for not properly treating the patient, which resulted into his death, and for causing mental agony and harassment.
v) To pay interest at the rate of 12% per annum on the aforesaid total amount of ₹75,00,000/- from the date of loss till actual disbursal;
vi) To pay cost of litigation to the tune of ₹65,000/-.
vii) To pass any other order, as may be deemed appropriate, in view of the facts and circumstances of the case.
Facts of the Complaint
2. Brief facts, as set out in the complaint, are that complainant No.1 is widow, complainants No.2 to 4 are daughter and sons and complainant No.5 is the mother of the patient. It is averred that the patient was initially suffering from pancreatitis and was admitted in Sidhu Hospital, Moga on 15.02.2016, where he was diagnosed with disease of pancreatitis. The said hospital advised the complainants to take the patient to higher hospital and suggested name of opposite party No.1-Dayanand Medical College & Hospital (hereinafter to be referred as "DMC Hospital), where specialist doctors and proper facilities are available. Accordingly, at night on 15.02.2016, the patient was brought to DMC Hospital, where he was admitted for treatment. The disease was diagnosed as pancreatitis and the doctor also performed dialysis on the patient. On 16.02.2016, opposite party No.2- Dr. Jaspal Singh visited the patient in emergency ward and keeping in Consumer Complaint No.175 of 2018 5 view the serious condition of the patient, he was shifted to surgery ICU. The complainants were totally in panic, when the patient was shifted to surgery ICU and they asked reasons for the same to the said doctor, who informed that there is no need of surgery and the patient would be treated only by giving IV fluids. On 19.02.2016, the condition of the patient stabilized, but it again got deteriorated on 20.02.2016. The treatment was continued, but no surgery was performed. On 28.02.2016, for the first time, CT scan was performed on the patient to understand the severity of the disease. Even the ERCP was performed to check, whether there was any internal bleeding inside the body or not. From the date of admission of the patient till 28.02.2016, no gastroenterology specialist checked the patient. Thereafter, on 05.03.2016, the complainants got appointment from Max Hospital, to get the patient examined from Dr. Nikhil Nandkarni, Gastroenterologist Specialist and the entire history of the patient was narrated to him. The doctor at Max Hospital told the complainants that pancreatitis is to be treated by expert Gastroenterologist and not by general surgeon. Opposite party No.2 is not appropriate doctor to treat the patient. The doctor at Max Hospital advised the complainants to meet Dr. Vishal Goel and Dr. Raju Singh Chhina (Medical Superintendent and Gastroenterologist Specialist). Due to weekend, the complainants met the OSD, Sh. Abhishek (opposite party No.3) on 07.03.2016 and told that they need to change the doctor and the treatment should be done by specialist doctor. The complainants recorded the conversation with him. The complainants also gave an application dated 08.03.2016 to opposite party No.3 for transfer of the patient to Gastroenterologist Consumer Complaint No.175 of 2018 6 ICU for treatment from specialist doctor, but no acknowledgment was given. Complainant No.4-Vikas Dhamija, son of the patient, was called by Dr. Jaspal Singh, opposite party No.2. When complainant No.4 went to surgery ICU, he met Junior Resident Dr. Vishal Deep and thereafter he met Dr. Jaspal Singh, who asked the reasons for change of doctor. Thereafter, it was decided that urgent surgery was required and as the patient could not breathe properly, so he was required to be put on ventilator. On 09.03.2016, no surgery was performed, despite the fact that the patient had been paralyzed on 08.03.2016 and remained paralyzed for three days. On 10.03.2016, the surgery was performed by opposite party No.2 at about 4.00 P.M. and it was informed that the surgery was successful. However, the patient died on 11.03.2016. Initially, the medical record was not given to the complainants. Thereafter, the complaints were made and under RTI Act also, the record was sought. As per Death Summary dated 11.03.2016, the patient was suffering from acute severe necrotic pancreatitis. Meaning of pancreatitis, its function and diagnosis etc. have been defined in the complaint. Virtually, the literature has been cut-pasted for the purpose of understanding, what is pancreatitis, its function etc.
3. It is further averred that from 15.02.2016 till 10.03.2016, nothing was done by opposite parties No.1 to 3 and no surgery was performed, nor any proper treatment was given to the patient by gastroenterologist specialist. Similar facts have been repeated again and again. It is further averred that the patient was a chemist by profession and due to his death, the complainants lost their sole bread Consumer Complaint No.175 of 2018 7 earner. The complainants sought documentation from DMC Hospital through RTI Act, but the same was refused. Even an appeal was also filed under that Act, but to no effect. The aforesaid act and conduct of opposite parties No.1 to 3 amount to medical negligence and deficiency in service. Earlier, the complainants filed CC No.865 of 2017, which was dismissed as withdrawn, vide order dated 09.10.2017, with liberty to file fresh complaint as and when medical record is made available. On 25.01.2017, complainant No.3 wrote a letter to Medical Council of India for directing opposite parties No.1 to 3 to provide the requisite medical record. The Medical Council of India wrote letter dated 23.11.2017 to Medical Superintendent of DMC Hospital, by making reference to Clause 1.3.2 of the Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations, 2002, but even then no record was provided. Even reminder dated 01.01.2018 was also issued by Medical Council of India. Thereafter, only the treatment sheet maintained by nursing staff was provided but the entire medical record of the patient was not provided. Hence, the present complaint.
Defence of the Opposite Parties
4. Upon notice, opposite parties No.1 to 5 have appeared. Opposite parties No.1 to 3 filed their joint reply to the complaint, whereas opposite parties No.4 & 5, who were impleaded afterwards on the applications filed by opposite parties No.1 & 2, filed their joint reply.
5. Opposite parties No.1 to 3, in their reply, raised preliminary objections that the complaint is not maintainable, in view of the law laid down by the Hon'ble Supreme Court in case "Jacob Consumer Complaint No.175 of 2018 8 Mathew v. State of Punjab & Another" 2005 (3) CLT 358 and also "Martin F D'Souza v. Mohd. Ishfaq" 2009 (2) CLT 381. Expert opinion is required for deciding such like complaints. The complainants have inflated the claim, giving imaginary figures. Hence, this Commission has no pecuniary jurisdiction. There is no deficiency in service on the part of the answering opposite parties and the complaint is absolutely false and frivolous. The complaint is time barred. Complicated questions of law and facts are involved and it cannot be decided in summary proceedings under the Act. The earlier complaint filed by the complainants was dismissed as withdrawn, vide order dated 09.10.2017, with liberty to file fresh one as and when the medical record is made available. However, the complainants have no right to make further improvements in the present complaint. No expert evidence has been produced to substantiate the allegations levelled against the answering opposite parties.
6. It is further pleaded that the patient was suffering from pancreatitis along with other problems, when he was brought in emergency of DMC Hospital on 15.02.2016. He was admitted and was stabilized on 19.02.2016. The complainants have alleged that opposite party No.2 is a general surgeon and that the patient was required to be treated by gastroenterologist. However, they have failed to explain as to what was not done and what ought to have been done. In fact, the patient was examined by Dr. Gurkaran Kakkar and various other doctors in emergency. He was resuscitated immediately and after investigations, the patient underwent dialysis for three hours. Subsequently, the patient was shifted to surgery ICU for further Consumer Complaint No.175 of 2018 9 observations and management. The patient was also looked after by Dr. Pankaj of Department of Psychiatry and Dr. Siddarath, Intervention Radiology. He was also seen by Dr. Vikas Makkar (Nephrology), Dr. Vikas Garg (Internal Medicine) and Dr. Vaun Mehta (Gastroenterology) during his stay in DMC Hospital. Besides this, he was also seen by Dr. Sukhjot Kaur (Department of Dermatology). Patient was further seen by Dr. Parmod Sood, Dr. P.L. Gautam and Dr. Rubina for critical care (Ventilator). Thereafter, the patient was operated by Dr. Jaspal Singh, opposite party No.2 and Dr. Satpal Singh Virk (Gastro Surgeon). When the patient was put on ventilator, he was seen and managed by Dr. P.L. Gautam and Dr. Rubina (Critical Care Team). At the time of admission, he was in shock (BP 60/mm Hg), having acute kidney injury with nil urine output and serum creatinine of 5.25 mg/dl. Patient had S. Amylase of 1204, S. Lipase of 3766, S. Calcium of 5.1, final diagnosis of acute severe pancreatitis with shock, acute kidney injury and ARDS was made. His condition gradually improved over next few days, only due to right treatment given by DMC Hospital, which revived his kidneys and improved blood pressure as well as serum creatinine. CT scan was planned on 28.02.2016, which revealed acute necrotizing pancreatitis with pancreatic and peripancreatic fluid collection with C T severity index of 10. PCD was inserted in the peripancreatic fluid collection on 02.03.2016 and 850 ml of purulent material came out and PCD output was more than 500 ml./day of purulent material. On 08.03.2016, there was drain of 500 ml. occult blood in the drain and there was fall in blood pressure, increase in pulse rate, fall in oxygen saturation and the patient was intubated, inotropic support was started, Consumer Complaint No.175 of 2018 10 as discussed above. The patient was resuscitated and shifted to CT Angio in which no active bleed was found. Inotropic support was stepped up. Surgery was planned, but was deferred due to deranged coagulation profile (INR-3.44). Resultantly, the patient was transfused with PC and FFP. In view of repeated bleeding episodes from the drain, it was decided to perform surgery under high risk. The attendants of the patient were explained about the risks associated with surgery and guarded prognosis. FFP were transfused and INR improved and the patient was shifted to operation theatre. The patient was operated by the team comprising of Dr. Jaspal Singh and Dr. Satpal Singh Virk. Pancreatic Necrosectomy with insertion of drain with ligation of bleeding vessels was performed on 10.03.2016. The patient was ventilated on high inotropic support. Transfusion was done, as required. The inotropic support of the patient increased and the urine output was decreased. On 11.03.2016 at about 4.40 P.M., the patient had cardiopulmonary arrest. CPR was done but the patient could not be revived and was declared dead on 11.03.2016 at 5.19 P.M. A final diagnosis of acute severe alcoholic necrotizing pancreatitis was made. Cause of death is septic shock with metabolic acidosis with ARDS and renal failure.
7. On merits, it is pleaded that the patient did not lose his life on account of any of the acts and conducts of the answering opposite parties. The answering opposite parties did their best to bring him out of the critical condition in which he was, but the medical science has its own limitations. The patient was treated as per standard medical protocols. It is further pleaded that the patient had initially taken Consumer Complaint No.175 of 2018 11 treatment somewhere else, which as per averments in the complaint, is Sidhu Hospital, Moga. It is denied that the patient was admitted in DMC Hospital with an intention to get treatment from gastroenterologist. In fact, he was having various problems and the same could have been treated only with the consultation of doctors of various departments. Severe pancreatitis was to head towards the necrotizing pancreatitis as all the multiple reasons and factors were there to gain such type of problems, which included kidney failure, shock having respiratory distress, fall in blood pressure, nil urine output, high rise in serum creatinine etc. As a matter of fact, I.V. fluids is the bare requirement for any patient of this kind. There was no such problem, which could not have been attended by opposite party No.2.
8. It is further pleaded that DMC & Hospital is not only a hospital, but a Medical College also; which has almost all the specialties. Moreover, the patient was a general patient of the hospital and not a private patient. Hence, there was no personal gain for opposite party No.2. Reference to various medical books has been made, which relate to Gastroenterology etc. It is denied that no ECRP was done on the patient since the findings of the CECT also showed pancreatitis and peri-pancreatitic collections such as percutaneous drain was inserted on 02.03.2016 by Interventional Radiologist, Dr. Sidharth Parkash, M.D. Radiology. There is nothing on record to suggest that any observation was given by Dr. Raju Singh Chhina. The patient was treated in DMC Hospital as per standard medical protocols and there is no medical negligence on the part of opposite parties No.1 Consumer Complaint No.175 of 2018 12 & 3. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed with costs.
9. Opposite parties No.4 & 5, in their reply, pleaded that opposite party No.1-DMC & Hospital was insured with opposite party No.4, vide "Errors and Omissions Policy" bearing No.2504002715P102708299; which was valid from 09.06.2015 to 08.06.2016 for sum assured for AOA i.e. ₹1,50,00,000/- and AOY ₹1,50,00,000/-, subject to terms and conditions of the said policy.
10. Similarly, opposite party No.2-Dr.Jaspal Singh was insured with opposite party No.5, vide "Professional Indemnity Doctors Policy"
bearing No.2010002715P105988311; which was valid from 04.08.2015 to 03.08.2016 for sum assured of ₹10,00,000/-, subject to terms and conditions of that policy. Some of the pleas, as raised by opposite parties No.1 to 3, have been reiterated and denying all other allegations of the complaint, dismissal thereof was prayed. Evidence of the Parties
11. The complainants, in order to prove their claim, filed affidavits of Gagandeep Dhamija, complainant No.3, Ex.C-A and Ex.C- B, along with copies of documents i.e. invoice-cum-receipt Ex.C-1, transcription of phone calls Ex.C-2, original CD Ex.C-3, letter dated 08.03.2016 Ex.C-4, Death Certificate Ex.C-5, Death Summary Ex.C-6, investigation reports Ex.C-7 (colly.), bills/invoices Ex.C-8 (colly.), copy of grant of wholesale drugs licences dated 10.09.2012 Ex.C-9 (colly.), Income Tax Returns Ex.C-10 (colly.), profit loss sheet Ex.C-11, letters written under RTI Act Ex.C-12 (colly.), letter dated 23.11.2017 Ex.C- Consumer Complaint No.175 of 2018 13 13, reminder dated 01.01.2018 Ex.C-14 and treatment chart Ex.C-15 (colly.).
12. Opposite parties No.1 to 3, in support of their defence, filed affidavit of Dr. Sandeep Sharma, Ex.OPP-1/A, affidavit of Dr. Jaspal Singh, Professor and Head, Deptt. of Surgery as Ex.OPP-2/A, affidavit of Dr. Satpal Singh Virk, Professor and Head, Department of Gastro Surgery as Ex.OPP-2/B, affidavit of Dr. Varun Mehta, DM Gastroenterology, Associate Professor, Deptt. of Gastroenterologist as Ex.OPP-2/C, affidavit of Dr. Raju Singh Chhina, Professor of Gastroenterology as Ex.OPP-2/D, along with copies of documents i.e. patient file (containing pages 1 to 674) Ex.OPP-2/1 (colly.), medical literatures Ex.OPP-2/2 to Ex.OPP-2/5 and order dated 01.08.2017 of State Information Commission, Punjab Ex.OPP-2/6. Dr. Jaspal Singh has also filed his another affidavit as Ex.OP-2/E, in rebuttal to the evidence of complainant No.3, through his affidavit.
13. Opposite parties No.4 & 5, in support of their defence, filed self attested affidavit of Shama Arora Mittal, Assistant Manager, Ex.OP4&5/A, along with copies of documents i.e. extract of minutes of meeting Ex.OP-4&5/1 and Insurance Policies Ex.OP-4&5/2 and Ex.OP-4&5/3.
Contentions of the Parties
14. We have heard learned counsel for the parties and also perused the written arguments submitted on behalf of the parties and record carefully.
15. The written arguments submitted on behalf of the complainants are on the lines of averments of the complaint. The sum Consumer Complaint No.175 of 2018 14 and substance of oral and written arguments is that the cause of action arose to the complainants on 11.03.2016, when the patient had died and the present complaint has been filed on 09.03.2018, which is well within prescribed period of two years. The complainants wanted to change the doctor, as the patient was suffering from Acute and Severe Necrotic Pancreatitis which comes under the Gastroenterology Deptt. whereas the opposite party No.2-Dr. Jaspal Singh is the Head of General Surgery. The complainants moved application, Ex.C-4, for transfer of case to some other doctor. Even the Conversation held with the opposite party No.3 being OSD has been produced as Ex.C-2 from which it is very clear that a strong protest was made regarding the treatment being given by opposite party No.2, but in-spite of that no action had been taken by them to redress the concern of the complainants.
16. It has been further contended that as per Death Summary dated 11.03.2016, Ex. C-6, the patient was suffering from Acute and Severe Necrotic Pancreatitis. After going through the entire understanding of the Pancreatitis, it transpires that since the treatment is a lengthy procedure and require technical assistance, therefore, the requirement of Gastroenterology specialist was must, but treatment given to the patient by a general surgeon (opposite party No.2) had only worsened his condition; which resulted into performing surgery on the patient. Since the surgery led to serious complications, so it resulted into the cardiac arrest and death of the patient. Thus, there are serious lapses and negligence on the part of opposite parties No.1 Consumer Complaint No.175 of 2018 15 to 3, which resulted into a permanent loss (death of Sh. Ajit Kumar) to the complainants-family, which cannot be unturned.
17. It has been further contended that when the patient was admitted in the DMC Hospital i.e. 15.02.2016, he was directly admitted in surgery ICU and not at Gastroenterologist ICU, although from the initial documentation of the patient and as per the own version of doctors, it was a case of Pancreatitis. From the date of admission, he was never visited and treated by a Gastroenterologist specialist, rather was treated by a General Surgeon (opposite party No.2). However, the surgery was never required, as it is always the last resort. Even if it is presumed that the patient required immediate surgery and this was the reason for sending the patient to Surgery ICU, then why the patient was not immediately operated i.e. within a day or so of admission in the Hospital i.e. 15.02.2016, and why the surgery was only performed after submission of application for change of doctor on 08.03.2016, Ex.C-4. It can be presumed that the said problem of Acute Pancreatitis was converted into Acute and Severe Necrotic Pancreatitis due to negligence on the part of opposite party No.2, as he was not able to treat the patient well, being not a specialist. Why after the submission of the application by complainant No.4, Mr. Vikas Dhamija on 08.03.2016 (Ex.C-4) for change of doctor to a Gastroenterologist, the Junior Resident Dr. Vishaldeep immediately informed that the patient needed to undergo immediate surgery and the complainants must arrange for some blood. Learned counsel has made reference to telephonic conversion, which has been transcribed and placed on record as Ex.C-2, along with original CD Ex.C-3. After the surgery, the Consumer Complaint No.175 of 2018 16 patient was totally fine in ICU, but after some time, his condition started getting deteriorated. It was informed that since the patient cannot breathe, therefore, he was required to be put on ventilator. However, after some time, his condition started getting worse at the hands of doctors, who could not treat the complications of the surgery. Although, it was informed on 08.03.2016 morning that the patient needed immediate surgery, but since opposite party No.2-doctor was on leave on 09.03.2016, so the surgery was neither performed on 08.03.2016 nor on 09.03.2016. However, it was performed on 10.03.2016 and thereafter, the condition of the patient worsened and he died due to cardiac arrest.
18. It is further contended that expert opinion is not necessary in all the cases. Moreover, opposite parties No.1 to 3 have not led any independent expert evidence to prove that proper treatment was given to the patient and there is no deficiency on their part. The affidavits of doctors produced by opposite parties No.1 to 3 cannot be treated as expert witnesses. Due to medical negligence of opposite parties No.1 to 3, the condition of the patient kept on deteriorating and there was no effort on their part to stabilize him. Therefore, the complaint is liable to be allowed and all the reliefs, as prayed for therein, need to be granted to the complainants.
Arguments of opposite parties No.1 to 3
19. The written arguments submitted on behalf of opposite parties No.1 to 3 are on the lines of averments of their replies. The sum and substance of oral and written arguments is that the complainants are guilty of making a false statement before this Consumer Complaint No.175 of 2018 17 Commission while withdrawing the earlier complaint No.865 of 2017, stating that the complete medical record had not been supplied by the opposite parties No.1 to 3. In fact, the complainants have received the entire medical record even before filing the first complaint as clearly evident from page 674 of the patient file, Ex.OPP-2/1 (colly.). Not only this, complainant No.4-Vikas Dhamija also suffered a statement Annexure-B (annexed with written arguments) before the State Information Commission, Punjab on 05.09.2017 to the effect that he had received the entire information (medical record) and requested the said Commission to close his case. This fact was concealed by the complainants while filing both the complaints. They even made false statement before this Commission on 09.10.2017 that medical record is not available with them.
20. It is further contended that vide order dated 09.10.2017, the complainants were only permitted to file the fresh complaint with medical record, but the complainants have not filed the copy of the previous complaint. It is further contended that the patient was admitted in the emergency of DMC Hospital on 15.02.2016 at 11.00 P.M. in a very critical condition. He was examined by on duty emergency Medical Officer Dr. Gurkaran Kakkar and various other doctors posted in the emergency and was resuscitated immediately and after investigations the patient underwent dialysis for three hours. Later on, the patient was shifted to Surgery ICU for further observation and management. On the basis of physical examination as well as investigations, the final diagnosis of acute severe pancreatitis with shock, acute kidney injury and ARDS was made. With the treatment Consumer Complaint No.175 of 2018 18 given by opposite parties No.1 to 3, the condition of the patient improved and health of kidneys was revived. Later on, his condition deteriorated and he was shifted to Operation Theatre for surgery after obtaining the informed consent duly signed by complainant No.4, Mr. Vikas Dhamija.
21. It is further contended that the patient was operated on 10.03.2016 jointly by a team of surgeons consisting of Dr. Jaspal Singh, Professor & Head, Department of Surgery, opposite party No.2 and Dr. Satpal Singh Virk, Professor & Head, Department of Gastro Surgery. Pancreatic necrosectomy with insertion of drain with ligation of the bleeding vessels was performed and the patient was ventilated and put on high inotropic support. The inotropic support of the patient was increased. The urine output of the patient decreased. On 11.03.2016 at about 4.40 P.M. the patient had sudden cardiopulmonary arrest. CPR was started immediately, but the patient could not be revived and was declared dead on 11.03.2016 at 5.19 P.M. A final diagnosis of Acute Severe Alcoholic Necrotizing Pancreatitis was made. Cause of death in this case was septic shock with metabolic acidosis with ARDS and renal failure.
22. It is further contended that the patient was looked after by the team of doctors comprising Dr. Pankaj of Department of Psychiatry and Dr. Siddarath, Intervention Radiology. He also seen by Dr. Vikas Makkar (Nephrology), Dr. Vikas Garg (Internal Medicine) and Dr. Vaun Mehta (Gastroenterology) during his stay. Besides this, he was also seen by Dr. Sukhjot Kaur (Department of Dermatology). Patient was further seen by Dr. Parmod Sood, Dr. P.L. Gautam and Dr. Rubina for Consumer Complaint No.175 of 2018 19 critical care (Ventilator). Thereafter, the patient was operated by Dr. Jaspal Singh, opposite party No.2 (Gastro Surgeon). When the patient was put on ventilator, he was seen and managed by Dr. P.L. Gautam and Dr. Rubina (Critical Care Team). The patient did not die due to any medical negligence on the part of opposite parties No.1 to 3, nor they were deficient in rendering services to him. The treatment given to the patient was as per standard medical protocols. The patient could not be saved as the patients with such like ailment have high mortality rate. It is well established in Medical Literatures that the ailment from which the patient was suffering has a very high mortality rate. In the text book named as Surgery of the Liver, Biliary Tract, and Pancreas, 6th Edition by Blumgart's page No.893 (Ex.OPP-2/5), it is provided that the patients suffering from pancreatitis are classified as mild, moderate, severe, critical had mortality rate of 0%, 3.6%, 33.8% and 87.5%. Further at page No. 892 of this book, it is provided that in case of presence of peri-pancreatic necrosis and persistent organ failure, the mortality rate is 87.5%. Further on page No.895 of this book, it is provided that in case CTSI of 3 or less correlated with a mortality of 3%, versus 92%, with CTSI greater than 7. The patient was suffering from acute severe pancreatitis with organ failure with CTSI score 10 and as such the mortality rate in the present case was more than 92%. The complainants have themselves admitted that the patient was suffering from acute severe pancreatitis at the time of his admission in DMC Hospital on 15.02.2016 and his condition was stabilized on 19.02.2016 only with the treatment provided at DMC Hospital. Consumer Complaint No.175 of 2018 20 Moreover, the patient had the history of known alcoholic 200/ml; per day for 25 years.
23. It is further contended that the complainants wrongly alleged that CT Scan was not conducted on 28.02.2016, but the same was done on 29.02.2016, as per advice given on 28.02.2016. The CT Scan was Contrast Enhanced C.T. Scan and the same could not have been done at the initial stage, as at that time the patient was with nil output of urine and the dye which is used for Contrast Enhanced CT Scan is totally contra-indicated to the patients of kidney failure as that could further assault the kidney and damage the same as such. The CT Scan was planned, when the creatinine of the patient decreased and almost became normal and only then the patient was taken for Contrast Enhanced C.T. Scan, which showed acute necrotizing pancreatitis with pancreatic and peripancreatic collections with modified C.T. severity Index 10. Reference has been made to Medical Book namely "Current Medical Diagnosis & Treatment", 57th Edition (2018) page No.739-740, Ex.OPP-2/2; which states as under:
..."Although the use of intravenous contrast may increase the risk of complications of pancreatitis and. of acute kidney injury and should be avoided when the serum creatinine lever is above 1.5 mg/dl."
Since the serum and creatinine level of the patient was 5.2, so in that situation, it was not possible to conduct the CT scan of the patient. Reference to text book of Gastroenterology, Vol.II, 6th Edition page No.1673 by Yamada's, Ex.OPP-2/3, has also been made, which states that:Consumer Complaint No.175 of 2018 21
"CT visualizes necrotic tissue by lack of contrast enhancement within necrotic tissue. Serial CT scans demonstrated insufficient predictive capabilities by CT on day 2, but appropriate prediction of severity by CT on day 7. CT on day 2 did not show necrosis in 88% of patients with mild pancreatitis. By contrast, necrosis could be found in 79 versus 38% (P<0.0001) on day 7 in patients with severe and mild pancreatitis, respectively."
Reference to Page 1669 (Ex.OPP-2/3) of above said book has also been made.
24. It is further contended that neither any medical literature nor any expert evidence has been brought by the complainants before this Commission to substantiate their allegations of any negligence or deficiency in service against opposite parties No.1 to 3 Therefore, in the absence of any cogent evidence, the complaint of the complainants is liable to be dismissed, as observed by the Hon'ble Supreme Court in case "C.P. Shri Kumar (Dr.) V/S S. Ramanujam"
2009 (4) CLT 3l9, wherein it is observed that the onus to prove the medical negligence lies largely on the claimant and that this onus can be discharged only by leading cogent evidence. There is no medical negligence on the part of opposite parties No.1 to 3 while treating the patient and the complaint is liable to be dismissed. In support of his contentions, learned counsel for opposite parties No.1 to 3 also relied upon following cases:
i) Kanhaiya Kumar Singh v. Parak Medicare & Research Centre, 1999 (3)CPJ 9 (NC);
ii) Garish Chandra B. Bhatti & Ors. v. Sterling Hospital III (2018) CPJ 178 (NC);
iii) Prabha Shankar Ojha v. Neelamni Rai (Dr.) 2010 CLT 518 (NC);Consumer Complaint No.175 of 2018 22
iv) I.N.S. Malhotra v. A. Kriplani & Ors. 2009 (2) CLT 530 (SC);
v) Vijay Kher v. Bishan Singh CRM-M-16382-2014 and CRM Nos.M-16383 and 16384 of 2015 (P&H High Court); and
vi) Marble City Hospital & Research Centre & Ors. v. V.R. Soni, 2004 (2) CLT 435 (MP State Commission).
25. Learned counsel for opposite parties No.4 & 5 has argued on the lines of the pleadings made in their reply and prayed for dismissal of the complaint.
Consideration of Contentions:
26. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the parties.
27. So far as the issue of expert opinion, is concerned, it needs to be mentioned that on the one hand, the complainants have made prayer to constitute a Medical Board to give expert opinion about the alleged medical negligence of opposite parties No.1 to 3 and on the other hand, in the written arguments the complainants are refuting the objection raised by opposite parties No.1 to 3 in their reply; stating that absence of expert opinion cannot be made a ground to refute the claim of the complainants and if there is no expert opinion on record, that does not make any effect to their claims. The complainants cannot be allowed to approbate and reprobate in the same breath. Be that as it may, it is settled by now that expert opinion is not necessary in each and every case of medical negligence, as has been held by the Hon'ble Supreme Court in V. Kishan Rao v. Nikhil Super Speciality Hospital & Another, 2010(2) RCR (Civil)-929(SC). The evidence produced by the parties on record is sufficient to decide the present complaint.
Consumer Complaint No.175 of 2018 23
28. Now, coming to merits of the case, it is admitted that the patient had initially taken treatment from Sidhu Hospital, Moga, which is stated by the complainants in the complaint itself. However, no record of said hospital has been placed on record to show for how much period the treatment was taken from Sidhu Hospital to substantiate, as to what was the actual condition of the patient, when he was brought to opposite party No.1-DMC Hospital on 15.02.2016. The Discharge Summary of DMC Hospital as well as averments in the complaint specifically mention that the patient was suffering from acute pancreatitis and dialysis of the patient was done on that very day in DMC Hospital. It means that the patient was already having serious problems, not only the pancreatitis. It is a matter of common knowledge that the patient with pancreatitis, specifically acute pancreatitis, who is brought to emergency, can be admitted in SICU (Surgery ICU). It does not imply an impending surgery. Rather, conservative management is as much as part of the surgical care as operative procedures are. Firstly, the patient is required to be stabilized. The patient, when was admitted in DMC Hospital, was having acute pancreatitis with kidney injury. The condition of the patient was very poor. Same has been mentioned in the medical record. The prognosis was explained to the relatives of the patient, which is recorded at Page-472 of medical record, Ex.OPP-2/1 (colly.). Despite the long and arduous treatment from 15.02.2016 to 11.03.2016, the patient showed signs of recovery intermittently and eventually died on 11.03.2016 after the surgery. Inability to cure cannot be equated with lapse in duty of care. The perusal of medical Consumer Complaint No.175 of 2018 24 record at Pages-481-482 of dated 16.02.2016 shows that the patient was in suspected septic/cardiogenic shock with hyperkalemia, metabolic acidosis and hypotension. He was on inotropic support and on sustained low-efficiency dialysis for acute kidney injury secondary to pancreatitis. At page-487 of the medical record, he also developed pleural effusion secondary to pancreatitis. It means that secondary diseases to acute pancreatitis of the patient are properly recorded in the medical record produced on the file. The report of CECT Scan of abdomen prepared on 01.03.2016 noted (Page-516) that CTSI was "10", but probably due to sterile necrosis, no surgery was done, rather PCD insertion was advised. The first page of the CT Scan is not on the record. However, the findings on the last page are there. We have correlated it with the findings given in clinical notes at Page-516, which reads as under:
"CECT Abdomen s/o pancreatitis & per-pancreatitis, fluid collection CT Severity Index-10"
29. Based on the radiological investigations done on 07.03.2016 and 08.03.2016 and the condition of the patient, a surgical intervention was advised. This coincided with the application, Ex.C-4, given by the representative of the patient, pertaining to shifting of patient under treatment of Gastroenterologist. The surgery was planned earlier but was deferred due to deranged coagulation profile. In view of deranged coagulation profile (INR-3.44), the patient was transfused with PC and FFP. However, in view of repeated bleeding episodes from the drain, it was decided to perform surgery under high risk. Consent of complainant No.4-Vikas Dhamija, was duly obtained Consumer Complaint No.175 of 2018 25 before performing the high risk surgery (Page-557 of medical record Ex.OPP-2/1) and he was explained all the pros and cons, including complications of surgery. Therefore, the patient was operated on 10.03.2016 instead on 08.03.2016. Even the consent for transfusion of blood after the surgery was also obtained on 11.03.2016 (Page-569). Various other consent forms were also obtained, which are at Pages- 604 to 618 of medical record Ex.OPP-2/1 (colly.). Despite the successful surgery conducted by Dr. Jaspal Singh, Professor and HOD (Surgery) and Dr. Satpal Singh Virk, Professor and Head, Department of Gastro Surgery, the patient could not survive and died. The cause of death was acute necrotizing severe pancreatitis, respiratory failure with cardiac arrest, renal failure, metabolic acidosis, septic shock etc.
30. The perusal of medical record further shows that stay of the patient in DMC Hospital was monitored and managed by the team of specialist doctors, i.e. Dr. Pankaj of Department of Psychiatry; Dr. Siddarath, Intervention Radiology; Dr. Vikas Makkar (Nephrologist); Dr. Vikas Garg (Internal Medicine); Dr. Vaun Mehta (Gastroenterologist); Dr. Sukhjot Kaur (Department of Dermatology); Dr. Parmod Sood, Dr. P.L. Gautam and Dr. Rubina from Critical Care Team (Ventilator). This was a multiple disciplinary issue and could not have been decided by one doctor. For that reason, all the specialist doctors of DMC Hospital had taken due care of the patient. The team was led by Dr. Jaspal Singh, Professor and Head of Surgery Department. As per the standard medical protocol, the duty of the doctor and para-medical staff of the hospital is to care, not to cure. Consumer Complaint No.175 of 2018 26 Based on the medical notes on record, which have been produced as evidence by both the parties, proper care was provided to the patient. The treatment provided to the patient is duly documented. The only contention of the complainants is that there was delay in performing the surgery. Reason for delay in surgery was due to poor health conditions of the patient, as discussed above. Even otherwise, this is for the doctors to decide, keeping in view the condition, specifically when multiple disciplinary specialists were involved. The human body and its reaction to surgical intervention is far too complex. It cannot be said that if there was a complication, the surgeon must have been negligent in some respect. Lord Denning MR observed in Hucks v Cole [1968] 118 New LJ at 469 as under:
"With the best will in the world things sometimes went amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong."
31. So far as the plea of the complainants that opposite party No.2 is not a Gastroenterologist and treatment was beyond his competency, is concerned, the surgery was conducted by opposite party No.2- Dr. Jaspal Singh, Professor & Head General Surgery, along with Dr. Satpal Singh Virk, Gastro Surgeon. Even the patient was seen by another Gastroenterologist, Dr. Varun Mehta, as is clear from the bed head ticket of the patient. We have already held above that the patient was suffering from multiple illnesses, a condition known as multiple-morbidities. The patient was diagnosed with multiple chronic conditions, as stated in foregoing paragraphs. Thus, it was difficult for the physician/surgeon to care for. Due to specialized nature of medical conditions of the patient, multiple physicians and Consumer Complaint No.175 of 2018 27 surgeons on priority treated him in order to facilitate high quality patient care in the context of medical decision making. It is known that in multiple conditions, best option for treatment is not clear. Interdisciplinary team evaluated the diseases care and exercised the best option. The hospital staff informed the relatives of the patient about the medical condition of the patient and provided optimal care in patient care. Hence, the treatment provided under the care of opposite party No.2 was not beyond his competency and other team members treating the patient.
32. Now, coming to the effect of conversation with OSD, Mr. Abhishek, opposite party No.3, who counselled the patient's relative. Further, an application, Ex.C-4, was given by Vikas Dhamija, complainant No.4, on 08.03.2016 for change of doctor and it was promised by the Principal that the patient would be shifted within 15-20 minutes, but due to extenuating circumstances on 07.03.2017 and 08.03.2017, the patient was not shifted out due to complications and a surgery was planned and performed on 10.03.2017, after following standard medical protocols. The authorities and medical literature relied upon by the learned counsel for the complainants are not applicable to the facts and circumstances of the present case.
33. In view of our above discussion, it is clear that there is no lapse or medical negligence or deficiency in service on the part of opposite parties No.1 to 3, while treating the patient. Moreover, as per Page-472, the patient had the history of known alcohol consumption of 200/ml per day for 25 years and was also taking medicine for hypertension for 3-4 years in addition to recent illnesses. Therefore, Consumer Complaint No.175 of 2018 28 the condition of the patient was worse due to acute pancreatitis, kidney injury, hypertension etc. at the time of admission in DMC Hospital and the treatment and surgery was done by specialist doctors of DMC Hospital, keeping in view of the multiple morbidities and deteriorated condition of the patient. Hence, opposite parties No.1 to 3 are not deficient in service nor are medically negligent, so no liability can be fastened upon opposite parties No.1 to 3, in such circumstances.
34. Accordingly, there is no merit in the complaint and the same is hereby dismissed.
35. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases and pandemic of COVID-19.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (MRS. KIRAN SIBAL) MEMBER April 19, 2021.
(Gurmeet S)