National Consumer Disputes Redressal
Mustafabhai Ibrahimbhai Salar vs Samved Hospital & 4 Ors. on 19 February, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2586 OF 2012 (Against the Order dated 31/01/2012 in Appeal No. 550/2011 of the State Commission Gujarat) 1. MUSTAFABHAI IBRAHIMBHAI SALAR Raiyapur-Sutharvada Naka Viramgam Gujarat ...........Petitioner(s) Versus 1. SAMVED HOSPITAL & 4 ORS. 2nd floor, Near Commerce College Six Road Junction Navragpura Ahmedabad Gujarat 2. Dr. Zubedaben Desai, MDDGO Sante Status Behind Union Bank, Khanpur Ahmedabad Gujarat 3. Dr. Kashyap Rameshbhai Shah, B/H Ghar Angan Child Hospital Near Vijay Char Rasta, Navrangpura Ahmedabad Gujarat 4. Dr. Rachnaben Jigneshbhai Shah A-603 Krishna Tower, Satellite Area Ahemdabad Gujarat 5. Dr Himanshu Krushnagovind Mehta 13, Shrinathkrupa Society, Uttam Nagar, Maninagar Ahmedabad Gujarat ...........Respondent(s)
BEFORE: HON'BLE MR. ANUP K THAKUR,PRESIDING MEMBER HON'BLE MR. C. VISWANATH,MEMBER For the Petitioner : Mr. Satyajit Sen, Advocate For the Respondent : Ms. Anushree Kapadia, Advocate Dated : 19 Feb 2019 ORDER C.VISWANATH The present Revision Petition is filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 against Order passed by the State Consumer Disputes Redressal Commission, Gujarat (hereinafter referred to as the "State Commission") in F.A. No. 550/2011 dated 31.01.2012.
In the Complaint case, it was stated that the wife of the Petitioner/Complainant (i.e. Memunaben) was advised by Dr. Ramilaben Jain to undergo hysterectomy at an estimated cost of Rs.10,000/-. On medical advice, the Petitioner took his wife to Respondent No.2 who examined the Complainant's wife and advised her to get operated as soon as possible. The wife of the Petitioner was admitted in Respondent No.1 hospital. Respondent No.2 informed that she would be discharged within five days after the operation and the entire treatment would cost around Rs.30,000/-, which included room charges, fees and other relevant expenses. The wife of the Petitioner was admitted in the hospital on 20.10.2004. The operation was to be conducted on 21.10.2004. The wife of the Petitioner was aged 25 years and was a healthy person. She was taken to the operation theatre at 9:00AM, where Respondents No.2 to 5 were present. After a lapse of 2 hours, Respondent No.2 came out of the operation theatre and told the Petitioner and his relatives that the health of the patient suddenly deteriorated during the course of operation, due to which the operation was aborted and her life was taken out of danger by providing Cardiac Massage.Thereafter, she went into coma and later she was taken to ICCU for keeping her under observation. The Petitioner alleges that there was no oxygen cylinder in the operation theatre. The same was, therefore, brought from the another ward, which led to delay in supply of oxygen to the patient.The patient was also given more than the required anesthesia and the pre-operating tests were not done properly. Respondent No.2 and 3 assured the Petitioner that the health of the patient would improve in a short span of time.The patient had gone into coma due to the negligence of Respondents No.2 to 5. Respondent No.1 discharged the patient on 10.11.2004 at 10: 30 hours and the patient was transferred to the Civil Hospital by force accompanied by Respondent No.3 and 5. Complaint regarding the said incident was filed at the Naranpura Police Station being no. 1068/2004 dated 10.11.2004 and a panchnama was also made. The wife of the Petitioner remained in coma till her death in the Civil Hospital on 18.11.2005. Hence, the Complaint was filed by the Petitioner against the Respondents alleging deficiency in service.The Petitioner had to pay Rs.1,50,000/- to the Civil Hospital for the treatment of his wife, Rs.80,000/- were spent on medicines and tests at Respondent No.1 hospital and Rs.25,000/- towards expenses of travel and lodging.The Petitioner sought Rs.2,00,000/- for the loss of life of his wife. The Petitioner alleged that Respondents No.1 to 5 were jointly and severally liable for the negligence and sought a total compensation of Rs.4,55,000/-.
The Complaint was contested by the Respondents contending that the Petitioner had filed a false Complaint with an ulterior motive to make money from the Respondents. It was admitted that the deceased was under the treatment of Dr. Ramilaben and she was advised operation for the removal of uterus. It was further stated that Dr. Zubedaben had advised her to undergo the operation as soon as possible and she had told that if all went well, then the patient would be discharged from the hospital within five days. On 20.10.2004, Memunaben (wife of the Petitioner) was admitted in Respondent No.1 hospital for removal of uterus and the operation was fixed for 21.10.2004. There was no dispute regarding the fact that she was not given food since night of 20.10.2004. At the start of the operation and on making the incision on the patient, Memunaben got Cardiac Arrest (stoppage of the heart beat). As soon as the heart stopped, Respondent No.3 Dr. Kashyap Shah undertook remedial measures and started the heart. Thereupon, Respondent No. 2 stopped the operation and stitched the incision. Respondent No.3 went outside the operation theatre and informed the relatives of the patient that the patient suffered cardiac arrest and that she would not be taken out of the operation theatre till the situation improves and later would be shifted to the ICCU. Meanwhile the required medicines and treatment were administered. It was stated by them that the Petitioner was required to prove his case properly with the opinion of an expert.The Complaint could not prove negligence of the Respondents and the Complaint was, therefore, to be dismissed. The life of the patient was saved, by the Cardiac Massage that was given by Respondent No.3 Dr. Kashyap Shah, but the patient had gone into coma.It was denied that there was no oxygen cylinder in the operation theatre. The second floor had central oxygen supply system. The oxygen cylinder was called for shifting the patient to the ICCU from the operation theatre.The patient was not kept without oxygen even for a second. It was also denied that the health of the patient was not checked before the operation. The relevant blood test, x-ray, chest, ECG, Sonography etc. were verified before the operation.Dr. Kashyap Shah examined the patient on 02.10.2004 and the required preoperative instructions were given. It was stated by the Respondents that Samved is a Private hospital and doctors from outside were given permission to operate in the hospital. Doctors admit their patients and carry out the necessary treatment. The hospital simply provided the required services. There was no other responsibility of the hospital. The Petitioner had not paid the ICCU charges of the hospital till date. The hospital discharged the patient on the advice of the doctor. The Petitioner had not paid any charges to Respondent No.1. The Petitioner was not pressurized by Respondent No.1 to shift the patient. It was the Petitioner who told Respondent No.3 that he was a poor person and would not be able to afford the hospital expenses, due to which he requested shifting to the Civil Hospital, where free treatment could be obtained. On the request of the Petitioner, Respondent No.3, along with Respondent No.5 accompanied the patient to the Civil Hospital and the patient was admitted there. The patient was examined properly. Anesthesia was given as per relevant protocol. There was no question of an over dose of spinal Anesthesia. The Cardiac Meter, Pulse Oxymeter and NIBP were started before the operation and anesthesia was given. Thus, surgery was conducted after taking adequate precautions. A healthy person could get Cardiac Arrest during the operation and Cardiac Massage was given immediately and the heart was revived. The Hypoxic Brain damage, however, was not due to overdose of anaesthesia. Cardiac Arrest is a complication of Spinal Anesthesia but not that of the operation. Respondent No. 4 Dr. Rachna Shah was an assistant to Respondent No.2 and she did not work independently due to which there could be no negligence or responsibility on her part. Respondent No.5 Dr. Himanshu Mehta took the patient to the Civil Hospital from Samved Hospital and that too at the behest of Dr. Kashyap Shah. Thus, he did not come in direct contact with the patient in any manner. He was not present in the operation theatre and therefore was not responsible. In view of all the above, the Complaint filed by the Petitioner ought to be dismissed. Respondents No.1, 4 and 5 have given the purshis and stated that they would adopt the argument of Respondent No.2 and 3.
The District Forum vide order dated 29.04.2011, partly allowed the Complaint and Respondent No.2,3 and 4 were directed to pay Rs.2,70,000/- to the Petitioner along with 9% compound interest since the date of application till the date of actual payment and Rs.2,000/- towards cost. The Complaint against the Respondent No.1 and 5 was dismissed.
Being aggrieved by the order of the District Forum, Respondent No. 2 to 4 filed Appeal before the State Commission. The State Commission, vide order dated 31.01.2012, allowed the Appeal and dismissed the order passed by the District Forum.
Being aggrieved by the order passed by the State Commission, the Petitioner filed the present Revision Petition before this Commission.
Heard the Learned Counsel for the Petitioner as well as the Respondents and perused the record.
The wife of the Complainant Memunaben Salar was admitted in Respondent No.1 hospital on 20.10.2004 and operated on 21.10.2004.During the operation, she suffered cardiac arrest and went into coma.She was discharged from the hospital on 10.11.2004 and shifted to the Civil Hospital where she died on 18.11.2005.As can be seen from the sequence of events the period of limitation would start from the date of her death, i.e., on 18.11.2005 and the complaint was filed on 09.07.2007 before the District Forum well within the period of limitation, as has been detailed in the order of the District Forum and the State Commission.
In the present case, the Complainant's wife travelled by bus to Ahemdabad and walked into the Hospital on 20.10.2004.She was taken to the operation theatre at 9:00AM and was administered spinal anaesthesia.After the surgeon made first incision, the patient went into cardiac arrest.According to the notes of the operation, she was given cardiac massage and D.C. shocks and heart beat was restored but the patient went into coma.She remained in coma until her death on 18.11.2005.The Complainant alleged that oxygen was not available in the operation theatre, overdose of anaesthesia was given and required pre-operative tests were not done.The Respondents contend that there is a central oxygen supply system in the hospital and oxygen cylinders were brought to shift the patient from the operation theatre to ICCU.The patient was not kept without oxygen even for a second.As regards administration of spinal anaesthesia, the Respondent stated that anaesthesia was given by relevant system that is set and in proper amount.There was no question of overdose of spinal anaesthesia.The cardiac meter, pulse meter and NIBP were started before the operation and anaesthesia was given later.All precautions were taken and thereafter the surgery was started.
The Respondents contended that cardiac arrest is a complication of spinal anaesthesia and not a result of the operation.It is admitted by the Respondents that cardiac arrest is a known complication of spinal anaesthesia.In such a case, an ECG should have been taken by the Respondent to conduct a thorough pre-operative check-up of the condition of the patient and more so her heart.As seen from the record, last ECG was conducted way back on 25.05.2004.The present operation is an elective operation and was not done on emergency basis.The Respondents had all the time to do thorough investigations before taking the patient to the operation theatre.They should have taken another ECG after her admission in the hospital on 20.10.2004 and on assessing her cardiac status proceeded with the operation.Failure on the part of the Respondents in not assessing the cardiac condition of the patient before the operation is certainly a serious lapse on their part, knowing full well that cardiac arrest is a known complication in spinal anaesthesia.
Once cardiac arrest takes place, its management is another very important aspect in reviving the patient.Though, the operation notes speak of cardiac massage being given, perhaps referring to Cardio Pulmonary Resuscitation (CPR) and also 3 D.C. shocks, there is no mention in the records as to the time taken to get the heart beat back and it is well-known that delay in reviving the patient could lead to hypoxic damage which has happened in this case.The Respondent ought to have mentioned the duration of cardiac arrest, especially when the condition could not be revived neurologically.All this indicates that the Complainant's wife went into subsequent conditions because of gross-negligence and mismanagement on the part of the Respondents.
In view of above, the Revision Petition is allowed and the order of the State Commission is set aside. Order passed by the District Forum is upheld with the modification of allowing simple interest @9% p.a. ...................... ANUP K THAKUR PRESIDING MEMBER ...................... C. VISWANATH MEMBER