State Consumer Disputes Redressal Commission
Shri Devendra Kumar Sharma vs Post Graduate Institute Of Medical ... on 23 February, 2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Complaint case No.58 of 2000 Date of Institution: 21.9.2000 Date of decision : 23.2.2011 1. Shri Devendra Kumar Sharma R/o Plot No.39, Jassian Road, Jagdeshwra Nand Colony, Sandhu Nagar, Near Railway Line, P.O. Netaji Nagar, Ludhiana. 2. Shri Anand Sharma S/o Sh.Devendra Kuamr Sharma R/o Plot No.39, Jassian Road, Jagdeshwra Nand Colony, Sandhu Nagar, Near Railway Line, P.O. Netajit Nagar, Ludhiana. 3. Aekta Sharma D/o Shri Devendra Kumar Sharma R/o Plot No.39, Jassian Road, Jagdeshwra Nand Colony, Sandhu Nagar, Near Railway Line, P.O. Netajit Nagar, Ludhiana. Complainants Versus 1. Post Graduate Institute of Medical Education & Research, Chandigarh through its Director. 2. Dr.V.K.Khosla, Professor and Head of Neuro Surgery Department, PGI, Chandigarh. 3. Dr.Gauri Joshi, the then Incharge/Senior Resident, I.C.U. Ward 3-A, 3rd floor, PGI, Chandigarh. .. Opposite parties Complaint U/s 17 of the Consumer Protection Act,1986 BEFORE : Mrs. Neena Sandhu, Presiding Member Sh.Jagroop Singh Mahal, Member Argued by : Sh.R.S.Ahluwalia,advocate for complainants Sh.Rajesh Garg, representative of OPs. JUDGMENT
Per Jagroop Singh Mahal, Member This complaint was initially allowed by this Commission vide order dated 27.8.2001 which was set aside by the Honble National Commission vide their order dated 18.1.2005 directing this Commission to allow the parties to give opportunity to cross-examine the witnesses produced by each other and also to order the production of the treatment record from the OP No.1. In pursuance of that order complainant alone cross-examined OP No.2 through interrogatories.
2. Briefly stated the facts of the complaint are that Smt. Indrawati Sharma, wife of the complainant No.1 Shri Devendra Kumar Sharma and mother of complainants No.2 & 3 was taken to PGI, Chandigarh OP NO.1 for treatment regarding internal caiotico ophthalmic aneurysm on 3.9.1999 and was admitted there for further investigation. Prior to her admission in the PGI, she was getting treatment at Amritsar and Ludhiana and was referred to the PGI by them. In the PGI, Smt. Indrawati Sharma was under the treatment of Dr.V.K.Khosla, the Professor and Head of the Neuro Surgery Department where certain tests were performed. The condition of Smt.Indrawati Sharma was critical and she required an immediate operation but the operation was slated to be performed on 27.9.1999 and complainant No.1 on 26.9.1999 was asked to bring different items for operation. As explained to complainant No.1 by Dr.V.K.Khosla OP No.2 who was to perform the operation two clippers were to be inserted above the eyes of the patient Smt. Indrawati Sharma and for that a major surgery including the removal of skull partially was to be done. The operation was conducted by Dr.V.K.Khosla on 27.9.1999 but when Smt.Indrawati Sharma was brought out of the operation theatre, she was not responding to anything and was in a critical condition. It further transpired that the clippers which were to be used were not used and were infact returned to the complainant. On further questioning, Dr.Khosla admitted that although the operation had started and the skull of the said patient was removed for fixing the clippers but on account of non-availability of the drill, the said operation could not be completed and it had to be abandoned without fixing the said clippers and closure of the skull was done. According to complainant No.1, it was a casual approach of Dr.Khosla towards such a major surgery and if the drill machine was not available with the said doctor at that time he should not have initiated the operation. However, second operation was performed by Dr.V.K.Khosla on 7.10.1999 and by that time the condition of the patient had already deteriorated due to the earlier operation which was performed in a negligent manner. After the operation, the patient was brought back to the I.C.U. where Dr.Gauri Joshi- OP NO.3 was the then incharge-cum-senior Resident. Even Dr.Gauri did not care at all and when complainant NO.1 pointed to her that the patient was facing difficulty in breathing and was not responding to anything so he requested to call the senior doctor but still Dr.Gauri did not show any urgency, rather inserted a catheter inside the mouth of the patient. Due to the faulty handling and wrong use of the catheter, the patient Smt.Indrawati Sharma did not survive and died on 8.10.1999 at 10.00 A.M. It was alleged that it was the prime duty of the doctor to ensure that all the required instruments were available in the operation theater before starting such a major surgery and because of negligence on the part of Dr. V.K.Khosla and subsequent mishandling and casual approach of OP NO.3, the wife of complainant NO.1 died.
3. It was also alleged that on account of deficiency in service the complainants who are legal heirs of the deceased Smt.Indrawati Sharma are entitled to be compensated. At the time of her untimely death, the deceased was of 47 years old and was running a boutique at Ludhiana and earning about Rs.4000/- to 5000/- per month. Besides this, complainant NO.1 had lost the company of his wife and complainants NO.2 & 3 had lost love and affection of their mother and at that time both children were students and unmarried. The complainant NO.1 had to spend more than Rs.one lac on account of medicine, fees of the different tests and operations etc. The complainants have thus claimed a sum of Rs.15 lacs as compensation for the death of Smt.Indrawati Sharma which was caused due to negligence on the part of opposite parties.
4. OPs contested the complaint and filed their joint written statement inter-alia stating therein that the patient was first seen on 3.9.1999 with a complaint of decreasing vision of one and a half months duration which was painless and progressive. There was no history to suggest any kind of acute emergency situation as the provisional diagnosis was unruptured bilateral IC-opthalmic aneurysms and the patient was fully conscious and had no acute discomfort and problem. The first operation was performed on 27.9.99 after making all necessary arrangements and the patient was conscious and stable. The clips were not used and returned to the attendants. The drill was available but did not function satisfactorily and also the operation had already gone on for a long time.
It was pleaded that the operative findings indicated that the operation would go on for another 4-6 hours and it was a case of nun-ruptured aneurysm, so to avoid any kind of risk to the patient a decision was taken by the operating surgeon to postpone further proceedings and take up the operation again at a later date. It was stated that it was immaterial that the drill did not function at the time of operation and further the drill had no relation with the death of the patient as the second operation done on 6.10.1999 was totally successful and the aneurysm was clipped without any problems during the operation. The second operation was a routine operation and not an emergency operation for which complainant No.1 had given his consent of his own free will. He was at liberty to refuse for the 2nd operation if he was not satisfied with the first operation or if he held that there was alleged negligence on the part of operating surgeon. The note that due to drill, procedure abandoned and closure done without clipping of aneurysm was by an anesthetist and not a surgeon but still non-availability of the drill was inconsequential and not related in any way to the patients death. In the ICU also , the patient was conscious, stable and talking where Dr.Gauri attended her fully and all necessary medical measures as indicated were undertaken. The catheter was an endo-trachael tube which was required to treat respiratory infection and respiratory difficulty of the patient. The condition of the patient deteriorated later on because of other unrelated causes which may have been a possible chest infection which was not directly caused by the brain operation and such chest infections are known to occur under different medical conditions and after different kind of surgical operations. The postmortem examination was refused by the complainant No.1, hence, no conclusive cause of death was established. It was pleaded that there was no alleged mishandling by any of the doctors and proper care and medical treatment was given to the patients. The attendants of the patients never made any complaint in such regard. The patient was given the highest degree of care and both operations were well planned. The aneurysm was successfully clipped and the patient had no complication after the operations, so OPs are not liable to pay any alleged compensation.
5. The Complainants adduced their evidence by way of their affidavits and annexures P-1 to P-46. OPs also led evidence in the shape of affidavit of Dr.V.K.Khosla, Professor and Head of Ueuro Surgery Department,PGI, Chandigarh and affidavit of Dr.Gauri Joshi besides two annexures i.e. R.1 and R-2.
6. After hearing the learned counsel for the parties and going through the record, the State Commission vide order dated 27.8.2001 allowed the complaint with litigation costs of Rs.5000/- and granted consolidated sum of Rs.2.00 lacs as compensation for carelessness, negligence and deficiency in service at the time of the first operation. OPs NO.1 & 2 were directed to pay the aforesaid amount of compensation and costs to the complainants within a period of two months from the date of receipt of the order, failing which the complainants were held entitled to get interest on the amount of compensation @ 10% p.a. till its realization. However, OP No.3- Dr.Gauri Joshi was not held liable to pay any compensation and litigation costs and complaint against her was dismissed.
7. Aggrieved against the said order dated 27.8.2001, opposite parties as well as complainants went in appeal before the Honble National Commission and vide order dated 18.1.2005 the Honble National Commission set aside the impugned order and remitted the matter back to this Commission directing both the parties to appear before the State Commission who will allow them to cross-examine the witnesses of each other and would consider the medical record. It was also stated in the order that the State commission may also, in case of need, take the opinion of expert in matters of expected procedures and procedure adopted by the concerned doctors.
8. The Honble National Commission had directed the parties to appear before this Commission on 24.2.2005 but none of the parties appeared on that date and subsequently the counsel for complainant appeared after 3 years. Dr. V.K.Khosla in the meantime left PGI and he could be served only in February,2009 when his counsel put in appearance. Thereafter, counsel for complainant moved an application on 20.7.2009 for calling Dr.V.K.Khosla and Dr. Gouri Joshi for their cross-examination. However, counsel for OPs then moved an application for submission of questionnaires on the doctors which was allowed. The learned counsel for complainants instead of filing questionnaires moved another application for recalling the order dated 19.10.2009 whereby complainants were asked to submit questionnaire instead of permitting cross-examination of witnesses. The said application was disposed of as there was no provision in the Consumer Protection Act ,1986 to review or recall its order by the State Commission. Ultimately questionnaire on behalf of complainants and answers of Dr.V.K.Khosla to the questionnaire were filed.
9. We have heard learned counsel for the parties and have gone through the file.
10. The contention of learned counsel for complainants is that Smt.Indrawati Sharma was only 47 years old, she was admitted in the PGI for treatment when an emergent operation was to be performed, she was taken for operation on 26.9.1999 but the operation was left midway due to non-availability of drill machine. The learned counsel for complainants referred to Annexure P-3 the operation note. It is not disputed that the operation was to be conducted by Dr.V.K.Khosla- OP No.2. It is also admitted that the drill machine did not work properly. There is no dispute about it that the operation was not completed and the skull was closed without clipping the Aneurysm. This necessitated second operation which was conducted on 6.10.1999. The leaned counsel argued that it was a deficiency in service on the part of the OPs due to which two operations had to be conducted which resulted in the death of Smt.Indrawati Sharma. Learned counsel for OPs has opposed these contentions.
He referred to the reply and the affidavit of Dr.V.K.Khosla in which it was specifically stated that the drill was not needed for completing the operation. According to him, there was no deficiency in service or negligence on their part. A perusal of the affidavit of Dr.V.K.Khosla shows that he is changing his stand. According to him, the drill was not necessary and operations in the past had been performed even without a drill machine. In para-4 of the affidavit, he admitted that the drill machine was available but did not function satisfactorily. Even the reason for not proceeding further with the operation as mentioned in the operation note Annexure P-3 is that due to non-availability of drill, procedure abandoned and closure done without clipping of Aneurysm. There is no other reason for not completing the operation. However, now OPs are alleging in order to cover up their negligence and deficiency in service that the operation was not abandoned due to the drill machine. His contention is that the drill machine had been borrowed from some other department but it also did not work. The learned counsel is unable to explain that if there was no need of drill machine or the operation could be conducted without a drill machine then why a drill machine was borrowed from some other department and when and what necessity arose to see whether the machine works or not. Further, if the drill machine was not needed, though it was available then why operation was not completed. In Annexure P-3 no other reason has been mentioned for abandoning the operation. We are, therefore, of the opinion that the drill machine was needed for this operation. OPs started the operation without availability of a drill machine and when they felt need of it they may have borrowed it from some other department but the same did not work and therefore the operation had to be abandoned. For the sake of repetition, it is stated that it was a skull operation, a part of the skull had to be cut and removed for clipping of aneurysm. OPs were so negligent that they did not see before starting the operation whether they had drill machine which would be used when the need arose. They thought of it only after the operation was started and drill machine which was borrowed did not function. It necessitated the closure of the skull without completing the operation. From these facts, negligence and deficiency in service on the part of OPs NO.1 & 2 is fully proved.
11. The learned counsel for OPs has argued that the first operation as well as second operation were successful, patient was fully conscious and therefore postponing the operation was not the cause of death. This fact may be true because the complainant did not agree for the postmortem examination of the deceased. However, we cannot deny that conducting two operations on the skull when only one would have been suffice would naturally cause the blood loss and aggravate the process of death. No doubt, it was a routine operation for the OPs but for a patient the skull operation assumes importance in view of the fact that the brain is involved. Not only blood loss but there was a delay of about 10 days in conducting the 2nd operation which could have also aggravated the disease. The patient was only 47 years old and died a day after the second operation. It also shows that postponement of the first operation contributed towards the death of the deceased. The contention of the OPs that second operation was successful cannot be accepted because the patient thereafter survived only for a day.
12. The learned counsel for OPs also argued that Dr.V.K.Khosla is a competent surgeon, knows his job, the operation was done in a proper manner by conducting proper procedure and with the consent of the complainant and therefore no liability for the death of the patient can be imposed upon him. This argument on the face of it appears to be correct, unless we take notice of the negligence on the part of OPs in not arranging and checking the drill machine before starting the operation. The consent of the complainant does not authorize the surgeon to act negligently. The complainant is not questioning the surgical skill of OP No.2 but the manner in which OPs proceeded and subsequently abandoned the operation without completing the job for which skull operation was started.
13. The contention of OPs NO.1 & 2 is that the operation was abandoned in the best interest of the patient due to compelling circumstances and not due to non-availability of the drill machine. We do not find any merit in this contention. As earlier mentioned, Annexure P-3 gives the reason as to why the operation was abandoned and no other reason is mentioned there. Even in his reply and affidavit OPs No.1 & 2 have not given any reason as to why the operation was abandoned. When the operation had started and continued for a long time why it was not completed is a big question and the answer is given only by Annexure P-3 that due to non-availability of drill machine they could not proceed further. The contention of OPs that there were certain other reasons to abandon the operation, therefore, does not appear to be correct nor have the same been specified in the reply or the record.
14. The learned counsel for OPs has also argued that there was no deficiency in service on the part of OP No.3. She rather attended upon the patient in a most affectionate manner. The complainant has not produced any evidence to suggest if she caused any injury while inserting the catheter. On the other hand, learned counsel referred to para-8 of the reply mentioning that the so called catheter was an endo-trachael tube which was required to treat respiratory infection and respiratory difficulty of the patient. We, therefore, do not find any deficiency in service on the part of OP NO.3.
15. The contention of complainant is that the deceased was 47 years old woman. She was operating a boutique and was earning Rs.4000/- to Rs.5000/- per month. She had lot of love and affection for her husband Devendra Kumar Sharma and her son and daughter Anand Sharma and Aekta Sharma complainants. The OPs NO.1 & 2 due to their negligence thrust a second operation on the patient which could have been avoided had they been not negligent.
The complainants had to spend money on her treatment and therefore they also suffered mentally, physically and financially due to negligent act of OPs No.1 & 2. We are, therefore, of the opinion that the compensation of Rs.two lacs would be just and proper which shall be paid by OPs No.1 & 2 jointly and severally to the complainants within 30 days from the date of receipt of copy of the order.
OPs NO.1 & 2 shall also pay Rs.10,000/- as costs of litigation. If the above amounts are not paid within thirty days, OPs shall be liable to pay the same alongwith interest @ 12% p.a. since the filing of the present complaint i.e. 21.9.2000 till its payment to the complainants.
Resultantly, complaint is allowed in the aforementioned terms.
Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
Sd/-
Announced ( NEENA SANDHU) 23rd February,2010 Presiding Member Sd/-
(JAGROOP SINGH MAHAL) Member *Js STATE COMMISSION COMPLAINT CASE NO.58/2010 Argued by: Sh.R.S.Ahluwalia ,advocate for complainants Sh.Rajesh Garg, advocate for OPs Dated the 23rd day of February,2011 ORDER Vide our detailed ordered of the even date recorded separately, this complaint has been accepted with costs.
(Jagroop Singh Mahal) (Neena Sandhu) Member Presiding Member