State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd. vs Ratanmani Kesharwani & Anr. on 17 October, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2017/385
Instituted on : 24.06.2017
The Oriental Insurance Company Limited,
Branch Manager, The Oriental Insurance Company,
Divisional Office, In Front of Old High Court,
Tahsil and District Bilaspur (C.G.) ... Appellant (O.P. No.2)
Vs.
1. Ratanmani Kesharwani, S/o N.P. Kesharwani,
Aged about 45 years, R/o : Jai Durga Ward,
In Front of Narendra Talkies,Lormi,
Tahsil Lormi, Dist. Bilaspur (C.G.). .... Respondent No.1 (Complainant)
2. Dr. Y.R. Krishna, Director,
KIMS Hospital, Magarpara Road,
Bilaspur, District Bilaspur (C.G.) .... Respondent No.2 (O.P. No.1)
Appeal No.FA/2017/414
Instituted on : 24.06.2017
Dr. Y.R. Krishna, Aged 65 years,
S/o Y. Narayan Rao,
Director KIMS Hospital, KIMS area,
Magarpara,
Bilaspur (C.G.) ... Appellant (O.P. No.1)
Vs.
1. Ratanmani Kesharwani, Aged 56 years,
S/o N.P. Kesharwani, R/o : Jai Durga Ward,
Opp. Narendra Talkies,Lormi, P.S. & Tahsil
Lormi, Dist. Mungeli (C.G.).. .... Respondent No.1 (Complainant)
2. Oriental Insurance Company Limited,
Through Divisional Manager, Divisional Office,
Rama Trade Center, Near Old Bus Stand,
Bilaspur (C.G.) .... Respondent No.2 (O.P. No.2)
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER // 2 // COUNSEL FOR THE PARTIES IN BOTH THE APPEALS:-
Shri Mukesh Sharma, Advocate for O.P. No.1 - Dr. Y.R. Krishna. Shri Raj Awasthi, Advocate for O.P. No.2 - The Oriental Insurance Company Limited.
Shri L.D. Patel, Advocate for the complainant - Ratanmani Kesharwani.
O RDER Dated : 17/October/2017 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No.FA/2017/385 and Appeal No.FA/2017/414, which have been preferred respectively by O.P. No.2 The Oriental Insurance Company Limited, Through Branch Manager, Bilaspur (C.G.) and the O.P. No.1 Dr. Y. R. Krishna, in Complaint Case No.C.C./176/2006 against the order dated 03.04.2017, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum"). By the impugned order, the learned District Forum, has allowed the complaint of the complainant and directed that :-
(1) The O.P. No.2 Insurance Company will pay lump sum amount of Rs.9,00,0000/- (Rupees Nine Lakhs) towards treatment expenditure and compensation, to the complainant within period of one month from the date of order, along with interest @ 7% p.a. from the date of filing of the complaint i.e. 30.06.2006 till realisation. (2) The O.P. No.2 Insurance 3Company will also pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation to the complainant.
// 3 //
2. The O.P. No.2 has filed Appeal No.FA/2017/385 for exonerating it from the liability fastened upon it by the learned District Forum by the impugned order whereas the O.P. No.1 has filed Appeal No.FA/2017/414 for setting aside the impugned order of the District Forum. The original of this order be retained in the file of Appeal No. FA/2017/385 and it's copy be placed in the file of Appeal No. FA/2017/414.
3. Briefly stated the facts of the complaint of the complainant are that the O.P. No.1 is a Doctor, who is running a Hospital, namely "KIMS", ,the O.P. No.1 is director of the said hospital, according to the best knowledge and experience of petitioner. The O.P. No.1 is dealing in so many matters of medical field, even in such fields for which, he has no Certificate of Licence. The wife of the complainant namely Shanti Bai, died on 23.10.2004. The wife of the complainant was suffering from some problem in her Uterus, then the complainant and his wife earlier met with a Dr. Shikha Mitra regarding ailment of Shanti Bai, Dr. Shikha Mitra advised Late Shanti Bai for Sonography Test and as per the advice of Dr. Shikha Mitra, deceased Shanti Bai went for above test, to Dr. Shaileja Ghosh on 03.05.2014. Dr. Shaileja Ghosh did the same test. On the basis of Sonogrpahy test done by Dr. Shaileja Ghose, Dr. Shikha Mitra treated Shanti Bai through medicine. After getting treatment from Dr. Shikha Mitra deceased Shanti Bai got some relief, for a period about three months, thereafter Late Shanti Bai again felt the same problem and she approached to Dr. Y. R. Krishna at // 4 // "K.I.M.S." Hospital situated at Magarpara Road, Bilaspur on 26.09.2004. When deceased Shanti Bai met with Dr. Krishna on 26.09.2004, Dr. Krishna gone through the old medical test reports and treatment given by Dr. Mitra. Thereafter, Dr. Krishna, the O.P. No.1, said to Late Shanti Bai and her family members that the condition of Late Shanti Bai is absolutely critical and dangerous too, Dr. Krishna also said and advised, that to protect the life of Shanti Bai, an urgent operation is required and necessary. After hearing the words of Dr. Krishna, O.P. No.1, the family members of Shanti Bai, went home with absolute shock and fear, and started preparation for the operation as advised by the O.P. No.1. ON 27.09.2004, Late Shanti Bai got admitted in the Hospital of the O.P. No.1 in the evening, on that evening also Dr. Krishna after going through the complete old medical reports and treatment given by Dr. Mitra, said the family members of Shanti Bai that, the operation is the only way to cure the ailment of Shanti Bai. On 28.09.2004, in the morning at about 10.00 A.M. Dr. Krishna operated deceased Shanti Bai, after operation deceased Shanti Bai remained admitted in the Hospital up to 02.10.2004, thereafter the O.P. No.1 discharged Shanti Bai from Hospital and said that, she is now perfectly alright and ailment has been cured fully. After getting discharged from the hospital, Shanti Bai was not normal and complained, so many other problems and complication after the operation done by the O.P. No.1. On 06.10.2004, condition of Late Shanti Bai was absolutely deteriorating, then the family members again too, her to the hospital of the O.P. No.1, the O.P. // 5 // No.1 admitted Shanti Bai, at his hospital and started treatment. On 08.10.2004 at about 12.00 P.M., the O.P. No.1 said, to the family members, that due to operation and negligence during the course of operation, infection occurred inside the uterus of Shanti Bai and the O.P. No.1 also informed family members, that level of the infection is very much high and condition of Late Shanti Bai is beyond his control. The O.P. No.1 also confessed about his negligence during the course of operation. Then the family members of Late Shanti Bai got shocked and they rushed immediately to the Apollo Hospital, Bilaspur and Shanti Bai was taking treatment at Apollo Hospital upto 23.10.2004 and on 23.10.2014, Shanti Bai breathed her last. The cause of death of Late Shanti Bai is negligence done by the O.P. No.1, during the course of operation dated 28.09.2004. The O.P. No.1 after checking deceased Shanti Bai never advised for any required medical check-up, and only on the basis of the old medical reports, operated the deceased, which itself is a proof of negligence done by the O.P. No.1. According to the complainant, the condition of Late Shanti Bai was not so chronic or dangerous to do an operation, but the O.P. No.1 wrongly advised, for operation to Late Shanti Bai, only to get some money from them. For proof of this doubt of the complainant, any medical report which is required or opinion of expert Doctors may kindly be called for, by the District Forum, for just and proper decision of the case. The infection occurred in the Uterus of Late Shanti Bai, it was the reason behind death of Late Shanti Bai, the infection occurred, only because of negligence // 6 // and deficiency in service of the O.P. No.1. The service given by the O.P. No.1 was defective and bad. The complainant sent notice to the O.P. No.1 on 29.11.2004, but till date no reply has been received by the complainant. Hence the complainant filed instant complaint.
4. The O.P. No.1 filed its written statement and averred that Smt. Shanti Kesharwani was brought to the Hospital of O.P. No.1 with complaints of irregular bleeding off and on, with dysmenorrhoea (complaints of abdominal pain during menses) on 27.09.2004 for which she had consulted a leading Gynaecologist Dr. (Mrs.) Shikha Mitra. As per the prescription of Dr. Shikha Mitra, Smt. Shanti Kesharwani, was treated conservatively by medicine and D & C for period nearly six months and on 03.05.2004, she was advised Hysterectomy after investigation. The patient preferred laparoscopic procedure over open conventional procedure for Hysterectomy and hence approached the O.P. No.1. After routine blood investigation, medical and cardiac check- up patient was admitted on 28.09.2004 and was operated laparoscopically and specimen uterus was sent for hystopathological examination which revealed chronic cervicitis. The patient had smooth post-operative period except pain in joints because she was a known case of arthritis. The patient was discharged on 01.10.2004, at the time of discharge the patient was moving well, passing urine and flatus, and taking oral food. The patient was prescribed oral antibiotics and pain killers with tonic and discharged with advice to inform S.O.S. or to report after 7 days. There were no signs of any complications at the // 7 // time of discharge. The patient was readmitted in the Hospital of O.P. No.1 on 06.10.2004 with complaint of upper abdominal distension, she was investigated and was put on high antibiotics and I.V. fluids. The Ultrasonography report and blood serum, Amylase report have confirmed, that she is a case of acute pancreatitis with abdominal collection, the C.T. Scan Report of Apollo Hospital also reveals necrosis of pancreatic body and trail with pseudo cyst and ascites. As pancreatitis is a serious condition requiring intensive care patient was referred to Apollo Hospitals, Bilaspur with a reference letter mentioning all the facts. The O.P. No.1 did not confess regarding any infection occurred in uterus during the course of operation. The O.P. No.1 diagnosed the patient as a case acute pancreatitis with pseudo cyst, which was also confirmed by the reports of the Apollo Hospitals, where the patient stayed for a period of 15 days. The patient has developed ARDS with multi organ failure. The cause of death of the patient could not be ascertained as autopsy report is not available on the record. The routine blood examination ECG., and medical check up was done preoperatively. The patient was already in consultation with her regular Gynaecologist, who advised her hysterectomy as per the prescription submitted to the O.P. No.1. The surgery was carried out by the O.P. No.1 as the patient elected for laparoscopic procedure. The cause of death of the patient could not be ascertain in lieu of the autopsy report on the record. The cause of the death mentioned in the Death Certificate is only the cause suspected by the person issuing the Death // 8 // Certificate and the diagnosis made at the Hospital conclusive cause could have been made from the autopsy report of the patient. There was no defect in the procedure adopted in treatment of the patient amounting to deficiency in service on the part of the O.P. No.1. The legal notice served by the complainant was not replied as it was not revealing the actual fact and circumstances of the case. The O.P. No.1 was insured for his professional indemnity with Oriental Insurance Company Limited, Divisional Office, Opposite High Court, Bilaspur vide Insurance Policy hence Insurance Company is also a necessary party to the complaint. When the O.P. No.1 came to know about complication in patient, he referred the patient to Higher Center for her further management. The immediate referral of the patient to higher centre on diagnosis of a complication does not amount to deficiency in medical service or negligence on the part of the treating doctor as regularly being held by the various Consumer Commissions in their decisions. There was no medical negligence or deficiency in service on the part of the O.P. No.1. The O.P. No.1 was vigilant in treating the patient, as soon as he suspected complications in patient he referred the patient to proper centre for proper management. The O.P. No.1 is not liable to compensate the complainant for the reliefs claimed in the complaint, as there was no deficiency in services or negligence on the part of the O.P. No.1. The O.P. No.1 is not bound to fulfill illegal demands of the patient / complainant for no deficiency in services or // 9 // negligence in services on the part of the O.P. No.1. The complaint is liable to be dismissed against the O.P. No..1.
5. The O.P. No.2 filed its written statement and averred that as per the information of the O.P. No.2, O.P. No.1 has not committed any negligence during the course of operation, which carried out on 28.09.2004. As per provisions of the Consumer Protection Act, 1986, it is not required for this Commission to create or collect documentary evidence to build up a case of either side. The O.P. No.1 has not committed any negligence or deficiency in providing medical services to the deceased. Allegation made by the complainant in this regard is totally false. As per the averments of the complainant, the complicated question of act is involved in the instant complaint, in the light of the same, this Commission has no jurisdiction to entertain the instant complaint. No legal notice has been served upon O.P. No.2. The complainant has not filed copy of insurance policy or even no particulars in this respect has been provided to the O.P. No.2. In such a case it would be in the interest of justice to delete the name of the O.P. No.2 from the complaint. If during pendency of the instant complaint, it is found there is any valid insurance contract , in such a case O.P. No.2 reserves his right to file reply in this respect. The complaint be dismissed against the O.P. No.2 with granting compensatory cost.
6. The complainant has filed documents. Document No.1 is bill issued by KIMS Hospital, Document No.2 is prescription slip issued by // 10 // KIMS Hospital, Document No.3 is prescription slip issued by KIMS Hospital, Document No.5 is Biochemistry Report dated 08.10.2004 issued by M. Patho Clinic, Document No.6 is Hematology and Biochemistry Report issued by Mittal Hospital, Bilaspur (C.G.), Document No.7 is Pathology Report, Document No.8 is Surgical Pathology Report issued by S.K. Pathology Report, Document No.9 is Ultrasonography Report dated 03.05.2004 issued by Ghosh Sonography Centre, document No.10 is Abdominal Sonogram Report issued by DR. B.K. Nema, Document No.11 is Biochemistry Report dated 06.10.2004 issued by M. Patho Clinic, Document No.12 is bill dated 08.10.2004 issued by Apollo Hospitals, Bilaspur, Document No.13 is bill dated 08.10.2004 issued by Apollo Hospitals, Bilaspur, Document No.14 is bill dated 23.10.2004 issued by Apollo Hospitals, Bilaspur, Document No.15 to document No.17 is Death Summary of Mrs. Shanti Kesharwani, issued by Apollo Hospitals, Bilaspur, document No.18 is medical slip dated 08.09.2004 issued by Dr. Y.R. Krishna, document No.19 to 58 are Haematology, Biochemistry, Microbiology reports etc. issued by Apollo Hospitals, Bilaspur, Document No.59 is Death Certificate of Smt. Shanti Kesharwani issued by Apollo Hospital, Bilaspur, Document No.60 is Death Certificate of Smt. Shanti Kesharwani issued by Registrar, Birth and Death, Document No.61 & 62 is notice dated 11.01.2015 sent by Shri Satish Chandra Verma, Advocate to Dr. Y.R. Krishna.
7. The O.P. No.1 has filed documents. Document No.1 is Ultrasonography Report dated 03.05.2004 issued by Ghosh Sonography // 11 // Centre, Document No. is prescription slip issued by Dr. Shikha Mitra, Bellevue Hospital, Document No.3 is prescription slip issued by Dr. (Smt.) Krishna Mittal of Mittal Hospital, document No.4 is Hematology and Biochemistry Report issued by Mittal Hospital.
8. The O.P. No.2 has not filed any documents.
9. Learned District Forum, after having considered the material placed before it by the parties, allowed the complaint of the complainant and directed the O.P. No.2 to pay the amounts to the complainant, as mentioned in para 1 of this order.
10. Shri Mukesh Sharma, learned counsel appearing for the O.P. No.1, who is appellant in Appeal No.FA/2017/414 has argued that the O.P. No.1 Dr. Y.R. Krishna, is an experienced and well qualified Doctor. Smt. Shanti Kesharwani (deceased) was brought in the hospital of O.P. No.1 with complaints of irregular bleeding off and on, with dysmenorrhoea on 27.09.2004. The deceased Smt. Shanti Kesharwani consulted a leading Gynaecologist Dr. (Mrs.) Shikha Mitra, as per the prescription of Dr. Mitra she was treated conservatively by medicine and D & C for period nearly six months and on 03.05.2004 she was advised Hysterectomy after investigation. The deceased preferred laparoscopic procedure over open conventional procedure for Hysterectomy and hence approached to the O.P. No.1. After routine blood investigations, medical and cardiac check up, the deceased was admitted in the hospital of O.P. No.1 on 28.09.2004 and was operated // 12 // by laparoscopically and specimen of uterus was sent for hystopathological examination which revealed cervicitis. The operation was done by the O.P. No.1 with proper care, taking proper precautions and as per prescribed procedure. The deceased was discharged on 01.10.2004. AT that time her condition was normal and was passing urine and flatus, and taking oral foods. The medicines were prescribed and she was directed to come after 7 days for follow check up. There was no sign of complication at the time of discharge . The deceased came to hospital of O.P. No.1 on 06.10.2004 with complaint of upper abdominal distension, she was investigated and was put on high antibiotics and I.V. fluids The Ultrasonography report and blood serum, Amylase Report have confirmed that is a case of acute pancreatitis with abdominal collection. The C.T. Scan Report of Apollo Hospitals also reveals necrosis of pancreatic body and tail with pseudo cyst and ascites. Proper check up of the deceased was done by the O.P. No.1 and thereafter by obtaining consent of the deceased, surgery was carried out by the O.P. No.1. If any complication occurred, it does not amount deficiency in medical services or negligence on the part of the treating doctor. When the O.P. No.1 came to know about complication in patient, he referred the patient to Higher Center for her further management. Learned District Forum obtained expert opinion from Chhattisgarh Institute of Medical Sciences, Bilaspur. Looking to the expert opinion, it appears that the probable cause of biliary pancreatitis with acute fluid collection is post operative infection leading to // 13 // septicemia and Pancreatitis can be due to Gall Stone, porphyrias, drug induce and viral infection.. It shows that the O.P. No.1 did not commit any medical negligence. The O.P. No.1 obtained Professional Indemnity Policy from the O.P. No.2. The O.P. No.1 has rightly treated the deceased and did not commit any medical negligence. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal filed by the O.P. No.1 be allowed.
11. Shri Raj Awasthi, learned counsel appearing for the O.P. No.2, who is appellant of Appeal No.FA/2017/385 has argued that the District Forum has committed a gross error by ignoring the fact that in a case of medical negligence, it is well settled law that all the allegations regarding negligence committed by the treating doctor, are required to be proved by the complainant by adducing cogent and reliable documentary evidence. In the instant case, the complainant has utterly failed to prove that the O.P. No.1 committed any medical negligence. The learned District Forum has failed to appreciate the fact that the complainant has not filed any expert opinion to prove that the O.P. No.1 committed negligence while conducting operation of the deceased Smt. Shanti Bai. The impugned order passed by the District Forum, is liable to be set aside. The appeal filed by the O.P. No.2 be allowed. He placed reliance on Appeal No.FA/2016/451 - The Oriental Insurance Company Limited Through Divisional Manager Vs. Mithlesh Rajput & Others and Appeal No.FA/2016/502 - Dr. R.S. Dheer Vs. Mithlesh // 14 // Rajput and Others, decided by this Commission vide order dated 08.03.2017.
12. Shri L.D. Patel, learned counsel appearing for the complainant, who is respondent No.1 in both the appeals, has argued that wife of the complainant namely Smt. Shanti Bai (deceased) was suffering from some problem in her Uterus, then the complainant and deceased met with Dr. Shikha Mitra regarding ailment of S the deceased. Dr. Shikha Mitra advised the deceased for sonography test and the sonography tests was done by Dr. Shaileja Ghosh on 03.05.2014. On the basis of Sonography Test, Dr. Shikha Mitra treated the deceased through medicines. The deceased got some relief , for a period of about three months, thereafter she again felt the same problem and she approached to O.P. No.1 on 26.09.2004. The O.P. No.1 perused the old medical test reports and treatment papers of the deceased and said to the deceased and her family members that the condition of the deceased is absolutely critical and dangerous too and operation is necessary. After hearing the words of O.P. No.1, the complainant and his wife returned back to their home with absolute shock and fear and they started preparation for the operation as advised by the O.P. No.1. On 28.09.2004, the complainant and deceased came to O.P. No.1 and the deceased was admitted in the hospital and operation was done by the O.P. No.1. The deceased was got admitted till 02.10.2004. At the time of discharge, the O.P. No.1 told that the deceased is now perfectly alright, but the deceased was having problem continuously after conducting operation // 15 // and her condition was deteriorating. The deceased again came to O.P. No. on 08.10.2004 and O.P. No.1 informed the family members of the deceased that the level of infection is very much high and condition of the deceased is beyond his control and referred her Apollo Hositals, Bilaspur. Then the deceased came to know that the O.P. No.1 committed negligence while conducting her operation. The O.P. No.1 committed medical negligence. Due to negligence committed by the O.P. the deceased suffered from Septicemia due to which she died. The death of the deceased occurred due to medical negligence committed by the O.P.No.1, therefore, the complainant filed instant complaint. The learned District Forum has rightly allowed the complaint and awarded compensation to the complaint. The impugned order passed by the District Forum is just and proper and does not suffer from any infirmity, irregularity or illegality. The appeals filed by O.P. No.1 and O.P. No.2 are liable to be dismissed.
13. We have heard learned counsels appearing for both the parties and have also perused the record of the District Forum as well as the impugned order passed by the District Forum.
14. In Pally Srikanth & Ors. Vs. M/s. Krishna Institute of Medical Sciences Ltd. & Ors., 2016 (4) CPR 46 (NC), Hon'ble National Commission has observed that "Onus of proving alleged negligence in treatment of a patient lies with person alleging medical negligence."
// 16 //
15. In Prayag Hospital & Research Center Pvt. Ltd. & Anr. Vs. Vijay Pal, 2016 (2) CPR 2 (NC), Hon'ble National Commission has observed that "complainants must provide materials to prove allegation of medical negligence."
16. In Ashok Kumar Pathak Vs. Dr. Swarnava Roy and Anr. 2017 (1) CPR 251 (NC), Hon'ble National Commission has observed that "Medical Negligence must be proved by expert opinion."
17. Now we shall examine whether the complainant has proved his case that the O.P. No.1 committed medical negligence ?
18. The complainant has filed Death Summary of Smt. Shanti Kesharwani issued by Apollo Hospitals, Bilaspur in which Cause of Death is mentioned as "Post LAVH, intra abdominal sepsis with pancreatitis with multiorgan failure with ARDS. " Against the column of Court in the Hospital, it is mentioned that "Patient Mrs. Shanti Kesharwani was referred to this hospital a case of post LAVH biliary pancreatitis with acute fluid collection with hypothyroidism (LAVH was done outside), Patient's investigations revealed raised TSH, pancreatitis with acute fluid collection. Patient was managed conservatively with antibiotics and has USG guided aspiration done. Dr. K. Dash was referred for hypothyroidism and her advice were being followed. USG guided pigtail drain was placed & the collection was drained as there was recollection. Dr. Amit Verma was referred for placement of pigtail drain in O.T. C/S pus from the drain shows GNB.
// 17 // Dr. P. Banka was referred for white discharge P/V, vaginal vault exploration and thick copius pus drainage, reposition of prolapsed bower and indwelling drainage of vault (dehiscent wound) was done on 20.10.04. She was given antibiotics as per sensitivity. Conservative line was continued in consultation with Surgeon & Gynaecologist. Her abdominal collection lessened as a result of drainage however she developed respiratory distress. On 21st of Oct. which was diagnosed as ARDS. Dr. S. Gupta was referred & ICD was been placed by him. Patient was intubated and ventilated inspite of all measures patient did not improve and deteriorated. On 23rd of Oct. patient developed VT twice and reverted with DC shock. After that she developed bradycardia followed by cardiac arrest, CPR done but could not revived and declared dead at 8:40pm on 23-10-04."
19. In Apollo Hospitals, Bilaspur, Urine Culture and Sensitivity test of the deceased was done. The Report (document 22) is annexed with the record of the case. In the said report it is mentioned that the result of Amikacin, Piperacillin / Tozabactam and Meropenem tests were found Sensitive and the result of rest of the tests were found Resistant.
20. In Apollo Hospitals, Bilaspur, Pus Culture and Sensitive Test of the deceased was done. The Report (document 30) is annexed with the record of the case. In the said report it is mentioned that the result of Ceftizoxime, Meropenem, Piperacillin/Tozabactum test were found Sensitive and the result of rest of the tests were found Resistant.
// 18 //
21. In the Apollo Hospitals, Bilaspur Microbiology test of the deceased was done. The Report (document No.31) is annexed with the record of the record. In the said report it is mentioned that the result of Cefepime test is found Sensitive.
22. In Apollo Hospitals, Bilaspur, Pus Culture and Sensitive Test of the deceased was done. The Report (document 40) is annexed with the record of the case. In the said report it is mentioned that the result of Ceftizoxime and Meropenem test were found Sensitive and the result of rest of the tests were found Resistant.
23. In Apollo Hospital, Bilaspur, the Microbiology test of the deceased was done. The report (document No.41) is annexed with the record of the case, in which against the coloumn of Comments it is mentioned "Resistant to Ceftazidime."
24. Document No.43 is CT Scan report issued by the Apollo Hospital, Bilaspur in which it is mentioned thus:-
"Impression : a) Hypodense non enhancing area involving pancreatic body and tail -? Necrosis.
b) Hypodense non enhancing area in lesser sac
-? Pseudo cyst
c) Ascites."
25. The District Forum called Expert Opinion from Chhattisgarh Institute of Medical Science, Bilaspur. Dr. Sarita Agrawal, Professor and // 19 // Head Of Department, Department of Gynaecology, Dr. K. M. Chaudhary, Associate Professor, Department of Surgery and DR. Meena Armo, Associate Professor, Department of Gynaecology, Chhattisgarh Institute of Medical Science, Bilaspur have gave their opinion which runs thus :-
"la;qDr vfHker izfrosnu& 1- e`frdk dk fnukad 03@05@04 dks lksukxzkQh ds ckn Mk- ,l-fe=k }kjk fd;s x;s chekjh dk bZykt ,oa vukosnd }kjk fd;k x;k 'kY; fdz;k ,d gh chekjh dk bZykt Fkk 2- fnukad 03@05@04 dks e``frdk dk lksuksxzkQh fjiksVZ ds vuqlkj e``frdk ds cPpsnkuh ds eq[k ds xzafFk;kssa esa lqtu ,oa isV ds fupus Hkkx ¼isfYol½ esa ladze.k gksuk crk;k x;k Fkk] lkFk gh xHkkZ'k; ds eq[k esa dsalj dh laHkkouk dks nwj djus gsrq isi Leh;j o dkyiksLdksih tkap djk;h tk ldrh FkhA 3- ih-vkbZ-Mh-¼isfYod buQykesVªh fMlhl½ esa fgLVªsDVkWeh vafre fodYi gks ldrk gSA 4- miyC/k nLrkost ds vk/kkj ij Li"V vfHker nsuk laHko ugha gSA 5- e`frdk dks vkWijs'ku iwoZ fQuhf'k;u }kjk esfMdy fQVusl fn;k x;k Fkk] tks fd i;kZIr Fkk 6- e``frdk dks lksuksxzkQh fjiksVZ ds vk/kkj ij dzksfud lfoZlkbfVl gksuk vkWijs'ku ds iwoZ dh fLFkfr Fkh] vkWijs'ku ds ckn dh ughaA // 20 // 7- fcfy;jh isfdz;kWVkbfVl foFk ,D;wV QywM dysD'ku lkekU; rkSj ij LVAH ls lacaf/kr ugha gSA gkbiksFkk;jksbfMLe vius vki esa ,d chekjh gSA dkj.k gS&
1. Post operative infection leading to Septicemia.
2. Pancreatitis can be due to Gall stone, porphyrias, drug induce & viral infection."
26. According to the complainant, the wife of the complainant, Late Smt. Shanti Bai Kesharwani was suffering from some problem in her uterus. The deceased was earlier taking treatment from Dr. Shikha Mitra and thereafter she came to Hospital of O.P. No.1 on 26.09.2004 and her operation was done by the O.P. No.1. On the basis of old reports of the deceased Smt. Shanti Bai, the operation was conducted by the O.P. No.1 on 28.09.2004 through laparoscopy procedure and specimen of uterus was sent for hystopathological examination which revealed chronic cervicitis.
27. The O.P. No.1 specifically pleaded that the patient was advised by Dr. Shikha Mitra on 03.05.2004 for Hysterectomy after investigation. The patient preferred laparoscopic procedure over open conventional procedure for Hysterectomy. It shows that the O.P. No.1 after perusal of Ultrasonography Report issued by Dr. (Mrs.) Shailaja Ghosh, conducted operation of the deceased and after another Colour Dopler and Sonography was done on 08.10.2004 and Dr. B.K. Nema, gave his // 21 // report that "Uterus is Abscent (Hysterectomy). Dr. C. Mohanty also gave his report that the specimen of uters only was sent by Dr. Y.R. Krishan for examination. After Microscopic Examination, Dr. C. Mohanty, Pathologist gave his opinion to the effect that "Impression :
Chronic Cervicitis". It appears that the O.P. No.1 had rightly diagnosed the disease of Smt. Shannti Bai Kesharwani and O.P. No.1 removed uterus of the deceased. There was no sign of complication at the time of discharge of the deceased. If any complication occurred, it does not amount medical negligence. The O.P. No.1 pleaded that the deceased was immediately referred to higher centre and patient has developed ARDS with multi organ failure. The cause of death of the patient could not be ascertained as autopsy report is not available on the record.
28. In Kailash Malhotra Vs. Centre for Sight (Hospital) and Anr., 2017 (3) CPR 445 (NC), Hon'ble National Commission has observed thus :-
"13....... Similarly, in the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and A.S. Mittal v. State of U.P., AIR 1989 SC 1570, it was laid down certain duties of doctor which are : (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor.
Therefore, based on the settled principles on duty of care and standard of practice from various judgments referred above, I am in agreement with the view taken by the State Commission that, there was no negligence on the part of the OP 2, because the cataract surgery and // 22 // the known complication of PCR was correctly managed by the OP 2 by performing ACIOL. It was the reasonable and standard of care; it was neither an act of omission nor commission. There was neither deficiency in service nor unfair trade practice on the part of the OP-2."
29. According to the Death Summary given by Apollo Hospitals, Bilaspur (C.G.), the cause of death of the deceased is "Post LAVH, intra abdominal sepsis with pancreatitis with multiorgan failure ARDS." It shows that had subsequently suffered Pancreatitis. The complainant has not been able to prove that the Pancreatitis occurred to the deceased, due to operation conducted by the O.P. No.1. In the expert opinion, it is specifically mentioned that "Pancreatitis can be due to Gall stone, porphyrias, drug induce and viral infection. In para 6 it is specifically mentioned that occurrence of Chronic Cervicitis was condition before operation and it was post operative condition. In para 7 it is also mentioned that biliary pancreatitis with acute fluid collection is generally not related to LVAH and Hypothyroidism is an and independent disease and is not related to post-operative complication of Uterus.
30. The complainant has not been able to prove that the O.P. No.1 did not take post-operative care of the deceased and the cause of the death of the deceased was due to the operation done by the O.P. The deceased was suffering from Pancreatitis, which an independent disease. The said disease was not occurred to the deceased due to operation done by the O.P. No.1, therefore, the complainant is utterly // 23 // failed to prove that the O.P. No.1 committed medical negligence while conducting operation of the deceased.
31. Therefore, impugned order dated 03.04.2017, passed by the District Forum, is erroneous and not sustainable in eye of law, hence is liable to be set aside.
32. Hence, the appeal No.FA/2017/385 filed by the O.P. No.2 and appeal No.FA/2017/414 filed by the O.P.No.1, are allowed and the impugned order dated 03.04.2017 , passed by the District Forum, is set aside. Consequently, the complaint filed by the complainant, shall stand dismissed. No order as to the cost of these appeals.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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