State Consumer Disputes Redressal Commission
Narain Devi Bareja vs Dr. O.P. Yadav on 15 February, 2007
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision:15.02.2007 Complaint Case No. C-271/1997 1. Smt. Narain Devi Bareja, Complainants Widow of Late Sh. M.M.Lal Bareja, Through Mr. N. L. Bareja, R/o C-554, Phase I, Sheikh Sarai, Advocate. New Delhi-110017. 2. Vijay Bareja Complainant No.2 S/o Late Sh. M.M. Lal Bareja, R/o C-554, Phase I, Sheikh Sarai, New Delhi-110017. 3. Mrs. Suresh Narang, Complainant No.3 W/o Sh. R.K. Narang, R/o Flat No. 394, Vikas Kunj, Near District Centre, Vikas Puri, New Delhi. 4. Mrs. Kamlesh Verma Complainant No.4 W/o Shri Ashok Verma, R/o L-10, Pravana Vihar, Sector 9, Rohini, Delhi-110085. 5. Mrs. Barkha Behl, Complainant No.5 W/o Shri Rajneesh Behl, R/o A-5B/177, Paschim vihar, New Delhi-110063. Versus 1.Dr. O.P. Yadav, Opposite Party No.1 Cardiac Surgeon, Through Mr. Rohit Kumar, Advocate. 2.Dr. Padmavati, Opposite Party No.2 Director 3. Dr. Vinod Sharma Opposite Party No.3 Consultant in Cardiology. 4. Medical Superintendent, Opposite Party No.4 National heart Institute. Community Centre, East of Kailash, New Delhi-110065. 5. New India Insurance Co. Ltd. Opposite party No.5 Jeevan Bharati Building, Connaught Circus, New Delhi. CORAM : Justice J.D. Kapoor - President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL)
1. Complainant No.1 is the widow, complainant No.2 is the son and complainants No.3 to 5 are the daughters of the deceased Late Shri M.M. Lal Bareja who died on the night of 23/24th Feb., 1996 in OP No.4, National Heart Institute (NHI)
2. The complainants have claimed compensation of Rs.10 lacs on account of the death of Mr. M.M. Lal Bareja due to alleged negligence on the part of doctors, staff and management of OP No.4 National Heart Institute.
3. Facts, giving rise to this complaint, are that Sh. M.M. Lal Bareja suffered from Chest pain during the month of Dec., 1995 and was examined by the Physician Dr. R. Bahal at National Heart Institute on 12.12.95 under clinical Regn. No. R 25351, and advised certain Tests and medicines, diagnosis being CAD inferior MI(OLD).
4. On the night of 26/27th Dec., 1995, Sh.
M.M. Lal Bareja suffered from acute breathlessness and was evacuated to National Heart Institute (NHI) where he was admitted in the Intensive Coronary Care Unit (ICCU) and remained there from 27.12.1995 to 09.01.1996. He underwent number of tests including Angiography and Echocardiography apart from various other clinical/pathological tests. The patient was under the treatment of Dr. Vinod Sharma, Consultant in Cardiography. Dr. Padmawati, Director, NHI also visited the patient at times, for which Rs. 400/- per visit were charged.
5. He was admitted on 07.02.1996 and completed all the formalities prior to undergoing open heart surgery on 08.02.1996, whereby Rs.1,10,000/- as directed by the hospital authorities were deposited towards the package charges. Further a sum of Rs. 38,000/- was deposited towards the cost of one valve, which required replacement. He was operated upon on 08.02.1996 by Dr. O.P. Yadav and his team. Dr. O.P Yadav informed the complainants that the damaged valve which was allegedly required to be replaced was not bad and as such the same was not replaced.
6. It is alleged that since Dr. O.P. Yadav had not got much of expertise and was not specialized in performing open heart surgery involving the replacement of the valve, he performed the operation on the lines of by-pass surgery and started treating/prescribing medicines in line with the normal by-pass surgery patients, which in fact was a gross-negligence on the part of Dr. O.P. Yadav, as after a couple of hours on the same very day, i.e., during the night of 09/10.02.1996, the condition of the patient miserably deteriorated, wherein his B.P. drastically dropped. Again, patients condition deteriorated, wherein he probably got/developed Cardiac arrest sometime during the period from 10.30 to 11.00 a.m. on 10.02.1996.
7. Further that during the operation performed on the patient on 08.02.1996, certain negligence was committed by Dr. O.P. Yadav and his team, as a result of which the patient never came out of sedation and remained in ICCU from 08.02.1996 to 23.02.1996 wherein the patient developed lot of medical complications, whereas the complainants and other close relatives were always being kept in dark by Dr. O.P. Yadav. From the day of the operation on 08.02.1996, till the patient died on the night of 23/24.02.1996, he was mostly put on ventilator/balloon pump during the above said period of 14 days.
8. That deceased suffered from the disease of septicemia, may be probably because of the infected blood transfusion and his condition became worse on 23.02.1996. When the patients brother saw him at about 2115 hrs. on 23.02.1996, he observed that the toes of the right foot of the patient (other portion of the body being covered with the bed sheet), from which probably the veins had been extracted for the operation on 08.02.1996, were absolutely black.
9. That the disease had culminated into Gangrene, may be because of some blockage of some blood clots somewhere in the leg which the doctors attending on the patient had failed to diagnose and that they did not take proper precaution, in administering appropriate medicines for the infection. Ultimately, it resulted into his untimely death due to the gross-negligence on the part of Shri O.P. Yadav and his team of doctors and staff as also due to mismanagement at the NHI.
10. Complainants have sought compensation of Rs.10 Lacs as compensation/damages along with interest @ 18% per annum from the date of filing of this complaint till realization, jointly, severally and vicariously.
11. While denying the allegations of negligence and deficiency in service, the OPs have raised the following defences:-
(I) That totally vague, baseless and wild allegations have been made which, by the tone and tenor, are not only frivolous and vexatious but reckless and defamatory as well. The National Heart Institute is a premier medical institute. Dr. O.P. Yadav has been associated with the said Institute since 1992, and has performed over 1500 open heart surgeries (including almost 150 valve replacement surgeries). Presently, Dr. O.P. Yadav is one of the most eminent Cardiothoracic Surgeons in the country.
(II) That Shri M.N. Lal Bareja was provided the best possible treatment and no effort was spared by the doctors and staff of NHI in his treatment. Shri Bareja was first admitted in NHI on 27-12-1995 as a case of recent Anterior Wall MT, Post MI Angina, LVF (Left Ventricular Failure), Moderate MR and Chronic Bronchitis. He was managed conservatively and on his stablising, was discharged with an advice for surgery.
(III) That investigations had revealed that he was suffering from triple vessel disease and moderate MR. It was in this context that the patient had been advised CABG + MV replacement procedure.
(IV) That the diagnosis of cardiothoracic disease is a complex process involving clinical tools of history taking, physical examination and the use of special investigations.
(V) That the exact status of the valve could be evaluated only at the time of surgery as no physical examination was possible earlier and it was in this context that the patient and his relatives were advised throughout that the patient might have to undrgo CABG + MV repair/replacement.
The patient as well as his relatives were explained the high risk factors associated with such surgery. In fact, at no stage, was it ever categorically advised by the Surgeon that the patient was to undergo damaged valve replacement.
(VI) That the fact that prior to the surgery on 07=01-1996 the patient and his relatives were explained in detail the type of surgery the patient would be undergoing including, the high risk factors and the side effects and complications associated with cardiothoracic surgery. It was also explained that looking at the condition of the heart of Shri M.M. Lal Bareja, it might become necessary to insert an artificial heart support system called IABP. It was only thereafter that the consent for surgical procedures was obtained and the surgical consent form with anaesthesia consent was signed by Col. N.L. Bareja, brother of Shri M.M. Lal Bareja. The exact evaluation of the valve, which till date had been evaluated through echo, could only be possible intraoperatively and it was, at the time of surgery, after a careful evaluation that it was decided that the leak was mild to moderate and valve did not require replacement.
(VII) The fact was also conveyed immediately after the surgery to the relatives of the patient. In fact, the patient came off by-pass surgery with stable haemodynamics.
(VIII) That cardiac surgery is a team work involving Cardiac Surgeon, Physicians, Anesthetists and other para medical staff and each one of the team put in their best efforts in taking care of the patient. The patient was kept under constant monitoring and was provided with the best medical aid possible, as is apparent from the record. Each development of the patient was conveyed to the relatives of the patient. Had the patient and his relatives not been satisfied with the treatment and medical aid given to the patient by the staff of NHI when he was earlier admitted between 27-12-1995 to 10-01-1996, the patient would not have opted for surgery in NHI.
(IX) That Dr. O.P. Yadav advised surgery involving the triple vessel disease and replacement of damaged valve or that it was on that account that Dr. O.P. Yadav advised the patient to give his acceptance and consent for immediate surgery to which the patient gave his consent.
(X) The allegations, to say the least, are totally misleading as on 10-01-1996, during the course of discussion with the patient, the patient was categorically told and advised that he would definitely have to undergo CABG and might have also to undergo MV repair/replacement, which is evaluated only at the time of surgery. He was advised to give consent for immediate surgery. Patient was never advised for urgent surgery by the Senior Consultant Cardialogist, Dr. Vinod Sharma, Respondent No.3 herein. In fact, the advice was to undergo surgery in coming weeks as that is the normal accepted international practice that immediate surgery is only required if the angina/heart failure continues and to delay the surgery to 4 to 6 weeks if the patient is stable. Also acute moderate leak of valve in presence of pulmonary ocdema calls for immediate surgery with valve repair/replacement whereas chronic moderate leak specifically in absence of fluid in the lungs does not call for any intervention so far as valve is concerned.
(XI) That it is worthwhile to point out that the fact that valve replacement in addition to CABG carries a very significantly high risk to life than CABG alone and that replaced valve itself has long term problems, it is only after careful and judicious evaluation that valve replacement is advised, that is when there is no other choice, and in the present case, valve was evaluated preop through echo and it was a moderate leak and not severe and the exact evaluation had been done intraoperatively. In fact, OP No.3 had explained the high risk factors in this surgery in view of recent heart attack, impaired function of the heart as well as leak in the valve.
12. Having culled out the version of the OP in its defence abjuring itself from the charge of medical negligence the learned Counsel for the OP has referred to and relied upon medical literature. This is an article by a team of doctors under the title Treatment of Moderate Mitral Regurgitation and Coronary Disease by Coronary Bypass Alone: Late Results. This article shows and depicts the risk factor and the long-term result of CABG and other treatment. The observations of the team of doctors who are foreign doctors are as under:-
We previously reported on 58 patients with moderate MR and coronary artery disease treated with CABG alone between 1977 and 1983 (9). That cohort has remanded the larges series of its kind in the literature. The hospital mortality rate was 3.4% (n =2) and the initial 5-years survival estimate was 77%, with a mean follow-up 4.3 = 2.3 years. In contrast, 20 patients with moderate MR and coronary artery disease who had combined mitral valve replacement and CABG during a similar time period had a hospital mortality rate of 25% (n = 5), and 5-year survival was limited to approximately 31%. As a result our institution adopted a policy of treating patients with moderate MR and coronary artery disease with CABG alone.
In this study, we evaluated the long-term results of CABG alone for moderate MR and coronary artery disease by updating the follow-up for the original 58 patients. In addition, we compared these results to those of 58 matched patients with coronary artery disease but without evidence of MR preoperatively who also had CABG during the same time period.
13. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still holds the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
14. Bolam test was accepted with approval in the following judgments:-
Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
15. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Ors (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew V/s. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of the Supreme Court are as under:-
(3)A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
16. The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
17. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are:-
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury, which resulted was most likely imminent.
18. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
19. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
I. Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
II.
Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
III.
Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
IV.
Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
V. Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
VI.
Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
VII.
Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
20. In the instant case the doctors who treated the complainant were very highly qualified and skilled in their field and the complainant has failed to produce any material or medical evidence or the literature to show as to the wrong diagnosis by the doctor of the OP. The only grievance of the complainant is that had the risk factor been intimated to be higher than what was told by the doctor on 09.02.1996 consent for the surgery would not have been given. It is the expert in the field who has to decide what kind of medicine is to be administered and no presumption or inference can be drawn as to the medical treatment given by the highly skilled doctors, because of medicine or treatment having not yielded the result.
21. It is also difficult to accept that the patient would not have given the consent for surgery if the risk was explained. If it so for which purchase he had gone there. To imagine then patient or his relative would not given the consent fur surgery, if life of the patient is at risk is highly far-fetched and preposterous plea.
22. Similarly the plea of the complainant that why on 09.02.1996 one medicine was withdrawn completely and dose of other medicine was reduced to 50% has not been confirmed or ratified through medial literature. The complainant is presuming and conjecturing the consequence arising out of the treatment or wrong diagnosis or administration of medicine. As we have observed above, the medical negligence is of several kinds and one of such negligence being experience by the patients almost in every second or third case is lack of post operative care, because we have come across large number of cases where patient suffers because of lack of proper care by the hospitals staff. If the patient suffers due to lack of post operative care or any other deficiency the hospital alone has to compensate the patient.
23. As regards the development of septicemia, learned counsel for the respondent referred to medical literature, which according to him shows that the septicemia is one of the risks involved in the treatment of cardiovascular surgery. Literature also shows that the severe infection occurs hardly in 9.5% in case of valve replaced and 6.8% in case coronary bypass surgery. So far as the bacterial infection after operation is concerned there is risk factor of 12 to 41%. The risk factors for such treatment as per this literature depend upon the age of the person, sex, diabetes mellitus, duration of cardiopulmonary bypass(CPB) duration of operation, amount of blood restored on the day of operation, repeat thoracotomy for bleeding, intraaortic balloon pumping, re-operation, emergency operation and the professional status of the surgeon.
24. In the instant case no such factors were present nor was it a case of such a severe infection, which occurs hardly in 9.5% and 6.8% cases. Thus in our view the OP was negligent in not taking post operative care of the patient as no evidence has been produced to show that the characteristics of the patient, were such that he was within those unfortunate 9.5% and 6.8% cases who suffers severe infection during or after operation. Aforesaid factors are the factor, which determine the percentage of severe infections or bacterial infection.
25. Having come to this conclusion, we find the OP No.4 alone guilty for deficiency in service and award compensation of Rs.50,000/-. Besides this OP No.4 will pay Rs.10,000/- as cost of the proceedings and also refund the amount of Rs.38,000/- received by OP No.4.
26. Payment shall be made within one month from the date of receipt of the order.
27. Complaint is disposed of in aforesaid terms.
13. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
14. Announced on the 15th day of February, 2007 (Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri