State Consumer Disputes Redressal Commission
1. Shri Satyanarayan Agarwala And Ors vs 1. Dr. (Mrs) Alaka Goswami, Ms ( ... on 10 October, 2013
IN THE COURT OF STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ASSAM COMPLAINT PETITION NO. 4 OF 2004 1. Shri Satyanarayan Agarwala S/o Late Sukh Deo Agarwala Vill & P.O. Kothiatuli-782 427 P.S. Kampur, Dist- Nagaon, Assam 2. Miss Nidhi Agarwala D/o Shri Satyanarayan Agarwala Vill & P.O. Kothiatuli-782 427 P.S. Kampur, Dist- Nagaon, Assam 3. Shri Kishan Agarwala S/o Shri Satyanarayan Agarwala Vill & P.O. Kothiatuli-782 427 P.S. Kampur, Dist- Nagaon, Assam 4. Shri Roshan Agarwala ( Monir) Represented by father and natural guardian Shri Satyanarayan Agarwala Vill & P.O. Kothiatuli-782 427 P.S. Kampur, Dist- Nagaon, Assam .Complainants Versus 1. Dr. (Mrs) Alaka Goswami, MS ( Gynaecologist) U.N. Bezbaruah Road, Silpukhuri, Guwahati- 781024 2. M/s East End Nursing Home & Research Institute Represented by Proprietor-cum-Managing Director Dr. D.P. Goswami, G.N.B. Road, Bamunimaidan Guwahati- 781021 3. Dr. Rajib Lochan Sharma, MD ( Gynaecologist) Akashi Path, Zoo Road, Guwahati-781024 4. Dr. Biswa Dev Goswami, MS, D.A. ( Anaesthetist) A.T. Road, In front of P & T Colony Bharalumukh, Guwahati- 781009 Contd. 5. Dr. Bonojit Chuodhury, MD ( Consultant Cardiologist) C/o International Hospital, Lotus Tower G.S. Road, Guwahati- 781005 6. Dr. Devi Prasad Goswami, MS ( General Surgeon) C/o East End Nursing Home & Research Institute G.N. B. Road, Bamunimaidan, Guwahati- 781021 7. Dr. Ujjal Chakravarty, MS ( General Surgeon) C/o East End Nursing Home & Research Institute G.N. B. Road, Bamunimaidan, Guwahati- 781021 Opposite Parties. For the Complainants : Mr. O.P. Kejriwal, Advocate Mr. M. Talukdar, Advocate For the Opposite Parties : Mr. A.K. Bhattacharjee, Sr. Advocate Mr. A.K. Choudhury, Advocate Date of Hearing : 5-1-2013, 2-2-2013 & 4-2-2013 Date of Judgement : 10-10-2013 B E F O R E THE HONBLE PRESIDENT MR. JUSTICE A. POTSANGBAM. THE HONBLE MEMBER MR. M.K. BAROOAH. Contd. J U D G E M E N T
BY JUSTICE A. POTSANGBAM, Heard Mr. O.P. Kejriwal, learned counsel, appearing for the Complainant, assisted by Mr. M.Talukdar, advocate. Also heard Mr. A.K. Bhattacharjee, learned Sr. counsel, appearing for the opposite parties, assisted by Mr. A.K. Choudhury, advocate. The case has been heard on a number of days.
2. By an order dated 15-6-2004 passed by the commission, written versions submitted by opposite parties in the form of affidavit were ordered to be treated as evidence-in-chief and also the complaint petition filed by the complainants with the support of an affidavit was also ordered to be treated as evidence-in-chief. After an order passed on 1-10-04 fixing 3-1-2005 for recording evidence, the case was not put up for about 8 years till the same was listed on 25-5-2012 and on that day, the complainant was directed to take step for service upon the opposite parties informing them about the pendency of the complaint. It may be pertinent to mention that the record of the complaint case which was handed over to the learned Advocate Commissioner for recording evidence of the parties, was returned only on 11-11-2008, therefore, the case could not be listed between 1-10-2004 to 11-11-2008, for want of record. After resignation of the immediate former President on 3-3-2006, the Commission remained without a President till 28-7-2011. This is how some unavoidable delay has occurred in disposing the complaint.
Case of the complainants
3. This complaint filed under Section 17(a)(i) of Consumer Protection Act, 1986, relates to sudden and unexpected death of Mrs. Maya Agarwala on 9.06.2003, on the operating table of the operation theatre, while being operated upon by Dr. Mrs. Alaka Goswami (opposite party No. 1), a renown Gynaecologist of Guwahati, (former professor and Head of Department of Obstetrics & Gynaecology, Gauhati Medical College) with the assistance of a panel of doctors consisting of opposite parties No. 3, 4, 5, 6 and 7, at M/S East End Nursing Home Contd..
and Research Centre (opposite party no 2). The complaint also alleged of gross medical negligence, professional misconduct and deficiency of service resulting to the death of late Mrs. Maya Agarwala. The complainant No. 1 being the husband of late Mrs. Maya Agarwala and complainant Nos. 2, 3 and 4 being the daughter and sons of the deceased, filed this complaint as legal heirs and successors claiming compensation for a sum of Rs. 22,87,400/- (Rupees twenty two lakhs eighty seven thousand and four hundred) from the opposite parties. The opposite party No. 1 i.e. Dr. Mrs. Alaka Goswami, is a senior and renown Gynaecologist and opposite party No. 2 i.e. M/S East End Nursing Home and Research Centre, Guwahati, is a private Hospital and opposite parties No. 3, 4, 5, 6 and 7 are doctors who professed to be experts in their respective fields.
4. On 22.05.2003 Mrs. Maya Agarwala, since deceased, then only 42 years, consulted Dr. Mrs. Alaka Goswami, the opposite party No. 1, in her chamber at International Hospital, Guwahati, under registration No. 015698, for complaint of heavy menstruation. Dr. Mrs. Alaka Goswami clinically diagnosed the problem of Mrs. Maya Agarwala as a case of Fibromyoma Uterus with Menorrhagia. After recording blood pressure of Mrs. Maya Agarwala at 130/80, the opposite party No. 1 prescribed some medicines and advised Mrs. Maya Agarwala for a number of pathological tests, investigations including sonography and ultrasound of whole abdomen. A copy of the registration card of the International Hospital, Guwahati, containing clinical diagnosis, blood pressure, prescription of medicines and advice are proved as Exhibit No. C (Colly).
5. On 06.06.2003, Mrs. Maya Agarwala, on her second visit, showed the reports of advised pathological tests to the opposite party No.1, which are as follows :
(i) Urine :- NAD (No abnormality detected)
(ii) Haemoglobin :- HP 9.4 gms
(iii) Blood Glucose :- Fasting 87 mgs and P.P. 142 mgs.
After confirming the aforesaid pathological test results, Dr. Mrs. Alaska Goswami advised Mrs. Maya Agarwala for admission 08.06.2003 at M/S East End Contd.
Nursing Home and Research Centre i.e. opposite party No. 2, for performing Laparatomy on 09.06.2003. The opposite party No. 1 also directed Ms. Maya 0Agarwala to arrange three blood donors for the operation with further advice for investigation and tests, viz, Blood : Urea, Cretinin, SGOT, SGPT, B.T., C.T. , Platelet Count, VRDL, HIV, HBB Ag. (Hepatitis B Surface Antigon) including X-Ray Chest and ECG & Cardiological Opinion. The advice note and prescription of Dr. Mrs A. Goswami dated 6-6-2003 for further investigation, proved and exhibited as Exhibit No. D, is reproduced here-in-below :
Mrs. Maya Agarwalla B+ve 06.06.2003 P3 + 0 BP 130/80 Urine NAD HB 9.4 gm Blood glucose Fasting 87 mg PP 142 mg Diag.
Fibromyoma Uterus Menorrhagia For investigation For Laparatomy Blood FOR On 09.06.2003 Urea, Creatinin, SGOT, SGPT, BT, CT, Platelet Count, VDRL, HIV, HBS AG Sd.
Dr. A. Goswami Date. 06.06.2003 3 Blood donors to be arranged X-Ray Chest, ECG & Cardiological Opinion Sd. Dr. A. Goswami Date. 06.06.2003
6. As per professional advice of Dr. Mrs. Alaka Goswami, Mrs. Maya Agarwala consulted Dr. Bonojit Choudhury, MD. (Consultant Cardiologist) i.e. opposite party No. 5, on 08.6.2003 for the proposed surgery on 09.06.2003. Dr. Bonojit Choudhury, MD (Consultant Cardiologist) gave cardiological clearance for the proposed operation with some observations which was proved as Exhibit No. (E) and the same is reproduced hereinbelow :
Contd Mrs. Maya Agarwala 8-6-2003 Adv :
Echo Normal Study Good LV Function For Hysterectomy No H/O HTN (Occasional borderline HTN)/ DM (RBS 140) Dr. Bonojit Choudhury Dated 08.06.2003 ECG/E-Ray
--- Stated to be normal No CVS contra indication for surgery Sd.
Dr. Bonojit Choudury Dated 08.06.2003
7. As advised by the opposite party No. 1, ultrasonogram for whole abdomen of Mrs. Maya Agarwala was done. As per the report of sonologist dated 06.06.2003, Liver, Pancreas, Kidneys (both structural and functional), Urinary Bladder were found normal and left venticular function was also found normal. Further, in the report of the radiologist dated 07.06.2003 as well as the pathologists report dated 06.06.2003 for urine culture and sensitivity, everything was found normal. The report of X-Ray and ECG were also found normal and finding every important organ of late Mrs. Maya Agarwala as normal and good and also considering the cardiological clearance for operation given by opposite party No. 5, Dr. Mrs. Alaka Goswami reaffirmed that said Mrs. Maya Agarwala was totally and fully fit for surgery, having no complicacy, whatsoever, and she would undergo the planned surgery on 09.06.2003 as was advised earlier. It is also averred that despite demand and request by the complainant, the report of other advised tests and investigations including X-Ray Plate, Bed Ticket and details of medicines given to the deceased by the opposite parties were not returned to the complainant.
8. As advised by the opposite party No. 1, Mrs. Maya Agarwala got herself admitted at the suggested Nursing Home i.e. opposite party No. 2, on 08.06.2003, as an indoor patient under registration No. 940/03, Bed No. 14. A copy of the bill No. D/1205 dated 09.06.2003 issued and confirmed by the opposite party No. 2 had already been placed on record as Exhibit No. C/4. On 09.06.2003 at about Contd 8.00 am, Mrs. Maya Agarwala walked into the operation theatre without the help and support of any other person and the opposite party No. 1, being assisted by opposite parties No. 3, 4, 5, 6 and 7, proceeded with the surgery. At about 11.30 am, the complaints were informed that although the surgery (Total Abdominal Hysterectomy with bilateral salpingo oophorectomy) was performed smoothly, Uterus along the Fallopian Tubes, Ovaries and Cervix were removed and due to development of complicacy, condition of Mrs. Maya Agarwala had suddenly become serious. The complaint(s) reportedly pleaded/requested the opposite parties either to shift the patient to ICU of some better equipped Hospital or to call any other specialists and to do everything to save the precious life of the patient. The patient i.e. Mrs. Maya Agarwala died on the operating table itself at about 1.30 pm and thereafter, the opposite party No. 1 along with other opposite parties declared that the said Mrs. Maya Agarwala died of Pulmonary Oedema and Acute Renal Failure. A copy of the death certificate issued by the opposite party No. 2 was proved and exhibited as Exhibit No. F.
9. The complainants being shocked and astonished at such sudden, unexpected and unnatural death of a 42 years old woman, otherwise healthy and physically fit, under suspicious circumstances, demanded of the opposite parties to conduct post mortem on the dead body of the deceased in order to ascertain the actual cause of death. The request was not acceded.
Instead, the complainants were persuaded by the opposite parties to take the dead body with an ulterior motive to cause disappearance of evidence and proof of misdeed once the dead body was cremated at their ancestral place at Kampur. The distance between Guwahati and Kampur is about 140 kilometers and it takes about two and half hours from Gauhati to Kampur by a good conditioned car/vehicle. The dead body was handed over to the complainants without any discharge certificate, reports of tests and investigations, details of treatment and medicines given to the patient. On the next morning, when the dead body was being bathed for funeral, the attending ladies namely Smt. Usha More and Smt. Ratni Devi Jajodia, to their shock and dismay , noticed that no stitches were found on the incision part where the surgery was performed and the incision was simply closed by inserting cotton covered with adhesive taps. The dead body swelled and turned extremely black. The complainants reported the Contd.
matter to the Officer in-charge of Kothaiatuli Out-Post under Kampur Police Station, District Nagaon for inquiry and investigation and GD entry No. 158 was recorded on 10-6-2003 but no further investigation was made by the police for reasons unexplained to the complainants. Local journalist having smelt some foul play in the death of Ms. Maya Agarwalla in mysterious circumstances, published the news of the death in the local newspapers viz, Purvanchal Prahari, Kolongear, the North East Times, the Sentinel (English) the publications were annexed in the complaint as Annexure, A/C-7.
10. It is the case of the complainants that they were never informed at any stage, prior to operation or during the operation, that there would be an operation for total Abdominal hysterectomy with bilateral salpingo oophorectomy nor were they ever informed that the ovaries with fallopian tubes and cervix of the patient would be removed. Two consent forms were obtained from the deceased with the complainant no. 1 as witness on 8-6-03 and they were exhibited as Exhibit- A & B. Exhibit B is reproduced here-in-below:-
East-End Nursing Home Consent for Operation Date: 8-6-2003 Exhibit-B I hereby give my full consent for my .self(.blank ) operation under any Anaesthesia. The Surgeon Anesthetist or any other Hospital staff will not be responsible if anything untowards happens.
Witness:1
Signature of Patient/Guardian Another consent styled as Patient Consent Form for Operation and Procedure and alternative was obtained in a printed format by the opposite party nos. 1 and 4 from the deceased on 8-6-2003 wherein additional procedure was said to have been consented to and the relevant portion of the consent is reproduced here-in-below.
Exhibit-A International Hospital Patient Consent Form Date:8-6-2003 Contd Operation or procedure alternatives:
I . Maya Agarwal.. patient or (guardian) authorised Dr. A. Goswami.to perform the operation or procedure. Abdominal Hysterectomy.also give my consent for such operation/procedure which may be found necessary during the course of operation.
It is the further case of the complainant that medical prescription/advice dated 6-6-2003 given by the opposite party no. 1, reproduced in para 5 (Supra), is for performing Laparotomy. In the cardiological clearance given by Dr. Bonojit Choudhury i.e. opposite party no. 5, ( Consultant Cardiologist) dated 8-6-03, it is observed that the clearance was for Hysterectomy. Again in Exhibit- B as quoted above, the name and nature of the operation/treatment is not mentioned. In Exhibit A as reproduced above, the operation was meant for Abdominal Hysterectomy.
11. It is also the case of the complainant that no informed consent was obtained from the deceased for operation of Bilateral Salpingo Oophorectomy, in short BSO, at any stage, which led to removal of the healthy ovaries, fallopian tube and cervix, important and vital reproductive organs. Nowhere, in any of the treatment papers of the deceased, it was recorded that there was necessity for removal of the ovaries, fallopian tube and cervix nor was it the case of the opposite parties that the ovaries suffered from any lesion and the same was capable of developing malignancy and that there was no biopsy nor any biopsy report of the ovary being malignant, therefore, the removal of important organ like ovaries, was unauthorized and was an invasion to the body of the deceased. In order to understand as to how the patient was declared dead of Pulmonary Oedema and Acute Renal Failure and also to ascertain the names of the doctors participated in the operation, a letter dated 12-6-2003( Annexure-C 8) was submitted to the opposite party no. 1 and 2 by the counsel of the complainant and in reply dated 4-7-2003 ( Annexure-C 9) to the aforesaid letter, advocate for the opposite parties furnished the names of the doctors who were present in the operation theater, assisting the opposite party no. 1 during the operation and they are as follows:
1.
Dr. (Mrs) Alaka Goswami, MS ( Gynaecologist), O.P No. 1
2. Dr. Rajib Lochan Sharma, MD (Gynaecologist), O.P. No. 3 Contd.
3. Dr. Biswa Dev Goswami, M.S. D.A., ( Anaesthetist), O.P. No. 4
4. Dr. Bonojit Choudhury, MD ( Consultant Cardiologist), O.P. No. 5
5. DR. Devi Prasad Goswami, M.S. ( General Surgeon ), O.P.No. 6
6. Dr. Ujjal Chakraborty, M.S. ( General Surgeon ), O.P. No. 7
12. By another letter dated 20-10-2003, the complainants demanded compensation for payment of a sum of Rs. 15 lacs with Rs. 2500/- as cost of the proceeding. It was also contended in the complaint that late Maya Agarwalla who was an income tax payee, during her life time, was earning an income of Rs. 80,000/- per annum and she was expected to earn an enhanced income of Rs. 108500/- per annum upto the age of 60 years, therefore, total income which would have been earned by late Maya Agarwall would be around Rs. 19,53,000/- upto the age of 60 years, had she not died. The claim is supported by income tax papers. Another sum of Rs. 7,00,000/- was also demanded for mental agony, pain, hardship and perpetual gloom suffered by the complainants as the complainants have lost the bliss of companionship and opportunity to share life with late Maya Agarwalla whose death was caused due to gross negligence on the part of the opposite parties.
13. In considering the sequence of events, death of Ms. Maya Agarwalla taking place in the operation theater without any knowledge of the complainants, unconvincing and irrational explanations of the opposite parties, it is submitted by the complainants that it is a fit case where the doctrine of Res-Ipsa -Loquitur is applicable and as such, the complainants pray for allowing the complaint by granting the relief(s) prayed in the complaint.
Case of the Opposite Parties
14. The opposite parties, seven in number, filed their written versions in the form of affidavit and their broad defence versions are of total denial. Opposite party no. 6 being the proprietor and representative of opposite party no. 2, a combined affidavit was filed on behalf of opposite party nos. 2 and 6. Opposite party no. 3 and 7 being junior assistants, there being no specific role played by or duty assigned to them in the pre-operation stage or during operation, their evidence are not much of value in the case at hand. These two opposite parties were arrayed as parties in the case because their names were disclosed by the advocate of the Contd opposite parties in their letter dated 4-7-2003 as doctors who were present in the Operation Theatre during the operation. Contents of all the written versions are more or less the same though separate explanations have been given by the respective opposite parties for the role and duty performed by them at the pre-operation stage, during and post-operation of late Maya Agarwala.
15. In all the written versions, consultations, clinical diagnosis, cardio- logical clearance, medicines prescribed pathological and radiological tests, sonogram and other connected test, advice given by the opposite party nos. 1 and 5 and admission at the hospital for operation etc, which have been elaborately discussed in the preceding paragraphs, are not denied by any of the opposite parties.
16. Admittedly, Dr.(Mrs) Alaka Goswami, a Sr. Consultant, is a private practitioner, after her retirement as Head of the Department of Obstetric & Gynaecology of Gauhati Medical College and Hospital. Her time and practice is divided between/amongst International Hospital, Dr. K.C. Das Nursing Home, East-End Nursing Home, Kuntal Goswami Child and Mother Care and a Chamber at home for treatment and she also used to attend to other hospitals other than the hospitals mentioned above from time to time, on call and request. Dr. Alaka Gowsami has stated in her written version that the case of the deceased patient had been diagnosed clinically as Fibromyoma Uterus with Menorrhegia. After having undergone all the tests advised by the opposite party no. 1 and on finding that late Maya Agarwala was found fit for operation, the deceased patient was advised for admission at the opposite party no. 2 for an operation on 9-6-2003.The opposite party no. 1 had also contended that she had consulted with the patient and her relatives regarding her disease and necessity of surgical removal of uterus and fallopian tube (Total Abdominal Hysterectomy with Bilateral Salpingo Oophorectomy). It was further contended that the attendants of the patient were also informed in details about the risk associated with the surgical procedure and necessary consent was also obtained prior to the operation. Payment of charges of Rs 11,634/- was denied and she asserted that Surgeon, Assistant, Anaesthetist, Cardiologist and other Doctors did not charge any fees for and in connection with the operation. In the operation, uterus, fallopian tubes, ovaries and cervix of the deceased were removed successfully and thereafter the patient suddenly developed Contd severe pulmonary oedema followed by shut down of renal function and that shifting of the patient to an ICU of other hospital was not considered. The opposite party also asserted that the dead body was handed over to the complainants on their request, therefore, they could not inform the police for conducting post mortem on the dead body. It is also further asserted that handing over of the hospital record was not mandatory unless asked for by any authority like police or court of law etc. The opposite party no. 1 has also stated that mishap during the operation can not be said to be a deficiency on the part of the doctors and it was an Act of God and all the doctors were qualified professionals with specialized knowledge and degrees in their respective fields and as such, they can not be called as incompetent. In para 13 of the written version, the opposite party no. 1 has stated that biopsy of the removed organs were conducted in a routine procedure and in the instant case, Histopathology report was with the deponent but the complainants did not come to collect it. She also justified removal of uterus and fallopian tubes as such removal was essential for treatment of Fibromyoma Uterus with Menorrhagia and further stated that there was no loss of much blood during the operation and as such, it is not a case where Res-Ipsa-Loquitur is applicable. There was no justification or explanation at all for removal of ovary and cervix leave alone any whisper in this regard and the rest are general denial.
17. In the written version of the opposite party no. 5, Dr. Bonojit Choudhury ( Consultant Cardiologist), it was stated that he did not charge any fee and he submitted that the Operation Theatre was well equipped with Boyles Apparatus with mechanical ventilation, ECG monitor cum defibrillator, pulseoxymeter etc. With regard to the post mortem of the dead body, the same statement given by the opposite party no. 1 was reiterated and he had affirmatively asserted that the cause of death given in the death certificate was not wrong. The opposite party no. 5 also claimed that he and other doctors were well qualified medical professionals having specialized knowledge and degrees in their respective fields, therefore, they could not be termed as incompetent. The opposite party no. 5 who is an MD has not disclosed about acquiring any specialised knowledge and degree in Cardiology and he has also not explained as to how he had recorded in the advice slip, the proposed surgery as one for Hysterectomy.
18. The opposite party no. 4 ( Anaesthetist) had also given affidavit wherein Contd almost all the statements given by the opposite party no. 1 were reiterated and he claimed that the patient was kept under continuous ECG monitoring by the Cardiologist and the operation theatre was well equipped. He also stated that he had monitored the operation of the patient and after developing pulmonary oedema, an intravenous lasix injection was administered as no urine was coming out through urinary catheter and as a result the condition of the patient became deteriorated. On behalf of the opposite party no. 2 and 6, an affidavit was given by Dr. Debi Prasad Goswami in his personal capacity as well as representative of East End Nursing Home, wherein almost all the statements given by the opposite party no. 1 have been reiterated. No new facts have been added. However, as already discussed above, the opposite party no. 3 and 7 are least concerned with the operation in question though they have given their affidavits by reiterating the statements given by the other opposite parties but their statements are of no consequence as they hardly had any role to play in the case. The opposite parties have prayed for dismissal of the complaint on the ground that there was no negligence on the part of any of the opposite parties in the case.
Rejoinder on behalf of the complainants to the versions of the opposite party no. 1 to 7
19. In the rejoinder affidavit, the complainants denied and disputed all the assertions made and averred by the opposite parties in their respective written versions. With regard to the assertion made by the opposite party no. 1 in her affidavit that she discussed with the patient and her relatives regarding the disease and necessity of surgical removal of uterus and fallopian tube and that the patient and her relatives were informed about the risk involved in the surgical procedure, the complainants denied and controverted the same as a blatant lie in as much as the opposite party had never discussed the above with the patient or her relatives at any point of time as claimed by the opposite party no.1. The complainants re-asserted that what had been given to them was the X-Ray report, not the X-Ray plate, therefore, the alleged handing over of the X-Ray report along with the X-Ray plate was an incorrect and rank lie. The complainants further reasserted that a sum of Rs. 11,634/- was recovered from them by the hospital, which included, amongst Contd.
others, bed charges, lab charges, cost of medicine, operating doctors and assistants fees etc.
20. The complainants have also denied the versions of the opposite parties that the dead body of late Maya Agarwala was handed over to them on their request, instead, it was persuaded by the opposite parties to take the dead body for the last rites so as to avoid delay and avoidable hassles and further asserted that handing over of the dead body without ascertaining the real cause of death had purposefully by-passed and overlooked the criteria and necessity for holding Autopsy as prescribed in Medical Texts, Gradwohls Legal Medicine, 3rd Edn.
21. Consultation with Nephrologist over telephone without furnishing the name of the Nephrologist , is denied as a cooked-up story and a blatant lie. All other assertions made in the written versions of the opposite parties are also denied and disputed.
Analysis
22. On behalf of the opposite parties, eight P.Ws including the complainant nos. 1,3 and 4 have filed their evidence on affidavit and they were subjected to cross-examination by the opposite parties. On behalf of the opposite parties, six written versions have been filed and one of them is a combined version of opposite party nos. 2 and 6. The opposite party nos. 1,2,4,5 and 6 were subjected to cross-examination whereas opposite party nos. 3 and 7 were not cross-examined as they had no specific role or duty to be performed in the operation in question and they were simply assistants who were present in the operation theatre at the time of operation and they have been made parties in the case as per disclosure made by the counsel of the opposite parties in their letter dated 4-7-03. The parties in the case have filed their respective written arguments with citation of case laws and medical texts.
23. Main argument of the complainants were focused on the consent, its legality or otherwise, non-holding of Autopsy/Post Mortem to find out the real cause of death, failure of the Anaesthetist to maintain the required monitoring during operation, application of Res-Ipsa-Loquitur, ill equipped Nursing Home, burden of proof and compensation etc. For the defence of the opposite parties, it Contd.
was argued that the patient developed Pulmonary Oedema and Acute Renal Failure after the operation, Autopsy/Post Mortem could not be done due to refusal of the complainants, biopsy of the removed organs of the deceased patient were done, resuscitative measures were taken up and the same was brought to the notice of the complainant, all connected reports were handed over to the complainants, free services were rendered in the operation of the deceased patient, no deviation from the usual and normal practice and Myomactomy or Conservative treatment not done before Hysterectomy, removal of ovaries and fallopian tubes were necessitated to avoid ovarian malignancy and the treatment rendered and surgery performed by the opposite parties are acceptable in Medical Science throughout the Hospitals where such operations were held and the hospital was well equipped with all the facilities required for such an operation.
24. In the light of the documents available on record, evidence adduced by the parties and also the arguments advanced by the learned counsels appearing for the parties, the Commission is to examine as to whether there was medical negligence amounting to deficiency of service on the part of the opposite parties and in order to determine the above, the following points are formulated:
(i) Whether the complaint is maintainable in view of the allegation that the operation was performed by the opposite parties on 9-6-2003 without any fee or charge ?
(ii) Whether the consent obtained by the opposite parties from the deceased patient was an informed and valid consent, as required by law, or not ?
(iii) Whether the operation performed by the opposite parties on 9-6-2003, was for Laparotomy, or Hysterectomy, or Abdominal Hysterectomy, or total Hysterectomy with Bilateral Salpingo Oophorectomy ?
(iv) Whether removal of uterus, fallopian tubes, ovaries and cervix resulting in the death of the deceased patient, was an unauthorized trespass or invasion to the body of the deceased amounting to deficiency of service ?
(v) Whether Dr. Bonojit Choudhury, Consultant Cardiologist, was a qualified or competent Cardiologist to give cardiological clearance and give advice for Hysterectomy operation ?
Contd
(vi) Whether failure to produce the monitoring note by the Anaesthetist is deficiency of service or not ?
(vii) Whether Autopsy/Post Mortem is a must to ascertain the cause of death of the deceased who died suddenly on the operating table of the operation theatre without the knowledge of the complainants ?
(viii) Whether doctrine of RES-IPSA-LOQUITUR is applicable in the facts and circumstances of the case ?
(ix) Burden of proof, ill-equipment of the Nursing Home in question, and other ancillary issues.
Point No. (i)
25. Indisputably, the East End Nursing Home & Research Institute at Guwahati, the opposite party no. 2, which is owned by the opposite party no. 6 as proprietor, is a private Nursing Home where fees are charged for consultation, diagnosis and treatment. For indoor patient, one has to pay charges for bed, laboratory, cost of medicines, fees for the operating doctors and the assistants. It is a normal practice everywhere that in the case of operation done in a private hospital, fees for operation as well as doctors fees are raised by the hospital for recovery from the patient at the time of discharge. In the instant case, the patient died in the operation and that may be the reason for the hospital not to raise the final bill. The complainants all along maintained that a sum of Rs. 11,634/- was recovered from them by the hospital in connection with the operation of late Maya Agarwalla. Though this payment was denied by the other opposite parties, opposite party no. 6 has admitted in his evidence-in-chief that a sum of Rs. 5204/- was paid by the complainant while being admitted in the hospital for the operation. The Consultant Cardiologist, (Opposite Party No. 5) though denied in his in-chief to have received any fee, has admitted in his cross-examination that he charged fee on 8-6-03 from the deceased patient in connection with examination and test conducted by him. In view of the above factual position, it is proved and established that the opposite party no. 2, a private hospital, charged fees for treatment, operation and stay in the hospital. Question raised in connection with this issue have been discussed broadly by the Apex Court in Indian Medical Association Vs V.P. Shantha and Ors. Reported in III (1995) CPJ 1 SC, where the Contd.
Apex Court, while defining the term service, has held as follows:
The service rendered free of charge to patients by doctors/hospitals whether non-Government or Government, who render free service to poor patients but charge fees for services rendered to other patients would, even though it is free, not be excluded from definition of service in Section 2(1)(O). the Act seeks to protect the interest of consumers as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who can not so afford, though they are the people who need the protection more. It is difficult to conceive that the Legislature intended to achieve such result.
26. Thus, the argument of the opposite parties that as the doctors, who were involved in the operation of the deceased, did not charge any fee for the operation and as such the complaint was not maintainable, is not acceptable and this point is squarely governed by the parameters laid down by the Apex Court in para 56 of the aforesaid judgment. Accordingly, this argument is rejected.
Point Nos. (ii) , (iii) & (iv)
27. Point Nos. (ii) , (iii) & (iv) are taken up together as they are co-related. Relevant dates and events for better appreciation of the issue Nos. (ii) , (iii) & (iv) are stated below:
22-5-2003:
Late Maya Agarwalla consulted Dr. Alaka Goswami, the opposite party no. 1, who diagnosed the problem of the deceased as one of Fibromyoma Uterus with Menorrhagia and advised for few tests.
6-6-2003:
Result of the advised tests, both pathological and investigations, were shown to the opposite party no. 1 who advised the deceased for admission in the hospital for Laparatomy on 9-6-2003.
8-6-2003: Dr. Bonojit Choudhury, Consultant Cardiologist, after conducting all the advised tests, gave his cardiological clearance by observing in his advice note that the proposed operation as one for Hysterectomy.
8-6-2003:
The deceased was admitted in the hospital, consent for Contd operation (Exhibit-B) was obtained for an unnamed and unspecified operation under anaesthesia. Another consent (Exhibit-A) for Abdominal Hysterectomy was also obtained for operation and procedure alternative.
9-6-2003:
Operation for Total Abdominal Hysterectomy with Bilataeral Salpingo Oophorectomy was performed on late Maya Agarwalla and in the operation, uterus, fallopian tubes, ovaries and cervix were removed. Operation started at 8.30 a.m. and at about 10.00 a.m. Hysterectomy operation was completed (as per the statement of D.W. No. 2).
At 10.10 a.m. complication developed and at 1.30 p.m. the patient was declared dead of Pulmonary Oedema and Acute Renal Failure.
28. At this stage, it is to be observed that nowhere in any of the written versions filed by the opposite parties, it was explained as to how the operation initially planned and proposed for Laparotomy was changed to Hysterectomy on the advice of the Consultant Cardiologist nor was there any explanation as to how Abdominal Hysterectomy ( As per consent marked Exbt-A) was changed and converted to an operation of Total Abdominal Hysterectomy with Bilateral Salpingo Oophorectomy by which process, the important organs of the deceased i.e. uterus, fallopian tubes, , ovaries and cervix were removed resulting into the death of the patient. This was totally contrary to and beyond the domain of the so- called consent obtained from the deceased (Exbt-A & B). No record was produced by the hospital nor by the doctors involved in the operation to demonstrate and establish that there was necessity to change the nature of the operation from Laparotomy to Hysterectomy and from Abdominal Hysterectomy to Total Abdominal Hysterectomy with Bilateral Salpingo Oophorectomy. Neither there was any noting in any of the treatment papers to show and substantiate that ovary of the deceased was found suffering from lesion, capable of developing ovarian malignancy. The above factual positions are not in dispute.
29. Now, we will proceed to consider as to whether an informed or a valid consent was obtained from the deceased for the operation of Total Abdominal Hysterectomy with Bilateral Salpingo Oophorectomy or not . Concept of consent, one developed in U.K. known as Real Consent and another developed in America Contd known as Informed Consent, has been the subject matter of discussion in a number of cases coming up before the Apex Court as well as before the National Commission. In a case reported in AIR 2008 SCC 1385 ( Samir Kohli Vs Prabha Manchanda & Anr), the Apex Court has considered the concept of Informed Consent developed in America which is widely followed in this country and also the concept of the kind of Additional Procedure carried out by the doctors, outside the consent. Observation of the Apex Court in the case (Supra) with regard to Informed Consent is quoted below.
Informed consent is defined in Tabers Cyclopaedic Medical Dictionary thus:
Consent that is given by a person after receipt of the following information: the nature and purpose of the proposed procedure or treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also includes are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful.
In Canterbury v. Spence, 1972[464] Federal Reporter 2d. 772, the United States Courts of appeals. District of Columbia Circuit, emphasized the element of Doctors duty in informed consent thus:
It is well established that the physician must seek and secure his patients consent before commencing an operation or other course of treatment. It is also clear that the consent, to be efficacious, must be free from imposition upon the patient. It is the settled rule that therapy not authorised by the patient may amount to a tort a common law battery by the physician. And it is evident that it is normally impossible to obtain a consent worthy of the name unless the physician first elucidates the options and the perils for the patients edification. Thus the physician has long borne a duty. On pain of liability for unauthorised treatment to make adequate disclosure to the patient.
]
30. After discussing various aspects of the matter relating to consent, the Apex Court in para 32 of the Judgment of the case cited above, summarized the principle relating to consent and the same is reproduced here-in-below:
(i) A doctor has to seek and secure the consent of the patient before commencing a treatment (the term treatment includes surgery Contd also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competent to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The adequate information to be furnished by the doctor (or a member of his term) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment.
But there is no need to explain remote or theoretical risks involves, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorised additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorised, as necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorised procedure until patient regains consciousness and takes a decision.
(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.
(v)The nature and extent of information to be furnished by the doctor to Contd the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment.
31. A case similar to the nature of the instant case, arose for consideration before the National Commission in III (2007) CPJ 189 (NC) ( Saroj Chandhoke Vs Ganga Ram Hospital & Anr) where the consent given for operation was for Hysterectomy, ovaries and left kidney of the patient were removed and one of the questions formulated by the National Commission in para 3 runs as follows:
(ii) Secondly, whether the Doctor was justified in removing healthy ovaries while performing the operation for hysterectomy, that too, without the consent of the complainant?
In answer to the aforesaid point formulated by the National Commission, the National Commission held that complete information with regard to surgery, is required to be given to the patient and the relevant para 25 is reproduced here-in-below:
25. These days, complete information with regard to surgery is required to be given to the patient so that the patient becomes aware of the procedure which is sought to be followed by the Surgeon.
It should not be presumed that a patient may not/need not know the procedure or is incapable of understanding the medical terms and, therefore, there is no use in explaining them. There cannot be a presumption that all patients are ignorant about their anatomy or the adverse effects or benefits of surgery, and, in any case, those days are over. Hence, properly informed written consent before operation is the necessity.
Further, in para 43, the National Commission held that Bilateral Salpingo Oophorectomy, being a separate surgical procedure, it should be specifically and separately mentioned by the doctors, and also requires specific consent of the patient. The relevant para is quoted below:
43. Fourthly, it has been pointed out that, in medical literature, for BSO, i.e. Bilateral Salpingo Oophorectomy, it being a separate surgical procedure, it should be specifically and separately mentioned by the doctors, and also requires the specific consent of the patient. The medical literature also states that even where ovary removal is recommended for prophylactic reasons, i.e. where there is no apparent problem with the ovaries but they are advised to be removed to Contd.
prevent future possibility of ovarian cancer, the consent of the patient for removal of ovaries should always be obtained.
32. With regard to the removal of ovary without consent, the National Commission has observed in paras 59 and 60 and the same are quoted below:
59. From the above discussion, it can be concluded that entire deficiency in service arises because of removal of ovaries and the mishap occurred at that time. If ovaries were to be removed, the doctor ought to have informed the patient in advance, but that has not been done. How this mishap has occurred is not known but something wrong had happened at the stage when ovaries were being removed and that has resulted in avulsion and retraction of the ovarian vein. In such a case, the principle laid down in the case of Savita Garg v. National Heart Institute, (2004) 8 SCC 56, would be applicable. In that case the Apex Court held that in such a case the principles of res ipsa loquitur (facts speak for themselves) will apply and the burden is on the hospital or doctors concerned who treated the patient, in defence to substantiate their allegation that there was no negligence. The relevant observations of the judgment are as under :
It is the hospital which engages the treating doctor, thereafter, it is their responsibility. The burden is greater on the institution/hospital than that on the claimant. In any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. . Even otherwise also given that, as held above, the burden to absolve itself shifts on to the hospital/doctor, the Institute has to produce the treating physician concerned and has to produce evidence that all care and caution was taken by it or its staff or justify that there was no negligence involved in the matter.
60.
In the present case, neither the Hospital nor the Doctor has given any reason as to why ovaries were removed without taking consent of the complainant. It is for the Surgeon who operates to explain as to why the ovaries were required to be removed and how such a mishap has occurred, and, why the Doctors were not in a position to handle the bleeding vein. They have failed to establish the case except by merely stating that such complications may arise in Contd such operations. In our view, that would hardly be a plausible explanation for such a mishap.
33. Coming back to the evidence of the opposite parties no. 1, the operating surgeon, we have noticed that the only explanation given in her cross-examination for removal of the ovaries was as follows:
(i) The patient had completed her family.
(ii) Her age was above 40 years.
(iii) She was suffering from prolonged period inspite of medicine and treatment.
(iv) If the ovary is not removed, there was possibility of developing ovarian malignancy.
Discretion for the opposite party no. 1 to go for TAH+BSO without any asking and without any information to the patient is not available and such discretion, even if exercised, can not be a substitute for the required consent for the operation in question. In case of arising a situation warranting TAH+BSO operation, the planned operation could have been postponed and the patient should have been well informed in advance so that she could understand and be elective of what surgical procedure to be undergone by her. Thus, the explanation given by the opposite party no. 1 in her cross-examination, which are not given in the written version, is perhaps an attempt to make up the lapses and negligence on her part. Thus, we do not find such explanation acceptable.
34. The opposite party no. 1 has also admitted in her cross-examination that there was no definite lesion existing in the ovary. She also deposed that Dilation and Curettage ( D & C) was not done as the patient refused and at the same time she admitted that the refusal was not recorded in any of her treatment papers of the deceased nor in the hospital records. The opposite party no. 1 also deposed that cervix removed from the patient was not found to be malignant as per Biopsy report but she kept a stoic silence about the removed ovary. The only statement given by the opposite party no. 1 with regard to the removed ovary was that the ovary was sent for biopsy and the report of Histopathology was with her but the same was neither produced nor any comment was made as to whether the same was found suffering from malignancy or not. One of the contentions raised by the opposite party no. 1 in her written argument is that the risk involved and associated with the surgical procedure was discussed with the attendants of the patient/complainants and this statement is denied by the complainant in their rejoinder as blatant lie as they were not at all informed nor discussed about the risk involved with the surgical procedure for TAH+BSO. In cross-examination, the opposite party no. 1 deposed that the consents marked Exhibit- A & B were obtained by a Resident Doctor but the name of the Resident Doctor was neither disclosed nor was the Resident Doctor produced as witness. The opposite party no. 1 also categorically stated that the cause of death of the Contd deceased appearing in the Death Certificate (Exhibit-F) , was the opinion of Dr. Bonojit Choudhury, the Consultant Cardiologist. No explanation is given in her cross-examination with regard to process of changing the operation from Laparatomy to Abdominal Hysterectomy and from Abdominal Hysterectomy to TAH+BSO.
35. In any surgical operation involving serious consequence and life risk, the patient completely reposes her confidence and submits her body to the operating doctor, in terms of the consent, for treatment and for saving his/her life and the operating doctor is also under professional duty and obligation to discharge his corresponding duty towards the patient by following the standard norms, practice, care and skill. But in this case, the deceased was not at all informed beforehand of the operation of TAH+BSO conducted on her body on 9-6-2003 and this proposition is amply demonstrated by the following facts:
On 8-6-2003, the patient was advised for admission in the hospital for performing Laparatomy which is an exploratory exercise. With this impression, the patient got herself admitted in the hospital for treatment as advised. Assuming that consent obtained in Exhibit- A & B was for Abdominal Hysterectomy, necessity for abdominal Hysterectomy had to be recorded in the treatment papers so that the patient could understand what type of operation she was supposed to undergo. This was not done. Patient and her relatives were kept in dark and uninformed, prior to and during the operation, that TAH+BSO operation would be performed on the body of late Maya Agarwalla. It is not possible for the complainant to know what had actually happened in the operation theatre though something wrong was perceived to have had happened resulting into the death of the patient on the operating table of the Operation Theatre. In such circumstances, as already held in Smt. Savita Garg Vs The Director, National Heart Institute, that the burden is on the hospital and the doctors concerned to say that there was no negligence involved in the treatment and an informed and valid consent was obtained.
36. From the sequence of events, as discussed above, and explanation given by the treating doctor i.e. opposite party no. 1, statement given in the cross-examination, omission in the written version, we are of the opinion that no valid or informed consent was obtained from the patient at any point of time for performing THA+BSO and as such, performance of this operation and removal of uterus, ovary, fallopian tube and cervix form the body of the deceased on 9-6-2003, was not only beyond the domain of the so called consent ( marked Exbt- A & B) but also is an unauthorized intervention or invasion to the body of the deceased and such actions are gross negligence amounting to deficiency of service. Above is our considered opinion and finding on point Nos. (ii), (iii) & (iv).
Contd Point No. (V)
37. Dr. Bonojit Choudhury, who had given advice on all matters relating to cardiology including cardiological clearance for operation of the deceased patient, observed in his prescription note that the proposed operation was for Hysterectomy. The question for consideration before us is whether Dr. Bonojit Choudhury was a qualified Cardiologist or not. According to his own statement in the written version as well as in the statement given in the cross-examination, he described himself as an M.D. At the time of hearing, a specific question was asked by the Commission to the learned Sr. counsel appearing for the opposite parties as to whether Dr. Bonojit Choudhury, who claimed and professed to be a Consultant Cardiologist, has acquired any qualification or formal degree for being a Cardiologist. The answer was evasive by saying that nothing could be said in this regard more than the description given by the doctor himself with regard to his qualification. From the statement and documents available on record including the Letter Head of Dr. Bonojit Choudhury, he was/is not a qualified Cardiologist as he had not acquired any degree or speciality in Cardiology, yet he professed himself as a Cardiologist. This position is not disputable. In (2009) 9 SCC 221 ( Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee & Ors), the Apex Court held the following:
Even in the matter of determining the deficiency in medical service, it is now well settled that if the representation is made by a doctor that he is an Specialist and ultimately it turns out that he is not, deficiency in medical service would to be presumed.
38. In 1(2013) CPJ 467 (NC), a question came up before the National Commission as to whether a doctor holding a degree of M.D., who had treated more than 10,000 renal patients for the last twenty years, supervised 200 kidneys replacement and 5000 dialysis cases, could be considered to have qualified to be a Nephrologist. The aforesaid doctor enrolled himself as a member of the Nephrologist Society of India. The National Commission referred the matter to All India Institute of Medical Science, Delhi, for their opinion as to whether the said doctor, without any formal degree or diploma, on the basis of claimed experience and practice, could qualify himself as a Nephrologist. The opinion given by the Medical Board of AIIMS was that a doctor without a formal degree in Nephrology could not qualify himself as Nephrologist by dint of experience and practice. In the aforesaid case, a patient with renal problem was treated by the doctor without a formal degree in Nephrology and ultimately the patient died, therefore, a question came up before the Consumer Forum was whether the doctor who treated the Contd patient could be considered as a qualified Nephrologist or not. The answer was No.
39. In the instant case, in absence of anything to the contrary, Dr. Bonojit Choudhury was an M.D., not having undergone and or not having acquired any formal degree in Cardiology.Thus, describing himself as Cardiologist and treating patient with cardiac problem and also giving opinion on matters pertaining to cardiology, are unauthorised and this factor itself is a deficiency of service.
40. Dr. Bonijit Choudhury, the opposite party no. 5, has stated that 200 mg of Lasix I.V. in divided doses over 10 minute time was injected to the deceased patient and this was repeated by injecting 40 mg after 20 minute and thereafter 10 mg was added in the infusion fluid connected to the patient. But the medicine failed to give any result. Then he contacted one Dr. Anjan Barkataky, Nephrologist, over telephone but that was after everything was over. He categorically stated in cross-examination that the cause of death could not be ascertained in absence of post mortem, whereas Dr. Alaka Goswami, the opposite party no. 1, stated in her cross-examination that the cause of death shown in the death certificate, was the opinion of Dr. Bonojit Choudhury.
41. From the above, there cannot be any doubt that all the tests conducted, cause shown in the death certificate, opinion and clearance given by Dr. Bonojit Choudhury, relating to cardiology for the proposed operation was/is an opinion and a clearance given by an incompetent doctor, therefore, such action of Dr. Bonojit Choudhuy amounts to deficiency of service as held by the Apex Court. Thus, point No. (V) is decided against the opposite party no. 5.
Point No. (vi)
42. Dr. B.D. Goswami, a General Surgeon, (Opposite Party No. 4), is a diploma holder in Anaesthisia and he deposed before the Commission as D.W. No. 2. It is also on record that the consent, Exhibit-A, was signed by the patient on 8-6-2003 and the opposite party no. 4 signed/endorsed on 9-6-2003 at 1.40 p.m. i.e. 10 (ten) minutes after declaring the patient dead. The opposite party no. 4 has mentioned in his cross-examination that he had given pre-anaesthetic medication to the deceased before the operation. He also elaborately stated about the dose and the medicine given to the patient and he claimed to have done the necessary monitoring but no record for giving pre-anaesthetic medication nor any record/note for monitoring were produced before the Commission to substantiate and corroborate his verbal assertion. As already discussed above, it is for the hospital or and the doctor concerned to discharge the burden of proving that no negligence was committed and all possible care was taken prior to or during the operation. In absence of production of record or monitoring note, it is not possible for us to accept the statement given by the Anaesthetist and this non-production Contd of record/monitoring note would justify for us to draw an adverse inference against the opposite parties, therefore, we are of the opinion that the opposite party hospital and the opposite party no. 4, Anaesthetist, have utterly failed to discharge their burden and as such, they are also guilty for negligence amounting to deficiency of service.
Point No. (vii)
43. Admittedly, death of the patient at the operating table was absolutely unexpected and was all on a sudden. Though all the opposite parties have mentioned in their written versions that the cause of death was due to Pulmonary Oedema and Acute Renal Failure, the opposite party no. 1 deposed in her cross-examination that this conclusion was made on the basis of the version of the opposite party no. 5. Again, in cross-examination, all the opposite parties have categorically stated that the cause of death could not be ascertained in absence of Autopsy/Post Mortem, thereby admitting that Autopsy/Post Mortem alone could ascertain the cause of death of the deceased. It may be pertinent to mention that when a patient walked into the Operation Theatre, hale and hearty and without the support and assistance of any person, she was declared dead in the Operation Theatre, in such circumstances, it is the duty and obligation of the hospital and the doctors involved in the operation to cause Post Mortem or Autopsy on the dead body to find out the exact cause of death. Irrespective of conflicting versions of the parties, the fact that the complainants filed a complaint on 10-6-2003, to the Officer-in-Charge of Kothiatali Out-Post under Kampur Police Station, Nagaon District, for enquiry and investigation, would clearly establish that the complainants were interested and keen for the Autopsy/Post Mortem on the dead body of the deceased. Necessity for an Autopsy or Post Mortem in a case of sudden, unexplained, unexpected death, was considered by the National Commission in a case reported in Renu Jain and Ors Vs Escorts Heart Institute & Research Centre decided on 10-4-1992 in Original Petition No. 84/91, in that it was held that Autopsy is a must in the case of sudden and unexpected death. In the facts and circumstances of the case and the scenario leading to sudden and unexpected death of the patient in the Operation Theatre, Autopsy ought to have been held and not having held Autopsy/Post Mortem, is also a factor attributable to deficiency of service. Point No. (vii) is decided against the opposite parties.
Point Nos. (viii) & (ix)
44. Point Nos. (viii) and (ix) are taken up together. On the question of discharge of burden, the following principles laid down in the case of Smt. Savita Garg Vs The Contd Director, National Heart Institute reported in (2004) 8 SCC 56 are quoted below.
Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, as a result of such negligence the patient died, then in that case the burden lies on the hospital and the concerned doctor who treated that patient that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is the hospital who engages the treating doctor thereafter it is their responsibility. The burden is greater on the institution/hospital than that of the claimant. The Institution is private body and they are responsible to provide efficient service and if in discharge of their efficient services there are couple of weak links which has caused damages to the patient then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.
In the instant case, we are of the opinion that the opposite parties have utterly failed to discharge their burden that there was no negligence on their part.
45. The opposite party no. 6 who deposed as D.W. No. 4 has admitted the following in his cross-examination.
a. The Biopsy (Histopathological Examination) Report is in the custody of the hospital.
b. There was no facility of Echo Cardiology in our hospital at the relevant time. There was no ICU in our hospital. We do not have any facility for nephrology in our Research Institute. The sequence of events deteriorated so fast that there was no scope for any dialysis. There was no facility for dialysis in our hospital and had the patient been resuscitated, she would have been taken to a nearby dialysis centre. We do not have any facility for nephrology or any other super speciality in our hospital. In case of any need of MRI, the patient is referred to some other center.
c. The instant case was a planned surgery and not an emergency. I can not say the cause of pulmonary oedema without post mortem. It is not a fact that the patient died of overdose of anaesthesia or narcotic overdose. I can not say if the death was due to pulmonary embolism.
d. The Consent Form is not signed by the initial Counseling ( On Duty) Doctor. It is signed by the surgeon who is the final counseling doctor. It is not a fact that the Consent Form is signed after the death of the patient.
From the above quoted admission of the opposite party no. 6 ,deposing on behalf of the opposite party nos. 2 and 6, it can be well concluded that the hospital was utterly ill-equipped for such major operation and that this fact itself is deficiency of service. This Contd aspect was considered by the Delhi State Consumer Disputes Redressal Commission in III(2009) CPJ 199 and the Delhi State Commission held the following:
We are of the opinion that every hospital is expected to make or equipped itself that all the treatment facilities and medicine for complication that may arise during the treatment of the patient for the original disease for which a patient is admitted and if there is no doctor or medicine available then this itself amounts to deficiency of service on the part of the hospital.
We are in agreement with the views expressed by the Delhi State Commission.
46. In view of the admission of D.W. No. 4, as quoted above, the hospital where the operation of late Maya Agarwalla was held, is thoroughly ill-equipped for such operation, therefore, the hospital, the operating doctor and other doctors ought to have refused such major operation. Not having done that, the opposite party no. 2, 6 and other opposite parties are also liable for deficiency of service on this count.
47. This is a case where the doctrine of Res-Ipsa-Loquitur is squarely applicable considering the sequence of events, conduct of all the opposite parties, inability to find out the exact cause of death, impossibility of the complainant to know what had happened inside the Operation Theatre, the death of the patient taking place on the operating table and in such circumstances, only the facts speak for themselves and tell their own story are the ingredients of the doctrine of Res-Ipsa-Loquitur. This aspect was also dealt with by the Apex Court in Syad Akbar Vs State of Karnataka, 1979 AIR (SC)-0-1848. The relevant portion of the judgment is quoted below:
As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and umambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasis the point, it may be reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. But according to some decisions, satisfaction of this condition alone is not sufficient for res ipsa to come into play and it has to be further satisfied that the event which caused the accident was within the defendants control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position that the plaintiff to explain how the accident occurred.
Contd Conclusion
48. In the instant case, we are cognizant of the negligent actions on the part of each of the treating doctors and also the hospital, attributing to the ultimate death of the patient, an untimely death which could have been avoided had the treating doctors and the hospital taken due care and followed the judicially recognized principles as discussed above. Verbal statements of the opposite parties, without being supported nor being corroborated by hospital records, treatment sheets and monitoring notes, are unbelievable. Defence versions set-up by the opposite parties and argument advanced, mainly on technical grounds, by the learned Sr. counsel of the opposite parties are not found impressive enough to take a view different from the views already expressed by us in the preceding paras.
49. On consideration of the case at hand in its entirety, we are of the opinion that the opposite party nos. 1,2,4,5 and 6 are jointly and severally guilty of gross medical negligence amounting to deficiency of service. In the result, the complaint is allowed. However, we do not find any direct evidence of negligence against opposite party nos. 3 and 7 who were simply assistants. In the compliant petition, the following amounts were demanded for compensation:
(i) For financial loss due to untimely death of a smart, Intelligent and young business lady, 80% of Rs. 19,53,000/- Rs.
15,62,400/-
(ii) For mental agony pain, hardship and perpetual gloom suffered by the complainants Rs. 7,00,000/-
(iii) Amount spent on the treatment & transport of deceased with attendants Rs. 25,000/-
______________________ Total Rs. 22,87,400/-
50. Keeping in view the aforesaid claim for compensation, which was not disputed by the opposite parties, and also considering the varying duty and responsibility and degree of involvement, we are of the view that interest of justice would be served better, if we award a sum of Rs. 15,50,000/- ( Rs. Fifteen lakhs and fifty thousand) only in total, payable by the opposite party nos. 1,2,4,5 and 6 to the complainants. Ordered accordingly. Again, in view of the aforesaid consideration, the liability of the erring opposite parties are divided in the following proportion.
1. Dr.(Mrs) Alaka Goswami, Opposite Party No. 1, is directed to pay a sum of Rs. 5,00,000/- ( Rs. five lakhs) as compensation.
2. Dr. Bonojit Choudhury, Opposite Party No.5, is directed to pay a sum of Rs. 3,00,000/- ( Rs. three lakhs) Contd
3. Dr. Devi Prasad Goswami, Opposite Party Nos. 2 and 6, is directed to pay a sum of Rs. 3,00,000/- ( Rs. three lakhs)
4. Dr. Biswa Dev Goswami, Opposite Party No. 4, is directed to pay a sum of Rs. 3,00,000/- ( Rs. three lakhs) In addition to the above, a sum of Rs. 1,00,000/- ( Rs. One lakh) is also awarded to the complainants to be paid by the erring opposite parties for mental agony, harassment, loss of companionship and deprivation of love and affection. This amount shall be shared in equal proportion by and among the erring opposite parties. Another sum of Rs. 50,000/- is also awarded as cost of the proceeding and this amount shall also be paid in equal proportion in the manner indicated above. The aforesaid amount shall be deposited by the opposite party nos. 1,2,4, 5 and 6 before the Registry of this Commission within a period of three months from today and the same shall be released to the complainants or any one of them, duly authorised by the remaining complainants, on being identified by a counsel known to the Commission. In case of default of payment, the awarded amount shall carry 9% interest from the date of passing of this judgment.
51. With the above directions, the complaint stands disposed.
MEMBER PRESIDENT