National Consumer Disputes Redressal
Manju Garg vs Goel Hospital And Anr. on 7 April, 2005
Equivalent citations: IV(2005)CPJ62(NC)
ORDER
B.K. Taimni, Member
1. Complainant, Smt. Manju Garg, the widow of the deceased Shri Pawan Kumar Garg, has filed this complaint alleging medical negligence on the part of the opposite party, Goel Hospital and its owner Dr. Mahavir Goyal, 2nd OP, with his hospital at Jagadhari, Haryana.
2. The facts of the case are that the deceased had gone for some work to Jind in connection with his business on 4.11.1994 where on account of some reasons, he sustained injury on his arm where he consulted a local Doctor, who bandaged the arm after which the deceased came back to Jagadhari, the same day.
3. As per complaint, the deceased consulted Dr. Kohli, the same day who, as per material on record advised operation. Perhaps with a view to have a second option, the deceased was taken to the Hospital, 1st OP on 5.11.1994 at about 1.30 a.m. where it is alleged that the 2nd OP took the deceased to the Operation room. After some time the brother and father of the deceased, who had accompanied the deceased, noticed the compounder of the Hospital making frantic efforts to get in touch with another Doctor on phone. On inquiry the brother and father of the deceased were told that after injecting some medicine on the body of the deceased, his condition has become critical. At about 2.30 p.m., the second OP came out of the Operation room and when the relatives of the deceased went inside the operation room, they found Shri Pawan Kumar Garg already dead. Since they were in deep sorrow, autopsy on the body was not performed. After several days of the death of late Pawan Kumar Garg, an F.I.R. was lodged with the Police who started investigation into the matter. Legal notice was also served on the 2nd OP to reply to this notice it is stated that Shri Pawan Kumar Garg when he went to the 1st OP Hospital was in good he h. It is alleged that he died on account of the negligence on the part of the second OP. It is also alleged that the 2nd OP was not equipped to handle the operation of the nature sought to be performed by him on the deceased. There was no Anaesthesiologist in the Hospital, a medicine by name of Penthol was administered, from which late Shri Pawan Kumar Garg did not revive. According to the complainant, in the reply to the Legal Notice, the allegation that the patient had certain cardiac problem is ill-conceived and is an afterthought.
4. The basic fact is that the 2nd OP was totally negligent and callous in performing surgery without the help of Anaesthetist, thus alleging medical negligence, a complaint was filed before this Commission in April 1995, claiming in all Rs. 67,27,572/- break-up of which is as follows:
"The individual income as per the assessment orders of late Shri Pawan Kumar Garg for 1993-94 showed that he had an income of Rs. 51,804/-. In his family, people have lived upto old age and approximately 80 years can be reckoned as the possible life span. Accordingly, if the total income for the remaining portion of his life is calculated, it will work out to Rs. 51,804/- x 43 - Rs. 22,27,572/-
Loss of estate Rs. 20,00,000/-
Consortium Rs. 15,00,000/-
Compensation
towards Suffering
and agony Rs. 10,00,000/-
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Total: Rs. 67,27,572/-"
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5. In their replies filed by both the OPs, it was stated that the OP is a qualified Orthopaedic Surgeon and when Shri Pawan Kumar Garg came to him at about 11.30 a.m. on 5.11.1994, he removed the bandage and decided that this was a case of fracture which could be treated by way of close reduction. Since at the time of the removal of the bandage, the deceased complained of severe pain, he was given an injection of 'Fortwin' and 'Calmpose', the injection normally and widely prescribed under such circumstances, within the prescribed limits. Immediately after this, the deceased became restless and starting perspiring. The deceased was put on IV 5% Dextrose and given injection of Betnesap. Despite this, the deceased developed cardiac arrest and in spite of administering all well established procedures, cardiopulmonary resuscitation measures, including external cardiac massage, incubation, oxygen inhalator, mouth to mouth respiration, yet the condition of the deceased did not improve. Upon which he immediately asked for the assistance of Dr. R. K. Gupta, Cardiologist and Dr. K.C. Garg, Anaesthesiologist. Despite the efforts of all three doctors, late Pawan Kumar Garg could not be revived and he died of cardiac arrest. It was specifically denied by the 2nd OP that any operation on the deceased was done. As no operation was performed on the deceased, it was also denied that any anaesthesia was given to the deceased. What was proposed to be done was to remove the earlier bandage. Since, as per X-ray taken in Jind, it showed fracture, the OPs were to carry out plastering, to let the fracture heal by way of reduction process. It was also stated in the written version that on the complaint being made by the complainant to the Deputy Commissioner of Yamuna Nagar, the local branch of IMA was asked to constitute a Committee, who unanimously opined that there was no negligence on the part of the OPs. The total quantum of amount sought to be claimed by the complainant was alleged to be highly exaggerated. Along with the written version, the complainant also filed the Hospital record and the case sheet relating the complainant, as also medical journal showing the Pharmacological actions of 'Penta Zocine' which was used in this case under the brand name of 'Fortwin'. In the rejoinder filed by the complainant, preliminary submissions were made that the names of the medicines shown in the discharge issued by the OPs are different from the medicines which were supposed to have been administered by the respondent in the reply. It was also alleged that the place of work of Dr. K. S. Garg and Dr. R.K. Gupta are at some distance, hence it is not understandable as to how they could have come within 10 to 15 minutes of the patient being received at the 1st OP hospital? Sum and substance of this is that these doctors were not present to administer treatment, but came only after the Pawan Kumar Garg had died. It was also stated that husband of the complainant died in suspicious circumstances and written version filed by OPs, is nothing but cooking up a story to cover its action relating to medical negligence. It was reiterated that it was obligatory on the part of the OP to have the assistance of the Anaesthesiologist, but the same was not done. It is also stated that on account shock and agony, the dead body, was not sent for Post-mortem. Operation was actually about to be performed and that why the injections were administered without due care and caution.
6. Two affidavits by way of evidence, i.e., of the complainant and father-in-law were filed, by the complaint. Four affidavits by way of evidence, i.e., of 2nd OP, Dr. K.C. Garg, Dr. R.K. Gupta as well as of one Dr. Anil Aggarwal, who was Member of the 5-Member committee appointed by the Deputy Commissioner, have been filed by the Opposite Parties. While two deponents of the Complainants were cross-examined, on behalf of the OP, only the 2nd OP was cross-examined.
7. We heard the learned Counsel for both the parties at considerable length, spread over two days. What is pleaded in the complaint is that a surgery was conducted without the help of any Anaesthesiologist and it is alleged that since there was no Anaesthesiologist to administer anaesthesia, the patient Shri Pawan Kumar Garg died on account of the fact that anaesthesia was administered by the 2nd OP, who was not a qualified person to do so. To set the matter right as per hospital record, we see that as per the material on record relating to the deceased it is not at any time indicated that any surgery was done or he was administered any type of anaesthesia. This plea of the OPs gets strengthened from the cross-examination of the father of the deceased, Shri G. C. Garg, who has stated that "I did not see any mark of surgery on the body of the deceased after we took over his dead body". In view of which we are in no position to entertain the plea that the deceased was operated upon or any surgery was carried out by him. Even if we agree with the plea of the complainant that since they were not given the medical record, they were not aware of the facts of the case, hence could not mention anything to this effect in the complaint except what they have stated yet when some basic new facts had come out in the written version filed by the OPs, wherein it was clearly stated that it was the administering of injection of 'Fortwin' and 'Calmpose', leading to cardiac arrest, yet nothing has been said to set the record straight by the complainants by way of attributing medical negligence on this account, i.e., administration of 'Fortwin' and 'Calmpose', in the rejoinder filed by the complainant. If we see the complaint, there is only one alleged act of medical negligence, which relates to administration of anaesthesia by an unqualified person, namely, second OP from which the deceased did not recover.
8. In the complaint it was also alleged that the 2nd OP was not equipped to handle the operation of the nature sought to be performed by the 2nd OP. There is no disputing the fact that the 2nd OP is and qualified Orthopaedic having obtained Post Graduate degree from recognised University in Haryana, worked in a Government Hospital for some time and now running his own hospital, and as per Hospital record what was proposed to be done was to carry out the 'close reduction' procedure, for which no anaesthesia is required and none was administered.
9. Upon seeing the record we find that there are two separate rooms in the Hospital - one is the Operation Theatre and the other is Plaster Room. Where the deceased was taken was the plaster room and the objective was to plaster his arm to let the fracture set right in a natural manner. Hence, we are unable to appreciate as to how it can be stated that 2nd OP was not competent or equipped to handle the case. No evidence of any expert or otherwise has been led to this effect, in the absence of which we find no merit in this allegation. It is very unfortunate that the pleadings are silent on the points now raised before us in the arguments or at best in the affidavit. In the rejoinder also what is alleged is largely two points-one, that the reference to, medicines administered in the paper given to them and the record produced later, are different. We have very carefully gone through the page 23 of the paper-book, filed along with complaint by the complainant and clearly see that the deceased was administered Tortwin' and 'Calmpose'. The hospital record produced before us at running page 46 of the paper-book clearly mentions Fortwin and Calmpose. We are unable to appreciate as to on what basis, the discrepancy in the two medicines administered is alleged. We see no merit in this.
10. The second point emerging from the rejoinder relates to the high improbability of specialist doctors, namely, Dr. K. C. Garg and Dr. R. K. Gupta, reaching the 1st at OP hospital almost immediately. We are constrained to observe that the affidavits of both these doctors are on records. As recorded by us on 9th July, 2003, that the learned Counsel for the complainant does not wish to cross-examine Dr. K.C. Garg and Dr. R.K. Gupta. Both the doctors have stated in their affidavits that they reached when the deceased was still breathing with great difficulty, they all worked together to revive the deceased but their efforts failed and unfortunately the deceased died. In view of their unrebutted affidavits, we are in no position to accept the plea of the complainant that these two doctors were not there to help the 2nd OP in its effort to revive the patient.
11. Settled proposition of law is that the parties cannot be permitted to go beyond the pleadings for which the learned Counsel for the opposite party relies upon the decision of the .Hon'ble Supreme Court in the case of Ram Samp Gupta v. Bishun Narain Inter College and Anr., . We have very carefully gone through this judgment of the Hon'ble Supreme Court. If we read this in toto we are taking a view as laid down by the Hon'ble Supreme Court in following terms:
"...whenever the question about lack of pleading is raised the Enquiry should not be so much about the form of pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that even it would not be open to a party to raise the question of absence of pleadings in appeal."
12. In view of above, we go on to decide the case on merits on other points raised at the time of filing of affidavits by way of evidence.
13. One of the points raised in the affidavit filed on behalf of the complainant relates to the allegation that the medical record is false and fabricated and secondly, the version by the OP is different from his stand taken in reply to the legal notice served upon the OP. It was prayed in the affidavit filed by the complainants that the original record including X-ray which was in the custody of OP be summoned as also the record before the Police, who was investigating the matter, be summoned. We see that this was the first time, allegation of manipulation of record is alleged in the affidavit, even though the written version was filed in July 1995. The onus of proof, as per settled law, is on the person who sets up a case. In this case, hospital record relating to the deceased was enclosed at the time of filing written version by the OPs. Except for making a b unsubstantiated allegation that the record is manipulated, no other proof has been led in any manner to prove/ support their contention, as to what part of the record and in what respect the record is manipulated? The plea of the complainant is further weakened by the fact that not even a single question was put to the 2nd OP on this point who was cross-examined at length, in the absence of which we are not inclined to accept the contention that Hospital record relating to deceased is manipulated. The Hospital record is before this Commission and the statements made before the Police/are also before this Commission as filed by the parties. This plea of the petitioner/ complainant is also nullified as in her cross-examination, the complainant states "I cannot tell specifically the contradiction between statement of the OP before the Police, the reply to the Legal notice and reply before the National Commission...." In view of above, we are unable to accept the plea of any contradiction in the statement made before different officers by the OP.
14. During the time of argument, 4 pleas were made and argued. Firstly, the point taken by the leaned Counsel for the complainant was that no tests were carried out on the complainant at the time of admission. As per hospital record, which we have no doubt of suspecting, it is clear that deceased was examined and no h/o any chest heart problem, no h/o diabetes..., his BP was taken, his pulse was recorded, his physical state 'mildly anaemic', etc. was recorded. His injury was also examined and upon which close reduction was advised, hence, we are in no position to state that the deceased was not examined before starting procedure of close reduction.
15. Second plea taken is that no pre-test before administering Tortwin' and Calmpose was done. The learned Counsel for the Complainant very forcefully argued this point and for this he relied upon the cross-examination of the second OP in following terms:
"No testing doze was given to the patient before administering injection.
It is incorrect to suggest that testing doze is mandatory to be given.
It is incorrect to suggest that even when the side effects of medicines are the test is not required in all cases with this injection. Fortwin, Calmpose injection do not meet sensitivity test.
It is correct to suggest that in this case one ran conscious risk of any side effect and advantage effect of the injection which was given to him."
16. Learned Counsel was categorical that if the 2nd OP Doctor knew of the side effects of 'Fortwin' and 'Calmpose' then he should have carried out test with regard to cardiac problem, namely, ECG, etc. Even though, this plea has not been taken at any stage yet we see that nothing has been brought on record by way of any literature or expert evidence to show that the tests were mandatory in this case. On the contrary, the opposite party has brought before us literature titled "Essentials of Medical Pharmacology wherein in respect of Pentaconinc (Fortwin) it is clearly held that:
"It causes tachycardia and rise in BP due to sympathetic stimulation. This increases cardiac work; it is contraindicated in coronary inchemia and myocardial infarction."
17. Medical Literature in the form of "Drug-today" was also produced before us by the OP where the side effects of Calmpose (Diazepam) have been described as "Drug dependence and abuse; G.I. disturbances, drowsiness, impaired alertness, sedation, vertigo, increased appetite and weight gain. Under heading Special Precaution it is entered "A scratch test or intradermal test may be performed first."
18. With regard to Pentazocine (Fortwin), special precautions and side effects are given in following terms:
"Special precautions: Avoid movements for 15 miris. after injection. Avoid alcohol, driving or handling machinery, caution in cases of respiratory depression, myocardial infarction, renal or ... impairment, prior to biliary surgery and in cases with C.N.S. lesions, hypertension.
Side-effects: Nausea, vomiting, euphoria, sedation, dizziness, minor psychic disturbances rapid I.V. injection may cause cardiac/ respiratory depression chronic I.M. use may cause soft tissue reaction at injection site."
19. From the "Essential of Medical, Pharmacology", a chapter on "Adverse Drug Effects" have also been produced, which is as follows:
"For the purposes of detecting and quantifying only those adverse effects of a drug which are of some import and occur in ordinary therapeutic setting, the term adverse drug reaction has been defined as 'any noxious change which is suspected to be due to a drug, occurs at doses normally used in man, requires treatment or decrease in dose or indicates caution in the future use of the same drug'. This definition excludes trivial or expected side effects and poisonings or overdose.
All drugs are capable of producing adverse effects and whenever a drug is given a risk is taken. The magnitude of risk has to be considered along with the magnitude of expected therapeutic benefit in deciding whether to use or not to use a particular drug in a given patient, e.g. even risk of bone marrow depression may be justified in treating cancer while mild drowsiness caused by an antihistaminic in treating common cold may be unacceptable....
Side Effects: These are unwanted but unavoidable pharmacodynamic effects that occur at therapeutic doses. They can be predicated from the pharmacological profile or a drug...."
20. The learned Counsel for the complainant relies upon the judgment of the Privy Counsel in the case of "Chin Keow v. Government of Malaysia and Anr.," The basic facts of this case were that Penicillin was administered which has the adverse reaction and a case was filed before the Court. Matter went up to the Privy Council. The expert evidence of Dr. Tang and Dr. Pillay were that since Penicillin has proved fatal in quite a number of cases on account of its adverse reaction, the history of the patient should have been taken which was not done in that case. The learned Counsel for the complainant before us also relies upon the judgment of the Lordship in the Privy Council in the case of McNair J. in Bolam v. Friern Hospital Management Committee, wherein it held the following:
"where you get a situation which involves the use of some special skill or competence ... 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."
21. In view of the material produced above, there is no disputing the fact that in the case on which the complainant relies has no relevance in the present case for the simple reason that 'Penicillin' is known to have adverse reaction and many people are allergic to them. In the material produced before us under the head 'Drug Today' in respect of 'Penicillin' under the head 'Special Precaution' it is advised that 'a scratch test or intradermal test may be performed first'. The material produced before us in the form of packaging of 'Fortwin' and 'Calmpose', the warnings in these reads as follows:
"Warning on Fortwin: Drug Dependence- Patients with history of drug abuse should be under close supervision. There have been instances of psychological and physical dependence of Fortwin in patients with such a history and, rarely, in patients without such a history.
Warning on Calmpose-This drug should not be used for new born babies or premature infants.
22. There is no such warning in this that any pre-test is required in any manner. Thers is no expert opinion on record besides the literature filed by the OP is that there was any requirement to administer a test doze. Whether any prudent Doctor of average ability would have done otherwise than what has been done by the 2nd OP, is not proved by any expert evidence or Medical Literature. To the contrary evidences and Medical literature support the case of the OPs. Disciplinary Committee constituted by the Dy. Commissioner, Yamuna Nagar, of which Jagadhari is a part, in their report, have clearly held that there is no negligence which can be attributed on the part of the OPs. We are again constrained to observe that despite affidavit in this regard having been filed by Dr. Anil Gupta in support of this report, he was not cross-examined by the complainant, leaving us with the clear thought that the expert opinion remains unrebutted. Much was made by the learned Counsel for the Complainant that in his cross-examination, the second OP stated "one ran conscious risk of any side effect and advantage effect of injection which was given to him" (Emphasis supplied). In the literature produced earlier his contention is supported by the chapter on 'Adverse Drug Effects' of several medicines, which is described by the author as "these are unwanted but unavoidable pharmaco dynamic effects that occur at therapeutic doses...."
23. Doctor exercised his judgment, which includes weighing the risks involved while administering these medicines. In the literature produced earlier on both 'Fortwin' and 'Calmpose', adverse effects or side effects are seen only in case of people with drug abuse or with cardiac problems. It is admitted case of complainants that the deceased had no cardiac problem which is also borne out by the history of the deceased recorded in the Hospital record of the 1st OP at the time of admission. In such circumstances, it cannot be said that 2nd OP wrongly exercised his judgment. In his cross-examination, what he stated was that the advantage outweighed the risk. In the case of Whitehouse v. Jordan, (1981) 1 All. E.R. 267. Lord Denning on error of judgment by holding as under:
"The true position is that an error or judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having and acting with due care, then it is negligence. If on the other hand, it is an error that such a man acting with ordinary care, might have made, then it is not negligence."
24. At best, it is also settled position of law that if there is more than one option available, exercise of one option by a Doctor cannot be said to be a case of medical negligence. In the case before us, based on the medical literature and also evidence led as also material on record, it cannot be said that the administering of Fortwin and Calmpose by the 2nd OP could be faulted in any manner. In our view, a distinction also needs to be made between the 'side effects' and "reactions' as in the case of Penicillin. It is known to produce immediate reaction. Side effects by its nature are not so immediate. No material or medical evidence has been shown/ led before us to counter the plea of the OPs that 'Fortwin' injection should have been given after administering a test dose or they were contra-indicated in the case of deceased. In the absence of any thing to the contrary, we see no merit in this plea taken by the complainant.
25. Third plea taken by the complainant relates to not carrying out the post-mortem on the deceased for which he relies upon the judgment of the Gujarat State Commission in the case of "Arunaben D Kothari and Ors. v. Navdeep Clinic and Ors., III (1996) CPJ 605. It is the case of the complainant that since cause of the death was not established and it could have been done only by way of post-mortem, not getting the post-mortem carried out was a deficiency on the part of the OPs. As opposed to this the learned Counsel for the OP has relied upon the judgment of this Commission in the case of Renu Jain and Ors. v. Escorts Heart Institute and Research Institute, II (1992) CPJ 391 (NC). In this case, this Commission has held once the cause of the death is known there was no necessity for carrying out any autopsy. It is the case of the complainant that the cause of death was not known or could not be established. We have on record besides the statement of the 2nd OP the Hospital record, the evidence of Dr. R. K. Gupta and Dr. K. C. Garg, all of them clearly establish that the death was on account of cardiac arrest, following the administration of Fortwin and Calmpose. In view of this, it cannot be accepted that the cause of death was not known. In the complaint filed by the complainant, it is stated in the Para 2.3 "on account of shock and deep sorrow, nobody could think of performing an autopsy on dead body ...." In the cross-examination of the father of the deceased, he states "because of our agony, we did not get any post-mortem done". In view of above discussion, we see no merit in the plea of the complainant that post-mortem should have been done. Since as per law laid down by this Commission that when the cause of death is established, there is no reason for carrying out an autopsy and also since there was no prayer made at any stage by the complainant or members of her family that autopsy has to be carried out, we find no merit in this allegation as well.
26. It may be mentioned here that the FIR was filed after one month of the death of the deceased, which was investigated by the Police but they did not file any material to support the complaint. Final Report was filed as FIR could not be substantiated and case was closed.
27. Fourth plea advanced by the learned Counsel for the complainant relates to the Hospital not equipped to carry out alleged treatment. There is no dispute that the 2nd OP is a qualified Doctor in Orthopaedics and the treatment advised was only 'plastering of arm'; there was a plaster room in which such a case is taken up. Thus, all the necessary facilities were there. In fact, when we see the record, we see that Hospital was well equipped even to meet an emergency like what happened in this case including some life saving devices. Hence based on the material on record, this plea of the complainant does not stand our scrutiny.
28. Halsbury's Laws of England Vol. 26, paras 22 and 23 deal with negligence, which are reproduced in following terms:
"22. Negligence : Duties owed to the patient. A person who holds himself oat as ready to give medical (a) advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give: and a duty of care in his administration of that treatment (b). A breach of any of these duties will support an action for negligence by the patient(s).
23. Degree of skill and care required-The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what requires(s) a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way (d); nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men."
29. If we examine the case in this respect, we find there is no dispute then in deciding the treatment to be given to the deceased, correct decision was taken for carrying out the close reduction procedure and the 2nd OP was qualified and competent to do so. Nothing has been brought on record to show that the administration of the treatment of the deceased was in any way not as per procedure laid down in medical practice. There are three reports of the 3 different doctors beside 2nd OP which have clearly stated that there is no medical negligence on the part of the second OP. Nothing to the contrary has been led before us to take any contrary view. Nothing has been shown to us that whatever treatment was given by the 2nd OP was not in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. In fact, the five-members committee appointed by the Dy. Commissioner, Yamuna Nagar, comprises besides others a Doctor from the discipline of Orthopaedic and a unanimous report have given, giving a clean chit to the 2nd OP. We are again at pains to observe despite giving the complainant sufficient long time to file an application for examination of any Expert opinion, but no such application was ever made. Based on material brought on record and in view of the examination of the pleadings as also the other points raised during the course of arguments and also relying upon the judgments of the Supreme Court and Hon'ble Privy Council and also Negligence as defined in Halsbury's Laws of England, which have been the sheet anchor of all judgments passed by the Hon'ble Supreme Court and Privy Council, we do not find any medical negligence on the part of the opposite parties. The complaint is devoid of merit, hence dismissed.
30. Keeping in view the facts and circumstances of the case, no order as to costs.