National Consumer Disputes Redressal
Hirubhai Nagindas vs Dr. Rakshit Patel & Anr. on 6 August, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 199 OF 2016 (Against the Order dated 31/08/2015 in Complaint No. 266/2001 of the State Commission Gujarat) 1. HIRUBHAI NAGINDAS C/O. JATIN SHAH., 41 KRUNIKA SOCIETY, AKRELIBAUG, VADODARA ...........Appellant(s) Versus 1. DR. RAKSHIT PATEL & ANR. SARDAR PATEL HOSPITAL, NEAR S.R.P. GROUND MAKARPURA MAIN ROAD, VADODARA 2. SARDAR PATEL HOSPITAL NEAR S.R.P. GROUND FLOOR, MAKARPURA MAIN ROAD, VADODARA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : Mr. P.V. Moorjani, A/R For the Respondent : NEMO Dated : 06 Aug 2019 ORDER PER HON'BLE M. SHREESHA, MEMBER Aggrieved by the order dated 31.08.2015 in Consumer Complaint No.266 of 2001, passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (in short "the State Commission"), the Complainant preferred this Appeal, under Section 19 of the Consumer Protection Act, 1986 (in short "the Act"). By the impugned order, the State Commission has allowed the Complaint in part directing the Opposite Parties to pay to the Complainant jointly and several an amount of ₹50,000/- as compensation together with costs of ₹5,000/-.
2. The facts in brief are that the Complainant was suffering from 'Hernia' and approached the first Opposite Party (hereinafter referred to as ' the Doctor') at the second Opposite Party - Hospital (hereinafter referred to as 'the Hospital'). The Doctors diagnosed it as a case of 'Incision Hernia' and advised the Complainant Surgery which was conducted by the Doctor 14th December, 2008 1:30 p.m. under anaesthesia administered by one Dr. Gopal Parekh. It is averred by the Complainant that the Doctor took 7 hours to perform the Surgery and at about 10 p.m. the Complainant complained about pain in his legs, but the staff informed him that it was pain on account of anaesthesia and as there is no pain at the site of operation, there was no reason to worry. On the next day, i.e. on 15th December, 2000 the Complainant was shifted to a special room but even then the pain in his leg did not subside. It is averred that despite several complaints about the pain in his legs, the treating Doctor and the hospital staff did not care to address the issue. When the doctor advised the Complainants to stand on his legs, the pain aggravated and the Complainant felt too weak to even stand in an appropriate manner. There was unusual burning sensation in his legs. On 16th December, 2000 at 9:30 a.m. the Complainant noticed black patches and the burning sensation also aggravated.
3. It is believed that on 17th December, 2000, when the pain become unbearable he once again complained to the treating Doctor and to the staff and it was only on the fourth day of the surgery Dr. Vijay Thakur, the Vascular Surgeon was called for advice. On careful examination, the Vascular Surgeon advised the Complainant to be shifted to Bhailal Amin General Hospital, Vadodara for better management and hence on the same day the Complainant was shifted. At this Hospital, it was diagnosed that gangrene had developed in the Complainant's legs and both the legs were amputated below the knee on 21st December, 2000 and subsequently on 23rd December, 2000. It is averred that the civil surgeon on 16th August 2001 declared the Complainant physical handicapped 100% disabled on both the lower legs. Thereafter the Complainant got issued a legal notice on 27th September, 2001 praying for damages but there was no proper response. It is averred that no proper informed consent was taken and that the opinion of vascular surgeon was obtained belatedly on the fourth day and the Complainant's pain and the burning sensation in the legs were overlooked by the treating Doctor and the staff which led to the amputation of the Complainant's leg below the knee and for this aspect of negligence the Complainant approached the State Commission seeking an amount of ₹18,93,739/- with interest @ 18% per annum and other reliefs.
4. Thereafter the Complainant amended his prayer seeking the following reliefs:
"S. No. Expense Particular Amount in Rs.1
Expense towards Ambulance- List 1 1970.00 2 Expense towards Surgical Items- List 2 3858.90 3 Expense towards medicines - List 3 108173.39 4 Expense towards purchase and repair of artificial limbs- List 4 178000.00 5 Expense towards purchase of two wheeler with side car - List 5 46057.00 6 Expense towards day to day helpers for cooking and cleaning, care taking - List 6 101750.00 7 Compensation for pain, shock and sufferings.
20,00,000.00 Total 24,39,809.29"
Additionally the Complainant has also prayed for an amount of Rs.22,50,000/- under loss of income giving the following break up:
"As after the surgery, the Complainant become 100% handicapped and hence could not able to move from his bed and could not able to perform his profession due to small all his valuable clients were lost.
In year 1997-98, his income was Rs.62,800/-
In year 1998-99, his income was Rs.85,100/-
In the year 1999-2000, his income was Rs.1,15,824/-. "
5. The treating Doctor and the Hospital filed a common Written Version stating that the Complainant was a known case of Diabetes Mellitus; that he had undergone Vascular Surgery Bypass Surgery 4 years earlier; that he is a chain smoker; that it was only on account of continuous coughing that he developed 'Incision Hernia'; that the Complainant visited the treating Doctor in the month of June / July and that the Doctor has advised the Complainant to quit smoking and lose weight but in spite of all these complications the Complainant insisted on 'Incision Hernia'. It was also averred by the treating Doctor that the complication of Incision Hernia was on account of Aortic Bypass surgery at Bombay and the vessel was totally congested and at the relevant time the surgeon put Aorto Iliac Graft for smooth circulation of the blood to the lower limbs of the Complainant. It was pleaded that it was only on account of the patient's history and his smoking habits coupled with Diabetes that fresh blocks developed in the Aorto Iliac Graft which the, doctors were never informed by the complainant.
6. It was stated that the Doctor had taken all necessary care and caution during the operation and also post-operatively and having understood the seriousness of the situation, they requested the assistance of Dr. Vijay Thakur a Vascular Surgeon and thereafter he was advised to be shifted to Bhailal Amin Hospital for better management. It was stated that the Complainant did not produce the Medical Treatment Record of the said Hospital. Dr. Gopal Parekh administered Anaesthesia, who was an eminent Anesthetist and Spinal Cord General Anaesthesia has no connection or relation with Aorto Iliac Graft. It was averred that the blood circulation to the lower limb reduce further probably on account of stress due to Incision Hernia operation and the patient's history. It is also stated that the staff of the hospital rendered necessary post-operative treatment and it was only on account of 'ill luck' of the Complainant and on account of his original disease that fresh block had developed. It was pleaded that there was no negligence on behalf of the treating Doctor or the Hospital in rendering treatment to the Complainant and prayed for dismissal of the Complaint with cost.
7. The State Commission based on the evidence adduced allowed the Complaint in part observing as follows "30. As per my opinion (sic) when the Opponent NO.1 is a qualified doctor and operation of the complainant done by him as a surgeon is not been proved faulty then it cannot be said that the Opponent No. 1 had shown deficiency in his services. Further Mr. Nanavati had submitted that Dr. Tiwari who has been examined by the complainant in this matter is only an MBBS while the Opponent No. 1 is surgeon, who has more qualification than Dr. Tiwari. In this situation testimony of Dr. Tiwari is in no way helpful to the complainant and in confirmation with the testimony of Dr. Tiwari the Complainant had not presented any medical literature and therefore testimony of Dr. Tiwari given against the Opponent No.1 cannot be accepted. Said submission of Mr. Nanavati seems to be correct and hence I accept the same.
31. At this point Mr. Nanavati had strongly submitted that when it was revealed that the complainant is not able to stand on his own legs the Opponent had immediately called Dr. Thakur in their hospital and treatment of the complainant. In this situation it cannot be said that there is any kind of carelessness in service of Opponent No.1 had occurred. Further Mr. Nanavati had submitted that it is necessary to wait for sometime once medicine is given to the patient and this is not negligence. Even in the case papers of the Bhailal Amin Hospital there is nothing has been noted as mistake of deficiency on the part of Opponent No.1"
8. It is relevant to mention that the First Appeal No. 908 of 2015 preferred by the Respondents has been dismissed by this Commission in January 2011 and since they did not choose to challenge the dismissal by way of an any Appeal, the brief point that falls for consideration is whether the Complainant is entitled to enhancement of the compensation of ₹50,000/- awarded by the State Commission on the ground that proper 'Informed Consent' was not taken prior to the operation. It is significant to mention that the State Commission has observed that there was no negligence on behalf of treating Doctor and the Hospital except for not taking 'Informed Consent'.
9. In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-
"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 cases, is what the law requires, and 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; 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, even though a body of adverse opinion also existed among medical men.
Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.
(Emphasis Supplied)
10. We place Reliance on Laxman Balakrishna Joshi Vs. Trimbamk Bapu Godble, 1969 AIR 128, in which the Hon'ble Supreme Court has defined the 'Duty of Care' as under:-
duty of care in deciding whether to undertake the case duty of care in deciding what treatment to give duty of care in the administration of that treatment.
11. A brief perusal of the hospital treatment record shows that the patient was operated for Incision Hernia on 14th December, 2000, the preoperative instructions show that consent was taken, CBC was advised and the patient's history of Vascular Bypass Surgery was clearly noted. The Complainant had no history of hypertension or tuberculosis, the blood pressure and pulse rate was normal, the random blood sugar which was taken was also normal. It was also noted that the patient was a known Diabetic and was on relevant medication. The operation was performed at 2:30 p.m. and lasted till 6:30 p.m. as per the operation notes. The patient was put on insulin and other antibiotics. The random blood sugar was tested at 8:00 p.m. was 91 mg and no insulin was advised. Next day on 15th December, 2000 the medical record show that there was mild pain in the abdomen the dressing was done and there was no soakage at 8:30 a.m., on the same day the patient was seen by one Dr. Lata and also by the duty doctor wherein he had mentioned that the patient had complained of pain. On the next day morning once again burning sensation in the left feet was recorded by the duty doctor and Doppler of the left Limb was advised. At 12 noon once again the patient was seen by the duty doctor, Dr Lata who mentioned at 4:00 p.m. that the Complainant is having burning sensation in both the limbs RBS was noted as 81 MG. Then on 16th December, 2000 once again there was noting of burning pain in the feet. Doppler, LT of the limbs was advised and the treatment record shows that there was continuous complaint of pain in the leg, at 7:30 a.m., at 3:30 p.m. and also in the evening the duty doctor had noted Dorsalis Pedis, weak of palpation. Again on 16th December, 2000 at 8:00 p.m. it was noted that the Complainant had burning pain in both the limbs which continued. Even on 17th December, 2008 at 7:30 a.m the dressing was done and the drain was removed and antibiotics were given thereafter at 9:00 a.m. it was noted that both the feet has Cyanosis with local temparature down Dorsalis Pedis week and the same was again noted at 4:15 p.m. The above operation notes clearly records that the Complainant was continuously complaining of pain and burning sensation in his legs right from the date of surgery till 17th December 2013 the fourth post-operative day.
12. Since, the question of not having taken 'Informed Consent' has attained finality, we do not wish to dwell on that issue. Medical opinion was taken by the State Commission from Dr. P N Tiwari, MBBS and LLB, who has given his opinion as follows:
"Conclusion:-
Improper taking of patient/ complainant's detail history where two major factorwas present like-
-past vascular operation
- was on anti lipid medicine.
Whether the said hospital/ respondent no. 2 was fully equipped to carry out such major operation.
When complainant was on antilipid medicine and obese, why physician was not taken in confidence nor medicines was given for cough.
Why decision to keep spinal epidural catheter was taken in this operation?
Anaesthetist was not aware that thiopentone (pentothal) causes hypotension which is dangerous in such patients as lead to detaching of thrombus from the arteries and veins.
In the discharge card of Bhailal Amin Gen. Hospital, it has mentioned that gangrene developed up to the ankle after operation, (which was done on 18/12/2000).
Ground of OPINION based on File facts:
DUE TO HURRY IN DOING THE SAID OPERATION, NEGLIGENCE WAS DONE BY:-
RESPONDENT NO. 1 & ANAESTHETIST DR. GOPAL PAREKH as:-
Not taking history properly and in detail there by missed two important factors of case.
Anesthetist was also not careful in doing his job by giving detail pre-anesthetic orders and also the side effects of Pantothal and repeated dose of succinylcholine which causes bradycardia and hypotension leading to blockage of veins by the thrombus and ischemia. If not treated in time, it causes gangrene of that part.
Negligence is seen in the work process of Surgeon/ respondent no. 1 as he could not judge the seriousness of symptoms of pain and ischemia in the left leg and then in both the legs which led the amputation of both legs."
13. The Hospital treatment record which shows continuous Complaint of pain in the legs, coupled with the medical opinion given by the expert with the Complainant's history of Bypass Vascular Operation and a known diabetic proper pre-investigative tests was not taken, additionally, it is clearly stated in the discharge card of Bhailal Amin General Hospital that gangrene has developed on the ankle postoperatively. The vascular surgeon Dr Vijay Thakur has also given a certificate which reads as follows page:
"To whomsoever it may concern This is to certify that Shri Hirenbhai N. Sheth M/63 years has undergone and emergency operation Aorta Bifemenal Bypass Bilat. Fasciotomies Bilat Below knee amputation during Dec. 2000 as a limb salvage procedure. He had undergone Aorte Bifemoral Bypass operation in March 1996. He developed this problem in N/c leg ischemia during immediate post op period. Following an operation for incisional hernia operation."
14. Therefore keeping in view the medical opinion, the certificate given by the vascular surgeon and the operation notes, the contention of the learned counsel appearing for the respondents that the Complainant never brought to the notice of the Doctors about pain in the leg or burning sensation till 17th December, 2000 and that proper care was taken, is unsustainable. There is also no documentary evidence to substantiate the contention of the respondents that proper caution was taken keeping in view the Complainant's history of diabetes, of taking anti liquid medicine and of vascular surgery done 4 years ago. The stand of the treating Doctor in his Written Version 'that fresh blocks developed in Aorta Iliac Graft was not brought to their notice', cannot be accepted. It is the duty of the treating Doctor to ascertain the complete condition of the Patient through investigation tests, prior to the Surgery, specially in the light of his admitted history of Diabetes and prior Vascular Surgery.
15. For all the aforenoted reasons, we are of the view that the Hospital and treating Doctor did not take due care and caution as laid down by the Honorable Supreme Court in Laxman Balakrishna Joshi (supra).
16. In the result, this Appeal is allowed and the Order of the State Commission is modified, the treating Doctor and the Hospital are jointly and severally liable to pay to the Complainant an amount of ₹5,00,000/. This amount is being awarded keeping in view that the Complainant is having a disability certificate of hundred percent disability and his legs were amputated below the knee and being a labour consultant he was earning an amount of ₹8,000/- per month and he was 58 years old at the time of amputation of his legs, with a general life expectancy of 75 years and also the pain and suffering which he has suffered on account of amputation and the disability. For all these reasons, we find it a fit case to award a lump sum amount of ₹5,00,000/- to be paid to the Complainant within a period of four weeks from the date of receipt of a copy of this order failing which, this amount shall attract interest @ 9% per annum from the date of filing of the Complaint till the date of realization. We also award costs of ₹25,000/-.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER