State Consumer Disputes Redressal Commission
Fortis Escort Hospital vs Amarjeet Singh on 22 September, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
1. First Appeal No.672 of 2014
Date of institution : 04.06.2014
Reserved on : 08.09.2017
Date of decision : 22.09.2017
1. Fortis Escorts Hospital, Majitha Verka Bye Pass Road,
Amritsar through its Chairman/Managing Director.
2. Dr. Arun K. Chopra C/o Fortis Escorts Hospital, Majitha Verka
Bye Pass Road, Amritsar.
.......Appellants-Opposite Parties Nos.1 & 2
Versus
1. Mr. Amarjeet Singh son of S. Gurbachan Singh, r/o 268-A,
Ranjit Avenue, Amritsar.
.......Respondent No.1/Complainant
2. Dr. Hemant Ojha, c/o Fortis Escorts Hospital, Majitha Verka
Bye Pass Road, Amritsar, now r/o 18E, Ambey Apartments,
Patiala, Punjab.
........Respondent No.2/Opposite Party No.3
2. First Appeal No.999 of 2014
Date of institution : 16.07.2014
Reserved on : 08.09.2017
Date of decision : 22.09.2017
Dr. Hemant Ojha, c/o Fortis Escorts Hospital, Majitha Verka Bye
Pass Road, Amritsar, Presently C/o 18E, Ambey Apartments,
Patiala.
.......Appellant/Opposite Party No.3
Versus
First Appeal No.672 of 2014 2
1. Mr. Amarjeet Singh son of S. Gurbachan Singh, r/o 268-A,
Ranjit Avenue, Amritsar.
.......Respondent No.1/Complainant
2. Fortis Escorts Hospital, Majitha Verka Bye Pass Road,
Amritsar through its Chairman/Managing Director/Principal
Officer.
3. Dr. Arun K. Chopra C/o Fortis Escorts Hospital, Majitha Verka
Bye Pass Road, Amritsar.
........Respondent No.2 & 3/Opposite Parties Nos.1 & 2
First Appeals against the order dated
7.4.2014 of the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellants : Shri Jatinder Nagpal, Advocate. For respondent No.1 : Shri K.S. Lakhanpal, Advocate. For respondent No.2 : Shri A.K. Batra, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
By this order we intend to dispose of both the above mentioned First Appeals, as the same arise from an impugned order dated 7.4.2014 passed in Consumer Complaint No.821 of 2009 by the District Consumer Disputes Redressal Forum, Amritsar (in short, "the District Forum"), vide which the complaint filed by Amarjeet Singh, respondent No.1/complainant, has been partly allowed with cost of litigation to the tune of ` 5,000/- and the opposite parties were directed to pay compensation to the tune of ` 3,00,000/- jointly as well as severally. First Appeal No.672 of 2014 has been preferred by Fortis Escorts Hospital-opposite party No.1 (hereinafter to be First Appeal No.672 of 2014 3 referred to as "the Hospital") and Dr. Arun Kumar Chopra-opposite party No.2, whereas First Appeal No.999 of 2014 has been preferred by Dr. Hemant Ojha-opposite party No.3 for setting aside the impugned order. Facts are being taken from First Appeal No.672 of 2014.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed, before the District Forum. Averments in the complaint:
3. Brief facts, as averred in the complaint, are that the complainant approached the Hospital, which is run by Fortis Healthcare Limited through its Directors/Managing Directors/Principal Officers and is a Corporate Hospital having its branches Nationally and Internationally. The claim of the complainant arises upon the alleged negligence of the Hospital, the Doctors and the Para Medical Staff. It has been alleged that on 18.6.2009, Amarjeet Singh, complainant, suffered severe abdominal pain. He approached Dr. Gagandeep, a Medical Specialist, who advised C.T. Scan. The complainant got done the C.T. Scan from Dhillon C.T. Scan Centre and the findings were suggestive of "Suspicion of Omental Infarct with Segmental Thickening of the adjacent portion of the small Gut". On examination of the report the Medical Specialist referred the complainant to opposite party No.1- Hospital. Accordingly opposite party No.1-Hospital admitted the complainant under the supervision of Dr. Arun K. Chopra-opposite party No.2, who is a Cardiologist and not a Gastroenterologist. The complainant has alleged in the complaint that at that time he First Appeal No.672 of 2014 4 required immediate treatment for abdominal pain as the findings were suggestive of some ailment, which was abdominal in nature and was clear from the C.T. Scan report. At that point of time the services of Gastroenterologist were required to be requisitioned but opposite party No.2, who is a Cardiologist, continued with cardiac treatment. The complainant and his attendants requested opposite party No.2 to get the treatment of the complainant from Gastroenterologist as the complainant was suffering from abdominal pain. However, opposite party No.2 did not bother to the requests made by the complainant and his attendants. On 20.6.2009 the condition of the complainant further deteriorated. Opposite party No.2 called opposite party No.3, who is only a General Surgeon and not Gastroenterologist. Opposite party No.3 also examined the complainant on 20.6.2009 and advised Exploratory Laparotomy to know the cause of abdominal pain of the complainant. Again the ultrasound was conducted on 22.6.2009, which established the problem in the Mesentric Region of the complainant but again the Hospital authorities did not requisition the services of specialist in Gastroenterologist or the Gastric Surgeon. The complainant was advised for surgery of his abdominal region and surgery was performed upon the complainant by opposite party No.3 and was told that the surgery was successful but the complainant was not discharged after the said surgery. During the surgery the complainant was administered 12 units of blood by opposite party No.3. Ultimately the complainant was discharged by opposite party No.2 on 3.7.2009 and at that point of time the complainant was still First Appeal No.672 of 2014 5 suffering from abdominal pain and was to visit opposite party No.2 for post operative follow up. The complainant was prescribed medicine known as Tablet Acitrom 3 mg. daily by opposite party No.2. On 19.7.2009 the complainant suffered extensive bleeding with stool and he immediately approached opposite party No.2, who admitted the complainant in the Hospital and further investigations was started. It was found that the Hb of the complainant was on lower side and also started verifying the health of the heart i.e. the cardiac check was started. At that point of time also no investigation for the problem, which the complainant had narrated to opposite party No.2, was done to find out the cause of bleeding and still continued the treatment by prescribing the tablet Acitrom 3 mg. At that point of time also the services of Gastroenterologist or the Gastric Surgeon in the said specialty were not requisitioned but opposite party No.2 advised the complainant to get discharged. At that time the complainant was still passing extensive blood with stool and was having abdominal pain. The condition of the complainant started deteriorating. Thereafter on 20.7.2009 the complainant got himself admitted in Satguru Partap Singh Apollo Hospital, Ludhiana, where Dr. Arindham Ghosh, Gastroenterologist, was available. Dr. Ghosh after stabilizing the complainant got investigated the cause of bleeding and found out that tablet Acitrom 3 mg. was continued by opposite party No.2 despite bleeding, which is not advisable. The surgery conducted by opposite party No.3 was not proper. It is required to be redone. It is the specific case of the complainant that he was discharged by the Hospital in critical condition. However, he First Appeal No.672 of 2014 6 got subsequent treatment under Dr. Ghosh of Apollo Hospital, Ludhiana. The complainant paid about ₹4,50,000/- for the treatment from 18.6.2009 till discharge to opposite party No.1-Hospital. Alleging deficiency in service and medical negligence on the part of the opposite parties the complainant filed the complaint for the refund of the amount of ₹4,50,000/- spent on his treatment and ₹12 lakhs, as compensation for sufferings etc. along with litigation expenses.
Defence of opposite party No.1-Hospital:
4. Upon notice, opposite parties appeared and filed their separate written replies. Opposite party No.1-Hospital took preliminary objections in its reply that the complainant has not come to the District Forum with clean hands and has concealed the material facts. The complainant has twisted some basic facts. It has been averred that Amarjeet Singh, complainant, had earlier undergone Aortic Valve Replacement (in short, "A.V.R.") from Apollo Hospital, Delhi on 7.10.2004. After the said A.V.R. an oral anticoagulant drug 'Acitrom' was prescribed to the patient/complainant by the Apollo Hospital, Delhi. The complainant was also admitted in opposite party No.1-Hospital on 29.10.2004. At that time the patient was vomiting and having loose stools. The patient was diagnosed "Pericardial effusion" i.e. blood had gathered around his heart. He was treated by the said Hospital and was prescribed tablet acitrom 1 mg daily along with other medicine at the time of discharge on 30.10.2004. At that point of time the complainant/patient was discharged in a stable condition. Again on 14.11.2004 the First Appeal No.672 of 2014 7 complainant was admitted in the Hospital with reported sudden loss of consciousness for half an hour. This time he remained admitted from 14.11.2004 to 19.11.2004. Echo was done on 16.11.2004, which revealed pericardial fluid which was aspirated (950 ml.
haemorrhagic) and he was discharged in a stable condition. The patient was advised to follow up treatment and to consult opposite party No.2-Doctor in OPD on 25.11.2004. On the said date PT and ECG of the complainant were done. The complainant again came for consultation and evaluation in the Hospital on 15.12.2005, 6.2.2006, 13.2.2006, 18.2.2006, 3.3.2006 and again on 4.3.2006. The medicines were prescribed on the card. Thereafter the patient became irregular in his follow up. It appears that after that he was doing well. He had visited the Hospital once or twice in the next three years and there is no registration/documentation in the OPD records. It is further alleged that thereafter again the patient suffered abdominal pain and consulted Dr. Gagandeep of Gagandeep Health Clinic. He referred the complainant for C.T. Abdomen, which was done at Dhillon CT Scan Centre. Dr. Gagandeep called Dr. Arun Chopra-opposite party No.2 on telephone and asked him to take care of the patient. It is denied that the complainant was misdiagnosed as a case of diabetes mellitus-II and acute renal failure. In fact the complainant had no such problem. All the parameters of the complainant at the time of admission and stay in the hospital indicated that he was having no such problem. The creatinine of the patient was only 1.9 on 20.6.2009. On 21.6.2009 it was again 1.9, on 22.6.2009 the same was 2.9, on 23.6.2009 it was First Appeal No.672 of 2014 8 2.5, on 24.6.2009 and 25.6.2009 it was 2.2. and on 26.6.2009 it was 2.8. The patient was given insulin for his diabetes treatment. Again the complainant had taken Consultantion of Dr. Rajeev Khanna, DM, an Endocrinologist, who examined the patient for about 4 times during his stay in the Hospital. The patient was admitted in the Hospital on 18.6.2009 at 23:46:50. Dr. Amitab Mohan Jerath, Gastroenterologist examined the complainant on 19th of June 2009 along with Dr. Arun Chopra-opposite party No.2. Dr. Jerath again examined the patient on 20.6.2009. Dr. Amitab Jerath is MD (Medicine) and is a practicing Gastroenterologist. Dr. Hemant Ojha, Surgeon, opposite party No.3 also examined the patient. Echocardiography was done on 19.6.2009, which showed CAD, P/CABG & P/AVRB io Prosthetic AV opening and closing well. In view of CT abdomen finding, General Surgeon consultation was taken and he advised Exploratory Laparotomy. Since the patient was on "Acitrom", high risk was involved in surgery. Dr. Hemant Ojha-opposite party No.3 in his finding at 7.15 P.M. had clearly written as under:-
Patient's attendants (brother and brother-in- law) met. Poor progress explained. Nature of disease explained. Wanting to wait for surgery overnight. Considering also the option of shifting the patient. Not willing to give the high risk consent".
This being a high risk case, the consent was not given initially but was given on 20.6.2009 at 9.00 P.M. by Jagdeep Kang, son-in-law of First Appeal No.672 of 2014 9 the patient, who had got him admitted on 18.6.2009. Surgery was performed by Dr. Ojha-opposite party No.3 on 21.6.2009 at 1.20 A.M. The medical notes and operating notes indicate resection and anastomosis of jejunum was done i.e. the unhealthy part was removed. During surgery the patient was given 10 bags of FFP i.e. fresh frozen plazma, which is used for controlling bleeding. Acitrom 3 mg. was stopped to the patient from 18.6.2009 to 24.6.2009. Acitrom was not given during that period and it was only given on 29.6.2009 at 6.00 p.m. when it was found that the surgical wound started healing and the medicine was started after observing for some time. Since the patient was on Acitrom 3 mg. in the Hospital for 5 days, there was no bleeding. The patient was discharged on 3.7.2009 in a stable condition. He was advised to visit Dr. Hemant Ojha-opposite party No.3, co-Consultant and also Dr. Arun K. Chopra-opposite party No.2, admitting Consultant. On 19.7.2009 the patient was presented with black colour stool since 1-2 days with blood. Dr. Ojha-opposite party No.3 remained in contact with Dr. Arindham Ghosh at Apollo Hospital. Since the complainant was on Acitrom, the said medicine was stopped and re-surgery was advised. The said medicine was stopped because second surgery was to be carried out. Again attendants of the patient were asked to perform their part and complete the paper work. Thereafter the surgery was performed on 22.7.2009. On merits some of the paragraphs have been denied but the stand taken is identical as narrated above. Denying all other allegations made in the complaint, a prayer for dismissal of the complaint has been made.
First Appeal No.672 of 2014 10Defence of opposite party No.2:
5. Opposite party No.2 in his separate reply also replied on the identical lines as given by opposite party No.1-Hospital.
Defence of opposite party No.3:
6. Opposite party No.3 in his separate reply also replied on the identical lines as given by opposite party No.1-Hospital. In addition to it, he has also mentioned as under:-
"vii. The patient was admitted in hospital on 18-June-2009 at 23:46:50. In view of CT Abdomen finding was sought on 20.06.2009 and the patient was seen on the forenoon by OP No.3 and Surgery was advised. The gravity (Mortality of 60-90% reported in medical literature) was explained to the attendants available. Since the high risk involved in the surgery which was explained to the attendants, the attendants of the patient did not give the consent and were of the option to consult other surgeons of the city. The attendants also were considering the option of shifting the patient at their own risk and that is why the surgery was delayed overnight. The need of urgent exploration was also explained to the attendants available. I can still recollect that the attendants informed me that the son of the patient had set up a business in Australia and was not available in the country. Many attendants have been visiting the patient but were First Appeal No.672 of 2014 11 reluctant to take the responsibility of the patient, who were explained the risk and need for repeat surgery if indicated.
viii. It is important to refer to my comments written in hospital records at 7:30 P.M. This was written when everything was explained to the attendants of the patient. "Patients attendants (brother and brother-in-law) met. Poor progress explained. Nature of disease explained. Wanting to wait for surgery overnight. Considering also the option of shifting the patient. Not willing to give the high risk consent".
This being a high risk case consent of the wards/attendants was necessary, which was not given till 9.00 P.M. on 20.6.2009 and it was given by one Jagdeep Kang, son-in-law of the patient. It has also been averred by him that all medical and surgical maneuvers of a patient having an artificial valve in the blood stream along with CABG is preferably done under the supervision of a Cardiologist (even tooth extraction). Significant risks include (a) Bacteriemia leading to colonization of artificial valve (b) Uncontrollable Bleeding on account of blood thinner (c) Multiple drug interactions. This blood thinner like Acitrom is anti coagulant drug which is prescribed by the Cardiologist and is to be taken life long after A.V.R. In this case also the patient had undergone A.V.R. from Apollo Hospital, Delhi on 7.10.2004. The patient also needed Cardiologist's supervision all the time. It is further averred that opposite party No.3 has been dragged into this litigation without any fault. He is not responsible in First Appeal No.672 of 2014 12 any way. Denying all other allegations made in the complaint, a prayer for dismissal of the complaint has been made. Finding of the District Forum:
7. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, partly allowed the complaint, vide impugned order. Hence, this appeal.
8. We have heard learned counsel for the parties and have carefully gone through the records of the case. We have also gone through the written arguments submitted by the appellants/opposite parties Nos.1 and 2 and respondent No.1/complainant.
Contentions of the Parties:
9. Learned counsel for the appellants/opposite parties Nos.1 & 2 referred to the written arguments submitted by opposite parties Nos.1 and 2 and also advanced oral arguments. It was vehemently argued by the learned counsel for appellants-opposite parties Nos.1 and 2 that the order passed by the District Forum is erroneous on facts as well as law. The District Forum has recorded factually incorrect finding. On 19.7.2009 the patient was presented with black colour stools since one-two days with blood. When the patient was admitted in opposite party No.1-Hospital on 19.7.2009 he was not treated and was again discharged. On 20.7.2009 Dr. Hemant Ojha-
opposite party No.3 (appellant in FA No.999 of 2014) had planned endoscopy and advised the patient to keep fasting for the midnight. The complainant paid the charges of opposite party No.3. The complainant was discharged on 20.7.2009 at 8:53 A.M. in the First Appeal No.672 of 2014 13 morning. Colonoscopy was done by the Apollo Hospital after admission, which showed normal study and reference to the Discharge Summary of the Apollo Hospital was made. It was further argued that the patient did not have any episode of blood after 19th of July 2009 after his medication was managed and conservative treatment was done till the stay in opposite party No.1-Hospital and as such, he was managed in a proper manner. In such cases immediate need was to get the 'malena' cured first which was done and the surgical intervention was a subsequent step. All the complications were explained to the patient. On 19.7.2009 the Hb of the patient was 6.9 at 1.55 P.M. as a result of which unit of blood at 9.30 P.M. was given and the patient started feeling comfortable and he was also kept empty stomach for planned endoscopy in the morning. However, the Hb level was not checked. The normal time taken for transfusion of the blood unit is in the range of 1-2 hours and Hb recovers after 3-4 hours of blood transfusion. By the time the patient was discharged on 20.7.2009 and was taken to the Apollo Hospital. The complainant himself not opted for endoscopy but he wanted to get himself discharged. It was further argued by the learned counsel that if the blood continued to have passed along with the stools, then the level of Hb could not have arisen from 6.9 on 19.7.2009 to 8.1 on 21.7.2009. The other parameters speak that condition of the patient when he was discharged and admitted in the Apollo Hospital itself was stable. It was also argued that first surgery was done at opposite party No.1-Hospital, which was done on 20.6.2009 and clear indication was mentioned, which is clear from First Appeal No.672 of 2014 14 the medical record that re-surgery may be required and the consent was given late at night around 9.00 p.m. Thereafter the surgery was commenced at 10.00 P.M. and continued till 1.15 A.M. in the morning. This surgery was done in emergency and in fact was a life saving surgery. The second surgery was done on 22.7.2009 at 3.50 P.M. at Apollo Hospital when the patient was stable and 'malena' was conservatively managed. The affidavit and the averments made in the complaint are wrong. The complainant was not only treated by the Cardiologist but by the Doctors who were well versed with regard to the abdominal problems. In view of this, the District Forum has overlooked the findings of the Medical Expert Committee. The patient's attendants were explained in writing about the high risk surgery. The finding recorded by the District Forum with regard to the relevancy of the expert opinion on the face of it is erroneous. Reliance has been placed on the following judgments:-
i) Malay Kumar Ganguly v. Dr. Sukumar Mukherjee (Dr.) and Ors. reported in 2009 (3) CPJ 17 (SC);
ii) Ramesh Chandra Agrawal v. Regency Hospital Ltd. & Ors. reported in 2009(4) CPJ 27 (SC);
iii) Shashi Bala v. Chahal Hospital reported in 2015(3) CLT 159 (Punjab);
iv) Jacob Mathew v. State of Punjab and Anr. reported in 2005(III) CPJ 9 (SC);
v) Ghisa Ram v. Dr. P.K. Bansal & Anr. reported in 2003(4) CPJ 299;First Appeal No.672 of 2014 15
vi) Chander Mohan Head Constable v. Preet Nursing Home and others reported in (2010) (3) CLT 76;
vii) Veena Mahajan & Ors. v. Ved Kumar Gupta (Dr.) & Ors. reported in 2009(1) CLT 390;
viii) C.P. Sreekumar (Dr.) v. Ramanujam, reported in 2009(2) CPJ 48 (SC);
ix) Dr. Ved Prakash Yadhav v. Nihal Singh & Others reported in 2013(3) CLT 516 (NC);
x) Escort Heart Command Centre & Anr. v. Premlata Dubey & Anr. reported in 2012(3) CLT 84 (NC);
xi) H.R. Megh v. Dr. Jasjit Chhachhi Nursing Home& others reported in 2011(3) CPJ 152 (NC);
xii) Kusum Sharma and others v. Batra Hospital & Medical Research Centre & others reported in 2010(1) CPJ 29 (SC);
xiii) National Insurance Company Limited v. Aabha Rani Srivastava & Anr. reported in 2010(2) CPJ 219;
xiv) Nisam Institute of Medical Sciences v. Prasanth S. Dhananka & Ors. reported in 2009(2) CPJ 61 (SC);
xv) Subash M. Nargolkar (Dr.) v. Babynanda S. Kalbhor reported in (2011) (4) CLT 160 (Maharashtra State Commission); and xvi) Sanjay Gadekar (Dr.) v. Sangamitra @ Sandhya Khobragade reported in 2016 (3) CLT 14 (NC). First Appeal No.672 of 2014 16
10. Learned counsel for opposite party No.3 endorsed the arguments raised by the learned counsel for opposite parties Nos.1 and 2 in both these appeals.
11. Per contra, learned counsel for the complainant referred to the written arguments submitted by him and also advanced oral arguments. It was vehemently argued by the learned counsel for the complainant that earlier the complainant had consulted Dr. Gagandeep Singh, who had advised C.T. Scan of the abdomen, which was got done by him from Dhillon C.T. Scan Centre. The findings were suggestive of "Suspicion of Omental Infarct with Segmental Thickening of the adjacent portion of the small Gut". On examination of that report Dr. Gagandeep Singh referred the complainant to opposite party No.1-Hospital and had also called opposite party No.2-Dr. Arun K. Chopra, who is a Cardiologist. It was further argued that in-spite of the fact that the C.T. Scan clearly indicated the abdomen pain and abdomen problem but no treatment with regard to the same was given. The services of Gastroenterologist were not requisitioned nor any Specialist Surgeon relating to the gastro problem was summoned. The treatment was carried out by a Cardiologist and a General Physician i.e. opposite parties Nos.2 and 3. Both of them were not competent to perform abdominal surgery i.e. jejuno jejunal anastomosis but the surgery was carried out by opposite party No.3, though he was not expert in the said field. Learned counsel further argued that the opposite parties were fully aware that the surgery was a high risk surgery and the consent was sought for the same but the super specialists for the First Appeal No.672 of 2014 17 said purpose were not summoned, which makes out a clear case of medical negligence. It was further argued that the observation of Dr. Ghosh of Apollo Hospital, Gastroenterologist, who had performed the second surgery clearly indicates medical negligence on the part of the opposite parties. It was further argued that expert opinion has rightly been brushed aside because it does not give any reasons and logic and no reference to the qualification of the Surgeon of opposite party No.1-Hospital has been made. It was further argued that there is a catena of judgments that in every case expert opinion is not necessary if the medical record otherwise makes it clear that there was medical negligence on the part of the opposite parties. He prayed that there is no illegality or infirmity in the order passed by the District Forum and the same is liable to be upheld. Consideration of Contentions:
12. We have given our thoughtful consideration to the arguments raised by the learned counsel for the parties before us.
13. The complainant was admitted in opposite party No.1-Hospital on 18.6.2009 at 23:46:50 in pursuance of the report of Dhillon C.T. Scan Centre, Amritsar, Ex.C-3, who had observed in his report as under:-
"SUSPICION OF OMENTAL. INFARCT WITH SEGMENTAL. THICKENING OF THE ADJACENT PORTION OF THE SMALL GUT."
In opposite party No.1-Hospital the complainant was got admitted by Consultant; namely, Dr. Arun K. Chopra i.e. opposite party No.2 and his co-Consultant Dr. Hemant Ojha i.e. opposite party No.3. As per First Appeal No.672 of 2014 18 the Discharge Summary, Ex.C-2, the complainant was diagnosed as under:-
"DIAGNOSIS:
DM TYPE-II HYPERTENSION CORONARY ARTERY DISEASE P/CABG (2004) P/AVR(2004) MESENTRIC ARTERY INFARCT ACUTE RENAL FAILURE CHIEF COMPLAINTS:
Patient presented with c/o pain abdomen with vomiting since afternoon."
Thereafter laparotomy surgery was done on 20.6.2009 and the treatment carried out in opposite party No.1-Hospital on said date was as under:-
"COURSE IN THE HOSPITAL CT Abdomen done outside on 18.6.2009 showed Mesentric infarct with thickening of wall of small bowel. Echocardiaography done on 19.06.2009 showed CAD. P/CABG & P/AVR B io prosthetic AV opening & closing well. In view of CT Abdomen finding General Surgeon Consultation was taken and he was advised Exploratory Laparotomy. The patient underwent Exploratory Laparotomy done on 20.06.2009. 12 units of FFP and one unit of Whole blood were transfused to the patient. Ultrasound whole abdomen done on First Appeal No.672 of 2014 19 22.06.2009 showed few distended, fluid filled, apperistaltic gut coils are seen. His Blood Urea and S. Creatinine level were raised for which Nephro consultation was taken and treatment was given as advised and diagnosed. The procedure was uncomplicated and well tolerated. His subsequent stay in the hospital was uneventful. He is being discharged in stable condition."
Again the complainant submitted that he was still experiencing pain in the abdomen. The complainant was again admitted on 19th of July 2009 in Opposite Party No.1-Hospital. At that time the complaint of the complainant-patient was c/o black colour stool since one-two days with blood. The physical examination was done and the following observations were made:-
"On admission, his pulse was 90/min and BP was 110/80 mmHg. There was no pallor, cyanosis, clubbing or oedema. JVP was not raised and lungs were clear. Precordial auscultation and other systemic examination was unremarkable."
The following Course in the Hospital was taken:-
"On admission he was having low Hb associated with fever for which he was transfused 01 unit of PRBC during his hospital stay. Echocardiography done on 19.07.2009 showed CAD, P/CABG, P/AVR, bio prosthetic AV opening & closing well, normal LV/RV function, LVEF 55%, concentric LVH. The patient underwent conservative medical management. His First Appeal No.672 of 2014 20 stay in the hospital was uneventful. He is being discharged in stable condition."
Accordingly the complainant/patient was discharged on 20.7.2009 in stable condition with the advice to come for follow up after 2 weeks. However, the pain in the abdomen of the complainant did not subside and he got himself admitted in Satguru Partap Singh Apollo Hospital, Ludhiana on 20.7.2009. The Discharge Summary of that Hospital has been proved on record as Ex.C-5 and the Final Diagnosis was done as under:-
"FINAL DIAGNOSIS:-
- K/c/o AV valve replacement (in 2005) and Hypertension
- Status exploratory Laparotomy
-Jejunal bleed (anastomotic site) The relevant operation/procedure done and the brief history were as under:-
OPERATION/PROCEDURE DONE:
- Exploratory laparotomy, adhesiolysis with redo jejuno jejunal anastomosis on 22.07.2009.
Operative findings:- Thickened and edematous bowel.
- Dense adhesions between bowel loops.
- Small bowel, omentum and transverse colon densely adherent and forming a mass
- Previous amastomotic site in proximal jejunum with lumen filled with altered blood.First Appeal No.672 of 2014 21
BRIEF HISTORY:
Patient k/c/o AV valve replacement (in 2005), status exploratory laparotomy for mesenteric artery infarct leading to 7 small bowel ischemia, 7 resection anastomosis 1 month back. Post operatively he was five and 2 weeks post op patient started have melena, last episode was on 19.07.2009, patient was also on Tab. Acitrom 3 mg. once daily and was withheld as patient was passing blood in stools. H/o chronic alcoholism."
After that when the surgery was done at the Apollo Hospital, the following findings were recorded:-
"COURSE IN HOSPITAL:
After admission, UGIE and colonoscopy was done to see the bleeding site, which showed normal study. CECT whole abdomen was performed s/o a bleeder near to the anastomosis. Reexploratory laparotomy was done on 22/07/2009. Bleeding point was identified and redo jejuno jejuna anastomosis was performed. PT-INR and Hb monitoring was done regularly and after consulting cardiologist Acitom dose was modified. Patient was kept on I/V fluids, antibiotics, analgesics and other supportive drugs. He gradually started tolerate liquids orally, mild wound discharge was there. ASD was done and patient is being discharged with the advice to come for dressing in the OPD and to monitor PT- INR."First Appeal No.672 of 2014 22
The complainant/patient was discharged from the said Hospital on 28.7.2009. The case of the complainant in the light of above facts from the very beginning is that the complainant was having abdominal pain and vomiting but opposite party No.1-Hospital did not diagnose it properly and commenced the treatment, which was not relevant. Even the qualified Gastroenterologist and expert in the field of Surgery were not called for examination. Even the Surgery was carried out by Dr. Hemant Ojha, opposite party No.3, who is not specialist Surgeon in performing the surgery with regard to gastrological problems. The conclusions of the complainant perhaps based on the fact that in-spite of the surgery there was bleeding and stool was turning black. The symptoms indicated that proper surgery was not carried out at the first instance, which was done at opposite party No.1-Hospital. However, after the second surgery done at Apollo Hospital and in the findings regarding diagnosis mentioned in Discharge Summary Ex.C-5, it has been opined that thickened and edematous bowel, dense adhesions between bowel loops, small bowel, omentum and transverse colon densely adherent and forming a mass and previous anastomotic site in proximal jejunum with lumen filled with altered blood. The 'malena' had started post operatively stage and came to the notice of the complainant on 19.7.2009. The tablet Acitrom 3 mg. was given once daily which is a blood thinner. In these circumstances the surgery was redone. The Surgery at Apollo Hospital was done by Dr. Arindham Ghosh, Surgical Gastroenterologist, a Senior Consultant and other Doctors. First Appeal No.672 of 2014 23 After that the complainant had some relief regarding the problem such as the vomiting and the pain in the abdomen.
14. Now it would be appropriate to determine the alleged medical negligence of opposite party No.1 and its Surgeons and the paramedical staff, if any? For determining the medical negligence following things are necessary:-
i) diagnosis, ii) advice; and iii) treatement.
Recently Hon'ble National Commission in case of Hardwari Lal vs. A.K.Aggarwal 2017 (3) CLT 295 (NC) has observed as under:-
"8. A doctor's professional functions may be divided into 3 phases (i) diagnosis(ii) advice and(iii) treatment. The importance of proper diagnosis cannot be undermined as the patient has so much to lose when there is a wrong or half-baked diagnosis. A diagnostic error results in the patient being denied timely effective therapy, or being administered potentially toxic, incorrect medications sometimes leading to the devastating consequences. An equally important key issue in a "right diagnosis" is the "timeliness" and "accuracy".
In certain acute situations delay of a few minutes in a diagnosis and treatment may be fatal.
9. The courts in United Kingdom have observed that the primary duty of a medical practitioner is to diagnose the patient's condition. The duty of Doctor's not only to make enquiries in ascertaining First Appeal No.672 of 2014 24 data, but also exercised remarkable professional skill in forming a conclusion from such data.[See Gibbons versus Harris 1924 1 DLR 923]. It has been held that failure to exercise due skill in diagnosis, as a result of which wrong treatment was given, amount to negligence.[See Everett versus Griffiths 1923 KB 163].
10. Hence, it needs little emphasis that proper and timely diagnosis being the key deciding paradigm for the line of treatment of a patient, anything going amiss at this stage is crucial circumstances to determine the question, whether or not an error of judgement in treatment of a patient tantamount to negligence."
15. In the light of the above, now it is to be seen whether in the present case opposite party No.1-Hospital and the treating Doctors properly diagnosed the disease of the complainant and gave proper advice and treatment? Admittedly on 18.6.2009 at 23:46:50 the complainant got himself admitted in opposite party No.1-Hospital complaining abdominal pain and persistent vomiting since afternoon. Besides this, there was a report of Dhillon C.T. Scan Centre, Amritsar, indicating the cause of said pain, which was with reference to some problem in the omental system. However, Dr. Arun K. Chopra, opposite party No.2, who was Consultant at that point of time in opposite party No.1-Hospital on clinical examination and on the basis of his assessment he diagnosed the disease of the First Appeal No.672 of 2014 25 complainant which is mentioned in the Discharge Summary of opposite party No.1-Hospital as under:-
"DIAGNOSIS:
DM TYPE-II HYPERTENSION CORONARY ARTERY DISEASE P/CABG (2004) P/AVR(2004) MESENTRIC ARTERY INFARCT ACUTE RENAL FAILURE"
Thereafter laparotomy surgery was done on 20.6.2009 and the treatment carried out in opposite party No.1-Hospital on said date was reproduced above. Even after that surgery the complainant continued to experience abdominal pain and other complications. Rather his stools turned black and he was passing blood along with stools, which is indicative of the fact that there was some injury in the omental canal which may be the cause of the said problem. Again on 19.7.2009 the complainant approached opposite party No.1- Hospital complaining of continuous pain in the abdomen and the problem of black colour stools with blood. At that point of time also Dr. Hemant Ojha, the Surgeon, opposite party No.3, who had also carried out the earlier Surgery also examined the complainant/patient and endoscopy was planned but feeling dissatisfied with the line of treatment of opposite party No.1-Hospital and the Doctors, the complainant opted to get discharged from opposite party No.1-Hospital and approached Apollo Hospital, where categorical finding has been recorded about the bleeding in the stools as jejuno jejunal anastomosis, which indicates that the earlier surgery was not carried out properly. Once specific case of the First Appeal No.672 of 2014 26 complainant is that both the Doctors were not specialists in Surgical Gastroenterology, the proper surgery could not be carried out by them. In other words, there was misdiagnose on the part of the Hospital doctors working for the hospital and no proper treatment was given and as a result of which the complainant had to go for redo surgery at Apollo Hospital. The hospital is vicariously liable. It is further categorical case of the complainant that both the Doctors i.e. opposite parties Nos.2 and 3 were not qualified Gastroenterologists. Even no document has been annexed with regard to the specialization of those Doctors, specifically Dr. Hemant Ojha i.e. opposite party No.3. Opposite Party No.1-Hospital is a Corporate Hospital, which they claim it has super specialist Doctors in every Branch of the diseases. The Hospital expect that patients approach the said Hospital but what has happened to the complainant itself is narrating the story, which is otherwise. In the present case, it is apparent that when the treatment carried out in opposite party No.1- Hospital is compared with the treatment carried out in Apollo Hospital, where super specialists in the Surgical Gastroenterologist, Dr. Arindham Ghosh had done the redo surgery, in our considered opinion the complainant was not given proper treatment in Fortis Hospital and there was misdiagnosis and the Doctors were not expert in the Surgical Gastroenterology, who carried out the surgery. Rather cardiac treatment was given. It may be true that since the complainant was having the history of the previous cardiac problems the presence of Cardiologist was also necessity besides Endocrinologist as he was a patient of Diabetes Mellitus. Still the First Appeal No.672 of 2014 27 surgery should have been carried out by a Specialist in the field as the complainant from the very beginning was complaining of the abdominal pain and vomiting and prima facie C.T. Scan carried out at Dhillon C.T. Scan Centre, Amritsar also indicated the problem in the intestinal area/near small gut area. Another fact which needs to be noticed is that it is the case of opposite party No.1-Hospital that it was a high risk surgery and consent was taken for the said purpose. In these circumstances, certainly the services of highly super specialist Doctor in the field of Surgical Gastroenterology were necessary. However, fully knowing all these facts opposite party No.1-Hospital and the Doctors i.e. opposite parties Nos.2 and 3 attached with the Hospital continued for the treatment and it is apparently appears to be medical negligence and deficiency in service on the part of the opposite parties in giving treatment to the complainant.
16. Now, coming to the opinion of the PGI, Chandigarh, which has been rightly discussed by the District Forum and has disagreed with the same. We have also examined the same. The Medical Board of the PGI, Chandigarh has stated in its Report dated 26.3.2010 as under:-
"Mr. Amarjit Singh age 63 years, a patient of Diabetes Mellitus, Hypertension, Coronary Artery Disease, with previous Coronary Artery Bypass and Aortic Valve Replacement (2004) was admitted in Fortis Escorts Hospital, Amritsar on 18th June 2009 with abdominal pain and vomiting. A CT scan had suggested the diagnosis of omental and intestinal infarction. First Appeal No.672 of 2014 28 After investigations, he was operated upon on 20th June, 2009, when resection of gangrenous jejunum was done. The patient was discharged on 3rd July 2009 but after discharge he had gastrointestinal bleeding for which he was admitted again on 19th July 2009, when conservative treatment was given till 20th July 2009. However, the patient was shifted to Apollo Satguru Hospital, Ludhiana on the same day. Where he was diagnosed to have bleeding from anastomotic site. He was subjected to surgery again when redo jejunojejunal anastomosis was done.
The records show that Mr. Amarjit Singh who had a number of risk factors (diabetes, hypertension, coronary artery disease) developed intestinal gangrene for which he was operated promptly the first time at Fortis Escorts Hospital, Amritsar. But he had bleeding from the anastomotic site which is a known aftermath of any such surgery. He required a re-do surgery and made a good recovery.
We feel that he was given satisfactory treatment at both the hospitals and there was no negligence in his treatment at Fortis Escorts Hospital, Amritsar."
Although the Medical Board in its opinion mentioned that both the Hospitals gave satisfactory treatment to the complainant but it lacks reasons specifically when there is no reference to the qualifications and competence of the Doctors, who performed surgery in opposite party No.1-Hospital i.e. Dr. Hemant Ojha, opposite party No.3. If there was proper treatment at opposite party No.1-Hospital, there First Appeal No.672 of 2014 29 was no question of redo surgery. Specifically it needs to be noticed that in the finding of opposite party No.1-Hospital it has been concluded, which has not been discussed at all. Even the reasons have not been recorded as to how the bleeding continued and what was the reason for the bleeding from the upper part? The judgments cited by opposite party No.1-Hospital are not at all applicable. Hon'ble Supreme Court in V.KISHAN RAO v. NIKHIL SUPER SPECIALITY HOSPITAL & ANOTHER reported in (2010) 5 S.C.R. 1 has held as under:-
"13. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the Members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory."First Appeal No.672 of 2014 30
Hon'ble Supreme Court in the above mentioned case has also held as under:-
"32. About the requirement of expert evidence, this Court made it clear in Indian Medical Association (supra) that before the Fora under the Act both simple and complicated cases may come. In complicated cases which require recording of evidence of expert, the complainant may be asked to approach the civil court for appropriate relief. This Court opined that Section 3 of the Act provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus the Act preserves the right of the consumer to approach the civil court in complicated cases of medical negligence for necessary relief. But this Court held that cases in which complicated questions do not arise the Forum can give redressal to an aggrieved consumer on the basis of a summary trial on affidavits. The relevant observations of this Court are:
"...There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can First Appeal No.672 of 2014 31 be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out-patient card containing the warning [as in Chin Keow v. Govt. of Malaysia, 1967 (1) WLR 813(PC)] or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the civil court for necessary relief..." First Appeal No.672 of 2014 32
33. A careful reading of the aforesaid principles laid down by this Court in Indian Medical Association (supra) makes the following position clear:-
(a) There may be simple cases of medical negligence where expert evidence is not required.
(b) Those cases should be decided by the Fora under the said Act on the basis of the procedure which has been prescribed under the said Act.
(c) In complicated cases where expert evidence is required the parties have a right to go to the Civil Court.
(d) That right of the parties to go to Civil Court is preserved under Section 3 of the Act.
34. The decision in Indian Medical Association (supra) has been further explained and reiterated in another three judge Bench decision in Dr.J.J. Merchant and others vs. Shrinath Chaturvedi reported in (2002) 6 SCC 635.
35. The three Judge Bench in Dr. J. J. Merchant (supra) accepted the position that it has to be left to the discretion of Commission "to examine experts if required in an appropriate matter. It is First Appeal No.672 of 2014 33 equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly." [para 19, page 645 of the report] [Emphasis supplied]
36. It is, therefore, clear that the larger Bench in Dr. J. J. Merchant (supra) held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of Commission. Therefore, the general direction given in para 106 in D'Souza (Supra) to have expert evidence in all cases of medical negligence is not consistent with the principle laid down by the larger bench in paragraph 19 in Dr. J. J. Merchant (supra).
37. In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the Consumer Fora feels it is required the direction in paragraph 106, quoted above in D'souza (supra) for referring all cases of medical First Appeal No.672 of 2014 34 negligence to a competent doctor or committee of doctors specialized in the field is a direction which is contrary to the principles laid down by larger Bench of this Court on this point. In D'souza (supra) the earlier larger Bench decision in Dr. J. J. Merchant (supra) has not been noticed."
17. In the light of this, we do not find any reason to differ with the findings recorded by the District Forum while rejecting the report dated 26.3.2010, which has been annexed with the letter dated 6.4.2010 sent by the PGI, Chandigarh.
18. In view of our above discussion, we do not find any merit in both the above mentioned appeals and the same are hereby dismissed.
19. The appellants/opposite parties had deposited a sum of `25,000/- at the time of filing of the appeal (FA No.672 of 2014). They deposited another sum of `1,27,500/-, vide receipt dated 30.6.2014 in compliance of the order dated 11.6.2014. Both these sums, along with interest which has accrued thereon, if any, be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to the parties. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
20. Similarly the appellant/opposite party No.3 had deposited a sum of `25,000/- at the time of filing of the appeal (FA No.999 of First Appeal No.672 of 2014 35 2014). This sum along with interest which has accrued thereon, if any, be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to the parties. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
2. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER September 22, 2017 Bansal