National Consumer Disputes Redressal
Prem Kishore vs Dr. Sudhir Khanna & 5 Ors. on 29 March, 2023
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 473 OF 2015 1. PREM KISHORE 258/3, MES COFFICERS ENCLAVE, ROCK VIEW, AIR FORCE STATION PALAM, DELHI CANTT., NEW DELHI-110010 ...........Complainant(s) Versus 1. DR. SUDHIR KHANNA & 5 ORS. UROLOGY SURGEON,
DOCTOR OF SIR GANGA RAM HOSPITAL,
R/O. 8/29, EAST PATEL NAGAR, NEW DELHI-110008 2. DR. SANJAY MITTAL
DOCTOR OF SIR GANGA RAM HOSPITAL,
R/O. SANTOKBA DURLABHJI MEMORIAL HOSPITAL, BHAWANI SINGH MARG, NEAR RAMBAGH CIRCLE, JAIPUR-302004. 3. DR. MANU GUPTA
DOCTOR OF SIR GANGA RAM HOSPITAL,
R/O. GUPTA MATERNITY HOME,
C-49, VIKASPURI, DELHI-110018 4. DR. V.S. BEDI, VASCULAR SURGEON
DOCTOR OF SIR GANGA RAM HOSPITAL,
R/O. FLAT NO. 1003, TOWER 12, ORCHID PETALS, SECTOR-49, SOHNA ROAD, GURGAON-122018 5. DR. ANURAG GUPTA, NEPHROLOGY
DOCTOR OF SIR GANGA RAM HOSPITAL,
R/O. 145, DWARKADESH APARTMENT, SECTOR-12, DWARKA, POCKET 2, NEW DELHI-110075 6. SIR GANGA RAM HOSPITAL (THROUGH ITS AR/TRUSTEES)
ADJACENT TO BAL BHARTI PUBLIC SCHOOL, OLD RAJINDER NAGAR, NEW DELHI-110060 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER HON'BLE MR. BINOY KUMAR,MEMBER
For the Complainant : For the Opp.Party :
Dated : 29 Mar 2023 ORDER
Appeared at the time of arguments:
For the Complainant : Mr. Deepanker Mohan, Advocate
For the Opposite Parties : Mr. Subhash Kumar, Advocate with
Dr. Sudhir Khanna, OP-1
Pronounced on: 29th March 2023
ORDER
Dr. S. M. KANTIKAR, MEMBER
1. Smt. Urmila Devi (since deceased, for short, the 'patient') consulted Dr. Sudhir Khanna (Opposite Party No. 1) at Sir Ganga Ram Hospital (for short, the 'SGRH') - Opposite Party No. 6, who diagnosed her condition as "Retroperitoneal Fibrosis with Bilateral Hydroureteronephrosis". On 24.04.2013, "Bilateral Double J Stenting" - a minor procedure was performed in SGRH and she was discharged on the next day. For permanent relief, the Opposite Party No. 1 suggested the "Robotic Ureterolysis" surgery and gave estimation of Rs. 1,50,000/- as charges. The surgery was scheduled for the last week of June, 2013. As the patient was anaemic - Hb 8.9gm %, the physician Dr. Anurag Gupta treated the patient from 18.06.2013 till 26.08.2013. The Hb % improved to 9.9 gm % and the date of surgery was fixed on 04.09.2013. The Opposite Party No. 1 did not inform about the need of blood transfusion for surgery.
2. On 04.09.2013 the patient was taken to Operation Theatre (OT) at 7.00 a.m. for the surgery. It was alleged that during the procedure, Dr. Khanna negligently cut the external iliac artery, which resulted into heavy blood loss. He instead of repairing the cut of iliac artery, continued with the surgery for further three hours by applying haem clips only. He did not call the vascular surgeon for artery repair. Later on, when the situation became out of control and complicated, the Opposite Party No. 1 obtained the consent of the patient's husband for open surgery. He had not disclosed about injury of iliac artery. Dr. V. S. Bedi, the Vascular Surgeon (Opposite Party No. 4) was called to repair the iliac artery, but it was too late (3 hours of the injury). It was alleged that the patient suffered heavy blood loss about more than 3 litres, which further led to Acute Renal Failure (ARF). It was further alleged that the Opposite Party No. 1 was performing this Robotic surgery for the first time and he was not qualified and had no experience in the said procedure. This fact was concealed by the Opposite Parties from the patient and her family members. Due to careless and negligent act, the external iliac artery was cut. Thus it was gross negligence. Even after knowing the cut, he applied haemo clips on the main vessel and continued the operation. Dr. V.S. Bedi, with his team, performed Polytetrafluoroethylene (PTFE) bypass grafting to the damaged artery which caused further blood loss. Within two days, the patient was given 15 units of packed RBCs (PRBC), 14 units of Fresh Frozen Plasma (FFP) and few units of other blood components. After the operation, the patient was shifted to ICU, the doctors gave fake assurance that the patient's condition was stable. Thereafter, Dr. Sudhir Khanna went abroad, leaving behind the patient in the hands of other doctors. It was alleged that the Opposite Party No. 1 and his team was aware about Haemophilia Carrier state of the patient, but the doctors failed to administer anti-Haemophilic Factor VIII or Cryoprecipitate prior to and / or after surgery. Thus, it led to continuous blood loss and ultimately, the death. Thereafter, the patient was kept on dialysis & ventilator from 05.09.2013. It was followed by Continuous Renal Replacement Therapy (CRRT). Thereafter, on 06.09.2013, the patient suffered cardiac arrests twice, he was revived. Again he suffered, 3rd cardiac arrest, but despite meticulous CPR efforts, the patient expired and declared dead at 3.40pm. He further alleged that he was compelled to pay Rs. 4,16,000/- against the agreed cost of Rs. 1,50,000/-, however after long arguments, the hospital came to know mistake on their part and therefore, the amount was settled to Rs. 3.67 lakh. It clearly amounts to alleged manipulative strategy of the Hospital to hide their mistake. Being aggrieved, the Complainant registered an FIR at Rajender Nagar Police Station under Section 304A of IPC. He also filed a complaint before the Medical Council of India and filed this instant Consumer Complaint under u/s 21(a)(i) of the Act 1986 and prayed compensation of Rs. 1,92,51,000/- with 18% interest.
Defense:
3. The Opposite Parties filed the common reply and denied any negligence on their part. It was submitted that the patient was referred by Dr. S. N. Wadhwa, a senior renowned Urologist at SGRH to the Opposite Party No. 1 for renal ailments. After a detailed check-up by both the doctors, it was diagnosed it as a rare Retroperitoneal Fibrosis (RPF) with Bilateral Hydroureteronephrosis (HDN) with Acute on Chronic Kidney Disease (CKD). Accordingly, the patient & her family members were explained about the nature of RPF as a rare disease having serious consequences, if left untreated. It was also explained that the treatment will be done in two steps because of the compromised kidney functions on account of back pressure on both ureters. The first step was to relieve the obstruction of the ureters temporarily by placing Bilateral DJ stent. After improvement in the kidney functions, the definitive surgery for bilateral Ureterolysis would be performed for RPF. The informed consent was taken after explaining the patient and her family members about the nature, benefits and risks of the operation and the hospital stay with expenses. It was also explained with linear diagrams and pictures. It was pertinently submitted that on 25.04.2013, the Complainant consulted several doctors in the city, including Safdarjung Hospital before coming to the Opposite Party No. 6 hospital. The patient and her husband was also informed about the Robotic surgery, its advantages & limitations as well as the option of conversion to conventional open surgery. After discussions among themselves, the Complainant opted for surgery at SGRH - Opposite Party No. 6.
4. Initially, correction of haemoglobin under instructions of Dr. Anurag Gupta (Opposite Party No. 5), the Hb level became 9.9 gm % and the date of surgery was fixed on 04.09.2013. It was further submitted that beforehand, the Complainant was informed that the OP-1 and his family would be away to Vancouver to participate as a faculty in the International Urology Conference, and in his absence, the Opposite Party No. 3 and another experienced Urologists of the Unit will look after the patient.
5. It was further submitted that the Robotic Surgery was uneventful. The right sided ureterolysis was started, the dissection was difficult. Gradually the ureter got separated from the fibrotic tissue. On two occasions small blood vessels were injured. They appeared to be un-named retroperitoneal vessels or a lower polar vessel. They were controlled by surgical clips as a standard procedure. At that time, total blood loss was 200 to 250 ml and it was controlled. During procedure, there was no obliteration of telescopic view due to blood.
6. After completion of right sided ureterolysis, during final evaluation, it was noticed that the pulsations in the right external iliac artery were weak. It was not clear whether it was due to a pathological block within the lumen or an accidental partial external occlusion by the clip. Patient was clinically stable at that time and BP and pulse of the patient was all throughout maintained. Removal of the clip without proximal & distal control of the vessel was considered unsafe. It was therefore decided to call a senior vascular surgeon. The Head of vascular surgery, Dr.Bedi OP-4 came & evaluated the patient. Vascular Doppler was done to confirm the degree & level of the block. The arterial Doppler examination showed diminished monophasic flow in the Right femoral artery as compared to the left. It was decided to conduct open surgery. Accordingly, the Opposite Party No. 1 came out of the OT and informed the Complainant about the operative findings. The Complainant gave the written informed consent for the Laparotomy. The Vascular Surgeon - Opposite Party No. 4 performed open surgery for the block in the artery. To gain the access to the External iliac artery, the dissection of the tissues surrounding the external iliac artery was necessary. The right common iliac artery and right external iliac artery were found to be plaqued and densely encased in fibrous tissue. Gradually, proximal and distal control of common iliac artery, external iliac artery and internal iliac artery was obtained. After gaining control of the vessel above & below, interposition PTFE graft was placed to bypass the block & restore circulation. During such very difficult dissection, bleeding occurred to a significant extent about 1800 & 2000 ml. The blood loss was promptly replaced. In view of the critical condition, the left sided ureterolysis was abandoned and the patient was shifted to ICU for close monitoring & management.
7. In the ICU, the surgical team & the ICU team as well as the vascular surgeon, anaesthesiologists 8c nephrologists managed the patient, as best as possible as per standard norms. The OP-1 also came at 10.30 p.m. along with OP No.2, to review the patient. The condition of the patient was explained to the complainant. As the Robotic surgery system has an inbuilt video recording of the operative procedure. The DVD (video recording) was given to the patient's family as well as to the MCI, as part of evidence. This video clearly shows that the bleeding during the initial robotic procedure was not more than the estimated 200 to 250 ml and the operating view was not obstructed / blocked by blood at any time. Subsequently, the Patient developed cardiac arrest 3 times. The first two arrests could be successfully revived but unfortunately, after the 3' arrest she could not be revived. She was declared dead at 3.40pm on 6.9.13. He further submitted that the billing was done as per the list of scheduled charges. At the request of family of deceased and on compassionate grounds, the discount was offered. The medical record with DVD was handed over to the Complainant. The DMC declared that there was no evidence of medical negligence. The operating team of surgeons were qualified and surgery was done as per accepted standard medical protocol.
Arguments:
8. Heard the arguments from the learned counsel on both the sides. They have filed medical literature on the subject and few citations.
9. The learned Counsel for Complainant argued that it was not an error of judgment. As there was cut to external iliac artery while removing the Retroperitoneal fibrosis; but the Opposite Party No. 1 knowingly continued the robotic surgery for further three hours and despite continued bleeding. Instead of immediate repair of the cut, he put haemoclips, which itself amounts to medical negligence. The Opposite Party No. 1 failed in his duty of care and did not call immediately the Vascular Surgeon to repair the injury to the external iliac artery. He further argued that the MCI ignored the findings of delay to treat the cut of external iliac artery, it was an act of medical negligence, but not an error of judgment.
10. The learned Counsel for Opposite Parties reiterated their reply and affidavit of evidence. They relied upon the standard textbooks on Renal Surgery and Vascular Surgery.
Findings & Reasons:
11. Robotic surgery is minimally invasive and provides a highly magnified view of the operative field and permits precise & accurate dissection, eliminating the elements of fatigue & physiological tremor unlike other approaches. This is minimally invasive and is associated with reduced blood loss and wound related complications. The Complainant's allegation is that there was no informed consent for the surgery. One official of the hospital took signature of the patient and her husband on unfilled form and assured that the same would be later on filled by the doctors. In our view, the complainant being a highly educated person was not expected to sign on blank forms. It should be borne in mind that, Robotic surgery is a specialised one and all the possible complications of such major surgery are always discussed beforehand in the OPD itself and not on the day of surgery.
12. The evidence of OP-1 and the OT notes revealed the ascending colon was carefully mobilized. The right ureter was found to be densely adherent to the overlying plaque tissue of RPF. Careful dissection was started from the dilated healthy ureter, going distally towards the pelvis. During dissection of ureter there was bleeding from a retroperitoneal vessel. It was promptly & properly controlled, as seen in the video recording at 1.06.28 hours into surgery. At another site, sutures were taken to control the bleeding and finally a surgical clip was used to stop the bleeding.
13. It is pertinent to note that ,after completion of surgery on Right side, while at the time of closure, weak pulsations in the external iliac artery were noted. It was discussed whether due to intra-luminal block or the external compression by the surgical clip. Chief of vascular surgery, Dr V.S.Bedi was called. The Doppler study on Right femoral artery showed the blood flow was diminished. The urology & vascular surgery teams decided to immediate surgical intervention for re-vascularization of the Right leg. It was informed by OP-1 to the patient's husband waiting in the OT lobby at 11 am and the informed consent for the open surgery was taken. Thus till then, it is evident that there was no bleeding.
14. The open surgery was performed by the Dr. V. S. Bedi through a lower midline laparotomy. While he was dissecting the severe fibroses around the femoral artery at the area above & below the suspected block, considerable blood loss occurred. After gaining an adequate control on the vessel above & below the block, PTFE (bypass graft) was done as an accepted standard procedure. Thereafter, the ureterolysis procedure on left side was deferred to later date. The patient was shifted to ICU for further post-operative management.
15. It is pertinent to note that the blood loss during open surgery was replaced with the transfusion of 15 units of PRBC, 14 units of fresh frozen plasma (FFP) and few units of blood components in two days. The patient was kept on inotropic support to maintain her blood pressure. As there was decreased urine output, therefore, dialysis was done by the Nephrology team. She was given ventilatory support and was closely monitored by the ICU team. Her haematological and renal parameters were monitored as per the ICU guidelines. She was constantly under monitoring of the doctors from the team of Vascular Surgery, Nephrology & Urology.
16. On considering the chronology of surgical events, it is evident that during Robotic dissection of RPF on right side, severe bleeding was not detected, but it was only to the extent of 200 to 250 ml. It was controlled by Opposite Party No. 1 by putting a suture and haemoclip. It should be borne in mind that if there was massive bleeding during Robotic surgery, it was difficult for the Surgeon (Opposite Party No. 1) to continue further because the blood will obstruct the visibility. Moreover, if blood loss was severe and continuous no prudent surgeon will wait for the Vascular Surgeon, but as an emergency, he will open the abdomen immediately. The operating Surgeon will not wait for Doppler study and for consent. It is pertinent to note that Dr. V.S. Bedi, Vascular Surgeon was called after noticing feeble pulsation in the artery to rule out obstruction or other cause. The abdomen was opened by the Vascular Surgeon and found no bleeding. There was no fall in blood pressure, but the patient was stable as evident from the chart till 3.55 pm when open surgery was being done. However, in the instant case, admittedly, the massive blood loss occurred at 3pm during open surgery while dissecting the severely fibrosed tissue around the Right femoral artery.
17. Allegation regarding non administration of Anti-Haemophilic Factor VIII or cryoprecipitate prior to surgery or even after cutting the external iliac artery. From the history of the patient, she was a haemophilic carrier. However, most often the carriers will not have high risk of bleeding. The patient, five years back, had undergone Total Abdominal Hysterectomy, and there was no such history of increased bleeding and any administration of anti-haemophilic factor VIII. Therefore, this allegation of the Complainant is not sustainable.
18. Regarding excess billing, it appears to be on account of the extended services for unexpected events. The possibility of such complications was explained to the patient party. Even though, the hospital on compassionate grounds waived off his entire surgical fees. It was done when the complainant stressed that he would not be getting any financial help from his department.
19. It is evident that complete medical record as well as the DVD of the Operative video of Robotic surgery was given to the complainant, on their application without any delay. The High Risk consent was taken by the anaesthetist during Pre Anaesthetic Check-up. The patient was ASA Grade II. The consent of the patient's husband was taken again when the robotic surgery converted into open surgery.
20. Next point for our consideration is the decision of Delhi Medical Council and Medical Council of India. The MCI ethics committee after hearing the complainant and the OP doctors (Urologist, Vascular Surgeon and Nephrologist) opined that the patient was treated as per the standard protocol. It was held that the team of doctors were able to recognize promptly the complication and managed it properly. The Writ Petition before the Hon'ble High Court against the order of MCI did not set aside the findings of MCI.
21. We have carefully perused the order of DMC and MCI in this matter. The DMC, in its Order, observed that:
"It seems that the primary surgeon took a long time to resort to this option in view of the injury to the vessels. This could be construed as an error of judgment on the part of the surgeon as he converted to open surgery at a later stage during the operation. This delay due to an error of Judgment led to significant blood loss and subsequent complications."
Accordingly, the Disciplinary Committee of DMC, recommended a punishment that:
"name of Dr. Sudhir Khanna (Delhi Medical Council Registration No.3208) be removed from the State Medical Register of the Delhi Medical Council for the period of thirty days".
However, in the confirmation meeting, DMC took a lenient view and modified the order to remove the punishment. Therefore, the Complainant filed an Appeal before MCI, wherein the MCI also took a lenient stand towards doctors and upheld the DMC order.
22. We would like to rely upon few decisions of Hon'ble Supreme Court. In Jacob Mathew Vs. State of Punjab & Anr.[1], it was held that;
"no sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake".
Similarly, in Hatcher Vs. Black[2], Lord Danniel opined while discussing the term "Medical Negligence".
"The jury must not find a doctor negligent simply because one of the risks inherent in an operation actually tool place or because as a matter of opinion he made an error of judgment. They should find him guilty only when he had fallen short of reasonable medical care."
23. In the matter "Achutrao Haribhau Khodwa Vs State of Maharashtra & Ors.[3], it was held as under:
"Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Courts finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
24. The Hon'ble Supreme Court in the case, S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another[4] held that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. Recently in the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. vs Dr. MA Methusethupathi & Ors.[5], their Lordships observed that:
it clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.
25. Based on the foregoing discussion, in our considered view, it was the case of 'error of judgment'. After knowing the complications, all the efforts as per the standard of practice were done by the team of doctors consisting of Vascular Surgery, Nephrology and Urology. Thus, conclusively, neither there was failure of duty of care nor medical negligence attributable to the Opposite Parties (treating doctors). The Consumer Complaint is devoid of merit, it is dismissed. However, there shall be no Order as to costs.
[1] 2005(3) CPR 70 (SC) [2] [1954] CLY 2289 [3] (1996) 2 SCC 634 [4] (2019) 2 SCC 282 [5] 2022 LiveLaw (SC) 391 ......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER ...................... BINOY KUMAR MEMBER