National Consumer Disputes Redressal
Pushkar Dutt vs Christian Medical College And Hospital on 17 November, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 431 OF 2005 (From the Order dated 22.08.2005 in Original Complaint No. 7 of 2001 of Punjab State Consumer Disputes Redressal Commission, Chandigarh) PUSHKAR DUTT S/O HARI RAM APPELLANT VERSUS CHRISTIAN MEDICAL COLLEGE AND HOSPITAL, LUDHIANA AND ANOTHER RESPONDENTS BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MR. B.K. TAIMNI, MEMBER FOR APPELLANTS : MR. T.C. GUPTA, ADVOCATE. FOR RESPONDENT NO.1 : MR. B.L. SAINI, ADVOCATE AND : MR. RAV ISON, SR. LAW OFFICER CHRISTIAN MEDICAL COLLEGE & HOSPITAL, LUDHIANA. PRONOUNCED ON : 17.11.2009 O R D E R
ASHOK BHAN J., PRESIDENT Appellant herein, who was the complainant before the Punjab State Consumer Disputes Redressal Commission, SCO No. 3009-10, Sector-22D, Chandigarh (hereinafter referred to as the State Commission for short), has filed this First Appeal against the Order dated 22.08.2005 passed by the State Commission in Complaint No. 7 of 2001 whereby the Complaint of the Appellant has been dismissed.
Briefly stated, the facts of the case are:-
Appellant, aged 60 years of age, is the resident of Mandi Gobindgarh. On 14.05.2000, he felt extensive pain in the left region of his chest and was taken to Christian Medical College and Hospital, Ludhiana-respondent no.1 herein. He was admitted in the Hospital on 19.05.2000 and certain diagnosis, including Coronary Angiography, was done. As per Angiography Report dated 25.05.2000, it was reported that there was blockage of about 70% and 50%, respectively, in the two Arteries. Appellant incurred Rs. 33,642/- for the above-said diagnosis and admission in the Hospital. He was discharged on 01.06.2000 and was not advised any surgery. On 03.06.2000, appellant again felt pain in the left region of his chest and was again admitted in the Hospital. Dr. Rakesh Sudan-respondent no.2 herein, was the Doctor In-charge, advised the appellant to undergo treatment of Coronary Artery Bypass Graft and performed operation of Coronary Artery Bypass Graft upon the appellant on 09.06.2000. Respondent no.2 opened the heart of the appellant but abandoned the operation on the ground that some blood was found inside Pericardium. Appellant paid Rs.97,727/- to respondent no.1 for the operation of Coronary Artery Bypass Graft and incurred Rs.1,00,000/- on medicines, etc., as per the advice of respondent no.2. Appellant was discharged from the Hospital on 17.06.2000 and was advised 3 months bed rest. In the Discharge Summary, the blockage of Artery was shown to be 90% whereas in Angiography, it was 70%. Appellant then approached Escorts Heart Institute and Research Centre on 28.11.2000 where he was examined by Dr. Trehan and Dr. A. Mathur who advised him certain medicines and no operation much less bypass surgery was advised by them. Being aggrieved, appellant filed a Complaint before the State Commission alleging medical negligence on the part of the respondents and seeking direction to the respondents to refund Rs. 1,31,369/- charged from him for his stay in the Hospital on two occasions, to refund Rs.1,00,000/- incurred on medicines and to pay interest @ 24% p.a. w.e.f June, 2000 till the date of refund. Appellant further demanded Rs.5,00,000/- towards compensation for putting him to grave physical danger, pain and agony and for mental harassment undergone by him.
Respondents, after being served, filed their Written Statements taking the preliminary objection that the appellant was treated by well known experienced Doctors. It was stated that the appellant was treated by Dr. R. Calton, who is a Professor of Cardiology in respondent no.1, having vast experience. That appellant was also treated by Dr. Rakesh Sudan-respondent no.2, who is a Reader in the Department of Cardio Thoracic and Vascular Surgery of respondent no.1, having an experience of more than 14 years. That the Complaint involves complicated questions of facts and law, which require full-scale lengthy trial, the remedy for which does not lie before the Consumer Commission. That the appellant has not come to the Court with clean hands and has suppressed the fact that the Angiography Film is in his possession which he had taken on request from the respondents on 16.06.2000 with a promise to return the same after showing it to some other Doctors but had intentionally not returned the same and without the Angiography film, respondents cannot give effective reply to the allegations made in the Complaint. That the appellant was admitted on 01.06.2000 but was not advised surgery. That the patient had left main Artery disease with diffuse disease of LAD and the left circumflex Artery and the impression from the Angiography were LM disease, diffuse disease of LAD & LCX. That the appellant was advised some medicines and was advised to come 10 days in private OPD with prior appointment with the Doctor In-charge. That Angiography Report recommended Myocardial Rev Ascularisation to LAD, which means, the patient was advised ballooning/surgery. It was admitted that the appellant reported in the Casualty Department of respondent no.1 with a complaint of chest pain at rest despite being on maximal medication and was diagnosed to be having Myocardial Infraction Angina (Heart Attack) and was admitted in the ICCU under the care of Dr. R. Calton and was treated with Thrombolysis (Clot Blusting Medication) and he improved. But within 22 hours of this, appellant suffered second heart attack for which he needed Rethrombolysis and his ECG revealed a Transmural (full thickness) Infraction. That the two heart attacks within a short span of 24 hours necessitated the operation but the operation had to be abandoned since blood was found in Pericardium and, at that stage, operation would have been dangerous to the life of the appellant.
It was denied that Dr. Rakesh Sudan-respondent no.2 was the Doctor In-charge, who was handling the case. The allegations of negligence were denied stating that all precautions and priming of heart lung machine had been made before contemplated procedure. That the appellant was charged for the basic cost incurred by the respondents on the Oxygenators and the Tubings which once primed cannot be reused as the same are disposable items. That the appellant was discharged on 17.06.2000 and was advised 3 months bed rest. It was denied that there is any variation in the blockage of the Artery in the Discharge Summary and Angiography Report. That appellant had been coming to the respondents after June, 2000 for treatment but had never disclosed, at any point, that he had gone to Escorts Heart Institute and Research Centre on 28.11.2000 or he was ever been examined by Dr. Trehan and Dr. A. Mathur. That the alleged prescription-Ex. P10 is a fabricated document. Thus, denying all allegations of deficiency in service and negligence, respondents prayed for dismissal of the Complaint.
The State Commission, after taking into account the pleadings as well as the evidence led by the parties, dismissed the Complaint holding that the appellant has failed to prove his case. It was held that the appellant has simply alleged that blockage of 70% and 50% of two Arteries does not require operation but has not produced any evidence to support this contention. That no medical expert much less medical literature has been produced on record to show that operation was not necessary at that stage whereas the stand of the respondents Doctors is that the two heart attacks within a short span of 24 hours necessitated the operation but the operation had to be abandoned since blood was found in Pericardium and operation would have been dangerous to the life of the appellant.
Appellant, being aggrieved by the Order passed by the State Commission, has filed the present Appeal.
Counsel for the parties have been heard at length.
As per Discharge Record, appellant had left main Artery disease with diffuse disease of LAD and the left Circumflex Artery and the impression from the Angiography Report were as follows:-
LM disease, diffuse disease of LAD & LCX Appellant/complainant was advised to take some medicines and to come after 10 days in private OPD with prior appointment with Doctor In-Charge. As per the Angiography Report, appellant was recommended Myocardial Revascularisation to LAD which means that the appellant was advised ballooning/surgery. Appellant reported in the Casualty Department of the respondent-Hospital with a complaint of chest pain at rest despite being on maximal medication and he was diagnosed to be having Post Myocardial Infraction Angina and was admitted in ICCU under the care of Dr. R. Calton. Dr. Calton, after considering the case of the patient, on 04.06.2000, advised the appellant of Coronary Artery Bypass Grafting. Respondent no.2 was consulted for the feasibility of doing so. In view of the Post Myocardial Infraction Angina with left main Artery disease and diffuse disease of the other vessels and moderate Left Ventricular Dysfunction (reduced pumping power of the heart 40% for the patient whereas the normal is 50 to 80%), the option of Baloon Angioplasty was not considered and it was decided to take up the patient for surgery. The patient was taken up for Surgical Revascularisation of the Arteries of the heart (bypass operation). The chest was opened. It was noted that there was an area of adhesion of the Pericardium to the interior and lateral wall of the Left Ventricle and there was 100 to 200 cc of altered blood in the Pericardial Cavity. Keeping in mind that there was blood in Pericardial Cavity, operation was not performed as the same would have been dangerous to the life of the patient.
Admittedly, as per the Angiography Report dated 25.05.2000, there was blockage of 70% and 50%, respectively, of the two Arteries for which operation was not necessary. The Doctor, after reopening the heart, abandoned the operation as there was blood in the Pericardium. As the petitioner had suffered two heart attacks in quick succession, Doctors attending, decided to operate immediately but operation had to be abandoned as blood was found in the Pericardium and operation at that stage would have been dangerous to the life of the patient.
Simple allegation that blockage of 70% and 50%, respectively, of the two Arteries did not require operation, is not enough to support the contention of the petitioner that operation was not required to be done. No medical expert much less medical literature has been produced to show that the operation was not necessary at that stage.
By now, it is a well-settled proposition that onus of proof in medical negligence is on the complainant who alleges medical negligence. No medical expert/evidence has been led by the appellant/complainant to substantiate the allegation of medical negligence that whatever was done by the Hospital was not as per expected medical practice.
Halsburys Laws of England, Volume 6, 3rd Edition, pages-17-18, defines medical negligence in the 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(c).
Honble the Supreme Court of India in paragraph 22 of its Judgment in Jacob Mathew v. State of Punjab and Another reported in (2005) 6 SCC 1, held as under:-
In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was 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 of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
In case, the Doctor brings in his task of providing medicine, a reasonable degree of skill and knowledge and exercise the same to a reasonable degree, then, the medical practitioner cannot be held guilty of the medical negligence only because someone else of better skill and knowledge would have given different treatment or operated in a different way. It has not been shown by leading any evidence that the line of treatment adopted by the respondents was not in line with the medical practitioners.
A Doctor can be held guilty of medical negligence only where his conduct falls short below that of the standard of a reasonably competent Doctor in his field, so much so, that his conduct might be deserving of censure or inexcusable.
Submission of the learned Counsel appearing for the appellant that the blood in the Pericardium should have been detected without operation and there was no need to open the heart and then abandon the surgery, cannot be accepted in the absence of any evidence to show that the blood in Pericardium can be detected without opening the heart. In the absence of such evidence, it cannot be held that the respondents were guilty of medical negligence and deficiency in service.
For the reasons stated above, we agree with the view taken by the State Commission and find no infirmity in the Order passed by it. Dismissed. No costs.
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(ASHOK BHAN J.) PRESIDENT .
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(B.K. TAIMNI) MEMBER