Delhi District Court
Radhey Shyam vs Professor Madhu Nigam on 20 August, 2015
1
IN THE COURT OF MS SUJATA KOHLI, ADDITIONAL
DISTRICT JUDGE, CENTRAL DISTT. TIS HAZARI COURTS,
DELHI
CS No. 318/14/06
Unique ID No. 02401C0382502006
Radhey Shyam
S/o Shri Sri Ram
R/o 19/304, Trilok Puri,
Delhi-110091. ......Plaintiff
Versus
1. Professor Madhu Nigam
Department of Cardio Surgery
Through Director, G B Pant Hospital
New Delhi.
2. Dr. Vijay Kumar Trehan
Consultant
Through Director
Department of Cardio Surgery
G B Pant Hospital, New Delhi.
3. The Medical Superintendent/Director
G B Pant Hospital, New Delhi.
4. Dr. Shiv Kumar Chaudhary
Through Director
Department of Cardio Surgery
CS No. 318/14/06
Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............2
2
AIIMS , New Delhi.
5. The Medical Superintendent/Director
AIIMS, New Delhi.
6. Secretary
Directorate of Health Service
Delhi Administration ,
Karkardooma, Delhi.
7. Secretary
Ministry of Health & Family Welfare
Govt. of India,
New Delhi. .......Defendants
Date of filing of the suit : 05-05-2006
Date of reserving the Judgment/Order : 22-07-2015
Date of passing the Judgment/Order : 04-08-2015
SUIT FOR COMPENSATION AND DAMAGES
CHARGES FOR A SUM OF RS. 20,00,000/-
JUDGMENT :
1. Present suit has been filed by the plaintiff to seek damages on account of medical negligence alleged by him on the part of the defendants.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............3 3
2. Brief facts as stated by the plaintiff, who is aged about 35 years, are that he belongs to a very poor family comprising of his wife and four minor children. In the year 2002, plaintiff suffered some physical problem i.e. respiratory, croaky or raspy voice as well as pain in left shoulder. He approached the ESI hospital at Jhilmil Colony for treatment. After examination and several tests by the ESI hospital, it was revealed that plaintiff was suffering from some heart ailment and therefore ESI hospital referred to the plaintiff to the Cardiology Department of GB Pant Hospital i.e. defendant no. 3. He was examined by the concerned doctor and after requisite medical tests, they diagnosed the plaintiff to be suffering from 'Acumatic Congenital heart disease and severe MR, Large LAA aneurysm'. Accordingly, his treatment started under the supervision of Head of the Department of Cardiology i.e. defendant no. 1 (since now deceased).
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............4 4
3. Plaintiff was admitted to G B Pant Hospital on 03-03-2002 and on 07-03-2002 a medical report was given whereby it was revealed that there was a large LA aneurysm 8 x 6 cm, neck of aneurysm was 3-6 cm, MR and Echo Doppler test were also performed which revealed the same problem and accordingly, defendant no. 3 advised the plaintiff to undergo a by-pass surgery, wherein a mitral valve would be inserted into his heart for the treatment of plaintiff and better functioning . It was assured to him after the surgery , the problem will stand cured. An amount of Rs. 75,000/- was chargeable by defendant no. 3.
4. Surgery for implantation of the valve was held on 24-03- 2004 under the supervision of defendant no. 1, and after that plaintiff was discharged on 31-03-2004.
5. After one week from the date of discharge the condition of the plaintiff started deteriorating. The plaintiff approached the doctor. Upon performing certain tests when result CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............5 5 came, defendant no. 1 and 2 just remained silent and did not inform anything about the ailment to the plaintiff .
6. Plaintiff was again operated at G B Pant hospital but his condition went on becoming worse. Plaintiff then obtained certain documents from defendant no. 1 and after discussing with certain doctors, it was revealed that there was a severe paravalvular leakage (Mitral valve) with vegetation as large LA pseudo aneurysm.
7. Plaintiff was asked by the doctor at G B Pant hospital not to make any complaint in this regard and he was assured that his problem would be solved soon. However, the condition of the plaintiff remained same and persistently so.
8. Plaintiff approached the doctor at ESI hospital who advised him to go to AIIMS, New Delhi and also certain tests were conducted. However, it was revealed to the plaintiff and he was shocked that a large oval shaped aneurysm arising CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............6 6 from left wall of left atrium displacing the left ventricle towards right side of its normal location could be detected. It measured 9.6 x 7.2 cm in dimension to its maximum expansion. It had a wide neck measuring 3 cm wide. There was paravulvular leakage directed towards the posterior wall of left atrium on the left side i.e. close to the neck of aneurysm. A portion of the leaking blood after hitting the posterior wall of left atrium was being developed towards the right side i.e. into proper LA chamber and a significant portion was being diverted towards left side aneurysm across into the neck.
9. This report was showing gross error committed by the doctors at G B Pant Hospital earlier.
10. Doctor at AIIMS had advised the plaintiff to change the said valve for which the plaintiff had to deposit Rs. 1 lakh, which was done by ESI hospital on his behalf.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............7 7
11. The surgery took place at AIIMS hospital on 28-09-2005 for the replacement of the said valve but unfortunately the problem of the plaintiff continued as it is.
12. Later on, the plaintiff learnt that the said valve was not replaced and even proper treatment was not given for curing the pseudo LA aneurysm and infact the doctor at AIIMS hospital had just only repaired the valve vide the surgery done on 28-09-2005. The said surgery done under the supervision of Dr. Shiv Kumar but same was not successful and because of negligence and careless attitude of doctor at AIIMS, the plaintiff continued to suffer due to the negligence of doctors at both the hospitals. He had acute heart problem and the doctors at both the hospitals had even declared that his life may come to an end soon.
13. Plaintiff is stated to be just about 35 years of age and shouldering the responsibility of his entire family, consisting of his illiterate wife and minor children. He described his CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............8 8 present life as that of a dead person who is unable to maintain his wife and children. Their studies have been badly affected and plaintiff has been unable to do any work and earn even a single penny during all this period of his ailment.
14. For this the defendants are alleged to be liable from whom the plaintiff seeks compensation on account of their negligence. Doctor at AIIMS as well as at GB Pant hospital have acted against medical ethics and code of conduct, according to the plaintiff.
15. Plaintiff even issue a legal notice to the defendants on 03- 01-2006 but inspite of being duly served , the defendants did not pay any attention. Ultimately, plaintiff was compelled to file the present suit and that too as an indigent person.
16. Defendant no. 1 to 3 filed a common written statement CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............9 9 wherein they raised a preliminary objection, mainly being that the suit has not been properly instituted for want of proper verification, secondly, the plaint does not disclose any cause of action against the defendants and should be rejected under Order 7 Rule 11 CPC. The plaintiff is alleged to have concealed material facts from the court due to which he should not be entitled to claim any relief. It is further objected that suit is bad for misjoinder as well as non-joinder of the necessary parties. Apart from this the suit is bad for want of issuance of notice under Section 80 CPC .
17. On merits, it has been submitted that plaintiff was admitted to G B Pant Hospital on 03-03-2004 with a diagnosis of Rheumatic heart disease with severe mitral regurgitation.
18. Echocardiogram was done upon the plaintiff before surgery which picked up a large La Diverticulum with CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............10 10 severe Mital regurgitation. He was thoroughly examined by the concerned doctor and proper medical tests was done.
19. The defendants no. 1 to 3 have denied that they ever asked plaintiff to deposit Rs. 75,000/- for implantation in advance. However pre-anaeasthetic test was done upon the plaintiff which was normal and it was found that plaintiff was fit to undergo surgery. Defendant no. 1 had given the advice to the plaintiff as per the best medical knowledge.
20. On 24-03-2004, surgery was admittedly done upon the plaintiff and accordingly divericulum was traversed by a coronary artery, hence was not closed and left as such.
21. It was further submitted that atraial spetal defect was found and closed and post operative course was uneventful and the patient was accordingly discharged on 31-03-2004.
22. All the allegations regarding negligence on part of doctor CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............11 11 have been denied. They have also denied for assurance having being given to the plaintiff regarding rectification of his problem. At the time of discharge all his medical parameters were normal as described in para 7 of written statement and that the mitral regurgaitation was because of washing process to keep the ball and cage clear of the clot formation.
23. It has been admitted that plaintiff was re-admitted on 06- 10-2004 under Professor Dr. Trehan in the department of Cardiology in G B Pant Hospital with a diagnosis of Mitral Valve implantation and Direct closure of Atrial septal defect with severe mitral regurgitation, and it was found that plaitniff was in NYHA class which comes with dyspnoea on exertion and chest discomfort. His heart rate and BP were normal and his chest was clear.
24. The plaintiff is alleged to have had severe mitral regurgitation and the left atrial deverticulum/ anevrysm.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............12 12 Defendants claimed that whatever was needful was done.. Mitral regurgitation was addressed by mitral valve replacement whereas the diverticulum / anevrysm could not be addressed as some was found to be traverred by a coronary artery.
25. After surgery the plaintiff developed severe para prothetic regurgitation as detected on echodiography. There was no vegetation, however, on transthoracic there was suggestion of vegetation. However, repeated blood culture was negative. The plaintiff was advised a Re Do surgery and if for some reasons the Re Do surgery was not possible, there was an option of device closure of para prosthetic leak which could be considered. The doctor at G B Pant Hospital have denied any negligence on their part at any stage.
26. The main argument on part of the defendants has been that doctor is not liable for negligence just because CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............13 13 someone else of a better skill and knowledge would have prescribed a different treatment or operated in a different way, nor is guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical men skilled in that particular art.
27. The defendants no. 1, 2 and 3 further state that plaintiff has given consent before surgery and was made fully aware of the risks associated with the disease.
28. According to defendants no. 1 to 3 , the notice issued by plaintiff on 03-01-2006 had been duly replied vide letter dated 18-04-2006.
29. Defendants no. 4 and 5 in their written statement have also raised certain preliminary objections and mainly that they relied upon the proposition of law that doctor can be held responsible only in cases where the failure of the CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............14 14 operation is attributable to his negligence.
30. Plaintiff has failed to point out to any negligent act on part of defendants no. 4 and 5. Similar objection has been raised regarding that there has been no cause of action accrued for filing of this suit. Objection has also been raised regarding valuation for the purpose of court fee and jurisdiction and also regarding the objection of non-joinder and misjoinder of parties and non issuance of under Section 80 CPC. The objection regarding limitation has also been raised on behalf of defendants no. 4 and 5.
31. It has been mainly submitted on behalf of defendants no. 4 and 5 that plaintiff before approaching them had been operated upon by G B Pant Hospital for the treatment of Atrial Septal Defect and severe mitral regurgitation. The plaintiff for the above said ailment underwent ASD closure and mitral valve replacement at G B Pant Hospital in March, 2004, using astarr edward valve.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............15 15
32. Plaintiff approached the defendants no. 4 and 5 on 26-09- 2005 and on subsequent evaluation by MRI and Echocardiography, he was found to be suffering from Severe Paravalvular leak from the side of the valve ( i.e. from the area where the valve is sutured to the patient's tissue) and Large Aneurysmally Dilated left atrium secondary to Paravalvular leak.
33. It is stated on their behalf that preparations were made to repair the Paravalvular leak and if required redo mitral valve replacement. Plaintiff was operated on 28-09-2005 at AIIMS.
34. As the heart of the plaintiff was densely adhered to the stemum and anterior chest wall, right anterolateral thoracotomy was performed and the heart of the plaintiff was approached from the right side because the condition of the plaintiff was very critical and symptomatic .
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............16 16 Defendants no. 4 and 5 had no other option but to approach the heart of the plaintiff from the said side to save the life of the plaintiff.
35. It is further stated that during the operation , the heart of the plaintiff was found densely adhered to the surrounding structures and dissection was virtually impossible. It has been explained herein that it happens in such cases where patients undergo repeated heart surgeries. There was excessive bleeding during the dissection and the heart tissue was very friable. As the dissection of heart and aorta was not possible, total circulatory arrest (TCA) with fibrillatory cardiac arrest was achieved. (In this condition the circulation of the whole body including the brain is stopped and maximum safe period is about 30 minutes).
36. The defendants opened the left atrium of the plaintiff and mitral was inspected, it was found that there was a significant paravalvular leak (leak from the area where the CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............17 17 valve is sutured to the patient's own tissue). The artificial mitral valve was in good and healthy condition. There was no clout / thrombosis or vegetation and the movement of the valve was perfect and working in good condition.
37. That considering the overall picture, poor exposure and with constraints of total circulatory arrest the defendant decided to repair the paravalvular leak, as it was responsible for patients symptoms and aneurismal dilatation of the left atrium. The paravalvular leak was repaired and echocardiography was performed in the operating room and it was found that there is no paravalvular leak and mitral valve was working perfectly.
38. It is stated that left atrial aneurysm was secondary to paravalvular leak and did not require any treatment. The previous valve was functioning in good condition and unnecessary prolonging the circulatory arrest for replacement of the said valve would have jeopardized the CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............18 18 life of the plaintiff.
39. It is further stated by defendants 4 and 5 that in such life threatening circumstances, the plaintiff was given the best available treatment by the defendants after taking of all precautions and safety measures and infact it is due to the efforts of the operating team of doctors that the plaintiff is still alive. Therefore, no fault can be attributed to the answering defendants by any stretch of imagination.
40. Plaintiff in his replication had denied the stand taken by the defendants and has reiterated his own version as true and correct.
41. Initially two issues were framed by the order of Ld. Predecessor that was in view of the legal objection raised by defendants no. 1 to 3. Reference is had to the proceedings dated 01-03-2007.
1. Whether the suit is bad for want of CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............19 19 notice under Section 80 of the Code of Civil Procedure ? OPP
2. Whether the suit is without any cause of action? OPD
3. Relief.
42. However, at the later stage, issues were reframed by ld. Predecessor vide order dated 20-01-2011. As many as 6 issues had been framed and the 7th one being the relief.
1. Whether the present suit is not maintainable for want of statutory notice under Section 80 CPC? OPD
2. Whether the present suit is bad for misjoinder and non joinder of necessary parties? OPD
3. Whether the present suit is barred by limitation ? OPD CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............20 20
4. Whether the present suit has not been valued properly for the purposes of court fees and jurisdiction ? OPD
5. Whether the plaintiff is entitled to claim damages of Rs. 20 lacs from the defendants, as claimed in the plaint?
OPP
6. Whether the plaintiff is entitled for interest on the amount of damages? If so, at what rate and for which period ?
OPP
7. Relief.
43. Plaintiff initially examined himself as PW-1 on his affidavit prepared/ drafted in English language. He relied upon it as Ex. PW-1/A and also relied upon documents referred in his affidavit as Ex.. PW-1/1 to Ex. PW-1/28. These documents CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............21 21 were objected to on the mode of their proof. Plaintiff was in the middle of cross examination when the ld. Predecessor was pleased to take the considered view that since the plaintiff was not understanding any contents of his affidavit, he was given an opportunity to file another affidavit ie.. in Hindi language and he was thereafter further cross examined at length .
44. Plaintiff has not examined any other witness on his behalf what to talk of any medical expert as his witness.
45. Defendant no. 1 had expired and the suit was decided to have abated against the defendant no. 1. However, a witness i.e. Dr. M Abid Geelani, Professor Department of CTVS, GB Pant hospital, appeared on behalf of defendants no. 1 to 3 as DW-1 on his affidavit Ex. D-1. This witness relied upon documents which were original and office copy of letter dated 18-04-2006 which was Ex. DW-1/1.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............22 22
46. Dr. Shiv Kumar Chaudhary from AIIMS Hospital was examined as DW-2 on behalf of defendants no. 4 and 5, on his affidavit Ex. DW-2/A. He also relied upon documents which were Ex. DW-2/1 (colly.).
47. Plaintiff did not lead any evidence in rebuttal even.
48. No assistance was forthcoming from the counsels and no oral arguments were addressed on behalf of either party inspite of repeated opportunities. Trial had already concluded way back on 18-05-2013 and the matter had been listed for final arguments eversince 17-08-2013 and going on being adjourned for the same purpose time and again with innumerable dates in between for one reason to another. This case which is 9 years old, needs to be dispose off and as such the matter was reserved for judgment with liberty to the parties to file written arguments , if any.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............23 23
49. Written arguments were filed on behalf of the plaintiff only. I proceed to decide the suit on the basis of material on record. My issue wise findings are as under :
Issue No. 1 :Whether the present suit is not maintainable for want of statutory notice under Section 80 CPC? OPD
50. The plaintiff had admittedly issued a legal notice and which the defendants have even claimed that they had given a reply, which is taken as sufficient compliance under Section 80 CPC. Accordingly, the objection raised by the defendants is devoid of substance and issue no. 1 is decided against the defendants and in favour of the plaintiff. Even otherwise , the onus to prove this issue was placed upon the defendants and they do not seen to have pressed the objection and not lead any evidence. Issue no. 1 is accordingly, decided against the defendants and in favour of the plaintiff.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............24 24 Issue No. 2 : Whether the present suit is bad for misjoinder and non joinder of necessary parties? OPD
51. The onus to prove this objection regarding mis-joinder and non-joinder of necessary parties was also placed upon the defendants but they did not lead any evidence on this aspect nor they have addressed any arguments, as such, this issue also stand decided in favour of the plaintiff and against the defendant.
Issue no. 2 is accordingly, decided in favour of the plaitniff and against the defendants.
Issue No. 3 : Whether the present suit is barred by limitation ? OPD
52. The onus was placed on the defendants. Even otherwise, going by the cause of action and the dates thereto as alleged by the plaintiff being lastly on 03-01-2006 , on the face of it taking these dates and the fact that he has filed the suit on May, 2006 itself, as such, this objection also seems to have been raised without application of mind on CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............25 25 behalf of the defendants and same is rejected. Issue no. 3 is accordingly, decided against the defendants and in favour of the plaintiff.
Issue No. 4 : Whether the present suit has not been valued properly for the purposes of court fees and jurisdiction ? OPD
53. This objection was also raised by the defendants and it seems that it has been raised as half heartedly like the other legal objections raised on their behalf and not really pressed.
54. Not only that any evidence has not been lead on this aspect by the defendants but even otherwise they have not been able to show either way as to how the valuation of the suit is defective. It is the plaintiff, who has sought the damages and he has assessed damages Rs. 20 lacs and according to that he is before the Court. It is normally for the plaintiff to assess the value of his suit for the purpose of CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............26 26 jurisdiction and court fees and may be in an appropriate situation, the defendants can raise objection like this and also lead evidence thereon. But certainly not so, in a suit for damages based on alleged medical negligence. This objection also fails.
Accordingly, issue no. 4 is also decided against the defendants and in favour of the plaintiff.
Issue No. 5 : Whether the plaintiff is entitled to claim damages of Rs. 20 lacs from the defendants, as claimed in the plaint? OPP
55. In order to show his entitlement to damages based on alleged medical negligence, a person must show that there was gross negligence on part of the doctor.
56. Even one error of judgment here or there in adopting any one method in preference to another cannot be covered in the definition of negligence.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............27 27
57. The allegations of negligence upon a doctor has far reaching consequences upon his entire medical career and it is not on equal footing to alleged negligence on the part of motor driver. A doctor's career may not only be ruined by n allegation of negligence but he may have to further face debarring practice by the medical council and would suffer loss of reputation for himself and infact his whole life may be affected.
58. Plaintiff that being so, since the consequences being so far reaching and serious in magnitude , the burden to prove the same also has then to be very stringent.
Hucks versus Cole it was pointed out that a charge of professional negligence against a medical man stood on a different footing to a charge of negligence against the driver of a motor car. It affects a professional status and reputation. Therefore, the burden of proof was correspondingly greater. It is settled law that as the charge CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............28 28 was so grievous so should the proof be clear.
59. A doctor is not to be held negligent simply because something went wrong. He is not liable for mischance or misadventure, or for an error judgment. He is not liable for taking one choice out of two or for favouring one school rather than another.
60. He would be only liable when he fell below the standard of a reasonably competent practitioner in his field so much, so, that his conduct might be deserving a censure and is inexcusable.
61. It has been held that a doctor is not liable in negligence because someone else of better skill and knowledge would have prescribed a 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 reasonable body of medical men skilled in that particular art CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............29 29 although a body of adverse opinion also existed among medical men. This principle has been affirmed by the Apex Court in the famous case of Dr. Laxman Balkrishna Joshi versus Dr. Bapu Godbole AIR 1969, Supreme Court 128.
62. In Bolam Test (Bolam versus Frium Hospital) is applied to arrive at the conclusion whether there was element of negligence in the duty of the doctor attending the patient. In this case, it has been held, (I) that a man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular article; (ii) a doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical men skilled in that particular article; (iii) a doctor is not negligent if he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view; (iv) if proper practice requires some warning to be given. The second question is, if warning has been given, would it have made CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............30 30 any difference.
63. It is also settled law that in such cases the burden of proof of negligence, carelessness or inefficiency lies on the complainant's side and in case of medical negligence the burden of proof is correspondingly greater.
64. In the light of all these propositions, we have to examine the quality of the evidence brought in by the plaintiff. It would an under statement to say that same is insufficient. To say the least, it is poor and absolutely incapable of establishing even remotely any kind of negligence on the part of doctor either at G B Pant Hospital or at AIIMS in the present case.
65. First and foremost , going through the plaint itself, same is found ridden with medical terms one after another, and even without describing their ordinary meaning. As a pleadings itself, the plaint is lacking necessary particulars.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............31 31
66. An ordinary person aggrieved of medical negligence, would first always has to establish that he was suffering from a complaint , he underwent a procedure or medication but that complaint persisted and that due to the persistence of the complaint , the said person suffered loss in the form of working capacity, loss of income, loss of enjoyment of life, loss of longitivity and that, all this was because of gross negligence on part of the doctor in performing the procedure or for giving the said medication.
67. The use of the word "gross" is significant in as much as , it is not one opinion or preference for one procedure to the other or that if the other procedure may have been the better option, it would amount to gross negligence.
68. The initial cross examination of the plaintiff itself reduce the strength of this case, when he himself admits that he is not aware about the medical terms which has been CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............32 32 mentioned in his affidavit and when he says that these terms have been mentioned only by his counsel as per the medical advice. This may have been acceptable till the stage of the plaint but not in the stage of evidence.
69. Even so, the plaintiff was already given another opportunity to come with an other affidavit in Hindi language with the indulgence of the court, but unfortunately even in the Hindi affidavit, the plaintiff stated throughout, all the medical terms but not once actually stating in any para what was of his actual complaint resulting out of the medical procedure. He has not exactly defined anywhere as to what was the difficulty or the complaint which he was facing in his day to day life, he had not stated as to how it was effecting his earning capacity. He simply stated in the complaint that he was working with M/s Allied Export Industry as operator and availing the facility of ESI. He started suffering from complaint in the year 2002 i.e. Respiratory, croaky or raspy voice, pain in left shoulder. He has not stated anywhere that after undergoing the surgery CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............33 33 at G B Pant Hospital, the plaintiff was still having respiration disorder and pain in the shoulder. He has not uttered a word that he continued to suffer from the same symptoms even after performing of the bye-pass surgery in which a valve was planted.
70. In para 7 of his original affidavit in English, he has stated that after one week from the date of discharge i.e. 31-03- 2004 the condition of the deponent got deteriorated and he approached the concerned doctor i.e. defendant no. 1 , who advised the deponent to undergo some more medical tests.
71. Upon contacting with the doctor, plaintiff has stated in para 7 that he came to know that a severe paravalvular leakage (Mitral valve) with vegetation with large LA pseudo aneurysm.
72. In the corresponding para 7 , affidavit of his Hindi as well, CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............34 34 he has used these medical terms only. He has not bothered to state anywhere as to what exactly was his complaint .
73. It is necessary to have a reference to some of his replies during cross examination as under :
"I cannot depose about the correct nature and medical terminology of the disease from which I was suffering when I was admitted to G B Pant Hospital as I am not having such knowledge. It is correct that an artificial valve was implanted in my heart during the operation."
It is correct that in year 2002, I had suffered the problem of M R. I am not aware what is large aneuryn as mentioned in para no. 4 and 5 of my affidavit. I am also not aware what is MR.
I am not aware what is Olivrtel, as mentioned in CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............35 35 para no. 10 of my affidavit. It is correct that in G B Pant hospital, Artificial Mitral valve was implanted in heart. I am not aware of the kind of valve implanted by the G B Pant Hospital. I am not aware as to whether Starr Edward Valve is the best category of valve in the world. It is incorrect to suggest that after surgery at G B Pant Hospital, the Mitral Valve implanted at G B Pant Hospital, was doing well. (Vol. There was a leakage). I am not aware what is meant by "Paravalvular leakage", as mentioned in para 7 of my affidavit. I am not aware as to whether at G B Pant Hospital, there was no treatment of Lrge Aneurysm. I am not aware as to whether I was treated for the problem of Mitral Regugitation by implanting Mitral valve at G B Pant Hospital. It is incorrect to suggest that Aneurysm is secondary to Mitral Regurgitation and there is no separate surgery for the treatment of Aneurysm. I approached AIIMS CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............36 36 because G B Pant Hospital had conducted wrong surgery. It is correct that I approached AIIMS because there has been leakage from the Mitral Valve implanted at G B Pant Hospital. I am not aware what is meant by "Large Oval Shape Aneurysm arising from. Left Palaral or of left Arrioum displacing the left Ventricle", as mentioned in para 10 of my affidavit. It is correct that when I approached AIIMS, I was thoroughly examined by the doctors at AIIMS. It is correct that on examination by the doctors at AIIMS, it was found that there was leakage frosm the area where the Mitral Valve implanted at G B Pant Hospital, is sutured to the patient's own tissue. Thereafter, I was operated upon at AIIMS on 28-09-2005. It is correct that at the time of operation it was found by the doctors who operated upon me that my heart was densely adhered to sternum and anterior chest valve and because of that direct surgery was CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............37 37 not possible and my heart was approached from right side. It is correct that surgery was performed after total circulatory arrest as the dissection of heart and aortel was not possible.
"After surgery, I have been told by the operating doctor that considering the over all picture, poor exposure and constraints of total circulatory arrest, it was decided to repair the leakage and the leakage was duly repaired. It is correct that after surgery at AIIMS, the operating doctor has told me that the Mitral Valve has now been working in perfect condition and large aneurysm secondary to the leakage would also be cured.
After last Ecocardiography report conducted at AIIMS, I had not visited at AIIMS. I had not complained of any breathlessness at AIIMS after surgery. Again said, I went to AIIMS. It is CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............38 38 incorrect to suggest that I never visited AIIMS thereafter. I have not filed any document to show that I had visited AIIMS with complaint of breathlessness after my last Ecocardiography conducted at AIIMS in December, 2005. I have not placed any other document except the report from AIIMS about the complaints / any problem suffered by me after the operation at AIIMS. It is wrong to suggest that I have not suffered any problem after operation at AIIMS and that is why I have not placed any such document / record on the file. I am presently getting treatment at G B Pant Hospital. It is correct that I have not placed on record of treatment which I am getting at G B Pant Hospital.
74. The onus to prove this issue was squarely upon the plaintiff and he would have called and examined independent medical expert and obtained their opinion but CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............39 39 he does not seem to have done so at all.
75. He has infact not examined any other witness apart from himself and the documents which he was relying were objected to on the mode of proof. The plaintiff did not take any pains to summon the author of those documents or anyone acquainted with the writing of the author for that matter, even the Record clerk was not called from said two hospitals. Simply that, the documents were original , it would not have disposed off the need of their proof particularly when the objection was raised with respect to the mode of proof.
76. As such all that we have from the side of the plaintiff is the oral statement of the plaintiff, in support of his own version and no more. Even his own version, if taken on the face of it and taken as proof, does not in so many words describe anywhere as to how any of the doctors at G B Pant Hospital or AIIMS had gone negligent.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............40 40
77. Dr. M Abid Gillani, who was a witness on behalf of G B Pant Hospital , has stated that he was not personally involved in the surgery of the plaintiff and that he was deposing on the behalf of the record available.
78. He has no doubt admitted that there was a severe leak of mitral valve but he claims that replacement had been done and the Star Edward Valve had been used which is universally used all over the World for such like surgery.
79. This doctor admits that post surgery patient had developed paravalvular leakage from the sutere side of the said artificial valve but this doctor was of the opinion that there was no need for further surgery or replacement of that valve. The doctor admitted that after medication the leak persisted and that the leak could have been repaired by doing surgery but he goes on to volunteer of his own that it was not required as risk involved therein was more.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............41 41
80. Thus replies given by DW-1 during cross-examination make it quite clear that doctor with best of the intention and best of their judgment adopted the course that they did..
81. Further , DW-1 also deposed that there was no treatment provided for large aneurysm at G B Pant Hospital. No doubt the doctor did admit that the large aneurysm is secondary to the leak in the valve but still we cannot imply from this, even an eiota of negligence, far from there being any gross negligence.
82. Surgeries do have their risk involved and they have their own shortcomings. Medical science is not like a magic wand in every case, that medication would be given and surgery would be performed and patient would be fit and fine.
83. The desired effect of surgery may not be visible on some CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............42 42 patients and may be visible on some.
84. Leak in the valve at the point of suture may imply either some amount of lack of care or in some cases it may imply a negligence on the part of patient also that he may not have taken the precautions required. What is determinate is as to whether at the time of discharging the patient, the discharge summary reflects any left over complaint continuing from the patient or not. If the patient has been discharged in a fit condition , then it would have to be seen if he returned to the hospital immediately without much gap with the same complaint. If he remains fine for long period of time and thereafter he again visits the hospital or another hospital, would certainly not indicate towards any negligence by itself.
85. As regards AIIMS even they have examined the Dr. on their behalf i.e. Dr. Shiv Kumar Chaudhary and who has also deposed on affidavit in support of their defence during CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............43 43 cross-examination. The witness has admitted on the matters of record that patient was first operated at G B Pant Hospital and valve was sutured and that there was some leakage from the side of the valve from which he was operated at AIIMS. It is necessary to have reference to testimony on certain aspects as under :
" We found that heart was stuck therefore blood circulation was stopped and we got only 30 min. safe period and during that period we re-fixed the valve. After the surgery in the operation thereafter we confirmed the result by echocardiography and according to echocardiography there was no leakage. The patient recovered well according to us after the operation.
On 01-12-2005 the patient again met me in the hospital. (Vol. Before 01-12-2005 one echocardiography was done on 17-11-2005 at AIIMS where no leakage was found. Thereafter, he got CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............44 44 conducted another echocardiography on 21-11-2005 at Metro Hospital, Noida and there also no leakage was found. On 01-12-2005 the resident who conduced echocardiography reported a leakage. After seeing this report as earlier two reports were negative, I asked the consultant to specify if the leak was by the side of valve or through the valve. Thereafter, the patient did not turn up for follow up. The procedure adopted by the doctors at G B Pant Hospital for operation upon the plaintiff was according to the procedure prescribed.
86. In the volumnous bunch of medical documents , plaintiff has failed to point out to any discharge summary which may show that the patient was suffering from the same complaint with which he had come and still he had been discharged. If that was so , certainly it could be considered that there was some negligence on part of the doctor at G B Pant Hospital but not otherwise. And even then the degree of that negligence would still have had to be CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............45 45 ascertained.
87. Reference is also necessary to be had to the report submitted by the M. S. G B Pant Hospital placing the expert opinion received from Chairman Dr. Sanjay Tyagi, HOD Cardiology of the Medical Board consituted by the order of the Ld. Predecessor of the Court dated 16-03- 2011.
88. The plaintiff did not even bothered to call them nor cross examine any of the three signatories of this report. Infact since it is the plaintiff upon whom the onus was placed to prove the negligence, and since the report was going against him, he should have not let it go unrebutted. The course was open to him to have called the signatory to the report into the witness box and examined them on the said report to rebut the same. Since even this was not done, the report given by doctors goes unrebutted. The misfortune that the plaintiff seems to have suffered in the CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............46 46 absence of any relevant evidence and any effort made on behalf of the plaintiff, the court has to conclude that plaintiff has not been able to establish even negligence, what to speak of gross negligence on the part of doctors whether at G B Pant Hospital or at AIIMS.
89. Accordingly, as such plaintiff cannot be held entitled to damages against any of the defendants to any extent. Not that he has otherwise succeeded in justifying the grant of any compensation to him, as he has failed to prove that he suffered loss of worth, loss of income, loss of enjoyment of life, loss of longelivity or any other injury after the surgery, which was not already there prior to the surgery. Issue no. 5 is decided against the plaintiff and in favour of the defendants.
Issue No. 6 : Whether the plaintiff is entitled for interest on the amount of damages? If so, at what rate and for which period ? OPP CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............47 47
90. In view of the detailed findings on issue no. 5 above, there is no question of any interest on which the plaintiff may be entitled and as such issue no. 6 is also decided against the plaintiff.
Relief :
91. In view of the findings on issue no. 5 and 6 above, the suit is dismissed.
No orders as to costs.
Decree Sheet be prepared.
File be consigned to Record Room.
Announced in the open court on the day of 04th August, 2015 SUJATA KOHLI Additional District Judge, Central District.
CS No. 318/14/06 Radhey Shyam vs Professor Madhu Nigam & Ors. p.t.o.............