State Consumer Disputes Redressal Commission
Smt. Nisha Rathore vs We Care Super Speciality Hospital & Ors. on 4 September, 2023
Complaint Nos.: Smt. Nisha Rathore Date of
CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023
AFR / NAFR
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Date of Institution: 11/04/2019
Date of Final Hearing: 04/08/2023
Date of Pronouncement: 04/09/2023
Complaint Case No.- CC/19/17
IN THE MATTER OF :
Smt. Nisha Rathore,
W/o. Shri Raghunandan Prasad Rathore,
Permanent R/o. H. No.64, Bich Gali, Vill. Khuntadahra, Kirari,
Dist. Janjgir Champa (C.G.)
Present Add.: H. No.17, Block Number- 2,
Housing Board, Boriyakala, Near Sadani Darbar, Raipur,
Dist. RAIPUR (C.G.)
... Complainant.
Through: Shri Bhupendra Jain, Advocate
Vs.
1. We Care Super Speciality Hospital,
Through- Director,
Add.: GTB Plaza Ring Road-1, Telibandha, Raipur,
Dist. RAIPUR (C.G.)
... Opposite Party No.1
2. Dr. Shilpa Chourasiya,
We Care Super Speciality Hospital,
Add.: GTB Plaza Ring Road-1, Telibandha, Raipur,
Dist. RAIPUR (C.G.)
... Opposite Party No.2
3. Dr. Vipul Prashant,
We Care Super Speciality Hospital,
Add.: GTB Plaza Ring Road-1, Telibandha, Raipur,
Dist. RAIPUR (C.G.)
... Opposite Party No.3
4. Dr. Yatindra Dewangan,
We Care Super Speciality Hospital,
Add.: GTB Plaza Ring Road-1, Telibandha, Raipur,
Dist. RAIPUR (C.G.)
... Opposite Party No.4
Opposite Party Nos.1 to 4 Through: Shri R. K. Bhawnani, Advocate
5. United India Insurance Company Ltd.
Through: Senior Divisional Manager,
Krishna Complex, Kutcheri Chowk,
RAIPUR (C.G.)
... Opposite Party No.5
Through: Shri P. K. Paul, Advocate
6. New India Assurance Company Ltd.
Through: Senior Divisional Manager,
Divisional Office No.03, G.E. Road,,
RAIPUR (C.G.)
... Opposite Party No.6
Through: Shri Shekhar Amin, Advocate
Dismissed Page 1 of 22
Complaint Nos.: Smt. Nisha Rathore Date of
CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023
CORAM: -
HON'BLE SHRI JUSTICE GAUTAM CHOURDIYA, PRESIDENT
HON'BLE SHRI GOPAL CHANDRA SHIL, MEMBER
HON'BLE SHRI PRAMOD KUMAR VARMA, MEMBER HON'BLE SHRI ASHOK KUMAR LUNIYA, MEMBER PRESENT IN BOTH CASES: -
Shri Bhupendra Jain, Advocate for the complainant.
Shri R.K. Bhawnani, Advocate for opposite party Nos.1 to 4. Shri P.K. Paul, Advocate for the opposite party No.5.
Shri Shekhar Amin, Advocate for opposite party No.6.
J U DGE M E NT PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT This complaint, under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act" for short) has been filed by the complainant alleging medical negligence, deficiency in service and unfair trade practice in not providing proper care and treatment by the opposite party Nos. 1 to 4 and seeking directions for the opposite parties for payment of compensation on different heads i.e. loss of income Rs.19,44,000/- (Nineteen Lacs Forty Four Thousand), Rs.7,77,000/- (Seven Lacs Seventy Seven Thousand) for future income, Rs.5,00,000/- (Five Lacs) for treatment expenditure incurred, Rs.36,00,000/- (Thirty Six Lacs) expenses for changing the fingers in every three years till the age of 60 years of the complainant, Rs.1,00,000/- (One Lac) for mental agony, Rs.1,00,000/- (One Lac) as cost of traveling for treatment and nutritious food totaling to Rs.70,21,600/- (Seventy Lacs Twenty One Thousand Six Hundred) along with interest @ 12% p.a. from the date of wrong treatment dated 29.04.2017 along with compensation for unfair trade practice Rs.1,00,000/- (One Lac), compensation for physical agony and disability caused due to improper treatment given by the opposite party Nos.1 to 4 Rs.20,00,000/- (Twenty Lacs). Thus, seeking directions for the opposite parties for payment of total amount of Rs.91,21,600 (Ninety One Lacs Twenty One Thousand and Six Hundred) along with cost of litigation and any other relief which this Commission deems fit to award, this complaint has been filed.
Dismissed Page 2 of 22
Complaint Nos.: Smt. Nisha Rathore Date of
CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023
2. Brief facts necessary for disposal of this complaint are that the complainant Smt. Nisha Rathore was pregnant and she was admitted to the opposite party No.1 hospital on 29.04.2017 for delivery and same day she gave birth to a male child under supervision of opposite No.2 Dr. Shilpa Chourasiya, thereafter, she was shifted to the ICU. The complainant complained about feeling cold, then an injection was given to her on the back of her right hand by a nurse. It is alleged that the said nurse was untrained and inexperienced, as a result of which the vein of the complainant was not injected properly, causing severe pain to the complainant. Thereafter, the nurse applied the bottle on the left hand of the complainant which was previously applied her right hand, but after about 10 minutes the right palm of the complainant turned blue and swollen with extreme pain. The opposite party No.3 Doctor looking to the condition advised to dip her hand in hot water and compress it with a hot air machine, but he did not get any relief, instead he started having severe pain in her hand. Thereafter the opposite party No.3 assured that there is no serious problem and did an operation of the right hand of the complainant on 29.04.2017 itself. After said operation the complainant remained admit in the hospital for the next 14 days and after discharge also she had to go to the hospital daily for about one and half month for dressing of the right hand, but there was no improvement. Then the complainant was again admitted in the hospital and operation was done.
3. When the dressing was opened the complainant saw her fingers and thumb were amputed and when asked the opposite party No.3 he said that her fingers started rotting and for saving her life they were amputed and skin grafting was done. When she again felt pain in her amputed fingers and lower part of wrist from where the skin was taken for grafting and skin started shrinking then the complainant was again admitted in the hospital on 25.10.2017 and plastic surgeon Dr. Yatindra Dewangan respondent No.4 was Dismissed Page 3 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 called who said that skin of open body part has been taken instead of hidden parts of the body like thigh and abdomen for grafting and he also said that even after surgery, the fingers of the complainant cannot come in its normal condition. As per case of the complainant, if timely treatment of a plastic surgeon would have given when the fingers were turning blue, she never had to lose her fingers. By way of amendment the insurers of the opposite party Nos.1 to 4 have also been impleaded in this case and averred that the opposite party No.5 has issued insurance policy covering the risk in professional acts of the opposite party Nos.1 & 3 for the relevant period and the opposite party No.6 has issued insurance policy covering the risk in professional acts of the opposite party Nos.2 & 4 by way of two separate policies for the relevant period, hence the opposite party Nos.5 & 6 are also jointly and severally liable to pay compensation.
4. By way of amendment the complainant has specifically alleged in the complaint that the opposite party No.1 misrepresented itself as a super speciality hospital whereas it took services of uncalled doctors and mislead the consumers. It is further alleged that due to wrong injection/ putting IV cannula in the healthy arm, the complainant became disabled which amounts to deficiency in service. Due to delay in taking proper care by the opposite party No.3 complications developed in the right hand of the complainant, doing one after another surgery without following the advice of other doctors, amputing fingers of the complainant without taking prior consent and doing plastic surgery/skin grafting beyond own expertise and that too from such part of the body from where it should not be taken, shows gross deficiency in service. Similarly, instead of availability of opposite party No.4 plastic surgeon, the first skin grafting was done by the opposite party No.3 himself which also amounts to deficiency in service. Alleging deficiency in service and unfair trade practice as above, the complainant has prayed that Dismissed Page 4 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 the complaint be allowed and compensation as mentioned in paragraph No.1 hereinabove may be awarded.
5. The opposite party Nos. 1 & 3 in their joint written version have denied all the allegations leveled and the facts adverse to them mentioned in the complaint and averred that opposite party No.1 is a super speciality hospital, the opposite party No.2 is an MBBS and MS (Obstetrics & Gynecology) (i.e. a gynecologist), the opposite party No.3 is an MBBS D. (Ortho), M.Ch. (Ortho), FASM (i.e. an orthopedic surgeon) and the opposite party No.4 is a plastic surgeon. It is further averred that the complainant came for the first time to the opposite party No.1 Hospital on 29.04.2017 when she was already 9 months pregnant and was expecting delivery of her child.
On examination it was found that the complainant was suffering from oligohydramnios, which is a condition in pregnancy characterized by a deficiency of amniotic fluid, hypothyroidism and had a history of caesarian operation. The complainant was admitted in the opposite party No.1 hospital on 29.04.2017 at 10:30 am for delivery of her child through Lower (uterine) Segment Caesarian Section (LSCS). It is further averred the complainant / her husband gave the informed consent for surgical procedures, high risk consent for anesthesia and high risk consent for LSCS surgery. They also agreed that they understood that complainant patient was suffering from hypothyroidism, the doctors explained them about treatment options out of which they opted for LSCS, the surgery was risky and might result in certain complications like allergic reaction, excessive bleeding, deep vein thrombosis (DVT) leading to dislodgement of clot and pulmonary embolism etc.
6. It is further averred that after the surgery / delivery of child, the complainant was shifted to ICU at around 1:30 pm as per accepted protocol. At the time of admission as per general protocol before surgery IV cannula was inserted in the right hand of the complainant and that cannula was Dismissed Page 5 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 comfortably used during the surgery for administering necessary medicines and IV fluids. In fact during surgery around 1.5 liters of IV fluid was given to the complainant through the IV cannula in the right hand. Even after the complainant was shifted to the ICU, the same cannula in the right hand was used for another hour to give IV fluids to the complainant. At around 2:30 pm on 29.04.2017, the complainant complained about pain and swelling in her right hand, then Dr. Dhirendra (ICU in-charge) directed for changing the IV cannula from the right hand to the left hand of the complainant. In the meanwhile the opposite party No.3 also examined the swelling and pain in the complainant‟s right hand and noticed swelling and cyanosis (i.e. bluish or purplish discoloration of the skin) below the elbow area in the right forearm. He advised for dipping the right hand of the complainant in warm water and to keep that hand warm, which is common preliminary treatment of cyanosis. When preliminary treatment of cyanosis did not show much improvement, Dr. K.K. Sahu, the cardiothoracic and vascular surgeon also examined the complainant at 5:30 pm on 29.04.2017 and diagnosed cyanosis and compartment syndrome (a condition in which increased pressure within one of the body‟s anatomical compartments results in insufficient blood supply to tissue within that space) in the complainant‟s right hand. He also advised for keeping the complainant‟s right hand warm, prescribed some medicines and advised urgent fasciotomy of the complainant‟s right hand.
7. It is further averred that common causes of cyanosis is DVT. DVT is a serious condition that occurs when a blood clot forms in a vein located deep inside a limb and as mentioned in the consent forms signed by the complainant / her husband, DVT is one of the complications of surgery. In fact, medical research also shows that there is an increased risk of DVT during pregnancy and the postpartum period, with an especially high risk during the first 6 weeks postpartum. Further, compartment syndrome is also Dismissed Page 6 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 rare but severe complication which can occur during and after labour. It is specifically averred that cyanosis, DVT or compartment syndrome, might result in muscles and nerves damage, amputation and rarely can even be fatal. The opposite party No.3 conducted fasciotomy on the complainant‟s right hand/ forearm from 6:30 pm to 7:00 pm on 29.04.2017. Thereafter at 11:00 pm on the same day the opposite party No.3 again examined the complainant and found that fingers of her right hand were blue, the opposite party No.3 urgently conducted extended fasciotomy of 1st and 4th fingers of her right hand from 12:30 am to 1:00 am on 30.04.2017, after taking due consent from the husband of the complainant.
8. The opposite party No.3 told the complainant and her husband about the chances of getting black finger tips because of no circulation of blood and necessity of operation called debridement to remove the unhealthy / damaged tissues to promote healing which was done on 13.05.2017 at 3:30 pm after taking due consent from the complainant‟s husband and after satisfactory improvement in the condition of the patient‟s right hand, she was discharged from the opposite party No.1 Hospital on 19.05.2017, however the complainant continued to visit the opposite party No.1 Hospital for dressing of the wound. When the opposite party No.3 still saw black finger tips and dry gangrene in the complainant‟s right hand in the OPD, he advised the complainant for amputation of those finger tips and explained the complainant/ her husband regarding the condition of the complainant‟s right hand and after consent the opposite party No.3 conducted debridement and amputation of ends of her 3rd and 4th fingers from 3:00 pm to 4:00 pm on 29.04.2017 and she was discharged on 30.05.2017, when she became stable. So far as allegation of choosing skin grafting donor site is concerned, it is averred that keeping in mind the surgical safety he chose to take skin of forearm for transplanting it on the same hand‟s finger, because a very small graft was Dismissed Page 7 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 required, the operation could be done in regional anesthesia, instead of general anesthesia and is safer, because the donor and graft areas come in single surgical field, it is convenient for patient during dressing and also for surgeon during surgery. The opposite party No.3 had dealt with similar situation multiple times with similar surgical decision and had experienced favourable results. Unfortunately, even after successfully conducting skin grafting surgery, the complainant suffered hypertrophic scar of donor area, for which she was advised for another operation but she refused to undergo another operation. So the opposite party No.3 prescribed necessary medicines for applying on the hypertrophic area. It is further averred that the opposite parties adopted accepted international practices while treating the complainant and timely consulted other specialists also like vascular surgeon, plastic surgeon etc. as and when required, who also approved the treatment given by the opposite party No3. Placing reliance upon various judgements of Hon‟ble Apex Court these opposite parties have averred that as no expert opinion in support of allegations of medical negligence has been filed, the complaint of complainant is liable to be dismissed. It is further averred that the opposite party No.3 has taken professional indemnity Doctors Policy from the United India Insurance Company Limited, which is a necessary party in this case.
9. The opposite party No.2 in her separate written version has also denied the adverse allegations leveled against her in the complaint and averred that she is an MBBS and MS (obstetrics & gynaecology). More or less she has supported the version of the opposite party Nos.1 & 3 and further averred that the LSCS operation of the complainant was successfully conducted by her and Dr. Dhirendra Singh (anaesthesia and critical care specialist) at the opposite party No.1 Hospital. She further averred that the complainant had no gynaecological and obstetrical complications, hence the Dismissed Page 8 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 complainant has made false allegations against the opposite party No.2, therefore the complaint is liable to be dismissed. The opposite party No.2 further averred that she has taken professional indemnity Doctors Policy from the New India Assurance Company Limited, which is a necessary party in this case.
10. The opposite party No.4 Dr. Yatindra Dewangan in his separate written version has refuted the allegations leveled against him in the complaint and averred that the complainant was examined by the opposite party No.4 on 25.10.2017 at the opposite party No.1 Hospital. He told that he will operate for contracture of finger and graft will be taken from thigh part of body because if hypertrophy scar forms, it will be hidden, as the complainant had developed a hypertrophic scar over forearm skin graft donor area which may happen to anyone because it is an individual body response. He further averred that wound grafting surgery is also done by orthopaedic trauma surgeon, who is an individual surgeon on table for decision to select area of graft harvest. On 02.10.2017 the opposite party No.4 examined the complainant in OPD and after such examination, she was advised a contracture release operation. The complainant/ her husband were duly informed about the condition of the complainant‟s right hand and the complications, the seriousness of the situation, the requirement of contracture release surgery and the risk involved in the procedure and after obtaining informed consent as well as the high risk consent for contracture release operation of the complainant‟s right hand thumb and index finger flexion contracture 2nd and 3rd web space contracture and SSG under GA was conducted by the opposite party No.4 along with Dr. Dhirendra Singh (anesthetist) on 25.10.2017. It is specifically denied that this opposite party has committed any deficiency in service or unfair trade practice and prayed that the complaint is liable to be dismissed. The opposite party No.4 has Dismissed Page 9 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 further averred that he has taken professional indemnity doctors policy from New India Assurance Company Limited, which is a necessary party in this case.
11. The opposite party No.5 The United Insurance Company Ltd. in its written version has raised preliminary objection that the complainant has filed this complaint against this opposite party on impleading the opposite party No.1 We Care Super Speciality Hospital and opposite party No.3 Dr. Vipul Prashant as opposite party in this complaint. Here it is necessary and important to mention that if any doctor/ hospital has obtained Professional Indemnity Insurance Policy from the insurance company and if existence and effectiveness of such policy is proved, then only the insurance policy holder itself is entitled to file any complaint against the insurance company and nobody else. As per terms and conditions of the insurance policy it is also an important eligibility for filing claim against the insurance company that under a judicial procedure any Court has proved negligence of the doctor / hospital and ordered for payment of compensation, which is lacking in this case. Hence this complaint is immature against the insurance company opposite party No.5. It is further averred that the complainant is not a „consumer‟ of this opposite party No.5 as neither she has obtained the insurance policy nor paid any premium for that. The opposite party No.5 has not committed any act of harassment against the complainant hence it is not liable to pay any amount to the complainant. This opposite party has been made party in this case after elapse of two years from the date of cause of action hence also this complaint is not maintainable against this opposite party. It is further averred that the complainant has failed to prove its allegations of negligence by the opposite party No.3 by way of any cogent evidence or expert opinion hence, this complaint is liable to be dismissed with cost against the opposite party No.5.
Dismissed Page 10 of 22
Complaint Nos.: Smt. Nisha Rathore Date of
CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023
12. The opposite party No.6 in its written version has specifically denied that policy bearing No.460700036160400000007, issued for the period from 19.01.2017 to 18.01.2018, covers risk of any negligent act by the opposite party No4. The policy bearing No.460700036160400000007 belongs to Dr. Yatindra Dewangan only and his business premises are „Dry Cosmeto Plastic Clinic, Main Road Shankar Nagar, Raipur (CG) and Ramkrishna Care Hospital, Raipur (CG)‟. Similarly the policy bearing No.4601003616040000044 belongs to Dr. Shilpa Pawar, whose business premises are Ashoka Hospital, Shri Narayana Hospital Raipur and MGM Medical College and ASS, Indore (MP), which shows that there was no policy issued for We Care Super Speciality Hospital. The complainant has made the opposite party No.4 & 6 as a party, but these parties are not concerned with the incident occurred with the complainant, hence they are not proper or necessary party in this complaint. It is further averred that the complaint is barred by limitation. It is prayed that the complaint be dismissed with cost against the opposite party No.6.
13. In support of the complaint, the complainant has filed her affidavit dated 10.04.2019, 02.12.2019, 10.01.2022 & 31.03.2023 and that of her husband Mr. Raghunandan Prasad Rathore dated 02.12.2019 & 10.01.2022, her mother Smt. Rameshwari Sahu dated 06.12.2019 & Mr. Homram Adle dated 02.12.2019, who is friend of husband of the complainant. The complainant has also filed documents as per list, marked as Annexure C-1 to C-46 including copy of test reports, discharge summary dated 19.05.2017, Annexure C-13, discharge summary dated 26.10.2017, Annexure C-16, Disability Certificate dated 13.02.2019 issued by Office of Civil Surgeon cum Chief Hospital Superintendent District Hospital Raipur, Annexure C-17. Whereas the opposite party Nos.1 & 3 has filed affidavit dated 22.07.2019 of Dr. Vipul Prashant, opposite party No.3, opposite party Nos.2 & 4 have filed their own affidavits. Learned counsel for the opposite party Nos.1 to 4 has filed Dismissed Page 11 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 documents as per list marked as Annexure OP-1 to OP-18 which includes treatment records, test reports, medicine bills details, consent forms signed by the complainant/ family members, medical literature with regard to hypothyroidism and pregnancy, Annexure OP-8, Warming as a primary treatment of ischemic limb, Annexure OP-9, Gazette of India, notification on guidelines for assessment of various specified disabilities, dated 04.01.2018, Annexure OP-13, OT CSSD Sterilization Record, Admission Form, Progress Note, Medication Record, check list for in-patient admission record, discharge summary etc. The opposite party Nos.5 & 6 have also filed affidavit of the authorized officer in support of their written version.
14. We have heard the final arguments advanced by all parties, perused their written arguments and case-laws relied by them. We have also minutely perused the record.
15. Learned counsel for the complainant during the course of oral arguments and in the written arguments also has argued that even after giving intimation regarding pain, swelling and bluish colour of skin of the right hand of the complainant at 1:30 pm on 29.04.2017 no immediate action was taken by the opposite party No.3 Doctor and between 3:30 to 4:30 pm on examination the complainant was advised to keep dipped her hand in warm water and colour Doppler test was not done on that day. Consent was obtained in a typed format on 29.05.2017 and other consent brought on record as Exhibit D-3 and consent marked as Exhibit D-7 were obtained on a plain paper presented before this Commission as handwritten consent, which is a fabricated document. The opposite party No.3 is not a specialist of skin grafting, he was only having knowledge of skin grafting but even then he did not discuss the case with Dr. Yatindra Dewangan and ultimately on 25.10.2017 treatment of Dr. Yatindra Dewangan was given to the complainant, thus not taking services of an specialist for skin grafting also Dismissed Page 12 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 amounts to deficiency in service. After the first examination not providing treatment by Dr. Yatindra Dewangan also shows negligence and deficiency in service. The treating opposite parties Doctors were having knowledge of the fact that the complainant was suffering from hypothyroidism and was having risk of blood clotting even then without making availability of neurosurgeon, remained depending upon visiting doctor they did LSCS operation. It is also alleged that from 1:30 pm to 6:00 pm the complainant was left in pain and immediate effort for opening the veins were not done, which resulted into development of gangrene. The complainant has placed reliance upon judgement of Hon‟ble Apex Court in Shoda Devi Vs. DDU/Ripon Hospital, Shimla & Ors., 2019 (I) LSCT 104; V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., 2010 SAR (Civil) 550 and judgement of Hon'ble National Commission in Dr. Amita Srivastava Vs. Smt. Poonam Devi, 2012 3 CPJ (NC) 32; V.V. Sathaye (Dr.) Vs. Himatlal Girdharlal Singala & Anr., 2012 1 CPJ (NC) 26 and argued that consumer fora are not bound in every case to accept the opinion of expert witness and in a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the things (res) proves itself.
16. Learned counsel for the opposite party Nos.1 to 4 in his arguments has reiterated the facts stated in his written version and argued that all best possible efforts were made to save the life and right upper limb of the complainant as a result of which only except some fingers causing little deformities, the right hand of the complainant could be saved. The fact of 50% disablement of the complainant is entirely refuted and a copy notification No.61 dated 05.01.2018 of the Government of India in the Gazette of India has been filed as Annexure OP-13, which is a guideline for evaluation of permanent physical impairment in persons with amputation. It is further argued that the complainant asked questions by way of questionnaire from the OP doctors which was replied in the form of affidavit from which and the Dismissed Page 13 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 documents filed by the opposite parties regarding treatment of the complainant, it is abundantly clear that the opposite parties have not committed any negligence in providing treatment to the complainant and prayed that the complaint be dismissed. He has referred some medical literature in support of his case and has also placed reliance upon judgement of Hon‟ble Supreme Court in Martin F. D'Souza Vs. Mohd. Ishfaq, I (2009) CPJ 32 (SC); Jacob Mathew Vs. State of Punjab & Anr., (2005) 6 SCC; Malay Kumar Ganguly Vs. Sukumar Mukherjee (Dr.) & Ors., III (2009) CPJ 17 (SC); Kusum Sharma & Ors. Vs. Batra Hospital, (2010) 3 SCC) 480 and argued that keeping in view the principles laid down by the Hon‟ble Apex Court in the above stated cases, the complaint is liable to be dismissed.
17. We have considered the above arguments of learned counsel for the complainant and the opposite party Nos.1 to 4. For the sake of evidence in support of the allegations leveled by the complainant she has only filed her own affidavit and that of her husband, her mother and a friend of her husband, which have been contradicted by the affidavit of opposite party No.2, 3 & 4. The opposite parties have filed some medical literatures in support of their version and in the written version also explained in detail the entire procedure and treatment given by them. Looking to the situation and especially the medical literatures filed by the learned counsel for the opposite party Nos.1 to 4, the complainant ought to have either filed specific expert opinions in support of allegations leveled by her or medical literatures. From the institution of the complaint till the final arguments, the complainant has filed many affidavits on different occasions, amended the complaint also with the permission of this Commission. But during the entire proceedings the complainant never took burden of filing any expert opinion or medical literatures to prove her allegations leveled against the treating doctors. Dismissed Page 14 of 22
Complaint Nos.: Smt. Nisha Rathore Date of
CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023
18. It is quite pertinent and necessary to mention here the principle laid down by the Hon‟ble Apex Court in it judements in Jacob Mathew Vs. State of Punjab & Anr. III (2005) CPJ 9 (SC) and in Kusum Sharma Vs. Batra Hospital, I (2010) CPJ 29 (SC). Hon‟ble National Commission in its recent judgement dated 22nd December 2022 in Consumer Case No.361 of 2001, Smt. Mamta Agarwal & Ors. Vs. Bombay Hospital Medical Research Centre & Ors., citing the recent judgements of Hon‟ble Apex Court has held in paragraph No.22 as under : -
"22. The Hon'ble Supreme Court in the case S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another[8] 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.[9]. It was 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."
We have also gone through the judgements of Hon‟ble Apex Court in the case of S. K. Jhunjhunwala vs. Dhanwanti Kaur and Another, (2019) 2 SCC 282; Dr. (Mrs.)Chanda Rani Akhouri & Ors. Vs Dr. MA Methusethupathi & Ors. 2022 LiveLaw (SC) 391. The concurrent principle of law settled by the Hon‟ble Apex Court in the above cited cases are also followed by the Hon‟ble National Commission in Pink City Heart & General Hospital Vs. Banarsi Devi & Ors., FA No.1018 of 2019 decided on 20.03.2023; Dr. Ishita Tikkha Vs. Managing Director, Apollo Cradle and Ors, CC No.1405 of 2019 decided on 20.03.2023 also. In Dr. Ishita Tikkha (supra)' judgement in paragraph No.30 the Hon‟ble National Commission was of the opinion that :-
"-------. In catena of decisions, it has been held that it is for the complainant to prove the negligence or deficiency in service by adducing cogent evidence. Mere allegation of negligence will be of no help to the Complainant".
Dismissed Page 15 of 22
Complaint Nos.: Smt. Nisha Rathore Date of
CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023
The above principle applies on the facts of the present case also on all fours. In the instant case also the complainant has failed to adduce any cogent evidence in support of her allegation of medical negligence.
19. So far as the first allegations of the complainant that on complaining pain in her right forearm only advise of dipping the hand in warm water was given and color Doppler was not done immediately to ascertain the complications and such delay in taking care and providing treatment attributed to development of gangrene, is concerned, learned counsel for the opposite party Nos.1 to 4 has filed a medical literature titled as Ischemic Limb Complications in the ICU written by David L. Dawson, MD and an article titled as Peripheral Cyanosis (Blue Hands and Feet), available at page No.89 of the paper book. In which under „What is Peripheral cyanosis?‟ it has been mentioned that : -
"Cyanosis refers to a bluish, purplish, or grayish cast to the skin and mucous membranes. A type known as peripheral cyanosis, or acrocyanosis, primarily affects the hands and feet. Sometimes cold temperatures can cause the narrowing of blood vessels and lead to blue-tinged skin. Warming or massaging the blue areas should return the necessary blood flow and color to the skin.
If warming up your hands and feet doesn‟t restore blood flow and color, you may have an underlying condition."
Under the heading „Diagnosis blue hands or feet‟ it is mentioned that: -
"Bluish skin is usually a sign of something serious. If normal color doesn‟t return when you skin is warmed, call your doctor right away in order to determine the cause".
Under the heading „Treating blue hands or feet‟ it is mentioned that: -
"It‟s important to seek medical attention if you have blue hands or feet and warming them up doesn‟t restore normal color."
From this medical literature there remains no doubt that advice of the opposite party No.3 doctor of dipping the affected hand in warm water to keep it warm cannot be said to be erroneous decision or termed as negligence on the part of the opposite party No.3.
Dismissed Page 16 of 22
Complaint Nos.: Smt. Nisha Rathore Date of
CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023
20. The another allegation of the complainant is that on account of applying wrong cannula the complications developed and resulted into gangrene. As per averments of the opposite party Nos.1 & 3, at the time of admission, as per general protocol, before surgery IV cannula was inserted in the right hand of the complainant and that cannula was comfortably used during the surgery for administering necessary medicines and IV fluids. In fact during surgery around 1.5 liters of IV fluid was given to the complainant through the IV cannula in the right hand. Even after the complainant was shifted to the ICU, the same cannula in the right hand was used for another hour to give IV fluids to the complainant. At around 2:30 pm on 29.04.2017, the complainant complained about pain and swelling in her right hand, then Dr. Dhirendra (ICU in-charge) directed for changing the IV cannula from the right hand to the left hand of the complainant and these facts has not been denied by the complainant. In view of the above fact, it cannot be said that cannula was applied wrongly, which resulted into or played any role in development of complications to the right palm of the complainant.
21. The complainant has also alleged that she complained about swelling and pain in the right forearm between 12:30 to 1:00 pm on 29.04.2017 but after about 3 hours the doctor came to see and after about 6 hours examinations were done at 6:00 pm and surgery in the right palm of the complainant was done and due to such delay the complications were developed. From the treatment record of the complainant it appears that on 29.04.2017 at 1:30pm the patient was received in ICU from OT. At 3:30 pm there is an entry of right hand pain and discoloration. Thereafter Dr. K.K. Sahu, vascular surgeon examined the patient who noted purplish discoloration, gross swelling of right hand, SpO2 on finger was 95%, hand was cold and swollen, then advice for keeping the hand warm with air blower and injection Heparin 3000 was given (which is a medicine used to prevent and treat blood clots). Dismissed Page 17 of 22
Complaint Nos.: Smt. Nisha Rathore Date of
CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023
Thereafter, at 5:30 pm on the same day the case was discussed with Dr. V. Prashant who made note that „case discussed with CVTS Dr. K.K. Sahu‟ and „plan for fasciotomy right hand‟ available at page No.130 of the record. Then at 6:06 pm consent was taken from the husband of the complainant thereafter as per operation notes, filed at page No.145 of the record, the procedure executed is mentioned as fasciotomy right hand which was started at 6:30 pm and finished at 7:00 pm. Thus from the above record it cannot be said that any delay was done by the opposite parties in taking care and providing treatment to the complainant.
22. In the complaint, the complainant has also alleged that informed consent was not obtained for the procedures adopted and the handwritten consent forms brought on record are fabricated documents and prepared after obtaining signature on a plain paper. We have gone through all the consent forms filed on record and we do not find any reason to doubt the same. The handwritten consent forms, which are filed on the record, are written in Hindi language, which appears to be well explained and understood to the person who gave consent.
23. The next allegation of the complainant is that the opposite parties Doctors were having knowledge of the fact that the complainant was suffering from hypothyroidism, hence extra care and precautions ought to have taken by them. In this regard nothing specific as to what type of extra care, precautions and arrangements were required to be done is not mentioned in the complaint or argued by learned counsel for the complainant. When the complainant went to the opposite party No.1 hospital she was pregnant of 9 months and was suffering hypothyroidism. Dr. Vipul Prashant in his reply in affidavit to the questionnaire, in answer to the question that what is the effect in delivery and other surgeries of a patient suffering from hypothyroidism ? has stated that chances of development of Dismissed Page 18 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023
blood related complications are high. He has further stated that both
pregnancy and hypothyroidism are a hypercoagulable state having hypofibrinolytic activity and can cause clot formation. He has referred to Exhibit 8 (i.e. Annexure OP-8), which is a medical literature titled as "Venous Thromboembolism in Patients Hospitalized with Thyroid Dysfunction", the abstract of which is as follows : -
"Abstract The objective of this investigation is to explore a possible role of thyroid dysfunction in venous thromboembolism (VTE). The number of patients discharged from short-stay nonfederal hospitals in the United States, from 1979 to 2005, with a diagnostic code for hypothyroidism or hyperthyroidism, pulmonary embolism (PE), and deep venous thrombosis (DVT) was obtained from the National Hospital Discharge Survey (NHDS). Among 19,519,000 hospitalized patients discharged with a diagnosis of hypothyroidism from 1979 to 2005, 119,000 (0.61%) had PE. Among patients with no thyroid dysfunction, PE was diagnosed in 3,372,000 of 908,805,000 patients (0.37%; relative risk = 1.64, 95% CI 1.63-1.65). Deep venous thrombosis was diagnosed in 1.36% of hypothyroid patients and in 0.84% of patients with no thyroid dysfunction (relative risk = 1.62, 95% CI 1.61-1.62). The relative risk of PE in patients with hypothyroidism was highest in patients <40 years of age (relative risk = 3.99) and the relative risk of DVT was also highest in patients <40 years (relative risk = 2.25). Hyperthyroidism was not associated with an increased risk of VTE (relative risk = 0.98, 95% CI = 0.96-1.01). In conclusion, an increased risk of PE, DVT, and VTE was shown in patients with hypothyroidism but not hyperthyroidism. Antithrombotic prophylaxis in patients with severe hypothyroidism, however, should be viewed with caution because of a possible hyperfibrinolytic state in such patients."
Thus from bare reading of the above abstract of the medical literature, an increased risk of PE, DVT, and VTE was shown in patients with hypothyroidism Antithrombotic prophylaxis in patients with severe hypothyroidism, however, should be viewed with caution because of a possible hyperfibrinolytic state in such patients. When the patient came to the opposite party No.1 Hospital she was suffering hypothyroidism and was pregnant of 9 months, hence she was a prone patient to the risk of Venous thromboembolism (VTE), Pulmonary Embolism (PE), and deep Venous Thrombosis (DVT), which is the cause of complications developed in the right forearm of the complainant and the opposite parties Doctors have conducted her case carefully to save her limb and her life also.
Dismissed Page 19 of 22
Complaint Nos.: Smt. Nisha Rathore Date of
CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023
24. Learned counsel for the complainant has also filed some case-laws and one medical literature regarding biochemical testing of the thyroid but in the facts and circumstances of the case it is nowhere in dispute that the complainant was suffering hypothyroidism and the complainant herself brought test report of hypothyroidism when she came to the opposite party No.1 hospital as in reply to the questionnaire Dr. Shilpa Chourasiya in affidavit, in answer to question No.2, Which blood tests and other tests etc. were done by you before the operation of the complainant, if ANC sonography/ scan etc. were done then provide the report, has answered that before coming to our hospital the complainant was getting her ANC checked from some other gynaecologist. Her ANC sonography, fetal doppler / echo, thyroid test etc. were already done. After admission I got his other necessary tests done like complete blood count, blood grouping, PT/ INR, serum creatinine etc. Hence the medical literature is on the disputed issues involved in this matter.
25. So far as case-laws relied by learned counsel for the complainant is concerned facts being different from the facts of the present case, the principle laid down in those cases are not applicable in the facts and circumstances of the present case. In Shoda Devi (supra) the right limb of the patient was amputed as he was diagnosed as suffering from acute arterial occlusion with ischemia of limb caused by intra-arterial injection but in the facts of the present case, the complications developed to the patient due to known complication of her medical condition and the procedure she undergone. The judgement of V. Kishan Rao (supra)' case is also of no help to the complainant as in the present case doctrine of res ipsa loquitur does not apply as the facts involved in the instant case does not prove any negligence and without filing any expert opinion specifically on the points involved in the case, no inference can be drawn. In Dr. Amita Srivastava (supra)' case the Dismissed Page 20 of 22 Complaint Nos.: Smt. Nisha Rathore Date of CC/19/17 Vs. Pronouncement:
We Care Super Speciality Hospital & Ors. 04/09/2023 patient‟s condition was due to damage to vein and resultant septicemia caused by negligence in process of intravenous transfusion of saline, but in the instant case the complication developed as known complication of the procedure adopted in medical condition of the patient. In V.V. Sathaye (Dr.) (supra)' case the doctor was aware of the fact that the patient was suffering from diabetes mellitus and from the record it could not be evidenced that the doctor did anything to control the blood sugar before undertaking surgery. But in the facts of the present case, the doctor was aware of the fact that the patient was suffering hypothyroidism but at the same time it is also true that the patient was pregnant of 9 months and delivery was to be done in every condition. The delivery was done through LSCS and the complainant gave birth to a male child. But after such LSCS operation when the patient was shifted to ICU, pain, swelling and discoloration developed in her right forearm. A pregnant lady suffering hypothyroidism is a prone case of blood clotting and the complainant as per the history stated by Dr. Shilpa Chourasiya in her affidavit of reply to the questionnaire, the complainant‟s first child was delivered through cesarean operation, who has heart disease, thereafter two times her abortion was also done, her fourth child died in uterus in sixth month of pregnancy and she was pregnant for fifth time when she came to the opposite party No.1 Hospital. In her earlier sonography lesser amniotic fluid (oligohydramnios) was diagnosed. Thus, the case-laws cited by the learned counsel for the complainant are not applicable in the facts of the present and are of no help to him.
26. Therefore, in view of the above discussion we do not find any cogent evidence or reason to hold the opposite party Nos.1 to 4 negligent in providing treatment as alleged by the complainant. The complainant has failed to prove her allegations of medical negligence, deficiency in service and unfair trade practice upon the opposite party Nos.1 to 4 and we do not find Dismissed Page 21 of 22