National Consumer Disputes Redressal
Dr. Suresh Gupta & Ors. vs Vinod Rawat on 22 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION
NEW
DELHI
REVISION PETITION NO.4441 OF 2012
(From the order dated 09.08.2012 in F.A. No.1996/2005
of the Rajasthan State Consumer
Disputes Redressal Commission, Jaipur)
1.
Dr. Suresh Gupta
Liberty Hospital,
O-18, Durga Path,
Ashok Marg, C-Scheme,
Jaipur, Rajasthan
2.
Dr. Smt. Suman Rawat,
Managing Director,
Liberty Hospital,
O-18, Durga Path,
Ashok Marg, C-Scheme,
Jaipur, Rajasthan
3.
Dr. Sudhir Bansal,
Surgeon, Liberty
Hospital,
O-18, Durga Path,
Ashok Marg, C-Scheme,
Jaipur, Rajasthan
4.
Dr. Mradula Kulsrestha,
Liberty Hospital,
O-18, Durga Path,
Ashok Marg, C-Scheme
Jaipur, Rajasthan
. Petitioner(s)
Vs
Vinod Kumar Rawat
S/o Shri P.K. rawat,
R/o 34/378 Pratap Nagar,
Sanganer, Jaipur, Rajasthan .. Respondent(s)
BEFORE :
HONBLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER
HONBLE DR.S.M.KANTIKAR, MEMBER
For
the Petitioner : Ms. Aishwarya Bhati, Adv.
Mr. K. Singh, Adv.
For
the Respondent : Mr. Naresh
Chandra Goyal, Adv.
Pronounced on .. May, 2013
ORDER
PER DR. S.M. KANTIKAR
1. The Petitioners have filed the instant Petition under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 09.08.2012 passed by the Honble State Consumer Disputes Redressal Commission, Rajasthan, Jaipur in Appeal No. 1996 of 2005.
2. The brief facts ;
On 24.06.1999 a notification was issued in a newspaper by the Liberty hospital for conducting free camp for laparoscopic operations in the liberty hospital by the Petitioners (doctors) from 4th July, 1999. The complainants wife Suman Rawat ( in short Suman) after consultation with the respondents/ petitioners (herein as the petitioners) operated on 4/7/1999 for stone in the gall bladder. Soon after the operation, the wife of the complainant died and the complainant filed a complaint No.671/2005 before the District Consumer Disputes Redressal Forum II, Jaipur ( in short as District Forum) which was dismissed vide order dated 26.10.2005.
3. Against the order of District Forum the complainant preferred an appeal before State Commission on the ground that the learned District Consumer Forum erred in exonerating the respondent doctors without considering medical board report which clearly shows the negligence and carelessness by doctors leading to death of his wife during and after operation.
4. The State Commission after hearing counsel of both parties and relying upon the report of medical board held the respondent doctors for medical negligence. The State Commission in its relevant observation stated in ;
Para
6. Though no post-mortem was done on the deceased, but from the report of the Medical Board, which is prepared on the basis of bed head ticket and other documents submitted by the hospital, it is evident that no conclusive or specific cause of death has been assigned in the matter and three possible causes of death i.e. (1) Intra-abdominal hemorrhage (2) Acute Massive myocardial infarction (3) Choking of the respiratory passage due to aspirated vomiting.
On the basis of the report of Medical Board, it appears that patient Smt. Suman Rawat died about two hours after the operation at around 2.15 a.m. and before the death, she complained a nausea, vomiting and slight pain at 2.20 a.m. the report of the Medical Board also suggests that there was great disparity in medical case sheet record i.e. the Bed Head Ticket and the patient was not adequately assessed properly in view of mild-hypertension, mild cardiomegaly and changes for ECG, which reflects that the non-petitioners were thoroughly careless and negligent in assessing the fitness of the patient for surgery. There is no evidence to show that the patient died of intra-abdominal hemorrhage or acute massive myocardial infraction but in the other hand, it is evident from the report of the Medical Board that the patient had vomiting just before her death and which resulted in choking of respiratory passage. This possible cause of death has been mentioned in the report of the Medical Board and this fact is also corroborated by the fact that the patient had vomiting just before her death.
Para 8 : the report of the Medical Board clearly shows that bed head ticket did not mention that who attended the patient, when she complained of pain and vomiting and no details of post operative care were mentioned in it. The bed head ticket also showed that the patient was again taken to the operation theatre one hour after the death, but no reason was assigned for shifting the patient to the operation theatre. Thus, from the report of the Medical Board, it is evident that the non-petitioners were grossly careless and negligent before, during and after operation of Suman Rawat, the deceased. Pre-operative negligence and carelessness of the non-petitioners is also clear from the report of the Medical Board which reveals that she was not adequately and properly assessed for hypertension, cardiomegaly and ECG changes and after operation she was not taken care of properly by the doctors.
The State Commission allowed the appeal and awarded Rs.10 lacs as compensation and Rs.25,000/- as a cost to the Complainant.
5. Hence, aggrieved by the order of State Commission the present revision.
6. We have heard the learned counsel of both sides who argued vehemently argued and reiterated the submissions made before the State Commission . We have perused the evidence on file and referred several medical texts.
7. It was admitted fact that, on 4/7/199 at 6pm patient Suman admitted in Liberty Hospital for laparoscopic cholecystectomy (removal of gall stones). On same day she was operated in late night between 11.30 pm to 12.15 am.
We have noted the chronology events in this case were as;
Petitioner (OP1) operated the patient from 11.30pm to 12.45 am under general anesthesia. At about 2.20 am the patient complained of nausea and vomiting, slight pain at operated site, thereafter, at 2.30 am copious vomiting and breathlessness for which the duty doctor administered inj. Atropine, phenergan, dopamine and Oxygen; but condition deteriorated and subsequently patient died at 2.55 am.
8. The OP contended that patient died due to known complication of surgery and anesthesia i.e. postoperative vomiting and aspiration pneumonia. The Post mortem was not conducted as the complainant and relatives were satisfied with the cause of death; therefore took the body for cremation. After gap of 2 months i.e. on 25/9/1999 filed FIR No 202/90 in Ashok Nagar Police Station, Jaipur with the allegation of medical negligence by the OPs. On request of SHO, Police Station Ashok Nagar, on 1/11/1999 the Medical Board issued the a report.
9. The medical Medical Board comprised of the seniors like Dr.D.K.Khandelwal ,Professor and Head of Department of Surgery and Dr.A.P.Veram,Professor of Anesthesia Dept. in SMS Medical College,Jaipur and others. They verified all the concerned hospital records of deceased Suman including lab , ECG,X ray and ultrasound reports. Also verified the FIR and death certificate. The medical board concluded with following discussion:
i) It appears that the deceased Smt. Suman Rawat was not adequately assessed properly in view of
- Mild hypertension
- Mild Cardiomegaly
- ECG changes
ii) She was admitted on 04/07/1999 at 6 p.m. and thereafter she wanted to leave for home and come next morning. What was the emergency under which she was operated in the night? (No evident on record)
iii) Whether the patient was fasting or not not evident from record
iv) Whether hemodynamic monitoring/cardiac status during operation was done- not evident from record.
v) Two LSCS with big hernia B/L divarication of recti makes the laparoscopic cholecystectomy relatively contraindicated.
vi) The dead body was not sent for post-mortem for examination by the police.
vii) The possible causes of death could be a. Intra-abdominal hemorrhage b. Acute massive myocardial infarction. c. Choking of the
respiratory passage due to aspirated vomits.
10. The Learned Counsel for the petitioners argued that cause of vomiting was due to taking of food after operation by the patient against the advice of the doctors. As the operation was performed at around 11.30 p.m. on 04.07.1999 and it might have taken around one hour in the surgery, but soon after shifting the patient from the operation theatre to the ward, she complained of pain and she also vomited. We rely upon the medical texts as the patient during recovery after general anesthesia usually has nausea and vomiting. Hence, the OPs contention was quite impossible for the deceased to take food Roti Sabzi soon after the operation, which was still under influence of anesthesia and not recovered completely. Hence we do not agree with such the allegations of petitioner and not acceptable which are false. The patient was shifted to the ward after surgery; but it is pertinent to note that the nursing staff in ward was not vigilant in monitoring the post-operative patient . Also, there was no other evidence to show that the patient took any food soon after her operation. So relying of the words of the OP that she was given bread and butter by the husband is totally unacceptable.
11. Even if we consider that, the petitioners did not charge any fees from the complainant for the operation of his wife, but no evidence has been produced by Liberty Hospital that it provides free medicines for all patients, therefore, in absence of this if charges are recovered from some of the patients and not all patients are treated free. The OP has charged for certain laboratory tests, Ultra sound ECG investigations. This has been well established by decisions of Honble Apex court in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651]. Therefore in our opinion patient is consumer under CP Act 1986.
12. It is pertinent to note that on filing of FIR; the Medical Board was constituted in November, 1999. The entire record which was in the custody of the OP was called. The Medical Board pointed out number of discrepancies in the record which have caused death of the wife of the complainant.
13. We are in opinion that the conduct of OP is questionable on following points;
i) The OP advertised for Free Surgical Camp which ought to have fixed timings. The deceased Suman was not an emergency patient to be operated. The medical board made the observations that patient under her signature on 4/7/99 stated on BHT as Hum ghar ja rahe hain, subah aa jayenge . Despite this request , the OP operated her in late night in odd hours.
OP should have performed the said operation on next day morning. It appears fishy that What was the intention and hurry for the OP conducted such operation at 00.00 hrs?
ii) Medical board also made a reference of There was no record about pre-anesthetic fitness , or any operative notes.
iii) After operation OP should have monitored patient during recovery phase from anesthesia. But, it is careless attitude to send patient to the ward without any proper assessment; this is a negligence. The OPs did not perform their duties with reasonable prudence which resulted in to death of complainants wife Suman.
iv) The conduct of OP again made us suspicious that the patient Suman died at 2.55 am on 5/7/1999. The OP forcibly sent the dead body in the ambulance during the night itself to the residence of the complainant. The respondent did not inform the police and did not get the Post mortem done. It was the bounden duty of hospital to report the police for such unnatural deaths and PM should be conducted. This is a deficiency in service and negligence by OP.
v) Therefore, it is pertinent that because of such negligence there is every possibility that cause of death could be -Intra abdominal hemorrhage/ Acute massive myocardial infarction/Choking of the respiratory passage due to aspirated vomitus as stated by Medical Board.
14. Moreover, the entire record reveals that the deceased was in good health. Her lab reports, x ray, ECG reveal that she was not suffering from any decease except from gall stones ( chronic cholecyctitis with cholelithiais.) It is well settled that it is the Complainant who is to carry the ball in proving that there is initial negligence on the part of the Doctors. However, in the case a healthy woman, who remained fit till eleventh hour, how could she die? Certainly, the onus of proof shifts to the OPs. The cause of her death was not known; but the medical board in their opinion clearly mentioned three possibilities for death as discussed in previous para. Hence, Anesthetist and the Surgeon are liable. This is an admitted fact that the lady had walked to the operation theatre of her own, without anybodys help.We agree that the submission made by the Counsel for the Complainant that this is a clear dereliction of duty by all OPs.
15. Honble Supreme Court laid down the principles of what constitutes medical negligence is now well established by number of judgments of this commission as also the Honble Supreme Court of India, including Jacob Mathew vs State of Punjab[(2005) 6 SSC 1] and in Indian Medical Association Vs V.P.Shantha [(1995) 6SSC 651]. One of the principles is that a medical practioner is expected to bring a reasonable degree of skill and knowledge and must also exercise a reasonable degree of care and caution in treating a patient (emphasis provided).
16. According to Halsburys Laws of England, 4th Edition, Re-Issue Vol. 30(1) Para 197 to establish liability on that basis, it must be shown:
-
that there is usual and normal practice;
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that the defendant has not adopted it; and
-
that the course of fact adopted is one and no professional man of ordinary skill would have taken had he been acting with ordinary care.
17. An quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J in Bolam Vs. Friern Hospital Management Committeee, WLR p.586 in the following words-(ALL ER p.121 D-F) 'Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not this special skill. ... It is well-established law that it is sufficient if he exercises the ordinary competent man exercising that particular art Further, in Para 20, the Court cited with approval that:
The water of Bolam test has ever since flown and passed under several bridges, having been sited and dealt with in several judicial pronouncements, one after the other and has continued to be well-received by every shore it has touched as a neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley Vs. Binnie summarized the Bolam test.
18. In this context we rely upon few authorities of Honble Supreme Court and this commission.
In Post Graduate Institute of Medical Education and Research, Chandigarh, Vs. Jaspal Singh & Ors., II (2009) CPJ 92 (SC)=(2009) 7 SCC 330, it was laid down that the failure to perform the duties with reasonable competence amounts to negligence.
In Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors., II (2009) CCR 61 (SC)=III (2010) SLT 734=(2009) 6 SCC 1, it was held that once the initial burden has been discharged by the Complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital and the attending doctor to satisfy the Court that there was no lack of care or diligence. Same view was taken in Smt. Savita Garg Vs. Director, National Heart Institute, IV (2004) CPJ 40 (SC)=VI (2004) SLT 385=AIR 2004 SC 5088.
In the original petition No170/1999 decided on 6/2/2013 in the case Prem Prakash Rajagaria Vs Nagarmal Modi Seva Sadan & ors; I(2013)CPJ 672(NC) Honble Mr. Justice J.M.Malik held the Opposite parties jointly and severally liable for medical negligence due to dereliction of duty by OPs.
19. Therefore, considering all evidence on record and above discussions we are in firm opinion that the petitioners/OPs have to be held guilty of medical negligence /deficiency in service on several counts as mentioned above. They are negligent in performing their duties and lack in the standards of medical services. The OPs are liable for the deficiency in service causing death due to medical negligence in treatment and care.
20. The compensation awarded by State Commission is just and proper; therefore the present revision petition is dismissed. The petitioners are directed to comply the order of state commission in to- to within two months; failing which it will attract interest @ 9% till the date of recovery.
....
(J.M. MALIK J.) PRESIDING MEMBER .
(S.M. KANTIKAR) MEMBER Mss