State Consumer Disputes Redressal Commission
Pooja Gupta vs Max Hospital And Others on 4 May, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 47 of 2014
Date of institution : 04.03.2014
Date of reserve : 24.04.2017
Date of decision : 04.05.2017
Pooja Gupta widow of Late Sh. Rishi Gupta, aged 42 years r/o
House No. B-2, 1261, Vishkarma Colony, Pinjore, District
Panchkula, Haryana (India) 134102.
....Complainant
Versus
1. Max Super Specialty Hospital, through its Director, # Near
Civil Hospital, Phase-VI, Mohali, Punjab (India) 160055
2. Medical Superintendent, Max Hospital, # Near Civil Hospital,
Phase-VI, Mohali, Punjab (India) 160055
3. Dr. Sudheer Saxena, MD, DM (Cardiology), Principal
Consultant, Interventional Cardiology, Coordinator Cardiac
Sciences, # Near Civil Hospital, Phase-VI, Mohali, Punjab (India)
160 055
4. Dr. Pawan K. Kansal, M.B.B.S., M.D. (Medicine), # Cardiac
Rehabilitation & Medical Centre, # House No. 3201, Sector 21-D,
Chandigarh (India)
5. St. Jude Medical India Pvt. Ltd., through its General
Manager, # House No. 1-11-25/A, Matarani Sensation Building,
Lane Beside Syndicate Bank, Begumpet, Hyderabad, Andhra
Pradesh, India-500016
6. United India Insurance Company Ltd., through its Branch
Manager, # 42 C, 3rd Floor, Moolchand Commercial Complex, New
Delhi - 110 024.
....Opposite parties
Consumer Complaint No. 47 of 2014 2
Consumer Complaint under the Consumer
Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Present:-
For the complainant : Sh. Bhavnik Mehta, Advocate
For opposite parties No.1 to 3:Sh. Vishal Gupta, Advocate with
Dr. Sudhir Saxena
For opposite party No. 4 : Sh. Subhash Chand, Advocate
For opposite party No. 5 : Sh. Pawan Pundir, Advocate for
Sh. Sunil Dixit, Advocate
For opposite party No. 6 : Sh. Munish Goel, Advocate
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against opposite parties under the Consumer Protection Act (for short the Act) on the averments that on 17.9.2013, the husband of the complainant Sh. Rishi Gupta (since deceased) (hereinafter referred as the patient), aged 43 years approached Op No. 4 for routine check-up. After initial diagnose, Op No. 4 advised the patient to opt for pacemaker surgery and referred him to Op No. 1 and to consult Op No. 3. Accordingly, patient Rishi Gupta approached and consulted Op No. 3. After certain diagnosis, Op No. 3 prescribed a surgery for implantation of pacemaker and he suggested a bivent pacemaker, manufactured by St. Jude Medical India Pvt. Ltd. The cost of the pacemaker was around Rs. 4,00,000/-. Op No. 3 was informed Consumer Complaint No. 47 of 2014 3 about the entire history of the patient and Op No. 3 suggested for 4 days package including the day of admission and that the entire surgery would cost Rs. 5,50,000/-. The patient was admitted in the hospital on 17.9.2013 and initial deposit of Rs. 20,000/- was made. In fact Op No. 3 did not perform the surgery till the 4th day. Even the required pacemaker was not arranged. In the morning of 20.9.2013, the complainant was instructed to deposit Rs. 3,00,000/- with Op No. 1 and accordingly, a sum of Rs. 3 Lacs was deposited at 9.26 a.m. At about 10.30 a.m., patient was taken for the surgery. It was informed by the staff that surgery will take about two hours. In fact Ops conducted the surgery without having the requisite prescribed pacemaker and at about 4.30 p.m., Op No. 3 informed the complainant that surgery could not be completed as he did not have the 3rd wire of the pacemaker. When the complainant and other relatives asked Op No. 3 why he initiated the surgery without having the requisite kit for the pacemaker, he could not give any proper reply. In fact Op No. 3 implanted a wrong and cheap 'double chamber pacemaker' against his own prescription with a view to extract money out of the treatment of the patient. The perusal of the bill referring to double chamber pacemaker cost to Rs. 45,000/- used on 20.9.2013, it shows the unfair trade practice and negligent conduct on the part of Op Nos. 1 to 3. In fact the surgery was not successful as it was supposed to be. In order to hide its deceitful act, Op No. 3 made an excuse to the relatives of the patient that he did not have the 3rd wire and to complete the surgery on the next day. Now Op No. 3 did not have Consumer Complaint No. 47 of 2014 4 any other alternative except to arrange for bivent pacemaker. Op No. 3 did not visit the patient on the following day. Seeing the miserable condition of his son, his mother also suffered heart attack. Due to that the family had to spend another amount of Rs. 2,17,350/-.
2. On 22.9.2013, Op No. 3 conducted another surgery in the garb of inserting 3rd wire and implanted the actual pacemaker and its cost has been shown as Rs. 4,47,869.31p in the bill. Two different X-rays were done, one after the surgery conducted on 20.9.2013 and another after the surgery conducted on 22.9.2013. The patient was discharged on 24.9.2013 even though his health was apparently in a bad condition. The patient could not take burden of two surgeries back to back. On 27.9.2013, the patient felt pain in his heart and he was again taken to the hospital but due to the negligence of the Ops, the patient could not survive and he died in the hospital. Ops were insisting not to go for post mortem, it was only due to the intervention of media and the Police, it was done. DDR was got registered against Ops No. 1 to 3. X-ray reports and post mortem reports nail the lie of the activity of the Ops. In fact Op No. 3 had conducted two different surgeries installing two different pacemakers at two different times and due to unwanted surgery, the patient could not survive. The deceased survived of his wife, daughter, son and his mother. His gross income was Rs. 2,76,180/- per annum and net income Rs. 2,72,257/-. Alleging unfair trade practice and deficiency in service Consumer Complaint No. 47 of 2014 5 on the part of Ops, the complainant has prayed for a total compensation of Rs. 84,73,036.52p.
3. Complaint was contested by Ops. Op Nos. 1 to 3 in their written reply took the preliminary objections that the complaint filed by the complainant is liable to be dismissed as complainant has got no cause of action to file this complaint; the complaint is liable to be dismissed on the ground that the patient came to Op Hospital on 17.9.2013 with the history of prolonged chest pain, with history of undergoing bypass surgery (CABG) at the age of 27 years at AIIMS with LIMA to LAD and 3 SVG grafts. At the time of admission, the patient was found having significant ECG changes (LBBB new onset), his cardiac enzymes (troponin-1) was positive and his ECHO showed very poor heart function (LVEF-28% with significant LV dyssynchrony). Even though the condition of the heart of the patient at the time of admission was very poor but Ops were able to stabilize the patient on 17.9.2013 and then patient had undergone angiography on 18.9.2013 and patient was amenable to any further revascularization procedure i.e. no further bypass can be done (PTCA/CABG) and the patient and his relatives were given the option of AICD with triple chamber pacemaker (Combo devise). The risk and benefit of the same were duly explained in detail to the attendants of the patient. Since the cost of the device was more and they could not afford as such, they were given second option of biventricular pacemaker (triple chamber pacemaker). It is only in the evening on 19.9.2013 that the relatives of the patient had given the consent for triple chamber pacemaker and it was decided to Consumer Complaint No. 47 of 2014 6 implant St. Jude Triple Chamber Pacemaker; the complaint is liable to be dismissed on the ground that the patient was having the history of severe angina problem and he was made aware about the risk involved in the procedure i.e. CRT. Brother of the patient after duly understanding the risk involved in the pacemaker signed the risk form on 18.9.2013, when it was signed by the complainant on 20.9.2013. It was only after giving background of implantation of biventricular pacemaker, the implantation process was carried out by the specialist doctors; the complaint is liable to be dismissed on the ground that Ops took complete precautions and with all requisite components and carried out the procedure of the pacemaker in two stages i.e. first stage performed on 20.9.2013 and 2nd stage on 22.9.2013. On 20.9.2013, two of the three leads of the biventricular pacemaker were implanted and procedure lasted for three hours and on second stage on 22.9.2013, the pacemaker was implanted. The reasons for conducting the said procedure in two stages were to give adequate rest to the patient. Only one pacemaker i.e. biventricular pacemaker was implanted. The reports of the X-rays conducted on 20.9.2013 and 22.9.2013 were supplied to the complainant. The complainant recovered in a satisfactory manner and was discharged on 24.9.2013. Subsequently, he again reported on 27.9.2013 and died due to sudden cardiac arrest; the present complaint filed by the complainant is false, frivolous and vexatious to its knowledge, just to gain cheap publicity and to extract unlawful money from the Ops and that at no stage double chamber pacemaker was implanted to Consumer Complaint No. 47 of 2014 7 the person of the patient. On merits, the preliminary objections referred above were reiterated. After taking the details of the pre- operative tests, pacemaker was implanted as fully detailed in the preliminary objections. There was no negligence on the part of the Ops. Only biventricular pacing was implanted with the consent of the complainant and his brother. It was denied that double chamber pacemaker was implanted to the person of the patient. Biventricular pacemaker was implanted in two stages i.e. 20.9.2013 and 22.9.2013 and patient was discharged on 24.9.2013 in a satisfactory condition. The cost of Rs. 45,000/-, which is depicted in the inpatient bill is with respect to the surgery charges and not the cost of the double chamber pacemaker. X-rays conducted on 20.9.2013 and 22.9.2013, reports were handed over to the complainant. A wrong report was filed before the Police. Complaint is without merit, it be dismissed.
4. Op No. 4 in its written reply took the preliminary objections that there is no negligence or deficiency in service on the part of this Op, therefore, this Op has been wrongly impleaded as a party to it. In fact, it has been stated that the patient had come to this Op with severe chest pain on 17.9.2013. It has history of coronary artery disease and history of CABG, therefore, he immediately advised the patient to be taken in emergency to PGI. Since the party do not want to go to PGI, therefore, this Op duly referred the patient to Max Cardiac Center with advice to contact Dr. Sudhir Saxena. Other averments as stated in the complaint were denied for want of knowledge as those do not pertain to this Consumer Complaint No. 47 of 2014 8 Op. Complaint is without merit against this Op, therefore, it be dismissed with special costs under Section 26 of the Act.
5. Op No. 5 in its reply stated that this Op is one of the renowned company in India and the pacemakers of Op no. 5 are US FDA approved as well as superior quality and work of long dedicated search. Implant of pacemaker bearing registration No. 4960490312, model No. PM3140, serial No. 2829724 was done on 22.9.2013 by faculty of Max Hospital. Other paras of the complaint were denied for want of knowledge as those are not relating to this Op. Complaint against this Op has been wrongly filed. It is liable to be dismissed against this Op.
6. Op No. 6 in its written reply took the preliminary objections that there is no cause of action against this Op, Op No. 4 Dr. Pawan Kuar Kansal had taken professional indemnity Dr. (other) Policy No. 041200/46/14/35/00000363 from this Op for the period 15.4.2014 to 15.4.2015 for sum insured of Rs. 10 Lacs; the complainant is not a consumer of this Op; there is no deficiency in service on the part of treating doctor Op No. 4; complicated questions of law and facts are involved in this complaint, which required voluminous evidence, therefore, the complaint cannot be disposed of in a summary procedure; there is no deficiency in service on the part of this Op and that the complaint is false, frivolous and vexatious to its knowledge, therefore, the complaint filed by the complainant be dismissed with the cost of Rs. 20,000/- as provided under Section 26 of the Act. On merits, the averments of the complaint were denied for want of knowledge as those do Consumer Complaint No. 47 of 2014 9 not pertain to this Op, except insurance policy taken by Op No. 4. Complaint is without merit, it be dismissed.
7. The parties were afforded opportunity to lead their respective evidence. Complainant in his evidence has tendered documents Exs. C-1 to C-32. On the other hand, Op Nos. 1 to 3 had tendered affidavit Ex. Op-3/A and documents Exs. R-1 to R-28. Op No. 4 tendered affidavit of Dr. Pawan Kumar Kansal as Ex. Op- 4A and documents Exs. Op-4/1 & Op-4/2. Op No. 5 tendered affidavit of Sh. Venugopal Bang, Director, St. Judge Medical India Pvt. Ltd. as Ex. Op-5/A and document Ex. Op-5/1. Op No. 6 tendered affidavit of Ms. Sunita Sharma, Deputy Manager as Ex. Op-6/A and document Ex. Op-6/1.
8. We have heard the counsel for the complainant, counsel for Op Nos. 1 to 3, counsel for Op No. 4, counsel for Op No. 5, counsel for Op No. 6 and have also gone through the written arguments filed by counsel for the complainant and counsel for Op Nos. 1 to 3.
9. As per the facts of the case, patient Rishi Gupta was suffering from heart problem. He firstly was taken to Op No. 4, who checked his condition. He was advised pacemaker surgery and was referred to Op No. 1. When the patient approached Op No. 1 on 17.9.2013, checked by Op No. 3, it was reported a case of prolonged chest pain and was having severe heart problem i.e. coronary artery disease and triple vessel disease. He had undergone bypass surgery CABG at the age of 27 years at AIIMS. When the ECG of the patient was conducted, there were significant Consumer Complaint No. 47 of 2014 10 changes (LBBB new onset) cardiac enzymes (troponin-1) was positive and ECHO showed very poor heart function (LVEF-28%). He was made stabilized and on 18.9.2013, he had undergone angiography, which showed that his bypass grafts have been blocked except one with severe blockage and patient was not more amenable to any further revascularization procedure i.e. PTCA/CABG and the patient and his relatives were given the option of AICD with triple chamber pacemaker (combo device) and its benefits were duly explained in detail to the attendants of the patient. Since the cost of the device was more, the patient could not afforded and as such they were given the second option of biventricular pacemaker (triple chamber pacemaker). However, on the record, there is no document tendered on the record by opposite party that patient or his relatives were given option to AICD with triple chamber pacemaker (combo device). Even if for the sake of arguments, it is taken that sometimes such type of consent is not taken on record and it is just possible that the patient/attendants might have agreed for biventricular pacemaker (triple chamber pacemaker) and case of the complainant is with regard to proper implantation of biventricular pacemaker, therefore, consent for AICD triple chamber pacemaker or its cost is no more an issue.
10. It has been submitted by the complainant in his complaint that Ops had offered 4 day package (including the date of admission) and that entire surgery would cost Rs. 5,50,000/- and that he was admitted on 17.9.2013. As per the version given by the Consumer Complaint No. 47 of 2014 11 Ops, it has been stated that in the evening of 19.9.2013 relatives of the patient had given the consent for triple chamber pacemaker. Again no document dated 19.9.2013 is there by which a specific consent was given by the patient/relatives for biventricular pacemaker (triple chamber pacemaker). Daily medical notes are Ex. C-29. In the medical notes dated 20.9.2013, the plan has been stated as under:-
"Plan :-
Plan of AICD/CRTD treatment as charted Monitor Vitals I/O Chart"
Even if there is no written consent or written medical note that the patient had opted for biventricular triple pacemaker, according to the pleadings of the parties, it has not been denied that the patient/attendants had agreed for implantation of biventricular pacemaker to the patient.
11. As per the version given by the complainant, it has been stated that the Ops had took the patient on 20.9.2013 for surgery at about 10.30 a.m. and it was intimated that it will take just two hours to complete the surgery but it was only at 4.30 p.m. that Op No. 3 informed the complainant that surgery could not be completed as the 3rd wire of the pacemaker was not there. In fact Op No. 3 implanted a wrong and cheap double chamber pacemaker costing Rs. 45,000/-, just to fleece the patient/complainant. Unfortunately, this pacemaker could not be Consumer Complaint No. 47 of 2014 12 fitted properly and to hide its deceitful act, Op No. 3 made an excuse to the relatives of the patient that the Doctor did not have 3rd lead (wire) and the patient had exhausted, therefore, he will complete the surgery on the next day and that the next surgery was conducted on 22.9.2013. It has been stated that in fact the earlier pacemaker was replaced with a new pacemaker biventricular pacemaker, costing Rs. 4,47,869.31p to cover his deceitful act. The X-rays conducted on 20.9.2013 and 22.9.2013 after the surgery have not been provided to him. However, the version given by the Ops is that the triple chamber pacemaker was not completely implanted and it could be implanted in two stages. First stage was performed on 20.9.2013 and 2nd stage on 22.9.2013. It was so done to give adequate rest to the patient.
12. Now it is to be seen whether the documents/record of the hospital corroborates the version given by the Op?
13. Ex. C-29 i.e. inpatient record/nursing progress notes dated 20.9.2013 state as under:-
"Special instructions to handover staff: Patient CRT done. Femoral Sheath in and handing over given to " S/N ANJU."
14. According to this note, patient CRT was done. There is another document Ex. C-6 i.e. X-ray chest AP (Portable) view taken on 20.9.2013 and report given on 21.9.2013, wherein it has been observed as under:-
"Left ECPM with wires, sterna metallic sutures seen in situ. No focal lesion seen in the lung parenchyma. CP angles and domes of the diaphragm are normal. Consumer Complaint No. 47 of 2014 13 Both hila are normal. Pulmonary vasculature is normal. Cardiac size is mildly enlarged.
Trachea is central; no mediastinal shift is seen. Bony thorax and soft tissues of the chest wall are normal. Suggested clinical correlation."
15. Ex. R-5 is the snapshot (Study 1) dated 20.9.2013. Its perusal will reveal left ventricular lead, right atrial lead guidewire and right ventricular lead. In case according to the version taken by the Op that left ventricular lead was not there on 20.9.2013 and it was inserted only on 22.9.2013 then how it appeared in the snapshot Ex. R-5. In the CRM-M 3458 of 2015 "Max Super Specialty Hospital & Anr. Vs. State of Punjab & Anr." (Ex. C-21), Ops took the plea that as under:-
"It is pertinent to mention here that in order to install the triple chamber pacemaker, before installation of the pacemaker, three leads were required to be grafted in the body of the patient and only after the said leads were duly grafted, the pacemaker could be installed. In the present case also the petitioner No. 2 installed/grafted two leads of the triple chamber pacemaker in the body of the patient on 20.9.2013 and as the patient was feeling exhausted during the implant and as such it was decided to implant the third lead in the second stage as the procedure for implanting the two leads has already lasted for more than 3 hours and as the patient was having a severe heart condition and as such it was decided to implant the third lead in the second stage after Consumer Complaint No. 47 of 2014 14 giving adequate rest to the patient. This is a standard procedure in case of patients like the deceased Sh. Rishi Gupta. As such the third lead was implanted on 22.9.2013 along with the pacemaker."
It was further referred as under:-
"It is imperative to mention that a pacemaker/ECPM or Pulse Generator (Device) cannot be implanted prior or before all the leads are inserted/implanted or positioned or grafted. (This is the "standard procedure" involved in pacemaker surgery, be it a single chamber, double chamber or triple chamber pacemaker). Even the petitioner No. 2-doctor himself has stated or admitted to this extent that a pacemaker/pulse generator cannot be implanted/installed before the leads."
Further in the post mortem report Ex. R-10, in the column of Lungs and Pericardium, Heart, Large Vessles, Coronary Vessels, it has been mentioned as under:-
"Conjested.
Heart is enlarge and flabby. Pales are of size 1 cm x 1 cm. Present over the anterolateral part of left ventricle. On direction both the coronary arteries are 90% blocked. The leads of pacemaker found in RA & RV."
Intimation regarding first letter from St. Jude Medical Company alongwith that report was sent by Max Hospital to St. Jude in which it has been observed that there was no complication during the procedure and the patient withstood the procedure well and all the parameters were satisfactory and no evidence of Pneumothorax. Consumer Complaint No. 47 of 2014 15 Therefore, no reference of the complication, which the patient experienced as per the version given by the Ops. These documents are itself contradictory, on the one hand Ops say that pacemaker was ultimately fixed on 22.9.2013 because according to their version 3rd wire (lead) was not available on 20.9.2013, it was made available and then the procedure was done on 22.9.2013. In case 3rd lead was not there and without placing the lead at a proper place, fixing of ECPM is not possible. Whereas X-ray report dated 20.9.2013 clearly shows placement of ECPM with wires and there is no reference that 3rd lead was not there, therefore, the implantation of ACP (ECPM) was deferred. Then X-rays were taken by the Ops, after the first surgery on 20.9.2013 and after the 2nd surgery on 22.9.2013. Although the report Ex. C-6 has been produced by the complainant but X-ray film has not been produced. What was the position on 22.9.2013? Again X-ray report as well as X-ray film has not been produced on the record. No doubt that in the discharge summary, it has been referred that X-ray film was handed over to the patient vide document Ex. R-3. However, during the course of arguments, it was admitted that it was digital X-ray and its record remains with the Ops. However, for the reasons best known to the Ops, those X-ray reports and X-ray film has not been produced on the record. Perhaps it may not be helping the Ops, therefore, withholding the record itself amounts to deficiency in service and its adverse inference is required to be taken against the Ops.
Consumer Complaint No. 47 of 2014 16
16. The Ops have placed on the record one CD, which contains 23 hand-picked edited clips with total duration of 98.54 seconds covering from 18.9.2013 to 22.9.2013. Otherwise, Ops were required to get the complete CD of the entire procedure adopted for implantation of the pacemaker. In case it was a complete CD, it was not tendered into evidence by the Ops. Therefore, Ops had prepared the CD but selectively hand-picked edited clips and the entire CD record has been withheld for the reasons best known to the Ops and again withholding the best evidence, the influence can be drawn against the Ops.
17. With regard to implantation of a wrong and cheap double chamber pacemaker as alleged by the complainant, he has referred to the bills Ex. C-4 (colly) in which detail has been given as double chamber pacemaker Rs. 45,000/-. It has been argued by the counsel for the Ops that it is not the price of the double chamber pacemaker but it was charges taken by the Hospital i.e. Hospital charges. Even if this contention is taken, it is never the case of the Ops that the complainant had opted for double chamber pacemaker. From the very beginning, the stand taken by the Ops is also that the patient/attendants had opted for biventricular pacemaker. In case it is so, then in the bill, in the column of hospital charges, instead of double chamber pacemaker, it should have been biventricular pacemaker and not the double chamber pacemaker. The patient has a faith in the hospital and patient and attendants blindly follow what the Doctor says but in case the documents are suggesting otherwise then element of Consumer Complaint No. 47 of 2014 17 suspicion is there. Therefore, reference of double chamber pacemaker in the bill Ex. C-4 creates a doubt whether at the initial stage any effort has been made by the Ops for the implantation of the double chamber pacemaker. Although in the final stage, it is not proved that double chamber pacemaker was implanted but plantation of pacemaker in two stages creates a doubt in the version of the Ops, when it is not supported from the documents referred above.
18. The counsel for the Ops in its written arguments have not touched Ex. C-6 that in case ECPM was finally installed on 22.9.2013 then how it appeared in Ex. C-6 that ECPM with wires seen in situ. X-ray report dated 20.9.2013 also does not corroborate the version of the Ops that on 20.9.2013 only two leads were inserted and 3rd lead was not available, which was completed on 22.9.2013. Then the X-ray report dated 22.9.2013 has not been placed on the record. Whereas post mortem report does not make a reference of LV because it makes a reference of RA & RV, therefore, inconsistencies are apparent in the procedure followed by the Ops.
19. With regard to the expert report, this matter was referred to the PGI. There is report dated 30.9.2015 wherein it was observed by the Medical Board that according to the version of Dr. Sudheer Saxena, RA+RV leads were implanted in 1st stage and LV lead in second stage. This scenario does occur in biventricular pacemaker. Later implantation of LV lead is as per protocol. The Board once again requests that medical record may be made Consumer Complaint No. 47 of 2014 18 available to actually verify the facts and Medical Board feels that Mrs. Pooja Gupta's statement regarding double chamber pacemaker may not be correct because even the cheapest double chamber pacemaker has much higher cost. The Board however, would like to go through the medical record of Rishi Gupta including the hospitalization file and old medical records, ECG & echocardiogram so that Dr. Sudheer Saxena's statement can be verified from the record. Then there is another report dated 18.1.2016. The requisite documents asked for have been provided and studied by the Medical Board. After going through the documents, the Board is of the opinion that the procedure was carried out as per protocol. The Board was consisting of four Doctors i.e. Dr. Ankur Gupta, Assistant Professor, Dr. Saurabh Mehrotra, Associate Professor, Dr. Ajay Bahl, Professor and Dr. Yash Paul Sharma, Professor and Head, all from Department of Cardiology, PGIMER, Chandigarh.
20. It was observed by the Hon'ble Supreme Court in 2010(4) JT 630 "V. Kishan Rao versus Nikhil Super Speciality Hospital & Another" that an expert witness in a given case normally discharges two functions. First duty of the expert is to explain the technical issues as clearly as possible so that it can be understood by a common man. The other function is to assist the Fora in deciding whether the acts or omissions of the medical practitioner or the hospital constitute negligence. Otherwise, Consumer Fora is not bound by the view expressed by the expert because medical negligence is a mixed question of law and facts, which is required Consumer Complaint No. 47 of 2014 19 to be resolved by the Forum. In this particular case, the Board had assessed the entire record but the Board has not given any detailed discussion with regard to the inconsistency in the record. It has just concluded that the proper protocol was followed by Op No. 3 and by that in a biventricular pacemaker (triple chamber pacemaker), it can be fitted in two stages. However, the Board of Doctors is silent with regard to X-ray report Ex. C-6 referred above wherein it has been mentioned Left ECPM with wires, sterna metallic sutures seen in situ. It does not give the version given by the Ops that only RA & RV were fitted to the patient and 3rd lead i.e. LV lead was not available and it was fixed on 22.9.2013. It cannot be denied that ECPM cannot be fitted till all the leads are in place. In case ECPM was not fitted, it was not complete set then how the medical notes dated 20.9.2013 say "Patient CRT done." There is no reference that the Board of Doctors had checked the X- ray report and X-ray films dated 20.9.2013 and 22.9.2013 and what was their report with regard to the implantation of the pacemaker. Pacemaker has not been referred. There is reference in the post mortem report of only RA & RV and no report with regard to the LV lead. Therefore, the report of the Board of Doctors is not a complete report as observed by the Hon'ble Supreme Court in "V. Kishan Rao versus Nikhil Super Speciality Hospital & Another"
(supra) if the report of the Doctors is not based upon technical aspect and facts then Consumer Fora is not bound by the said report. When the report of Doctors have not considered all the relevant evidence then in those circumstances, the report of the Consumer Complaint No. 47 of 2014 20 Board of Doctors cannot be accepted as a gospel truth. Therefore, we do not agree with the report given by the Board of Doctors.
21. The patient had posed a confidence with the Ops. He was a serious patient of heart disease. Whatever procedure suggested by the Ops, they accepted it blindly but the Ops did not perform the procedure as required. Firstly the patient was taken for surgery on 20.9.2013 but surgery was incomplete. The version of the Ops that on that day LV lead was not available and that to give rest to the patient, second session was necessary. No doubt it could be put in two sessions but it was the duty of the Doctor to take complete set before initiating the surgery i.e. before 20.9.2013. It is astonishing how he started the surgery. To cover his lapse, Op No. 3 is now taking the plea that the patient had exhausted, therefore, to give him a rest, the placing of the 3rd lead was deferred but it is not corroborated from the medical records dated 20.9.2013. Rather X-ray report Ex. C-6 suggest that ECPM was fixed and no note that patient had some problem, for which Op No. 3 had to go for a second surgery. The patient was in a critical condition, perhaps he could not bear the second surgery and then the patient was discharged in haste on 24.9.2013. In case he would have been in a stable condition, then he would not have been in the hospital on 27.9.2013 again. Apparently, the patient may be looking satisfactory but seeing the critical condition of the patient and that two surgeries were performed by the Ops, monitoring of the patient for some more days was required, therefore, post operative care was not upto the mark, which ultimately led to the Consumer Complaint No. 47 of 2014 21 death of the patient, therefore, the Ops were negligent in implantation of the pacemaker as well as post operative care.
22. Another plea has been taken by the counsel for the complainant that informed consent was not taken from the patient. As is clear from the pleadings of the Ops itself when the patient reported to the Hospital on 17.9.2013, first efforts were made to stabilize him and on 18.9.2013, angiography was done and he was suggested pacemaker. For implantation of the pacemaker, primarily the consent of the patient should have been taken, not the attendants. Whereas on the record, the Ops have placed the consent forms Ex. R-3 for CRT. In the consent form dated 18.9.2013 (Ex. R-4), the consent of the brother of the patient has been taken. The counsel for the complainant has referred to the judgment 2008(1) CLT 426 "Samira Kohli versus Dr. Prabha Manchanda & Anr." wherein it has been observed that when a patient is competent adult and not mentally challenged nor incapacitated, there is no question of someone else giving consent on his behalf. It was argued by the counsel for the Ops that before taking the surgery, consent of Rishi Gupta was taken as per Ex. R-3. No doubt that at the time of surgery, its consent has been taken but even when the consent was taken for implantation of the pacemaker, consent of the patient was required when the patient was adult and was in senses. Therefore, Ops are also deficient in not taking the informed consent of the patient at the time of taking consent for implantation of the pacemaker.
Consumer Complaint No. 47 of 2014 22
23. Then implantation of the pacemaker was not done in one day. In case the procedure for pacemaker would have been completed in one day then no further consent was required but according to the version given by Ops, a part of the procedure was completed on 20.9.2013 and then LV & Pacemaker was fixed on 22.9.2013 for which informed consent of the patient was required. Again a reference has been made to "Samira Kohli versus Dr. Prabha Manchanda & Anr." (supra) wherein it was been observed that Doctor cannot perform additional procedure during a scheduled operation without prior consent of the patient on the ground that it was better for the patient where life of the patient was in danger. Here additional procedure was not done on the same day but on an other day, for which the informed consent was required but it was not taken. Again Ops were deficient in their service for not taking the consent for additional procedure on 22.9.2013.
24. What are the parameters to prove the medical negligence! The basic test has been held in "Bolam v Friern Hospital Management Committee", (1957) 2 ALL ELR 118, wherein the law was summed up as under:-
"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. 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 art. In the case of a medical man, negligence means failure to Consumer Complaint No. 47 of 2014 23 act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent."
25. In two other decisions rendered by the Hon'ble Supreme Court i.e. "Dr. Laxman Balakrishna Joshi vs. Dr. Rimbak Bapu Godbole & Anr.", AIR 1969 SC 128 and "A.S. Mittal vs. State of U.P.", AIR 1989 SC 1570, it was laid down that "when a Doctor is consulted by a patient, the former, namely, the Doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his Doctor." However, in view of the reasons stated above, the Ops failed to fulfill these requirements in the instant case. Therefore, we are of the opinion that Ops conducted surgery in negligent manner and took the life of young person, aged about 42 years. No doubt that he had a heart problem but the people had lived the life for number of years with the pacemaker. In case proper procedure and proper post care would have been taken, perhaps the patient could have survived. Therefore, we conclude that Op No. 3 only is negligent in conducting the procedure for implantation of the pacemaker and post operative care whereas Op No. 1 being the hospital is vicariously liable. Op No. 2 is Medical Superintendent of the Hospital and apparently he does not have Consumer Complaint No. 47 of 2014 24 any direct role in it, whereas Op No. 4 is Dr. Pawan K. Kansal to whom the patient had approached first time and he recommended the patient to Op Hospital, therefore, no negligence attributed to this Doctor. Op No. 5 is firm, which supplied the pacemaker. There was no defect in the pacemaker itself, therefore, Op No. 5 cannot be held liable for any lapse. Op No. 6 is the Insurance Company covering Op no. 4. In case there is no negligence on the part of Op No. 4 then Op No. 6 is not liable in any manner. In nutshell, Op Nos. 1 & 3 are liable for medical negligence for causing the death of Rishi Gupta.
26. What should be the quantum, which could be allowed to the complainant. Human life is most precious, it is extremely difficult to decide on the quantum of compensation in the medical negligence cases, as the quantum is highly subjective in nature. Different methods are applied to determine compensation. The multiplier method which typically used in motor accident cases not often conclusive for 'just and adequate compensation'. Hon'ble Supreme Court has held that there is no restriction that courts can award compensation only up to what is demanded by the complainant. In the case of death, what is the actual loss could not be measured in terms of money but it is just compensation, which can be awarded to the legal heirs to console the death of the person. Just compensation has been observed by the Hon'ble Supreme Court in the 'Sarla Verma's case, 2009 (6) SCC 121 wherein it was observed as under:-
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"Compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just.....Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit.... Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions."
Further in 'Kunal Saha's case, (2014) 1 SCC 384, it was observed by the Hon'ble Supreme Court that multiplier method may be good method for Motor Vehicle Accident Case but not in medical negligence. Just compensation varies from case to case. In the present case, the patient was the only bread winner in the family and he has left behind the wife, daughter, son and mother. The son and daughter are minor. According to the averments made in the complaint, his net income was Rs. 2,72,257/-. No doubt that out of this income, he was to spend some amount on his own expenses but with the passage of time, the income was also to be increased. Although he was a heart patient but with the implantation of the pacemaker, his life could be extended atleast for 10 years, Consumer Complaint No. 47 of 2014 26 therefore, the method of multiplier of 23 as taken by the counsel for the complainant cannot be accepted. For loss of the income, we assessed it as Rs. 25,00,000/-, cost of the treatment of the deceased Rs. 5,44,000/- and Rs. 2,00,000/- can be granted for pain and suffering and Rs. 50,000/- as cost of litigation, in all the complainant will be entitled to Rs. 32,94,000/-.
27. This amount will be paid jointly and severally by Op Nos. 1 & 3. Op Nos. 1 & 3 are directed to pay this amount to the complainant within a period of 45 days after the receipt of certified copy of the order, failing which Ops shall be liable to pay interest @ 9% p.a. on the awarded amount from the date of order till payment.
28. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
29. Order be communicated to the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER May 04, 2017.
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