National Consumer Disputes Redressal
Mostt. Meera Devi vs Dr. Arun Kumar Chaudhary & Ors. on 20 January, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.132 OF 2007 (From the order dated 04/12/2006 in Appeal/Complaint No.299/05 of the State Commission, Bihar) Mostt.Meera Devi Petitioner Versus Dr.Arun Kumar Chaudhary & Ors. Respondents BEFORE : HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For Petitioner : Mr.Rajeev Sharma, Advocate For Respondents : Ms.Prerna Mehta, Advocate Pronounced on 20th January, 2011 ORDER
PER VINEETA RAI, MEMBER The present revision petition has been filed by one Meera Devi (hereinafter referred to as the Petitioner) being aggrieved by an order of the State Consumer Disputes Redressal Commission, Bihar (hereinafter referred to as the State Commission) by which the State Commission had set aside the order of the District Forum and allowed the appeal in favour of Dr.Arun Kumar Chaudhary, Respondent No.1 and two other doctors.
The facts of the case are that the late husband of the Petitioner who was the original complainant before the District forum had been admitted to Sadar Hospital, Katihar on 03.09.2003 because of a septic boil on his right thigh. According to the Petitioner, the Respondent No.1 demanded Rs.4,000/- for getting him operated and after settling the amount at Rs.1,000/-, he conducted a surgery on the right thigh near the femoral vein. After 4 to 5 hours of the operation the condition of the patient became serious and when this was brought to the notice of the Respondent, Petitioner was asked to buy one Traxol 1000 injection for immediate administration.
Petitioner, therefore, purchased the injection which was injected in the vein of the deceased. However, instead of improving, the condition of the patient deteriorated because he was given a wrong injection in the vein without due precaution and he died on 04.09.2003 due to pulmonary embolism leading to cardio respiratory failure. Also, despite the fact that an operation of this nature has a high risk of occurrence of pulmonary embolism the operation was conducted in a hospital which had no Intensive Cardiac Care Unit. Petitioner, therefore, filed a complaint before the District Forum on grounds of medical negligence and deficiency in service with the request that a compensation of Rs.5 lakhs may be given to her. Respondents have challenged these contentions and stated that the operation was the right line of medical treatment and was done with the consent of family members and with the help of an Anesthetist, Dr.N.P. Saha and other doctors. The patient was advised to take full rest post-operation and was prescribed the required antibiotics and attended to by the medical staff. His condition was satisfactory after the operation and after 6 to 7 hours, he started moving around against medical advice. He thereafter developed some complications including breathlessness and he was immediately prescribed emergency medicine including treatment for breathlessness. At 6.00 pm the doctor on duty found that his condition was not satisfactory and he was rightly administered an injection of Traxol 1000 which is invariably used in cases of this nature and have no side effects. Despite best efforts the patient died due to pulmonary embolism following femoral vein thrombosis leading to cardio respiratory failure. The post-mortem also confirmed that the cause of death was pulmonary embolism which does not co-relate with the administration of the injection. Thus, there was no medical negligence in the case. The allegation that money was demanded for treatment was also totally incorrect.
The District Forum after hearing the parties accepted the complaint and blamed mainly Respondent No.1 of medical negligence and deficiency in service in conducting a minor operation which led to the patients death. The main reason for reaching this conclusion was that the operation was done in haste; consent of the relatives was not taken and in addition to the operation on the right thigh, a family planning operation was also done on the patient without consent. When his condition deteriorated, he was injected Traxol 1000 injection in a negligent manner without checking his blood pressure etc. The District Forum also cast some doubt on the post-mortem report. District Forum directed Respondent No.1 to pay a compensation of Rs.2 lakhs to the Petitioner, and the other two Respondents were directed to pay Rs.50,000/- and Rs.25,000/- respectively to the Petitioner within one month of the date of passing the order.
Aggrieved by this order, an appeal was filed by the Respondents before the State Commission.
The State Commission accepted the appeal of the Respondents. The operative part of the order of the State Commission reads as follows:
We have gone through the facts of the case and submissions made on behalf of both the parties and the evidences brought on record in support of their respective cases.
None of the facts in the case is in dispute. The operation of the patient by O.P. No.1 and thereafter subsequent treatment as per roaster by other O.Ps. in the hospital has been done as per bed head ticket. They have prescribed several medicines and was administered to the patient and after operation of about 7 hours the patient died and the postmortem report mentions the cause of death pulmonary embolism leading to cardiac arrest. The only allegation of the complainant that injection of traxol was the cause of his death is not supported by any evidence on record. Rather medical journals show that this medicine is used as an antibiotic after the operation and it has little side effect. It has no such side effect leading to pulmonary embolism which occurred in this case to the patient after the operation. We have mentioned above that such occurrence after operation do happen in some of the cases and when it happens frequently leads to death as happened in this case for which none of the O.Ps. can be held responsible.
We are of the view that the complainant has failed to prove any of the allegation made against the O.Ps. as required to prove medical negligence.
In the case of Jacob Mathew the Apex Court (2005) page-6 SCC has laid down guidelines for the course to follow while deciding an issue of negligence against the doctor. The Apex Court held that only there is gross negligence and this negligence is proved based on the case laid down in Bolam test. A doctor cannot be held guilty only because some event such as death as caused after the treatment in this case after the operation.
The O.Ps. has proved that they are qualified doctors. They did their duty while they were on duty in the hospital. There is no evidence to show that they made any negligence towards the patient. Therefore, the allegation which is easy to make against a doctor but difficult to prove has not been proved by the complainant by adducing any medical evidence or of expert opinion. Therefore, the complaint has failed to prove her allegation against any of the O.Ps.
On the other hand the O.Ps. have been able to show that they performed their duty as an expert doctor which was available under the such circumstances and in the facility available in the Sadar Hospital.
In the light of the above discussions we come to the conclusion that the complainant has failed to prove her allegation against any of the O.Ps. and as such the finding arrived at by the District Forum holding the doctor negligent in their duty is bad in law and fit to be set aside. The District Forum has failed to consider this fact that the complainant did not produce any expert evidence or produce any medical journal to show that the O.Ps. negligence in duty and they wrongly operated the patient leading to his death. Therefore, finding arrived at by the District Forum is fit to be set aside.
Hence, the present revision petition.
Learned counsel for both parties were present. Learned counsel for Respondents stated that as appreciated by the State Commission there was no medical negligence or deficiency in service. Traxol-1000 is the injection of choice in the treatment of septicemia and was therefore rightly administered to the patient.
Further, as per the hospital Roster, the patient was administered medicines and looked after diligently by the staff on duty including three doctors. There is medical literature to support that operations for septic conditions are prone to be followed by complications and between 2% to 3% of all hospital deaths are wholly or in part due to pulmonary embolism.
Unfortunately, in the present case the symptoms developed after the operation despite administration of proper medical treatment and care. Counsel for Petitioner, on the other hand, stated that apart from administering the Traxol injection without due precaution the patient also could not be saved because there was no Intensive Cardiac Care Unit in the hospital.
Since there can be fatal complications in such operations, the hospital should not have conducted the operation without having these facilities. The District Forum had appreciated all these facts in their totality and accepted the complaint giving necessary reliefs.
We have heard counsel for both parties and have gone through the evidence including the medical literature on record.
Facts leading to the Petitioners late husband being admitted to the hospital for treatment of a septic boil is not in dispute and the treatment administered to the patient is on record and also not disputed i.e. he was operated upon in the region of the boil and thereafter he was administered a Traxol injection. As per medical evidence on record, this is the line of treatment to deal with such cases and administration of Traxol is not known to cause pulmonary embolism. This is a known though uncommon complication of such surgery and cannot be attributed to medical negligence or wrong administration of Traxol injection. The onus to prove facts to the contrary was on the Petitioner who has totally failed to do so. No medical literature or experts views were produced by her to counter the evidence of the Respondents and the medical literature produced by them in evidence. Further, mere absence of a Cardiac Care Unit in a hospital is not indicative of negligence or deficiency in service because such facilities are usually not available in general hospitals and are a requirement in super-specialty hospitals dealing with the cardiac care.
Keeping these facts in view, we agree with the reasoning of the State Commission in holding that the Petitioner has failed to prove any medical negligence or deficiency in service and we, therefore, uphold the order of the State Commission. The Revision Petition is dismissed with no order as to costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/