State Consumer Disputes Redressal Commission
Ramakant Swarnkar & Ors. vs Ramkrishna Hospital on 15 September, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
(A/10/2148)
Appeal No.638/2010
Instituted on 22.10.10
1. Ramakant Swarnkar, S/o Shri Tulsi Ram Swarnkar,
2. Smt. Vijay Lakshmi Swarnkar, W/o Shri Rajiv Kumar Swarnkar,
3. Saurabh Aditya Swarnkar, S/o Shri Ramakant Swarnkar,
All R/o: Qr. No. AG-5, Archana Vihar, Nehru Nagar,
BILASPUR (C.G.) ... Appellants.
Vs.
1. Ramkrishna Hospital, Arvindo Enclave,
Pachpedi Naka, Dhamtari Road,
RAIPUR(C.G.)
2. Dr. Sandeep Dave, Consultant Doctor,
Ramkrishna Hospital, Arvindo Enclave,
Pachpedi Naka, Dhamtari Road,
RAIPUR(C.G.)
3. National Insurance Company Ltd.,
1st Floor, Naveen Bazar, Fool Chowk,
RAIPUR(C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Ashwini Singh, for appellants.
None for respondent no.1.
Shri Ashok Trivedi, for respondent no.2.
Shri V.K. Bajpai, for respondent no.3.
ORDER
Dated: 15/09/2011 PER: - HON'BLE SMT. VEENA MISRA, MEMBER This appeal is directed against the order dated 21.9.2010 passed by the District Consumer Disputes Redressal Forum, Raipur (hereinafter referred to as 'District Forum' for short) in complaint case // 2 // No.380/2007, whereby the District Forum had dismissed the complaint. The unsuccessful complainants have approached this commission by way of the appeal in hand.
2. There is no dispute that the wife of complainant No.1 suffered with abdominal pain and consulted OP-2 at OP-1 hospital who advised Sonography which revealed that the patient had Gall Stones. After necessary tests and as advised by OP-2, the patient was admitted on 27.9.2006 for surgery to be done on 28.9.2006. Complainant No.1 also paid requisite fee etc. On 28.9.2006 the patient was taken to OT on foot at 11.15. At 2.30 the OP-2 informed about the death of the patient. OP-1 & 2 also informed the police and the cause of death was stated to be Cardio-Respiratory Arrest.
3. It was alleged in the complaint that qualified anaesthetist was not available at the OT so due to medical complications arising due to lack of proper medical care the patient could not be saved. The OPs had committed deficiency in service by not taking due medical care of the patient. For the loss suffered due to death of the patient the complainants claimed compensation of Rs.11,00,000/- and also claimed Rs.2,00,000/- towards mental harassment and suffering etc. and Rs.2,500/- towards counsel's fee.
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4. Resisting the complaint, OP-1 & 2 filed joint written version and denied all the allegations of deficiency in service and lack of proper care and took the following plea:
a. From sonography report it was confirmed that the patient was having stones in gall bladder and surgery was the only available remedy. Prior to taking the patient for surgery all necessary tests were done. The patient was also examined by Dr. Abbas Naqui who found the ECG, X-ray as well as all the parameters to be normal and the patient was found to be fit for surgery.
b. Pre-anaesthetic tests were done by Dr. Annand Saxena. At the time of administration of anaesthesia specialist senior doctors were present with senior anaesthetist. Best possible medical care and treatment was provided to the patient. At 12 noon Dr. Annand Saxena, after doing pre-anaesthetic check-up and finding the patient to be fit for operation, started I.V. line and connected the patient to monitor. Her Blood Pressure was found to be 140/80 and pulse 78 per minute. As per protocol pre-oxygenation with 100% oxygen was done for 5 minutes and it was ensured that saturation of oxygen was 100% in the patient. At 12.20 induction of anesthesia was done by slowly giving Inj. Pentothal Na 2.5% 300 mg. After IPPR for 2 minutes the patient was intubated and was connected to Bains Circuit // 4 // and anaesthesia was maintained by Halothane 0.5%, Nitrous Oxide 5 lt. and 5 lt. At this time pulse of the patient was noted to be 80 per minute, Blood Pressure 160/90 and SPO2 100% which was quite normal. Thereafter Inj. Atracurium 25 mg I.V. was administered so that the abdominal muscles of the patient remain relaxed and the surgery may be performed smoothly. Ryles tube was also inserted through nose of the patient. c. After 2-3 minutes of induction of anaesthesia the patient suddenly developed bronchospasm. Dr. Annand Saxena immediately suspected that the bronchospasm might have been due to anaphylaxis reaction so he immediately gave I.V. Inj. Deriphylin 2 amp 20 ml with distilled water slowly. At that time pulse 110 per minute, Blood Pressure 154/94 and SPO2 saturation 70% were found. As bronchospasm continued till 12.25 despite the aforesaid medicines, Inj. Efcorlin 1000 mg. was given and Inj. Aminophyllin 2 amp. 5% dextrose with Inj.
Methyle Prednisplone 1 mg. I.V. was also given. Now pulse was 70 per minute, systolic blood pressure 70 and SPO2 60% was noted which meant that even despite administration of all the aforesaid medicines the bronchospasm continued. During all this period care was taken to clean endotracheal tube by suction. d. As soon as bronchospasm was noted, Dr. Saxena had also called senior anaesthetist Dr. Sudha Trivedi. OP-2 with Asstt.
// 5 // Surgeon Dr. Jabbad Naqui was already present in the OT. They immediately called Physicians Dr. R.Gupta and Dr. Abbas Naqvi, and Intensivists Dr. Shreenath and Dr. R.K.Kashyap who were present in the nearby OTs. Besides this the OP-2 also called Cardiologist Dr.Suryavanshi from Escort Heart Center, Raipur who reached within a few minutes. All the specialist doctors present in OT provided the best services and medical care to the patient. But after nearly 15 minutes of the patient suffering bronchospasm her pulse rate came down to 40 per minute and despite induction of maximum dose of 10 lt. per minute of Oxygen SPO2 had come down to 40% and thereafter the patient suffered cardiac arrest. Cardiac heart support was continued. Halothane and Nitrous Oxide were stopped and Inj Atropine was immediately given. Inj. Adrenaline was also given in appropriate dose after every 3 to 5 minutes. Other supportive medicines such as I.V. Soda-bicarbonate 7.5%, I.V. Calcium Gluconate 10% 10 ml., 3 ampl. Were also given yet there was no response. Thereafter Adrernaline was given intra-cardiac and heart was defribillated by the machine and defibrillation 150 to 200 was given. Despite all the aforesaid efforts the patient could not be revived and she was declared dead at 2.30 pm. e. The Experts knew it fully well that the death was due to Cardio-respiratory arrest yet as the patient died on operation // 6 // table, due intimation was given to police, post-mortem was done and it was established from post-mortem report that the death was due to cardio-respiratory arrest. No such fact was revealed in post mortem on the basis of which it can be said that the doctors were negligent.
f. Bronchospasm after induction of anaesthesia is a known but very rare incident that has been described in literature relating to anaesthesia as an accident and in 5% to 10% of cases it is impossible to save the patient despite best possible treatment. There are no means or tests to prevent such state of affairs. Whatever pre-operative and pre-anaesthetic tests are required were got done. Competent doctors, as required for surgery, were present in the OT and other doctors were also called when emergency arose.
g. The Ops had obtained informed consent and prior to taking consent the risks involved in surgery as well anaestesia were fully explained to the patient as well as the complainant No.1. After fully understanding the risks involved in the procedure they had given consent voluntarily.
h. The Op-1 had obtained Professional Indemnity Policy from National Insurance Company for the period for 10.5.06 to 9.5.07 to insure payment in case OP-1 has to pay any compensation.
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5. OP-3 insurer, in written version, admitted having issued Professional Indemnity Policy in favour of OP-1 for the period from 10.5.2006 to 9.5.2007 but denied all allegations of deficiency in service by the OP-1 & 2. Calculation of compensation in the complaint has also been challenged.
6. The complainant No.1 has filed his own affidavits dated 3.10.2007and 4.1.2008. OP-2 filed his own affidavit dated 26.3.2008 in support of the written version besides filing affidavits of Dr. Ajay Saxena M.D (Anaesthesia)dated 4.11.2008; Dr. (Smt.) Sudha Trivedi M.B.B.S., D.A.; dated 4.11.2008; Dr. M.K.Sinha M.D. (Anaesthesia) D.A. (Anaesthesia) and Dr. Ashok Tripathi, M.B.B.S., D.A. dated 20.7.2010. The parties had also filed documents as per list and OP-1 & 2 had filed some medical text also.
7. The District Forum, on consideration of material before it, found that the complainants have failed to prove their case and hence dismissed the complaint.
8. Arguments of all parties heard. Record perused. Main grievance of learned counsel for complainants / appellants was that the patient went to OT on foot but due to negligence on part of the doctors she died on the operation table itself. He submitted that under the // 8 // circumstances plea of Res Ipsa Loquitor (Thing speaks for itself) would be attracted. Learned counsel for appellants drew our attention to the discrepancy between the photocopy of Aneasthesia Notes filed by the OP-1 & 2 before the District Forum and the original requisitioned from the police. Learned counsel submitted that in the photocopy there is no mention at page 2 regarding calling Dr.Sudha Trivedi from the other OT though in the original requisitioned from the police it has been mentioned. Learned counsel submitted that this very fact shows that there has been manipulation of documents. He submitted that the patient had died at 12.37 but was declared dead at 2.30 on 28.9.2006, so the doctors had ample time to manipulate the documents. Appellants' counsel further submitted that Dr. Ajay Saxena has tried to justify such subsequent insertion by means of affidavit dated 18.4.2011 filed before this Commission, though he ought to have justified it before the District Forum. He further submitted that the explanation given by the aforesaid doctor regarding the discrepancy is that earlier he had got the Anaesthesia Notes photocopied but before seizure of original documents by the police he had gone through the said notes to ensure that any important fact has not been left and he found that an important fact of calling Dr. Sudha Trivedi has not been mentioned in the document so he inserted it at appropriate place. As no photocopy shop was available in the nearby area photocopy after insertion of aforesaid fact could not be taken.
// 9 // Learned counsel for appellants submitted that in the aforesaid affidavit the doctor has made false statement that no photocopy shop is available in near vicinity of the hospital. He has filed counter affidavit of appellant No.1 dated 20.7.2011 and has mentioned the names of 3 photocopy shops within distance of 300-400 mtrs. from the Hospital. So the affidavit and the witness loose veracity. On the basis of above discrepancy learned counsel for appellant submitted that the OP-1 & 2 have mastered in manipulating the records as per their convenience and requirement. All this is against medical ethics. Learned counsel for the appellants further submitted that help was not called at appropriate time, which resulted in death of the patient. Learned counsel admitted that he has not filed any expert opinion in the matter.
9. Per contra learned counsel for respondent No.1 & 2 submitted that as detailed in written version the team of expert doctors was present in the OT for surgery of the patient. All necessary pre- operative tests were done and due note of the facts was taken. Pre- anaesthetic evaluation was also properly done by Dr. Ajay Saxena who is MD (Anaestesia) and has a large experience in the field. He is well versed and is competent to decide the required dose of anaesthesia to be administered to a particular patient and is fully competent to take care of the patient under anaesthesia. Learned counsel submitted that as found by the District Forum, proper care of the patient was taken by // 10 // the team of doctors but the patient had suffered Bronchospasm which could not be controlled despite all efforts and resulted in cardiac arrest of the patient. Even thereafter untiring efforts were done by the doctors to resuscitate the patient but to no avail. So, finally the patient was declared to be dead. Learned counsel for the respondents 1 & 2 further submitted that the District Forum has taken note of every aspect and has also duly considered various affidavits and medical literature placed on record. So far as the question of discrepancy in Anaesthesia Notes is concerned it has been duly explained by means of affidavit of Dr. Anand Saxena, the writer of the said notes. Learned counsel for Respondent 1 & 2 prayed for dismissal of appeal.
10. Learned counsel for respondent No.3/insurer supported the impugned order and submitted that the doctors have not committed any deficiency in service. So the question of liability of the insurer does not arise.
11. Learned counsel for appellants submitted that the maxim of Res Ipsa Loquitor (the thing speaks for itself) would be attracted in the facts of the case and the burden would be on the OPs to prove that they were not negligent. We have come across a number of cases wherein the apex court has held that cases of medical negligence cannot be decided solely on the basis of the aforesaid legal maxim. However // 11 // even if such maxim is applied, only the primary burden to prove that he was not negligent shifts on the opposite party. In case the said party offers some explanation, the burden again shifts on the person alleging negligence, to prove by cogent evidence that the opposite party was negligent. In the appeal in hand the complainants had alleged negligence on part of the OP 1 & 2. By their written version the said OPs took the plea that they had taken all care and caution and had given the best and appropriate medicines as detailed in the written version yet the Bronchospasm that had developed in the patient could not be controlled despite best efforts. The efforts to resuscitate the patient, after she suffered cardiac arrest, also went in vein. In support of their plea, the OPs had filed various documents including Anaesthesia Notes and admission record also. They had filed affidavits of various doctors to show that proper protocol was followed and the treatment given to the patient was appropriate in the circumstances of the case. Police record has also been requisitioned and on perusal of the seizure memo we found that the empty bottles and ampoules of medicines stated in the written version to have been given to the patient were seized from the OT. The OP1 & 2 have filed affidavits of two independent doctors namely Dr.Ashok Tripathi, M.B.B.S., D.A. (Anaesthesia) and Dr.M.K.Sinha, M.D. (Anaesthesia) & D.A. (Anaesthesia). These doctors have no professional connection with OP- 1or 2. The said doctors have stated on oath that they are swearing // 12 // affidavit after going through record of treatment. They have stated that all relevant pre-operative tests and pre anaesthesia tests were done. They further stated that there is proper description of the steps taken by Dr.Saxena and it is evident from documents that the steps taken by him were not only satisfactory but were world class and modern equipments were used. These doctors have also stated in their affidavits that bronchospasm developed within minutes of induction of anaesthesia and it could not be controlled by subsequent appropriate treatment given to the patient. So it is evident that the patient had suffered sever reaction to something, may be some drug or any thing made of latex or any other thing. They have also stated that such reaction is known in medical terminology as Anaphylactic Reaction. It is very rare and may prove to be fatal despite best treatment. Besides these two affidavits, the District Forum has referred to the medical literature produced by OP-1 &2. It is evident from the said text which is available on record - 'Anaphylaxis is characterized by a sudden and often unexpected onset; even with treatment, catastrophe may ensue.'
12. In view of so much material placed by the OP-1 & 2 to prove that the bronchospasm in the patient had developed on account of Anaphylactic reaction, the burden to prove that the reason for bronchospasm was not anaphylactic reaction but something else lay // 13 // heavily on the complainants. No expert opinion or medical text has been filed by the complainants to counter the defense taken by the OP- 1 & 2.
13. Learned counsel for appellants repeatedly reiterated upon the plea regarding discrepancy in anaesthesia note relating to insertion of entry regarding Dr. (Smt.) Sudha Trivedi. We believe that the reason for such insertion has been clarified by way of affidavit of Dr. Anand Saxena, produced before us. Appellant No.1 has filed counter affidavit and has stated that such a big hospital is supposed to have photocopy machine and in case it does not have such facility, there are three photocopy shops in the vicinity. So, the statement of Dr. Saxena that he could not get the document photocopied because the police officials were in a hurry and there was no photocopy shop in the area upto two kilometers cannot be believed. However we find that in his affidavit dated 20.7.2011 the complainant has stated that there are 3 photocopy shops within a distance of 300 - 400 mts. but he has not stated that at the relevant point of time way back in the year 2006 also there were photocopy shops. Learned counsel for appellants also submitted that the affidavit providing clarification filed before the Commission ought to have been filed before the District Forum. We feel that as no objection was raised on the aforesaid ground, the OPs did not provide clarification. The OPs had stated in written version that Dr. Sudha // 14 // Trivedi, present in other OT was called. Affidavit of Dr. Sudha Trivedi was also filed before District Forum and she has also stated that she M.B.B.S., D.A. and is anaesthesia expert. She was called by Dr. Sandeep Dave a few minutes after 12 and she immediately reached OT No.1. The patient had suffered bronchospasm and Dr. Ajay Saxena had by that time given I.V. Derriphylin. From the monitor she came to know about vital parameters of the patient and thereafter she also involved in treatment of the patient. Other doctors who have filed there affidavits have also confirmed that Dr. Sudha Trivedi was called. It appears from the record that the Original Record of criminal case was also requisitioned by the District Forum but the complainants did not point out any such discrepancy in the documents before District Forum as they have pointed out at the appellate stage, so clarification was not offered. We are of the considered view that even in case it is believed for a while that Dr. Sudha Trivedi was not called it would hardly make any difference so long as a competent anaesthetist Dr. Anand Saxena, having long background of successful practice was present in the OT beyond any doubt, to take care of the patient.
14. Referring to the discrepancy mentioned earlier, learned counsel for the appellants submitted that as the appellants have proved that the record was not properly maintained, the burden lay on the OPs 1 & 2 to prove that the record is accurate. He relied on Criminal Reference // 15 // No.3 and 4 Suo Motu Vs. State of Gujrat decided on 30.09.2008 by The High Court of Gujrat at Ahmedabad, and Appollo Hospital & Anr. Vs. M. Sathyanarayana & Anr., 2011 (2) CPR 271 (NC). So far as Apollo Hospital's case is concerned, the plea taken by the hospital was that medical record of the patient was lost during process of transfer of the patient to their main hospital. This plea was not accepted and adverse inference was drawn. In the appeal in hand the OPs have produced the record and no such plea like misplacement of record has been taken by them. The other case relied by learned counsel is Criminal revision and facts of the case are totally different. Hence the conclusions drawn in the aforesaid cases would not be applicable to present case.
15. It does not appear to be prudent to expect the doctor during process of anaesthesia or surgery to take one step and then leaving the patient, to make entry of the step taken by him in the record, after that to again turn to the patient and take the next step and keep repeating the process in order to maintain the record correctly. We believe that the record is prepared immediately after the process is over. Especially in case of emergency, first priority of the doctor is to take best care of the patient and try to save his life. All other formalities come afterwards.
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16. The complainants / appellants have made generalised allegations against the OP-1 &2 but they have failed to point out any specific flaw in the treatment provided to the patient. It stands established on the basis of material placed on record, medical literature as well as various affidavits, including the affidavit of Dr. Ashok Tripathi and Dr. Sinha who are independent doctors and are experts in the field that the patient suffered anaphylactic reaction resulting in sever bronchospasm which could not be controlled by subsequent treatment provided to the patient by a team of competent doctors, with the help of most modern world class machines. Consequently the patient suffered cardiac arrest. The doctors left no stone unturned to resuscitate the patient for a long time but did not succeed. It is very unfortunate that the patient could not be saved despite all efforts made by the doctors. So, in the facts of the present case we do not find the OPs -1 & 2 to be negligent or deficient in service. So we find no merits in the appeal, hence the same is dismissed. Order of the District Forum is hereby affirmed.
(Justice S.C.Vyas) (Smt. Veena Misra) (V.K. Patil)
President Member Member
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