National Consumer Disputes Redressal
Kapil Aggarwal & 3 Ors. vs Sarvodaya Hospital & Research Centre & 5 ... on 8 February, 2022
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 158 OF 2012 (Against the Order dated 31/10/2011 in Complaint No. 29/2011 of the State Commission Haryana) 1. KAPIL AGGARWAL & 3 ORS. S/o Sh. Madan Lal, R/o Aggarwal Bhawan, Gali Amar Tent House, Sanglapura Road, Mandi Gurdaspur, Gurdaspur Tehsil and Distt- Punjab 2. ADITI AGGARWAL D/o Kapil Kumar, R/o Aggarwal Bhawan, Gali Amar Tent House, Sanglapura Road, Mandi Gurdaspur, Gurdaspur Tehsil and Distt- Punjab 3. BHARAT AGGARWAL S/o. Sh. Kapil Aggarwal, R/o Aggarwal Bhawan, Gali Amar Tent House, Sanglapura Road, Mandi Gurdaspur, Gurdaspur Tehsil and Distt- Punjab 4. KARAN AGGARWAL S/o Sh. Kapil Aggarwal, R/o Aggarwal Bhawan, Gali Amar Tent House, Sanglapura Road, Mandi Gurdaspur, Gurdaspur Tehsil and Distt- Punjab ...........Appellant(s) Versus 1. SARVODAYA HOSPITAL & RESEARCH CENTRE & 5 ORS. Sector-8, Faridabad,
Through its Director, YMCA Road, Near ESI Hospital, Sector-8, Faridabad 2. DR. ARVIND KUMAR Surgeon Attached to Pushpavati Singhania Research Institute, Press Enclave Marg, Sheikh Sarai II New Delhi - 110 017 3. DR. PANKAJ ZUTHSI, Consultant Surgery, Sarvodya Hospital, and Research Centre, YMCA Road, Near ESI Hospital Sec.8, Faridabad. 4. DR. B.D. MUKHIJA R.G. Stone Hospital,
A-6, Nehru Ground,
Neelam Bata Road Faridabad-121001 5. DR. NISHTHA GUPTA Gynecologist, Sarvodaya Hospital and Research Centre, Sec-8, Faridabad 6. UNITED INSURANC COMPANY LTD. Through its Branch Manager, 2/27, Sarai Julena Opposite Hotel, Sofital Surya Okla Road, NEW DELHI-110025 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER
For the Appellant : For the Respondent :
Dated : 08 Feb 2022 ORDER
Appeared at the time of arguments
For the Appellant :
Mr. Prashant T. Bhushan, Advocate
Dr. H. M. Gupta, G.P.A. of the Appellants
For the Respondent :
Mr. S.N. Parasar, Advocate for R-1 to 5
Mr. Maibam N. Singh, Advocate for R-6
Pronounced on: 8th February, 2022
ORDER
DR. S. M. KANTIKAR, MEMBER
1. The instant Appeal is preferred by Mr. Kapil Aggarwal & Ors. (hereinafter referred to as the "Appellants/Complainants") under Section 19 of the Consumer Protection Act, 1986 against the impugned Order dated 31.10.2011 in Complaint No. 29 of 2011, passed by the Haryana State Consumer Disputes Redressal Commission (hereinafter referred to as the "State Commission"), wherein the Complaint of alleged medical negligence against Sarvodaya Hospital & Research Centre (hereinafter referred to as the "Respondents") was dismissed.
2. For the sake of convenience, the parties are referred to as in the original complaint.
3. Brief facts of the case are that on 11.12.2009 the Complainant No. 1 admitted his wife, Mrs. Anita Aggarwal (hereinafter referred to as the "patient") to Sarvodaya Hospital & Research Centre at Faridabad (hereinafter referred to as the 'Hospital') for the Complainants and excessive bleeding. She was examined by Dr. Arvind Kumar (hereinafter referred to as the 'Opposite Party No. 2') and Dr. Pankaj Zuthsi (hereinafter referred to as the 'Opposite Party No. 3') and was advised for hysterectomy i.e. removal of uterus. The patient was also suffering from umbilical hernia. The doctors specifically informed that the patient's condition was not suitable for two surgeries, which could prove fatal.
4. On 12.12.2009, the patient was operated at around 3.00pm. It was alleged that her condition was serious when brought out from OT. She was directly shifted to ICU and put on oxygen and artificial ventilation support. The Complainant was shocked to learn from the ICU bedside ticket that along with Hysterectomy, the surgery for hernia was also performed. No consent was given for hernia operation. Post operatively, the patient developed hypoxic encephalopathy. It was further alleged that in the ICU, Tracheostomy procedure was done for four times. The patient remained in the ICU till 24.01.2010 and shifted to the ward. It was further alleged that the patient was discharged from the Hospital on 15.02.2010 after cash payment of bill ₹2,50,000/-, but the discharge summary was issued on 27.02.2010. It was also alleged that due to repeated X-ray & CT Scan, the patient received heavy doses of radiation, which led to fall in Hb% to 8.3 g% on 26.01.2010. The entire treatment was negligent which caused death of the patient. Being aggrieved, the Complainant filed the Complaint before the State Commission seeking compensation to the tune of Rs. 45,42,500/-.
5. The Opposite Parties Nos. 1 to 5 filed their written versions and denied the allegations of medical negligence. They raised the preliminary objections on maintainability of the Complaint. It was further submitted that the patient was admitted in the Opposite Party No. 1 hospital on 11.12.2009 with the history of excessive bleeding per vaginum since one month and she had umbilical hernia. It was submitted that after the relevant investigations, her TLH was performed by Opposite Party No. 1 and Opposite Party No. 2. The doctors took high risk consent because of patient's comorbid conditions. During the laparoscopic TLH procedure at the time of removal of umbilical port, closure/repair of hernia is mandatory as per standard of practice. It was not the operation of hernia, wherein no mesh and / or trackers were used. The Opposite Party No. 2 only closed the umbilical defect.
6. The State Commission dismissed the Complaint. Being aggrieved, the Complainant filed the instant First Appeal.
7 Heard the learned Counsel for both the sides. The delay of 80 days in filing the instant Appeal was condoned vide our Order dated 31.07.2012.
8. The learned Counsel for Complainants argued that after the surgery, the Complainant No.1 and his brother-in-law, Dr. H.M. Gupta were under the impression that only hysterectomy was performed but when post operatively, the patient was shifted to ICU, they learnt that without consent, hernial surgery was also performed. It is evident from the medical record that the patient was not stable after the surgery. She was put on ventilator and oxygen support in the ICU from 12.12.2009 till 24.01.2010. He further argued that the doctors in ICU were not competent as they have repeatedly done Tracheostomy on four occasions i.e. on 21/12/2009, 23/12/2009, 31/12/2009 and 02/01/2010. After the discharge from the hospital, the patient was under comatose condition till her death which occurred at Saras Hospital, Faridabad on 22.04.2010.
9. He further argued that though the patient was discharged from the Hospital on 15.02.2010, but it was shown as discharged on 03.02.2010 in the morning and re-admitted after some hours. It shows the ill intention of the (hereinafter referred to as the 'Opposite Party No. 1') Hospital to get money paid by from the TPA/Insurance Company as well as from the Complainant No.1. The hospital raised a bill of ₹2,50,000/- and the Complainant No. 1 gave a cheque dated 15.02.2010 but despite request the hospital did not give a discharge summary, therefore the complainant made stop payment of the said cheque.
10. The learned Counsel for the Opposite Parties, during argument, reiterated their evidence and relied upon the treatment record. He argued that the treatment was given as per the standard of practice without any negligence.
11. We gave our thoughtful consideration to the arguments from both the sides. The Complainant raised several grievances against the Opposite Parties like DVT Pump was not provided at initial stage, the ankle Bed Sores were developed due to the lack of care, the hospital flouted the guidelines of the National Pharmaceutical Pricing Authority of India and charged IV fluids @ ₹80/bottle instead of Rs. 17/-, intentionally the discharge summary was issued late with manipulation and the patient was kept in the hospital for 43 days with the intention to increase the hospital bills.
12. We have carefully perused the entire medical record inter alia the inquiry report issued by General Hospital, Sector-6, Panchkula. It is evident from the medical record that based on the patient's condition and the investigations, the doctors planned for Laparoscopic Total Hysterectomy. Pre-operative USG revealed Post Cholecystectomy status with Grade-II fatty liver changes, left Renal cyst, right Para Umbilical Hernia and intramural fibroid in the anterior wall of uterus. After pre-anaesthetic check-up (PAC) and opinion from Medicine department TLH with repair of umbilical hernia was done under GA on 12.12.2009. Patient tolerated the procedure well & post-surgery, patient was stable & was shifted to ward. Post-operatively antibiotics & other supportive drugs were given. On 14.12.2009, the patient had sudden respiratory distress & was immediately shifted to ICU where she as intubated & put on ventilator support. CPR was done for 10 minutes and the patient was revived. The patient's general condition was very critical, patient developed encephalopathy and Galsgo Coma Score (GCS) was E2M4Vt. The patient was attended regularly by the physician and regular physiotherapy was given. Regularly investigations & X-rays were done and patient was managed accordingly. On 21.12.2009 Tracheostomy was done, but due to obesity, it was difficult. On 27.12.2009, the patient was weaned off from the ventilator & put on T-piece with O2 supply but the general condition was same. In ICU, two units of packed RBC were transfused as patient was anaemic (Hb-7.2gm%). On 01.01.2010, the patient again had respiratory distress & was put on ventilatory support. On 04.01.2010 patient was again weaned off from ventilator & put on T piece with O2 the GCS status was still E2M2Vt. The patient was started with Ryle's Tube feeds. The diabetes (DM Type-II) was managed with regular blood sugar monitoring & Insulin injections. The patient developed ankle bed sores, though adequate measures like air bed & DVT pump were provided. Regular dressing of bedsore was done. On 25.01.2010, the patient was shifted to ward with status quo condition and patient was discharged on 15.02.2010.
13. As per the medical literature on laparoscopic hysterectomy surgeries, during the laparoscopic procedure umbilical port is used, and after TLH, at the time of removal, the umbilical port shall be closed. In the instant case, admittedly, the patient had umbilical hernia, in our view, the method adopted by the Surgeon was correct. Moreover, knowing the morbid obesity and other comorbidities, the operation was performed after obtaining high risk consent. Thus, it was TLH only and not the second surgery for the repair of hernia as no mesh and/or trackers were used for Umbilical Hernia repair surgery.
14. Now, the issue before us is that whether it was a medical negligence wherein the patient suffered complication post-operatively. In our view, both the procedures were performed as per standard of practice. Unfortunately, the patient developed serious complications post-operatively, which were promptly treated by the team of doctors, as discussed supra (para 12). The State Commission obtained an expert opinion from the Special Medical Board, which categorically opined that negligence cannot be attributed to the team of doctors at the Opposite Party No. 1 - Hospital.
15. We would like to rely upon few decisions of the Hon'ble Supreme Court on medical negligence. In the case of Achutrao Haribhao Khodwa & Others V State of Maharashtra & others[1], the Hon'ble Supreme Court noticed that:
"in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
The Hon'ble Supreme Court also held that every mishap shall not be construed as a negligence of the treating doctor or the hospital to fasten the liability
16. Based on the foregoing discussion, in our view, in the instant case, the medical negligence could not be conclusively attributed against the hospital and the doctors.
Accordingly, the instant First Appeal is dismissed.
[1](1996) 2 SCC 634 ......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER