National Consumer Disputes Redressal
Smt. Rekha Gupta vs Bombay Hospital Trust And Anr. on 19 March, 2002
Equivalent citations: II(2003)CPJ160(NC)
ORDER
Rajyalakshmi Rao, Member.
This original petition 226 of 1992 has been filed by the Complainant Smt. Rekha Gupta, the widow of late Dr. Kedar Nath Gupta, against Bombay Hospital Trust, Bombay, i.e., Opp. Party 1 and Dr. S.P. Trivbedi the Nephrologist i.e., Opp. Party 2 for deficiency and gross negligence. The husband of the Complainant Dr. Kedar nath Gupta, hereinafter, referred to as 'patient' was 41 years old at the time of his death on 20th May, 1992, and his wife the complainant, two daughters and a son were his dependents.
1. The relevant facts of the case are that the 'patient', Dr. Kedar Nath Gupta was undergoing treatment as a private patient under Dr. S.P. Trivedi, a senior Nephrologist since 2nd April 1992 and on latter's advice, the patient was admitted in Bombay Hospital on 14th April 1992 for various tests/treatment, where he remained as an indoor patient from 14/4/1992 to 2/5/1992. The patient was suffering from pulmonary tuberculosis, renal insufficiency and Diabetes Militias and he was required to undergo kidney transplant and accordingly the relevant tissue type matching tests were done. Since dialysis was imperative for the deceased to facilitate the same, A.V. Fistula was done in the right fore-arm by the surgeon Dr. M.L. Kothari on 28.4.1992.
On the advice of op.2, Dr. Kothari, Chest Specialist was consulted by the patient and he desired to compare fresh x-rays with older ones. Dr. Sengupta, Radiologist took x-ray on 18.5.92 and pathology Department informed that the patient was not spitting sputum and there was no variations in temperatures suggesting that 10 dine induced sputum test was not necessary.
2. Although, the patient was discharged from the hospital on 2nd May, 1992 and after that two dialysis were carried on 8th May, 1992 and 14th May, 1992, the right arm was never used by Opposite Parties as per the warning on the bandage. The problem arose on the day of third dialsys on 18th May, 1992, when the technician of the hospital, negligently used immature A.V. Fistula (Dictionary meaning : An abnormal or surgically made passage between an hollow or tutular organ and the body surface, or between two hollow tutular organs) despite warning and caution by the patient, the Complainant and her brother. It is the Complainant's say that the blood from dialysis machine was reintroduced into the body in subcutaneous. Due to this mishap, the right forearm doubled in size with swelling which is known as "Compartmental Compression". The technicians told the Complainant that it was saline/dextrose that was first transfused and that the swelling would subside in few hours. At that relevant time when dialysis was being carried on the patient, the complainant contended that the doctors were not available to supervise the working of Artificial Kidney Unit (A.K.U.) or present in the attached doctors room.
3. Around midnight on 18th May, 1992, the patient was brought back to the hospital, in a condition on swollen arm upto elbow joint due to accumulation of blood. Complainant stated that the patient was taken home on 18th May, 1992 by taxi to his residence which is 35 km away from the hospital at 9.00 p.m. and when they reached home, the patient expressed his inability to get down on his own. It was only then, round 10.30 p.m., they noticed reddish boils on the swollen arm and immediately rushed him back to the hospital by 0,15 a.m. on 19th May, 1992. Dr. Chowdhary was called in from the hostel nearby and he took the patient to Artificial Kidney Unit (AKU) and gave an injection. He waited for the admission formalities to be over to do further treatment. Complainant states that the patient was throughout requesting to amputate his hands because he being medical doctor himself suspected that gangrene was forming in his hand. Dr. Agnihotri, Asst. of Dr. Saxena who was the specialist saw the patient first and suggested to perform operation but Dr. Ashutosh, Asst. Registrar of Dr. Kothari, who saw him later, thought otherwise and instead preferred to put crepe bandage and positioned the right arm raised. Since the Compartmental Compression remained untreated for substantial time, it lead to thrombosis in right forearm due to access loss and thus gangrene developed is the main contention raised by the Complainant. It is contended by the Complainant that the harm was caused because gangrene was not managed in time and by not amputating the arm, the process of decay of tissues arising out of state of gangrene further released toxins and eventually lead to septicemia in the body resulting in death on 20th May, 1992 at 5.05 hrs.
4. It is averred that ICU facilities were not provided to the patient for further management on 19th May, 1992 although as per medical record, it is seen that Dr. Chowdhary felt the need to transfer the patient to ICU at 7.00 a.m. and his request for the same is on record. It was brought to the Complainant's knowledge only later that there was no room available at that relevant time and thereafter till the death of the patient. This very fact of the need to admit in ICU and nonavailability in ICU room facility also was never brought to the notice of the Complainant whereas it is urged by the Complainant that it was the prerogative of the Complainant to decide whether to shift the patient to some other hospital or continue treatment therein and this opportunity of decision to shift him was denied to the patient. It is contended that this act amounts to negligence and deficiency of service by the respondents. In support of this contention, the Complainant cited the case of D.P. Bhandari v. Sir Ganga Ram Hospital (1991) 1 CPJ-Page 416-417 wherein it was held it cannot be disputed that in ICU there are more facilities for monitoring the disease.
"It is not established that the facility of doctors and nurses was provided to the patient in the same way as it would have been available to him in the ICU. It has also not been proved that instruments were provided to the patient in the room. A contention has been raised that the doctors and the nurses cold be called at any time by the relatives of the patient. This contention is without any merit. The patient was in very bad state of affairs and it was not possible for the relatives to run after the doctors and nurses on duty have to take care of large number of patients, whereas the position is quite different in ICU."
Citing this case, the Complainant contended that by not informing her about nonavailability of ICU facility by OP No. 1 an opportunity was denied to her to shift the patient to another hospital on that fateful day, the 19th May, 1992 which amounts to deficiency of service. At the time of admission, Opposite Party: 1 took two hours to give the patient a bed and this inordinate delay was not explained by them except to say there was no bed vacant at that point of time, whereas the Complainant contended that in her presence, other patients recommended by other consultants were given rooms which again amounts to negligence and deficiency of service.
5. The Learned Counsel for the Complainant submitted that if intensive care facility was extended at the right time the right arm was amputated, the patient would have survived and claimed that intensive treatment was denied till afternoon of 19th May, 1992. The cause of death detailed in the death certificate issued by Opposite Party: 1.
1) Cardio - Respiratory Arrest.
2) Secondary to Chronic Renal failure
3) Secondary to diabetic nephropathy
4) Pulmonary tuberculosis.
5) Drug induced hepatitis.
6) Thrombosis in right fore arm veins
7) Disseminated intra-vascular coagulation.
Further submitting that there is a vast difference between mode of death and cause of death and stated pulmonary tuberculosis drug induced hepatitis, cardio respiratory arrest as mentioned in the death certificate are definitely not the primary causes of death. It is the case of the Complainant that gangrene must have formed due to death of tissue thrombosis which later lead to disseminated intra vascular coagulation and septicemia.
6. Having located a donor for kidney transplant and only awaiting for a signal from Opposite Party: 2, the Complainant stated that if this crisis was ably averted, the patient would have led a normal life for 20 years after the transplant. The patient was working as a Medical Officer in charge of Primary Health Centre in District Bara Bandki, Government of Uttar Pradesh for 15 years, and he was expected to have a bright career prospects. Due to his untimely death, the Complainant i.e. his widow, two daughters and one son are suffering loss of his companionship and are also left with no source of income. In view of the foregoing submissions, it is prayed the following amounts be paid:
7. Bombay Hospital Trust i.e., Opposite Party: 1 to pay Rs. 16.32 lakhs towards compensation.
a) Rs. 32,810/- towards cost of treatment/consultation/different test during admission between 14th April, 1992 to 2nd May, 1992 and 19th May, 1992 to 20th May 1992.
b) Rs. 1725/- towards cost of three dialysis on 8th, 14th and 18th May, 1992.
c) Rs. 85/- towards costs of chest x-ray.
d) Rs. 1500/- towards cost of pathologycal test paid to Opposite Party: 1 on 19th May, 1992.
e) Rs. 900/- towards cost of transportation from 8th May 1992 to 19th May, 1992.
f) Rs. 5500/- paid for transportation of the body and cost for other formalities.
g) Rs. 30,000 towards cost of medicines during the stay to Opposite Party: 1.
A total claim on Opposite Party: 1 for nearly Rs. 17/- lakhs was prayed for by the Complainant alleging medical negligence and deficiency of service by the opposite parties.
8. To these contentions raised by the Complainant, Opposite Party No. 1 stated that the hospital only provides infrastructure and supporting facilities. The brother of the wife of the deceased approached Opposite Party No. 2 and as part of the treatment. Opposite Party No. 2 recommended about the deceased to Bombay Hospital, i.e. Opposite Party No. 1. The acts of the consulting Doctor to Opposite Party No. 2 cannot hold or saddle Opposite Party No. 1 with vicarious liability. Opposite Party No. 1 contended that the deceased was suffering from chronic diseases of renal kidney failure, pulmonary tuberculosis and diabetics and negligence cannot be attributed to Opposite Party No. 1 or Opposite Party No. 2 for the cause of his death. Opposite Party NO. 1 urged that the death of K.N. Gupta had no nexus of bearing either with the lack of infrastructure and support facilities provided by them or the negligence of doctors. Opposite Party No. 2 contended that he cannot be accused of any negligence where he was not concerned with the dialysis which was independently carried out in the Artificial kidney unit which is managed under competent technicians. In the absence of an independent expert evidence relating to the formation of gangrene on account of intravenous injection given by the technician are much near to the A.V. Fistula causing death due to toxemia, he cannot be held negligent. OP.2 stated that he was not even part o this entire episode when the patient was readmitted and alleged negligence cannot be made on to him without anything on record against him. OP.2 explained that deceased was suffering from chronic renal failure, where the patient has leading tendency and with the complaint of T.B. and diabetes it resulted in disseminated intra-vascular coagulatia (DIC) which means the patient starts bleeding all over his body. Although both the known remedial steps available were taken, i.e. to give blood transfusion and to control the infection, DIC itself being fatal to the patient, he ultimately expired. In the present DIC condition, amputation or any surgery on the deceased was contra-indicative because the deceased would continue to bleed to death from other spots. This disease was taken by five prominent consultants of the hospital not to carry out surgery or amputation. It is urged by the Opposite Party that Opposite Party No. 2 and the other Doctors have taken all factors into consideration and using their professional judgment and experience, deceased to follow a particular course of treatment which is based on standard medical text books, it cannot be considered as negligence and that the complaint should be dismissed with costs.
9. As for the averments made by the Complainant against both the opposite parties regarding the treatment of the patient and management of medical crises between 19th May, 1992 from 0.05 a.m. to 20th May, 1992, we summarise here the crucial contentions. In view of the cross examinations conducted in the Commission along with the submissions made by both the opposite parties in order to determine the medical negligence and deficiency of service by opposite parties as alleged by the Complainant, we will discuss the following crucial issues along with contentions raised by both the parties.
a) Whether this Complainant is maintainable under Consumer Protection Act.- If yes, then
b) Whether there is medical negligence and or deficiency of service rendered by the opposite parties. &
c) If it is in affirmative, which of the opposite parties are to be held liable/responsible.
d) If the above queries is in the affirmative, what costs should be awarded and who should pay.
10. As for the question (a), we hold that the Complaint is maintainable under the Section 2(1)(d), and the Section 2(1)(o) of the Consumer Protection Act. The Complainant referred the following cases decided on this issue in "Indian Medical Association v. V.P. Vasanata P. Nair 1993, CCJ 198" regarding the medical services being brought into the purview of Consumer Protection Act.
11. Having admitted on the point of maintainability of the Complaint in the affirmative, the next issue (b) on actual medical negligence and deficiency of service as averred by the Complainant. We summarise the various issues raised in the Complainant on the aspect of medical management of the patient are as follows:
i) that the patient was left in the hands of opposite party: 1 on 19th May, 1992 from 0.05 a.m. i.e., 11 hours and necessary treatment was not given to the patient.
ii) that Junior doctors cannot replace the senior in his professional knowledge by way of being assistant and that both the opposite parties are being irresponsible and this amounts to deficiency of service.
iii) that ICU facility was not given by Opposite Party: 1 to manage the emergency and this lead to death of the patient and that it is deficiency of service and that the family members were not allowed to meet the patient in spite of their repeated requests.
iv) that a small hexatone/edema of unit centimeter at the puncture site in right arm cannot develop into full fledged accumulation of blood in three hours (i.e. between 9.15 p.m. to 12.00 a.m. to 18th and 19th of May, 1992) which is a clear evidence of medical negligence.
v) that to do so the edma/hexatone in right arm was due to negligent canulation in subcutaneous plane by opposite party: 1 and the thrombosis in the said arm was done due to access loss on account of premature use of A.V. Fistula.
vi) the gangrene was set in by the time the patient reported back on 19th May, 1992 or developed later in the hospital.
vii) in spite of the pleadings made by the deceased patient to do so.
12. As far the point b(I) and b(ii), OP: 1 submitted that the doctors attending on the deceased are consultants and not their employees. Consequently, the hospital is not liable for any actions of the doctors. The treatment of the deceased is in the overall control and direction of the respective consultant who alone has to prerogative to decide the course of treatment and that OP: 1 did not interfere in the diagnosis and in the treatment of the patient. OP: 1 submitted that they merely provide room, bed, equipment and other support services such as nursing staff and technicians and to that extent there is no allegation against them in the Complaint and hence no cause of action is made out against them. The Technicians and Junior doctors followed the instructions of the senior doctors meticulously and the onus of these decisions are on doctors alone and not on the hospital.
13. OP:2 on the same issue submitted that the hospital deducts 20% commission while remitting the fees to the doctors and it is the OP:1 who raised the bill on the patient which includes the consultation fees of the doctor. OP:1 provides the resident doctors, junior doctors, technicians who follows instructions and manage the patient accordingly. As for Junior doctors and his Assistant Registrar, Dr. Chowdhary, they have been in constant touch with him through the night of 18th/19th and treated the patient with due care. When the patient came back on 18th night, Dr. Chowdhary immediately attended and gave the necessary treatment. Within the next few hours, five consultants were consulted i.e., Dr. Agnihotri (Asst. Honorary to the Unit of Dr. Saxena, who is a vascular and heart surgeon), Dr. Kothari (who had carried the A.V. Fistula on the decease), Dr. P.J. Jhaver (General Surgeon), Dr. M.B. Agarwal (Haematologist) and Dr. Ram Murthy. OP:2 stated that he was contracted by Dr. Chaowdhary on telephone and he instructed in return that opinion of vascular surgeon should be taken regarding surgical advice. Dr. Chowdhary has immediately attended to the deceased, with initial emergency treatment in A.K.U., got him admitted in the hospital and called specialist and surgeons. Dr. Chowdhary, Dr. Amin and Dr. Ashutosh attended to the deceased through out the night and they kept informing OP:2 and Dr. Kothari about the condition of the deceased and rendered treatment according to their advice was administered to the deceased. In effect, OP:2 submitted the onus is on OP:1 for the treatment given by the doctors of the hospital Junior or Senior because they deduct 20% commission on each bill for the same.
14. Regarding the point b(iii), both the opposite parties denied the allegation that intensive care and treatment was not given till 19th afternoon and stated intensive treatment was given immediately to the deceased on his arrival in the night and blood transfusion was given to him as soon as it was found necessary without any delay. The deceased cold not be shifted to ICU because there was no vacancy in the unit but all due care as required medically, was taken during that night in the treatment of the patient.
15. Both opposite parties submitted to the point b(iv) regarding the condition of the deceased at the time of discharge on 18th May, 1992, that at least a small subcutaneous haematonia at the puncture side was noticed, since it is not an uncommon phenomenon considering the general condition of the deceased was normal. Dr. Chowdhary answered the position in the cross examination "I saw the patient at 9.15. At that time he had finished the dialysis. There were two pressure bandages there and there was a small haematone of less than 1/1 Cm. That was all my clinical finding at that time". He accordingly discharged him applying an ointment and placed the pressure band to stop bleeding. At the time of discharge, the complainant or deceased never informed the doctor of any complications. It is, further explained by OP:2 that a major artery and vein of the body which carry the blood at high pressure, are connected, and in 10 per cent of cases, after dialysis process is completed and the needle is removed, the blood continue to flow from the point and thereby some swelling occurs because of accumulation of blood below the stain. This is a normal occurrence in 10% of the cases and applying ointment and a pressure band was placed in order to stop bleeding. When the deceased returned and reported in the casualty, Dr. Chowdhary saw the swelling and few vesicles of about 2-2 cms over a localised area overlying haematone and thereby denied the complaints version that it was a full fledged accumulation of blood between 9.15 p.m. to 12.00 a.m. of 18th and 19th May, 1992.
During the cross examination, to a question put to Dr. Chowdhary whether the pressure bandage could stop the bleeding, he stated that "if there is no abnormal coagulation pattern then yes, if there is abnormal coagulation patters then it is difficult". OP:2 and Dr. Chowdhary submitted that after the needle was withdrawn, the bandage that was put might have slipped off, or the patient might have moved the hand leading to bleeding dialysis after he was discharged and travelled to home between 9.15 p.m. to 12.00 a.m. but still it was not seen as a major complication, obviously problem was at sub-clinical level, and only surfaced after 2.30 a.m. on 19th May, 1992. The first test was sent for at 2.45 a.m. which shows he had blood in the gut and patches appeared.
16. OP:1 replied to the contention b(v) of the Complainant that due to premature use of A.V. Fistula, there was an access loss but these results were received much later and thus the doctors were not aware of the sub-clinical condition at that time and resulted in thrombosis in the arm, that A.V. Fistual was working properly and the deceased underwent dialysis twice without any problem. OP:1 explained that a needle is injected into the body of the patient to draw blood there from and reintroduced into the body after purification. During dialsys, blood has to be circulated at a high speed through the dialysis machine. Hence, it becomes necessary to connect a major artery and a major vein of the patient directly in order to facilitate the first flow of blood during dialsys. This connection is called Arterio-Veinous Fistual i.e., 'A.V. Shunt' as mentioned by the Complainant in the complaint. The witness Dr. B.M.L. Gupta who is father of the Complainant and his friend Dr. Srivastava cannot be treated to be non-prejudiced in this case. The fact that Dr. B.M.L. Gutpa made these allegations on the basis of photograph taken after the death of the deceased shows that he could not be in a justifiable position to give an expert opinion, considering they did not know the difference between A.V. Fistula and A.V. Shunt, the very subject matter whereas Dr. Kothari had carried out the A.V. Fistula on the deceased. OP:2 submitted that the deceased was suffering rom serious kidney trouble and was to be kept on dialysis and to facilitate the same was passed in his jugular vein in the neck and A.V./ Fistula was done on the right arm, "An A.V. Fistula generally takes about a week or 10 days before it can be used, and in this case after it had matured, it was used for dialysis on the aforesaid three dates" is the version of Opposite Party: 2.
17. As for the setting of gangrane as per the issue number b(vi) by the Complainant, that when the deceased reported back in the hospital at 0.05 a.m. on 19th May, 1992, capillary pulsation was noticed in the palm portion of the hand at all times which indicated that blood supply to the palm portion was regular. It is further contended by OP: 1 that gangrene cannot spread in a matter of 36 hours. OP:2 stated that three surgeons saw the patient on 19th May, 1992 and noted capillary pulsation in the finger tips and that their opinion as specialists would prevail upon the opinion of the patient. The case record at 2.15 a.m. ":impending gangrene in the forearm", was merely a note asking opinion regarding further management was addressed to Dr. D.S. Saxena by Dr. Chowdhary. In the cross examination, Dr. Chowdhary, Dr. Agnihotri the vascular surgeon came in within 15 minutes inserted the "Centrally veinous Catheter to take out the fluid from stomach and giving it a wash because the deceased had haematose". At 3.45 a.m. Dr. Chowdhary sent for a message for Dr. Kothari and his Asst. Dr. Ashutosh checked him and recorded that there are capillary pulsation in the nail and the movement of the writ and fingers were intact. Next morning Dr. Kothari saw him and continued the same hand management of "pressure bandage with limb elevation" as per hospital records. Opposite parties categorically stated that there was no sign of gangrene on clinical observation on 18th night when the deceased was brought back.
18. To the contention b(vii) that Opposite Parties did not try to avert the death by performing amputation of the right arm in spite of repeated requests by the deceased who is himself a Doctor, it is submitted by opposite parties that five prominent consultants were consulted and opined that any surgery is contra-indicative and the deceased would still have continued to bleed from there spots and also the wound caused by amputation would not have healed. Opposite Parties submitted that the decision not to carry out surgery or amputation was based on the doctor's professional judgment and knowledge and is based on standard method accepted in the medical text books and their decision to follow a particular course of treatment cannot constitute negligence.
It is contended by opposite parties that the statement about the deceased making requests about amputation or emergency operation are not correct because the complainant had stated that she and her relatives were not allowed to see the deceased. If that is so, the alleged statement of the complainant that the deceased was requesting repeatedly for amputation is false and even if he demands, it is the professional judgment of the specialists if it is a standard, accepted treatment, then that, would prevail over the wish of the deceased.
19. After hearing extensive arguments of all the parties concerned and cross-examination of the witnesses and their submissions, and after pursuing the hospital records, in conclusion we make the following observations.
19. As for the complaint being maintainable under Consumer Protection Act, the Complainant has a right to file the complaint under Section (2) 1(d), Section 2, 1(o) whether there is negligence and deficiency of service by the opposite parties or not is the next question. Here opposite party: 1 i.e., Bombay Hospital, categorically stated that they cannot be held responsible for the actions of the doctors because the deceased was a private patient of OP:2. Dr. S.P. Trivedi. The submission of Opposite Party No. 1 that they cannot be made vicariously liable for the alleged negligence of the doctors who attended the deceased patient because such vicarious liability arises only in the case of employer and employee. It is further averred by op. 1 that the Consultant, i.e. Opposite Party No. 2 is not employee but works under rules and regulations whereas Rule 14 expressly provides that the entire responsibility for treatment of patient lies exclusively with the Consultant and that the resident staff is provided to the Consultant to help him in his day to day work. In the cross-examination, Dr. D.P. Vyas, Medical Doctor of Bombay Hospital, has admitted that the resident doctors are their employees provided to the Consultant and answered on one hand that since the Bombay Hospital is a teaching institute, all the resident doctors are being appointed by the Bombay Hospital for a particular discipline, particular terms at the Bombay Hospital and other courses which is to be done at the Bombay Hospital whether it is MD Courses or MS or DMP, National Board, Delhi or DPS courses" and on the other hand, were asked specifically if they are employees of Dr. Vyas replied, "they are not employees. They are students in the Bombay Hospital. They are being paid stipend". This blow hot, blow cold versions given by the hospital are not acceptable to us because the hospital has employed all of them whatever the inferred rules are, they have to own up to the conduct of all their employees. We believe, OP:1 cannot escape their liability by mere statement that they only provide infrastructural facilities, services of nursing staff, supporting staff and technicians and that they cannot suomoto perform or recommend any operation/amputation to the deceased. It is an admitted fact brought out by Dr. S.P. Trivedi, OP:2 that all bills including his consultation fee is raised by the hospital on the patient and that OP:1 deduct 20% commission while remitting fees to the consultant. On this issue, we have no doubt in our mind that hospital has employed the medical staff, registrars, resident doctors etc. and also take 20% commission from the bills which is deducted now cannot say otherwise and are thus accountable. Whatever be the outcome of the case, hospital cannot disown their responsibility on these superficial grounds.
20. As for the contentions raised by the Complainant against Dr. S.P. Trivedi, Opp. Party:2 we do not find any merit in their arguments. The Complainant made no grounds of protest against OP:2 during the earlier dialysis performed by Artificial Kidney Unit (AKU) which is run independently by a group of competent technicians. On the third said date of dialysis, OP:2 was not available at all and therefore the question of his attending to the deceased when it was carried out and the said medical negligence or deficiency of service arising out of it does not arise. At this stage the three surgeons when they saw the patient noted capillary pulsation in the finger tips and opined that the presence of capillary pulsation totally rules out gangrene. If that is so, the surgeons opinion prevails over the opinion of the patient. The Complainant prayed for compensation and costs from OP:1 in the prayer and even otherwise we do not find any negligence or deficiency in services rendered by OP:2. The Complainant stated in the complainant that "Dr. Trivedi was contacted in his chamber and appraised with the position and was requested to see the patient at artificial kidney unit but all the same though he assured but had not turned up." To this statement in the cross examination the witness Shri J.L. Gupta who is the brother of the Complaint arguing the case admitted that Dr. Trivedi (OP:2) was not available and he did not see him personally. The records show that the patient was an out door patient for the dialysis conducted on that day and OP:2 was not involved in the routine treatment as a general practice because AKU deptt. is in charge of the same. Dr. Trivedi confirms the same and adds further that he was in touch with Dr. Chaudhary throughout the night of 18/19th and instructed him accordingly. These mis-statements in the Complaint also show that the case has been made out by the Complainant making false statements. This further proves that many statements made by the Complainant are based on misconceived facts and we cannot rely on such vague statements in determining medical negligence/deficiency of service. We expect the Complainant to come with clean hands and make correct statements as far as facts are concerned and anything to the contrary, their submissions become unreliable and almost seem as an attempt to malign the doctor or the concerned hospital.
As for the hospital, regarding non-availability of ICU facilities, if there is no vacancy in the unit and that is why he could not be shifted, this is not considered to be deficiency of service. From the hospital records, the affidavits on record and cross-examination records, it is evident that intensive treatment had started immediately initiated by Dr. Choudhary and blood transfusion was given without delay and nothing was denied to the patient that should have been given according to the general principles of medical practice. It is also not believable that the Complainant and other family members who were present throughout the night to say that ICU facility was not given because there was no vacancy and that this information was not known to them. On the other hand, the family was involved in all the proceedings throughout the treatment that night of 18/19th along with Dr. Chawdhary.
21. We come to the last and final point to decide whether the death of the deceased could be averted by amputation of the right arm on that eventful day the 15th May, 1992 when the deceased and his family believed that gangrene has set in.
On record it has come that the deceased was suffering from tuberculosis, hypertension, diabetes, nephropathy since December, 1990. he was treated at a Hospital in Shahjanpur and also in consultation with K.G.M.C. Hospital, Lucknow. When he was admitted to Opp. Party:1 he was taking Isonex along with other anti-hypertension drugs such as calsignard, envas which also increase the renal blood supply. He was taking INH which is an anti-tuberculosis drug and all these drugs also cause hepatitis and dysfunction. In the admission form and the history sheet, the condition of the deceased was discovered as having spotted haemorrhage and secondary optic atrophy, which means he cannot practice as he has low vision.
Dr. Choudhary who was present during the 18th night and 19th morning when the crucial decisions were taken regarding the emergency treatment, has explained in cross examination proceedings. He said he saw the deceased with the swelling, discoloration of right forearm and few vesicles of about 2-2 cms over a localized area overlying haematoma. At the time of removal of the needle after dialysis, exaggeration occurring in the forearm is not an unknown phenomenon. The patient may have been in a sub-clinical condition of DIC. The pressure bandage put on this did not stop further bleeding either because it might have slipped off or the deceased moved the hand leading to bleeding dialysis in the forearm and might have had jaundice which also leads to bleeding dialysis and to abnormal coagulation pattern. Then the tests done at 2.45 when he had blood in the gut and patches appeared showed disseminated intro-vascular coagulation (DIC) and this was not seen or known after 3 hours because it was still internal at that time. The test results came later which proves this point and relevant deductions are made accordingly seeing the reports.
"Dr. Chowdhary further explained "For every coagulation disorder which presents itself to the doctor is longtime before present in the body till it clinically reveal itself. That day he must have been harboring it in his body for which there is no clinical evidence. He had no fact on the body and there was no bleeding indication inside the body and when the fistula is prepared and there was increase haemotoma and at that time, it reveal itself and within next two hours every sign appeared in the body. So he was harboring it even before he was admitted in the hospital but was sub-clinical. So it could not be detected clinically".
22. We see this line of thinking by all the specialists and surgeons who attended on the deceased and the hospital records, where in, it is recorded "CRF on maintenance haemo-dialysis with acute bleeding diabetes disorder" prepetuated by exaggeration of blood at fistula site. Investigation show that the rays BT, CT, PTT and the blood let counts and another note "in the presence of edema with the fluid sensitive blood pressure changes suggesting perpetuated bleeding disorder". Bleeding disorder is called retinopathy and the presence of edeme C fluid sensitive blood disorder suggest septicaemia which has probably perpetuated the bleeding disorder and abnormal coagulation. Except for a query made with a question mark impending gangrene there was no discussion on gangrene setting in or amputation of the forearm and all the doctors have opined clearly amputation or any surgery in this condition was contra-indicative.
23. It is the settled position in law that if two standard course of treatment are open to a medical person and he adopts one of them it cannot be held that he is guilty of negligence. Honourable Supreme Court in Dr. L.B. Joshi v. Dr. Trinmbak Bapu Godbole and Ors., AIR 1989 SC 128 observed "The doctor no doubt has a discretion in choosing treatment which he proposed to give to the patient and such discretion is relatively ampler in cases of emergency".
24. The Hon. Supreme Court held again in A.S. Mittal v. State of U.P., AIR 1989 SC 1570 "if a doctor has followed a course of treatment or procedure accepted by and followed by a responsible section of the profession, he would not be guilty of negligence even if another section of the profession do not subscribe to that practice and follow a different course".
25. In the present case, there is no evidence of another course of treatment being discussed by the doctors and the Complainant's version arises out of assumptions since the body of deceased was seen 72 hours after death at the cremation and any submissions made on the basis of visual inspection is obviously made without any conclusive proof. Dr. B.M.L. Gupta who opined on the gangrene who was examined as a witness admitted that he did not know the difference between A.V. Fistula and shunt. He further admitted himself in the cross examination that if capillery pulsation is felt, it rules out gangrene. And yet, Dr. B.M.L. Gupta stated that he could diagnose gangrene from a photograph of the dead body but when specifically asked whether it was his opinion or observation on diagnosis, he admitted it was only an observation. With this evidence of his own admission before us, we find there is no conclusive proof of gangrene setting in either the hospital records or experts who treated the patient Mere allegations made by relatives of the deceased looking at the dead body after 72 hours cannot be taken as evidence and we are not inclined to consider these baseless allegations and discuss further on it. The text book references and the cross examination also do not add to their case. It is clear case of a patient with complicated ailments and in spite of the best of efforts from the opposite parties to save his life, unfortunately did not help. The Complainant says that the family could not meet the deceased or that they were not aware of non-availability of ICU facilities at that time or that doctors' attention was not given in the night are all proven wrong in the light of their own admission that several doctors were attending to the deceased and every 10 minutes small slip or note were given to the relatives of the patient for getting medicines from the medical shop. Perusal of hospital records show that the treatment given through 18th and 19th was done with good care where all the experts opinion was taken promptly in the treatment of the patient and in view of these discussions we do not find any negligence or deficiency of service by Opposite Parties.
26. OP:1 provided all the facilities of infrastructure and availability of doctors during 18th and 19th and all the doctors who opined and treated the deceased have round the clock monitored the patient and reported the developments to OP 2 who instructed accordingly to the experts. All of them opined that amputation was contra-indicative considering the complex problems of the deceased. It is unfortunate that a young man of 41 years died but we do not find any negligence or deficiency of service on the part of the opposite parties.
With the above findings, we find no merit in this complaint. It deserves dismissal and we order accordingly. Complaint is dismissed. However, we make no order as to costs.