National Consumer Disputes Redressal
Tagore Heart Care And Research Centre ... vs Kanta on 27 May, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 426 OF 2006 (From the order dated 14.07.2006 in Complaint No. 82/2001 of Chandigarh UT Consumer Disputes Redressal Commission) 1. Tagore Heart Care and Research Centre Pvt. Ltd. Banda Bahadur Nagar, Mahavir Marg, Jalandhar, Punjab 2. Dr. Raman Chawla, C/o Tagore Heart Care and Research Centre Pvt. Ltd. Banda Bahadur Nagar, Mahavir Marg, Jalandhar, Punjab Appellants Versus Mrs. Kanta W/o Shri Parkash Chander R/o 360, Green Avenue Amritsar, Punjab Respondent BEFORE HONBLE MR. JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellants Ms. Sonia Sharma, Advocate With Dr. Raman Chawla, Appellant No. 2 in person For the Respondent Mr. Nikhil Jain, Advocate PRONOUNCED ON : 27th MAY 2011 JUDGEMENT
PER JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER This appeal arises out of judgement and order of the State Consumer Disputes redressal Commission, Chandigarh (in short the State Commission) in complaint case no. 82/2001.
2. Original complainant Smt. Kanta was aged 55 years at the relevant time. At the fag end of August 1999, she suffered acute chest pain.
She consulted a medical practitioner at Amritsar. The consultant examined her and found that the symptoms could be of a heart attack.
The medical practitioner accordingly advised her to obtain opinion and treatment of a cardiologist and cardio surgeon. Her family members took her to Jalandhar. They consulted appellant no. 2 Dr. Raman Chawla who is attached to the appellant no. 1 / Tagore Heart Care and Research Centre Pvt. Ltd. The appellant No. 2 examined her clinically on 1.09.99. He conducted ECHO test. He noticed that there was possibility of blockages which needed appropriate confirmation and medical treatment. He advised that she shall be admitted in the hospital for conducting Angiography.
3. The complainant was allergic to almost all the antibiotics except few of them like Pelox, analgesic, Voveran etc. It was decided with consent of the complainants son that Angiography will be conducted on 2.09.1999.
4. The case of the complainant as unfolded, from the pleadings and the record, is that the appellants did not follow scheduled time for performance of the Angiography. She was kept starved for whole night prior to the day of Angiography and though it was to be performed in the morning hours, oral message was communicated that the procedure would be performed in the noon.
While conducting the Angiography procedure, she felt severe pain in the abdomen. She immediately brought such fact to the notice of the appellant no. 2.
He ignored her complaint of pain and continued with the procedure of Angiography. After the procedure was completed, she was shifted to the recovery room. Angiogram showed LAD artery blockage to the extent of 95%. Though the appellant no. 2 took permission of her son for performance of PTCA or angioplasty for removal of the blockage yet it was given up by in the midway after the 15 20 minutes on the ground that she was allergic to many drugs. She was shifted to the ICU. She suffered severe pains throughout the night yet nobody attended her. In the next morning, i.e., on 03.09.1999, the appellant no. 2 alongwith a senior Doctor Dr. Suri examined her. Dr. Suri noticed that pulse of her right leg was practically absent and as such reprimanded the appellant no. 2. She was discharged on 08.09.1999 from the hospital. She consulted Dr. Trehan of the Escorts Heart Institute, Delhi. She was admitted in Escorts Heart Institute at Delhi on 13.09.1999. Another Angiography was conducted at the Escort Heart Institute through radial artery of the right arm with a view to locate the extension of dissection of Aorta.
Dr. Trehan expressed opinion that the Aorta dissection has taken place during the Angiography procedure done by the appellant no. 2 at the appellant no. 1 hospital and that was iatrogenic in nature. However, she was given due treatment by a Senior Cardiologist. She was subjected to angioplasty on 18.10.1999. She was discharged after the hospitalisation of ten (10) days.
5. The complainant alleged medical negligence on the part of the appellants while conducting the Angiography on 2.09.99, which resulted into dissection of Aorta. She alleged that she was required to obtain further treatment and went through angioplasty at the Escorts Heart Institute due to the sheer negligent act of appellant no.
2. She was required to incur heavy expenditure for obtaining further treatment and undergoing of the angioplasty. She suffered severe pain due to the dissection of Aorta.
Consequently, she claimed compensation of Rs.11 lakhs from the appellants.
6. Both the appellants denied truth into the allegations made by the complainant. They denied that there was any negligence committed by the appellant no. 2 while conducting the Angiography in the noon of 2.09.99.
They submitted that the complainant was already suffering from hypertension and had a history of ischaemia.
They further pointed out that she was allergic towards most of the anti-biotics and there was risk involved in conducting the Angiography. They contended that due information was given to the complainants son, who is a medical practitioner (dentist), and after his due consent successful coronary Angiography was done. The complainant was shifted to ICCU in a stable condition. They submitted that after about a couple of days of stabilisation the coronary angioplasty was planned. They submitted that in the morning of 3.09.1999, the complainant got acute pain in abdomen and, therefore, Dr. Ashwani Suri, Chief Cardio-thorosic Surgeon, was called for her examination. He suspected Aorta dissection and as such CT scan of the abdomen and thereafter MRI scan was got done in the same noon. On the basis of CT scan and MRI the dissection of Aorta was confirmed and further treatment was accordingly planned in consultation with Dr. Ashwani Suri. They further submitted that the complainant was stable and discharged on 8.09.99.
They further asserted that conservative management was planned for 4 to 6 weeks to ensure healing of the Aorta dissection prior to conducting of contemplated angioplasty. Thus, temporarily the invasive procedure was suspended by them. The complainant, however, did not turn up after the discharge. She took further treatment at the Escorts Heart Institute, New Delhi. The appellants further alleged that the complainant had developed allergy due to side effects of the drug called Ticlopidin prescribed at the Escorts Heart Institute after the Angioplasty procedure. According to them, they were not at all responsible for any deterioration of the complainants physical condition nor there was any deficiency in their medical service. They categorically denied that there was medical negligence committed by the appellant no. 2 while conducting the Angiography in the relevant noon.
7. The State Commission considered the rival contentions and affidavits of the parties. The State Commission held that the complainant suffered the dissection of Aorta during the Angiography conducted by the appellant no. 2 in the relevant noon. The State Commission observed that the aortic dissection took place when the appellant no. 2 forced the catheter through artery in negligent manner. The State Commission opined that it was a case of res ipsa loquitur in as much as without due care and caution, the catheter was pushed through iliac artery. The State Commission held that such negligence of the appellant no. 2 had caused severe pain and agony and though she complained of acute abdominal pain yet the appellant no. 2 continued to procedure of Angiography. In keeping with such findings, the complaint was partly allowed and the appellants were directed to pay compensation of Rs.5 lakh to the complainant.
8. We have heard learned counsel for the parties. Ms. Sonia Sharma, counsel for the appellants, contended that it was practically impossible to complete the Angiography process if there had been rupture in the blood vessel during such procedure. She would submit that the coronary Angiography was successfully completed in the relevant noon and the complainant was stable afterwards. She submitted that the complainant was discharged on 8.09.99 because there was no serious medical complication and thereafter she was called upon to undergo the angioplasty after healing of the Aorta dissection. She contended that there is no specific medical negligence committed by the appellant no. 2 in as much as the Aorta dissection could have occurred due to hypertensive, feeble and allergic physical condition of the complainant. She points out that in the letter dated 11.11.1999 issued by Dr. Ashok Seth, there is no reference of expression itrogenic nor such word is used in the discharged summary of the Escorts Heart Institute. She submitted that the State Commission erred while interpreting such medical term. She would further submit that affidavit of Dr. R.S. Singh and the certificate relied upon by the appellants have not been properly appreciated by the State Commission. She submitted, therefore, that the findings of the State Commission are unsustainable. Per contra, Mr. Jain, learned counsel appearing for the respondent (complainant), supported the impugned judgement. He submitted that the defence regarding allergy caused due to the drug called Ticlopidin is afterthought. He contended that the complainant was subjected to acute pains due to negligence committed by the respondent no. 2 while conducting the Angiography which resulted into the dissection of Aorta. He submitted further that the appellants tried to cover up such serious lapses on their part and gave discharge to the complainant.
He argued that the appellants failed to take due care while conducting the Angiography and, therefore, there was dissection of the Aorta because the catheter was forced inside the blood vessel though wall of the vessel was damaged and the complainant was suffering from acute pains during the said procedure. Hence, Mr. Jain sought dismissal of the appeal.
9. The core issue involved in this appeal is :
Whether in the facts and circumstances of the present case, the complainant duly proved any rash or negligent act committed by the appellant no. 2 which resulted into the dissection of the aorta and, therefore, the compensation awarded by the State Commission is justifiable?
10. To clear the deck, it will be appropriate to clarify certain aspects of the expression, dissection of Aorta. The word Aorta is defined in Blacks Medical Dictionary (41st Edition) edited by Dr. Harvey Marcovitch, as follows:-
Aorta means :
The large vessel which opens out of the left ventricle of the Heart and carries blood to all of the body. It is about 45 cm (1 feet) long and 2.5 cm (I inch) wide. Like other arteries it possesses three coats, of which the middle one is much the thickest. This consists partly of muscle fibre, but is mainly composed of an elastic substance called elastin. The aorta passes first to the right, and lies nearest the surface behind the end of the second right rib-cartilage; then it curves backwards and to the left, passes down behind the left lung close to the backbone, and through an opening in the diaphragm into the abdomen. There it divides, at the level of the navel, into the two common iliac arteries, which carry blood to the lower limbs.
The narrowing of aortic wall in the heart causes obstruction of the blood flow through it. The circulation of the blood is arrested due to aortic stenosis.
There is ample medical literature to show that aortic stenosis can be treated surgically.
11. From a reference book captioned Cardiac Surgery in the Adult by L. Henery Edmunds, JR., some useful passages may be quoted as below:-
In the absence of a connective tissue disorder, arterial hypertension is the most important predisposing factor for aortic dissection.
Iatrogenic trauma occasionally causes aortic dissection.
Radiological diagnostic procedures coronary Angiography, and therapeutic balloon catheter manipulation all have produced dissections.
Direct iatrogenic trauma to the aorta that is inflicted during arterial cannulation for cardiac surgery or during catheter-based diagnostic and therapeutic interventions accounts for about 5% cases of aortic dissection.
The majority of iatrogenic dissections have been reported in the descending thoracic and abdominal aorta.
Reports suggest a relationship between the severity of atherosclerosis and the risk of developing an iatrogenic dissection. In these cases, dissection may be initated by catheter related injury to the intima, which may previously have been weakened by atherosclerosis.
The medical literature further shows that aortic dissection is differentiated from the spontaneous rupture of the aortic wall or laceration of the intima and media without or with only limited separation of wall layers.
It also appears that aortic dissection is a rare but recognised phenomenon of Angiography.
Perusal of the medical literature shows that word dissection is a condition in which there is bleeding into and along the wall of the aorta (the major artery reaching and connecting the heart). This condition may also involve abnormal widening or ballooning of the aorta (aneurysm). It is further explicit that acute dissection of the aorta is a vascular surgical emergency.
12. We deem it proper to examine the fact situation obtained in the present case in the backdrop of above medical literature and the information available on record. We have noticed from the relevant entries and the discharge summary of the medical papers concerning the treatment given to the complainant by the appellants, that there was no emergency to treat the aortic dissection. The complainant was not required to be immediately operated after noticing the dissection of aorta. It is only in case of acute aortic dissection that may require emergency open-heart surgery. However, in case of sub acute aortic dissection treatment with medication may be sufficient. The very fact that the complainant was found stable after 3rd day of the Angiography and till the date of discharge, i.e., on 8.09.1999, would be sufficient to infer that she suffered subacute aortic dissection. The aortic dissection begins with a tear in the inner layer of aortic wall. It appears that aortic dissection may be result of hypertension, continuing disorder, and feeble condition of the aortic wall and like causes. In the present case, the complainant failed to adduce any evidence of expert to show that the aortic dissection was the direct result of any negligent or rash act committed by the appellant no. 2 while conducting the Angiography. There is only allegation in her complaint of abdominal pains during the process of Angiography. As stated before, she was aged about 55 years and was suffering from hypertension as well as there was family history of ischeaemia when the Angiography procedure was conducted on her.
It is probable that due to such associated causes the passage of the catheter through aortic space was not smooth.
There appears no tangible material to infer that the appellant no. 2 had undertaken any adventurous procedure, knowing the risk that it would result into aortic dissection. The tearing of the portion of aortic wall may be result of weakness of the wall itself or hypertensive condition of the complainant.
13. There is no substantial reason to say that the appellant no. 2 Dr. Raman Chawla used any brutal force to push the catheter ahead through the aorta blood vessel.
The medical record shows that Angiography was completed and resulted in the finding that there was LAD artery blockage to the extent of 95%. Obviously, mere fact that aortic dissection did occur during the process by itself, cannot give rise to assumption that the appellant no. 2 Dr. Raman Chawla was negligent or rash in conducting the procedure. We are of the opinion that the State Commission held the appellants responsible for the alleged medical negligence only because the aorta dissection was caused during the procedure of Angiography. The following observations of the State Commission would make this aspect more clear:-
The dissection of aorta had taken place because respondent no. 2 was negligent. In fact it is a case of res ipsa loquitur, i.e., the facts speak themselves and point out that it has taken place due to negligence of respondent no. 2. If he had taken due care and caution, then this dissection of aorta would not have taken place because it is very rare phenomenon. Hence, we hold that the respondent had not taken due care and caution and had acted negligently in passing the catheter through iliac artery by performing Angiography and this led to severe pain in her abdomen and she even complained but unmindful with the pain of complainant, he continued with the process and completed the same.
This again suggests that he was insensitive to the pain and agony of the complainant.
14. Perusal of the above observations of the State Commission go on to show that the finding of medical negligence is arrived at on basis of conjuncture. The State Commission indulged in assumptive perception in this behalf. Another reason ascribed by the State Commission is that in the discharge summary dated 21.10.1999 issued by the Escorts Heart Institute, New Delhi, it is observed that the complainant had suffered aortic dissection below renal arteries with periaortic collection. There is no dispute about the fact that such finding was reached not only by the Escorts Heart Institute, New Delhi but the CT scan and MRI conducted at hospital of appellants also confirmed this fact. The conduct of appellants go to show that they did not try to tamper with the medical record. They came out with clean hands. They had nothing to hide. Their medical papers show the complaints of abdominal pains as made by the complainant.
Their conduct does not reflect mind of a negligent medical professional. One cannot be oblivious of the fact that complainant became stable and was, therefore, discharged on 8.09.99. She had further undertaken journey to Delhi in order to consult Dr. Trehan of Escorts Heart Institute. It appears that vide letter dated 11.11.99 Dr. Ashok Seth of the Escorts Heart Institute had referred the complainant to Dr. Bhargava, H.O.D., Department of Haemato-oncology, AIIMS, New Delhi. The complainant underwent coronary with stenting LAD on 19.10.99.
The reference letter issued by Dr. Ashok Seth was considered by the State Commission as evidence of medical negligence on part of the appellant no.
2. This is an erroneous finding of the State Commission. True, affidavit of Dr. R.P Singh was filed by the appellants after the arguments were advanced, yet the complainant did not challenge the said affidavit. No interrogatories were addressed to Dr. R.P. Singh. The State Commission observed that the complainant was not given chance to cross-examine Dr. R.P. Singh by way of putting interrogatories and, therefore, said affidavit cannot be taken into consideration. We are unable to accept the said observation of the State Commission. The reason is not far to seek. The complainant did not ask for any opportunity to address interrogatories to Dr. R.P. Singh nor the Commission thought it necessary to grant such opportunity. Therefore, the affidavit of Dr. R.P. Singh should not have been thrown over board on such a technical ground. What he stated in the affidavit is that arotic dissection can occur spontaneously in a hypertensive manner. He further stated that in case of abdominal aorta dissection, it is not possible to complete the coronary Angiography. The statement is limited to abdominal dissection. In the present case, the finding recorded by Dr. Ashok Seth that abdominal aortic dissection was noticed, would take away force from the affidavit of Dr. R.P. Singh to the extent of second para of his affidavit.
The mere completion of the Angiography does not rule out aorta dissection during the procedure. What we find is that it was not a serious aorta dissection but was sub aortic dissection. Therefore, the complainant was subjected to clinical management, i.e., wait and watch procedure for a few days. The very fact that the appellant no. 2 did not rashly proceed to conduct the angioplasty is indicative of his bonafides. He and Senior Dr. Suri took wise decision to wait until the tear caused to the aortic wall was properly healed. This aspect is totally overlooked by the State Commission.
15. The complainant did not file affidavit of Dr. Seth in support of the complaint nor that of any expert in the field of cardiology to show that the aorta dissection was on account of negligence committed by the appellant no. 2 during the procedure of angiogram. We cannot overlook that at a times accident may occur or causes like hypertensive condition of the patient may result into aorta dissection and subsequently the medical practitioner may be blamed by the patient or his / her relatives.
17. The learned counsel for the respondent (complainant) would submit that there is no need to seek opinion of an expert in the present case. He argued that the appellants ought to have stopped the Angiography at the point of time when the complainant felt acute abdominal pains during the procedure. He submits that the State Commission was right in holding that this is a case of per se medical negligence and doctrine of Res Ipsa Loquitur is attracted in the given circumstances. We find it difficult to countenance the argument. True, in each case the experts opinion may not be required and the complaint can be considered on its merits withou8t such experts opinion.
Still, however, where the complexities of the medical treatment as well surgical procedures are required to be examined. It is desirable to have the experts opinion. Mere fact that the patient suffers some adverse effect during or after the surgery is not enough to take a frog-leap and say that it is a case of Res Ipsa Loquitur. For example, in surgical operation of fractured tibia-fibula, as a result of an accident, there may sometimes take place complication due to fat embolism. That may prove to be fatal. However, it may not be prevented even though the operating surgeon is an expert and well experienced orthopedician.
18. We are of the opinion that the State Commission committed error while reaching a finding that the doctrine of Res Ipsa Loquitur is applicable to the fact situation of the present case. In fact, we do not find any basis to support such finding, particularly, when the medical record shows that complainant Smt. Kanta was stable when she was discharged on 8.09.1999 from the Hospital (appellant no. 1) and could later on travel to Delhi for the purpose of coronary surgery. We think it proper to hold that there was no negligence committed by the appellants while conducting the Angiography procedure.
19. The law on medical negligence is succinctly crystalised by the Supreme Court in Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre [1 (2010) CPJ 29 (SC)]. The Supreme Court took survey of catena of decisions and held that doctors may not be held guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skill and competence. The relevant principles culled out by the Supreme Court may be reproduced as below:-
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
The Supreme Court observed:-
It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. A professional deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith should not be punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate protection to the professional and particularly medical professionals.
20. Similar view is taken in Malay Kumar Ganguly Vs. Sukumar Mukherjee & Ors. with Dr. Kunal Saha Vs. Dr. Sukumar Mukherjee & Ors. [AIR 2010 Supreme Court 1162]. We may hold a medical practitioner liable to indemnify the complainant only where his conduct falls below the standard of a reasonably competent professional in his field.
The medical professional is expected to exercise reasonable degree of skill, a reasonable degree of care and should possess knowledge of an expert in the field which is comparable with a standard medical practitioner. Neither the very highest nor a very low degree of competence is contemplated.
21. In Kishori Lal Vs. E.S.I. Corporation [II (2007) CPJ 25 (SC)], the Supreme Court has observed that the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely,
(a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence.
We are of the opinion that the complaint herein could not establish failure of the appellants to attain the required standard of care in the given situation. It will be too simplistic inference to say that because of alleged complaint of pains the appellant no. 2 ought to have abandoned the Angiography procedure in the midway or that due to aortic dissection during the procedure his negligence was the only deducible conclusion.
22. No body will deny that the appellant no. 2 Dr. Raman Chawla, is a competent coronary expert. He does not lack adequate knowledge in the field of coronary surgery. He is experienced and well-trained medical practitioner. He is duly qualified and has good academic credentials. Needless to say that he could not be treated as incompetent medical practitioner. His conduct is not below the normal standard of a reasonably competent practitioner in his field. In this view of the matter, the findings of the State Commission are unsustainable, improper and incorrect.
It follows, therefore, that the impugned judgement and order requires interference in the appellate jurisdiction of this Commission.
23. In the result, the appeal is allowed. The impugned judgement and order passed by the State Commission is set aside. The complaint filed by the respondent shall be deemed as dismissed.
The parties to bear their own costs through out. The statutory amount deposited by the Appellant be refunded to the appellant alongwith accrued interest, if any.
..
(V.R. KINGAONKAR J.) PRESIDING MEMBER .
(VINAY KUMAR) MEMBER RS/