National Consumer Disputes Redressal
Mr. Neeraj Amarnath Dora vs Shri Nandan Hospital Sarsiji & Ors. on 17 September, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 187 OF 1999 Mr. Neeraj Amarnath Dora Residing at 7, Shaktinagar Society, Parle Point, Surat-395007 Gujarat .Complainant Versus (i) Shri Nandan Hospital Sarsiji, 8, Arogyanagar, Athwaliness, Surat-395001, Gujarat Through its Proprietor Mrs. Nirmala R Shelat (ii) Dr. Nimish R. Shelat, Sarsiji, 8, Arogyanagar Athwalines, Surat- 395001, Gujarat (iii) Dr. Ramesh K. Shelat (Deceased) Through its Legal Heirs a) Mrs. Nirmala R. Shelat W/o. Late Dr. Ramesh K. Shelat Sarij, 8, Arogyanagar Athwalines, Surat- 395001, Gujarat b) Dr. Nimish R. Shelat S/o. Late Dr. Ramesh K. Shelat Sarsiji, 8, Arogyanagar Athwalines, Surat-395001, Gujarat c) Ms. Pallavi R. Shelat D/o Late Dr. Ramesh K. Shelat Shri Nandan Hospital, 419, Arogyanagar, Athwalines, Surat- 395001, Gujarat ........Opposite parties BEFORE HONBLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Complainant : Mr.Jawahar Chawla, Advocate with Ms. Shallu Chawla, Advocate For the Opposite parties : Ms. Astha Tyagi, Mr. Jasmeet Singh & Mr. Aakarshan Sahay, Advocates PRONOUNCED ON: 17th September, 2013 ORDER
PER MR.VINAY KUMAR, MEMBER Complainant Neeraj Amarnath Dora has filed this Consumer Complaint seeking compensation of Rs.1,47,85,129 from Nandan Hospital and two doctors for the death of his wife, Shalu Neeraj Dora. The deceased, a 31 year old woman, was married in 1989 and had a son in 1990. The child died in 1997. In April 1999 she consulted the OPs and was diagnosed to be a case of secondary infertility. On 15.4.1999, she was admitted in OP-1 hospital by OP-2 for diagnostic laparoscopy to determine the exact reason and location of the infertility.
2. Allegedly, what started as laparoscopy, soon turned into a surgical nightmare. The Complaint petition describes details of what happened. Feeling concerned about the condition of his wife, the complainant entered the Operation theatre and found that the floor around the operation table had turned red with the blood spilled from the body of his wife. The abdomen of late Shalu Neeraj Dora was cut open and the Opposite Party No.2 had both his hands inside the cut as if he was holding something.
Then the Opposite Party No.2 took out his right hand and took a cotton gauze from one of the nurses and placed the cotton gauze inside the body of the Complainants wife, Smt. Shalu Neeraj Dora.
When the Opposite Party No.2 had taken his right hand out of the abdomen of late Shalu Neeraj Dora the Complainant saw blood coming out from the abdomen of his wife. The blood was coming out with such a great force that it made a whizzing sound as if the same was coming out of a nozzle. Apparently, the Opposite Party No.2 while carrying out laparoscopy had damaged a major blood vessel and carried out open surgery (laparotomy) without informing the Complainant and/or obtaining the consent of the Complainant.. That the Complainant was asked by one of the nurses to bring in two bottles of Haemaccel. The Complainant ran downstairs and called up his friend Mr. Sandeep Desai who owned a medical store and asked him to get two bottles of hemaccel to the hospital without wasting any time. The said friend came to the hospital with two bottles of Haemacel at about 9.30 A.M. which were handed over to a nurse. That around 9:30 A.M. the Opposite Party No.2 came out of the Operation Theater and called the Complainant. The Complainant was taken inside the Operation Theater and told that the Opposite Party No.2 was able to control the bleeding and after a pause of 5-10 seconds the Opposite Party stated that the heart had stopped and that he had called the CardiologistThat one, Dr. Kazi, Cardiologist arrived at Sri Nandan Hospital at around 10:00 A.M. and ordered for some injections and medicine which were brought by the friends and relatives of the Complainant. Dr. Kazi after 30 minutes reported that the heart of late Shalu Neeraj Dora had started working. At this stage, for the first time, complainant was asked to procure two units of bloods.. It is pertinent to mention here that the Opposite Party No.2 had been so grossly negligent that neither did he arrange any blood before the start of the laparoscopy nor did he ask the Complainant to procure blood till Dr. Kazi after examination of the condition of the Complainants wife Smt. Shalu Neeraj Dora asked the Complainant to arrange two units of blood only at around 10.30 A.M., whereas the opposite No.2 had by his negligence cut a major blood vessel in the abdomen of the Complainants wife even before 9.15 AM allowing draining of blood for more than one and quarter hour with great force as stated above. The Opposite Parties were further negligent in not calling a Vascular Surgeon who could have successfully repaired the damaged vessel. Due to the said negligence of the Opposite Parties, the wife of the Complainant suffered a cardiac arrest This clearly shows that the Opposite Parties were grossly negligent by not taking required steps for controlling loss of blood after negligently damaging the major blood vessel and not providing sufficient quantity of blood to save the life of the Complainants wife..That thereafter Dr. Kazi stated that since the Opposite Party No.1 hospital is not equipped with an ICU or ICCU the patient could be transferred to a bigger hospitalThe wife of the Complainant was thereafter transferred to Surat General Hospital in an ambulance. The condition of the Complainants wife during transportation to Surat General Hospital was very precarious and critical.
Allegedly, another surgery was performed on the deceased at Surat General Hospital (SGH) by OP-2 together with Dr Ajay Seth of SGH. After the surgery, she was moved to the ICCU and was declared dead at 4.30.PM. The case of the complainant is that the deceased was a healthy woman who died due to gross negligence of the OPs. In the complaint petition it is alleged that That due to the negligence of the opposite parties the wife of the Complainant died on 15.04.1999 at a very young age of 31 years due to excessive loss of blood causing cardiac arrest as a result of negligence by the Opposite Party No.2 in performing diagnostic laparoscopy by cutting/damaging a major blood vessel during the said laparoscopy and further negligence of Opposite Party No.2 and 3 by not transfusing blood timely and in sufficient quantity despite cardiac arrest due to excessive loss of blood and not taking further steps including arranging a Vascular Surgeon to save the life of the Complainants wife. The services rendered by the opposite parties was deficient, inadequate and improper resulting in the untimely death of the Complainants wife, Smt. Shalu Neeraj Dora. It is further submitted that the opposite parties were under a legal obligation for proper quality and perfection during a laparoscopy and thereafter.
It is further submitted that the opposite parties have miserably failed in the performance of the duty cast on them by law and the negligence on their part has resulted in the untimely death of the Complainants wife for which they are liable to compensate the Complainant.
The claim of Rs 1,47,85,129 as compensation is explained in the complaint as comprising Loss of earning for 39 years i.e. till the age of 70, based on the last Income Tax return of 1999-2000 RS 97,50,000 Refund of charges paid to OPs Rs 35,129 Compensation for loss of consort Rs 50,00,000 The course of proceedings in this Commission
3. On behalf of the Complainant Mr Jawahar Chawla, Advocate has been heard. He was assisted by Ms Shallu Chawla, Advocate and Mr Amarnath Dora, father and authorized representative of the complainant. The case of the OPs has been argued by Mr M N Kriashnamani, Sr. Advocate, assisted by Ms Astha Tyagi and Mr Varun Kumar advocates.
4. During the course of these proceedings, OP-3/Dr Ramesh K Shelat passed away. An application was moved, on behalf of the complainant, to bring the daughter of OP-3 on record as his LR. It was opposed by the other side, on the ground that his wife and son are already on record. It was also pointed out that in a case where the action is only for damages for a personal wrong, the maxim Actio Personalis Moritur Cum Persona will apply. The Commission rejected the prayer by a detailed order of 11.2.2011.
5. Further, it was argued that the complainant should be given the right to cross examine the Ops and their witnesses. After hearing both sides, this Commission followed the view taken by Hble Supreme Court in Dr J J Merchant & Ors. Vs. Shrinath Chaturvedi 2002 (6) SCC 635 and permitted the complainant on 5.5.2011 to file interrogatories. The interrogatories, together with the response of the concerned, have been considered by us.
6. In the proceedings of 20.9.2012 it was observed that the complainant had not filed any expert evidence in support of his case. Therefore, one final opportunity was given to file expert evidence, if any. The same was filed on 10.12.2012.
Pleading and evidence of the complainant
7. The affidavit of evidence of the complainant Neeraj Amarnath Dora shows that he had accompanied his wife to OP-1 hospital on 15.4.1999. It describes the developments in the same words as described in the complaint petition and already detailed above. The affidavit also states that I say that the Opposite Party No.1 Hospital where my wife was admitted for diagnostic laproscopy and the Opposite Party No.2 while performing the laproscopy negligently damaged a major blood vessel causing extreme loss of blood and cardiac arrest resulting in the death of my wife. The Opposite Party No.2 is the Gynaecologist Surgeon who conducted the laproscopy negligently and damaged a major blood vessel of my wife resulting in extreme loss of blood and cardiac arrest. The Opposite Party No.3 is the Senior Gynaecologist in the Opposite Party No.1 and assisted the Opposite Party No.2 in performing the laparotomy. The Opposite Party No.2 & 3 did not take required steps for controlling the loss of blood after negligently damaging the major blood vessel and were further negligent in no calling a Vascular Surgeon and also not providing sufficient quantity of blood to save the life of my wife.
Pleadings and evidence of the Opposite Parties As per the WS of the OPs, late Shalu Dora was a case of secondary infertility. Reports indicated a possibility of pelvic adhesions. On 15.4.1999, laparoscopic view confirmed the adhesions on the right side of the uterous. As per para 4(n) of the WS, almost 90% of the adhesions were cleared when a little oozing of blood was noticed from a small parametrial blood vessel which was immediately controlled with bipolar coagulation within about a minute. This was around 9.15 AM. However, after about a couple of minutes of stopping the bleeding, an arterial type of spurt suddenly appeared in the same area. Goes on to add that no clear cut blood vessel could be identified due to which no quality haemostasis could be achieved. Blood had started collecting in the pelvis. For this reason, it was decided to perform emergency exploratory laparotomy to achieve a meticulous haemostasis by identifying and catching the bleeding vessel. The WS further states that by 9.50 AM, the concerned blood vessel was identified and legated. But, by then the patient had gone into a cardiac arrest. The WS states that her heart was quickly revived within three minutes. Blood was transfused and BP became 90/60 but she was still unconscious. She was reversed from anaesthesia and shifted to SGH around 11.50 AM. At SGH a second abdominal surgery was done as sonography had shown an increase in the free fluid in Morrisons pouch, splenic fossa, paracolic region, pelvic cavity and peritoneal cavity.
Evidence of the treating Doctors
8. At OP-1 hospital, Dr Gautam Purohit was the Anaesthetist who assisted OP-2 in the surgery. He confirms that before surgery all parameters of the deceased were normal. As seen by him on the monitor screen, OP-2 performed the adhesiolysis of pelvic adhesions on the right side and successfully cleared the area by dissection and bipolar coagulation. On the issue of abdominal bleeding and measures taken to arrest it, his affidavit states
8. I make it clear that the Surgeon notices intra-abdominal bleeding through the laparoscope and decide to go for immediate laparotomy to arrest bleeding. BP was 100/70,mm hg, pulse 100/min. Blood sample for cross matching was handed over to the patients husband for immediate requisition from blood bank: Surat Raktadan Kendra, with prescription for Haemaccel. Surgeon Dr. Nimish r. Shelat confirmed again oral consent from husband for laparotomy and request theatre staff to put call to Senior Gynaecologist Surgeon Dr. R.K. Shelat to join for assistance at Laparotomy immediately.
9. Under my continued General Anaesthesia, at 9.25 a.m. Laparotomy in progress, Rapid infusion of Haemaccel started through separate I/V lines, through venflon I/V cannula placed instantly in peripheral vein. BP was 90/60mm hg.
10. I say that at 9.35 a.m. Dr R.K. Shelat arrived to join laparotomy in assistance to achieve complete haemostasis.
11. I say that at 9.45 a.m., bradycardia was first noticed on the pulse oximeter, due to vaso-vagal effect precipitated by vagal stimulation, and immediately call put through the hospital to Sr. Cardiologist Dr. Girish Kazi for acute emergency, who confirmed to reach instantly.
Meanwhile, Inj dopamine in 1 amp in 500ml of dextrose saline started, through another I/V line at the rate of 10 drops per minute.
12. I confirm that at 9.50 a.m. signs of Peripheral, Vascular Failure occurred, BP not recordable and patient went into Cardiac Arrest Dr R.K.Shelat stopped assisting and performed Sub-diaphragmatic cardiac massage through open abdomen, and also external cardiac Massage given by myself.
13. I gave Inj. Hydrocortisone 2 vials given I/V instantly and Inj. Sodabicarb 20 ml given slowly I/V as additional measure to resuscitate Mrs Shalu Dora.
14. I noted that at 9.53 a.m., patients peripheral circulation started improving and pulse became recordable on Cardiac Monitor at 170 bpm, with revival from Cardiac arrest., but BP was not recordable.
First pints of Blood had arrived from Surat Raktadan Kendra, that were kept up for warming.
15. I say that at 10.00 Oxygen saturation was 95%, pulse 177 bpm on cardiac Monitor, when Sr. Cardiologist Dr Kazi arrived with his ECG Machine, and upon his advise and under his supervision, Inj Digitalis 25 mg I/V, Inj Dobutrex in 5% Dextrose started at 2.5 mcg/kg/min, and volume overload with fast flow of 5% Destrose accomplished.
16. I confirm that whole blood now ready, transfused immediately, and further blood units ordered to be kept ready. Surgery resumed upon recovery of the patient by operating surgeon, and Senior assistant. At 10.40 a.m., due haemostasis achieved at completion of laparotomy by both. Total blood loss was about 500ml at this stage.
17. I noted that patients BP became recordable at 90/60mmHg, Pulse 140 bpm. Inj Neostigmine given 4mgI/v with Inj Atropine 1.2 mgI/V for reversal of Anaesthesia upon completion of Surgery. Patient fully gained her spontaneous breathing.
18. At 10.45 am, Cardiologist Dr Kazi took Patient ECG on his machine which showed Sinus Tachycardia. No other waveforms of ECG suggestive of any myocardial damage seen on the tracings at this stage, but Cardiologist advised that the patient be shifted immediately to ICCU/ICU care. Shreenandan Hospital made prompt arrangements for shifting and Ambulance. Two bottles of blood transfused.
19. I say that at 11.30 a.m. having confirmed that haemostasis had been completely achieved, and return of spontaneous breathing established after reversal of anaesthesia, Patient left the Operation theatre on staff assisted stretcher trolley with Continuous Oxygen, ongoing Blood transfusion, working I/V lines, with Ambu Bag and intubated endotracheal tube in position, and urinary catheter attached to urosac bag, at the time of her shifting in ambulance.
9. At the second hospital i.e. Surat General Hospital, Dr Ami H Mehta was the resident doctor when late Shalu was operated upon on 15.4.1999. His affidavit says Post operatively the patient was shifted to the ICCU where she was further managed. In the ICCU, the patient was put on a ventilator, Dopamine drip and other life supporting drugs. She had ventricular tachycardia and she arrested in the ICCU. All attempts to revive her proved futile and she was declared dead at around 4.00 P.M.
10. Dr Avinash Dave was the anaesthetist during surgery at SGH. In his affidavit he informs that
2. I say that general anaesthesia was induced at Surat General Hospital for the exploration conducted on 15.4.1999. As Full time Senior General Surgeon, Dr. Ajay Sheth was busy with another case and as there was no time to loose, the patient was explored by Dr. Nimish Shelat and Dr. Ramesh Shelat, Dr. Ajay joined in once the abdomen was opened. There were clots present in the peritoneal cavity which were cleared. The previously taken knots were intact and a new bleeder was identified which was ligated.
No major blood vessel was found to be damaged, after thorough exploration, by entire surgical team.
3. During surgery, patient had ventricular tachycardia and cardiac arrest on the operation table. She was immediately given external cardiac massage and D. C. Shock to which the heart responded, under Dr Kazi, Dr Purohit, Dr Neti Dave and Myself. However, her blood pressure failed to respond satisfactorily despite all the resuscitative measures i.e. intravenous fluids, vasopressors, etc. ADD. Surgery was completed and the patient was shifted back to the I.C.C.U. at about 3.30.p.m.
11. As per the record, two bottles of blood transfusion was given at Sri Nandan Hospital, followed by another six bottles at Surat General Hospital (SGH). A question therefore, was posed to the Appellants as to why eight bottles of blood should require to be transfused over a period of few hours if the loss of blood in surgery was not of high magnitude. In the explanantory affidavit filed by Dr. N.R.Shah on 1.3.2013, it is claimed that it was significant but not massive.
However, this affidavit makes and indirect admission of maximum loss of blood and fluid to have been of the order of 1 to 1.8 ltrs of blood in both hospitals. Also, for the most part, this affidavit focuses on what happened subsequently at SGH and not initially at the OP- Hospital.
Opinion of experts on behalf of the two sides Affidavits and opinion of the following have been brought on record on behalf of the two sides. Dr K C Bhat, a consultant anaesthesiologist and ICU Specialist has filed his expert opinion on behalf of the Complainant. He has observed that OP-1 Nandan Hospital was not equipped with infrastructure like x-ray and ultrasound machines for preoperative tests.
Even the support services were insufficient. Consequently, during three hours of surgery at OP-1, Hospital services of a Vascular Surgeon could not be arranged. He also says that if it was a case of blood oozing from a small spurter and not of injury to a major blood vessel as claimed by the OPs,Hemostatics like surgicel, revici, vit-k, ethamsylates, hemocids, chromostat etc. should have been sufficient to stop the oozing. But there is no mention of these drugs in the records of this case. Also, in his opinion anaesthesia was not given/maintained in a proper manner for induction followed by relaxation, doses of 3 mg pavalon in a patient being a 74 kgms was insufficient. If complete hemostatics and adequate anaesthisia reversal had been achieved, then the patient should have been extubated. The fact that indo-tracheal tube had not been removed would mean either that the patient was so critically ill that she tolerated the tube or she was in reversal haemorrhagic shock. During journey to the SGH, the patient reportedly pulled out her endo-tracheal tube. This shows that the patient was not adequately sedated, which amounts to negligence on the part of the doctors
12. Dr Dharam Chawla, Laorascopy and General Surgeon has also given expert opinion on behalf of the Complainant. He has noted that the patient had history of previous caesarian delivery, which indicated possibility of bad and difficult adhesion. Therefore, preoperative MRI scan on the abdomen was required. The OP Hospital also did not have capnograhy equipment, which is essential for laparoscopy procedure Without this, there could be no monitoring of CO2 levels in the abdomen. Increased levels of blood can be lethal. The OP Hospital also did not have ECG machine for pre, intra and post-operative cardiac recording. Nor was there a cardiac monitor to record the status of the heart continuously, during the course of the surgery. OP-1 claimed to be a dedicated infertility treatment centre of Surat City. Yet, it did not even have an ultrasound facility.
Consequently, the collection of blood in the abdomen could be diagnosed and managed only after the Ultrasound was done later in the afternoon at Surat General Hospital. Further in the opinion of Dr. Chawla, if the patient was under complete general anaesthesia as claimed, there would be no question of vaso-vagel shock. Considering the heavy loss of blood in this case, it would be a case of hypo-volemia.
13. Dr Atul Nanda, with professional background of Residency and Fellowship in Transplant Surgery from the University of Illinois, Chicago, has given his opinion as the third expert on behalf of the Complainant. In his opinion, the OPs did not have expertise in laparoscopic surgery nor was the OP Hospital equipped to handle the complications encountered during the course of the laparoscopic surgery. The patient was given multiple transfusions of whole blood. But, she was not transfused any fresh frozen plasma or platelets during her resuscitation, which should be a part of massive transfusion protocol. Non-transfusion of these blood products could lead to deranged coagulation profile and uncontrolled bleeding. The intra-operative cardiac arrest, in his opinion, appears to have been result of hemorrhagic shock and blood loss during the surgery. The ultrasound at Surat General Hospital also indicated that she was bleeding during transfer from the OP Hospital to SGH. This shows that the broad ligament bleeder was not properly controlled during the first surgery at OP hospital. In the opinion of Dr Nanda, when bleeding was encountered during laparoscopy, the laparotomy procedure should have immediately been set on.
14. For the Ops, Dr Lucas F DSouza (Anaesthesiologist) has given his expert opinion, on the request of Dr Nimish R Shelat by his letter of 30.7.2008. In his opinion, under the surgical notes supplement by the anaesthesia notes, the pattern of blood pressure changes and cardio vascular response within the expertise of anaesthesiology as a science in itself completely rules out the possibility of major blood vessel damage/injury during the aforesaid surgery. This, in our opinion, is a very transparent and unconvincing attempt to wish away the facts. It also ignores the record and evidence of the anaesthetist, Dr Gautam Purohit. We have referred to it in earlier paras.
Dr Vasantben Shah has also given her expert opinion on the request of OP-2 in his letter of 30.7.2008. Her opinion in para 6 clearly suggests that it should have been a case of damage to a major blood vessel, when it explains why successful coagulation of the bleeding vessel would not have been possible through laparoscopy and why laparotomy (open abdomen surgery) became the correct procedure under the circumstances. It also shows that the deceased Shalu Dora was an obese person. In such patients the abdominal wall is an extremely thick pad of fat. The laparoscope trocar and verees needle would have to travel through four inches of fat to reach the abdominal cavity. In our opinion, this would have made laparoscopic adhesiolysis more complex and risky. Therefore, undertaking the procedure without making advance arrangements for blood shows negligence, if not over confidence on the part of the surgeon. Moreso, as consent of the patient and her husband had already been obtained for possible open abdominal surgery (laparotomy).
Dr Varsha Shah also calls it a case of obesity. She too has opined that if at all bleeding occurred due to damage or puncture of any major vessel by the Verres needle/Trocar then it would be impossible to introduce the telescope with active bleeding inside the abdomen and thus laparoscopy would not be possible. In our view, opinions expressed by both these doctors carry the explanation that laparoscopy had to be abandoned due to excessive bleeding. Beyond this, it is of very little significance to know or be told that it was due to damage to vessel X or vessel Y.
15. Interestingly, in a very indirect manner, the allegation of the Complainant that he had seen a jet of blood whistling out of the abdomen of his wife on the operation table, finds an explanation in the expert opinion of Dr. Varsha Shah. In para 29 of her opinion, she states that if by any possibility there was damage to any major blood vessels during the laparoscopy, gas embolism could have only occurred through a closed abdomen where trapped CO2 gas would enter an open vascular channel. What this expert does not say is that logically, if the abdominal puncture made for laparoscopy was there, it would have acted as the first escape route for the trapped CO2 and blood.
16. Dr Umesh V Udapudi, a consulting Sonologist and Radiologist, had done a sonography on the patient at 1PM on the day of her surgery i.e.15.4.1999. In his affidavit evidence before the State Commission he has stated that one of the sonography findings was that that there were few gaseous bowel loops and free fluid in the hepatorenal pouch and splenic fossa. Subsequent Sonography done 15 minutes later, had shown increase in fluid in the pouch and pelvic cavity. The free fluid seen in the pritonial cavity was later found to be blood, when the second laparotmy was performed. Thus, it is clear that the effort of the OPs to stop the abdominal bleeding had not succeeded when the patient was taken to the Gujarat General Hospital.
Arguments advanced on behalf of the two sides
17. On behalf of the complainant it has been argued that had it been a case of oozing of blood, as contended by the OPs, it could have been easily controlled by bypolar coagulation within minutes. In this case the loss of blood was huge. It could have been caused only by rupture of a blood vessel and not by oozing. It is argued that the claim of the OPs that the patient had suffered a vaso vagal shock which caused cardiac arrest, is questioned on the ground that the patient was already under general anaesthesia. Hence, there would be no reason for vaso vagal shock. But, simultaneously it is also argued by Sri Krishnamani, Sr. Advocate for the OPs that loss of blood would also result in vaso vagal shock, leading to cardiac arrest. The contention of Sri Jawahar Chawla, counsel for the complainant is that it was a case of profuse bleeding resulting in substantial loss of blood and not a case of oozing of blood. Oozing cannot result in vaso vagal shock. The fact that eight bottles of blood were given (including 6 at SGH), would itself show that it was a case of heavy loss of blood and not a case of mere oozing. It is also argued that if vaso vagal shock was the cause of cardiac arrest, it should have been mentioned in the death certificate as such. The records show that cardiac arrest occurred twice; first at the OP hospital and then at SGH.
18. During the course of arguments, learned Counsel for the OPs argued at length that it was a case of adhesions around the fallopian tube of the deceased. For restoration of her fertility, the adhesions had to be surgically removed. It was during the course of removal of these adhesions that some capillary/blood vessel got damaged, which led to oozing of blood from it. In the background of this contention, we find it strange that no evidence has been produced to show what pre-operative diagnostic tests were done, which brought out the necessity for removal of adhesions around the fallopian tube.
19. Learned counsel for the complainant has vehemently argued that unlike laparoscopy, Laparotomy is an open abdomen surgery and therefore a major one, a radical surgery. Late Shalu Dora had gone to the Ops for diagnostic laparoscopy and not for open abdominal surgery. He argued that the sole possible explanation for sudden decision to open the abdomenabandoning the laparoscopylies in the urgency to control the excessive bleeding. He referred to para 4(p) in the Written Statement of the OPs wherein it is stated that A quick but careful access to the right broad ligament was achieved as Dr R K Shelat, Opposite Party no.3 joined in. Both the Opposite Paries no.2 and 3 operated together, identified the culprit vessel l in broad ligament and ligated it carefully. A satisfactory haemostasis was achieved by double ligation with chronic catgut followed by vicryl 1-0 by around 9.50 AM. It is argued by the counsel that even after taking this stand, the WS or the affidavit of the OPs does not name the culprit vessel.
Conclusions
20. The complainant and the OPs both agree that deceased Shalu Dora was a perfectly healthy and normal person when she arrived at OP hospital on 15.4.1999. Within a few hours, she was rushed to Surat General Hospital in a critical state, after an open-abdomen surgery and was declared dead at 4.30 PM. We have therefore gone into full consideration of the pleadings, evidence and arguments advanced by the two sides, expert medical opinions tendered on their behalf, together with their response to the interrogatories of the complainant to reach the following conclusions on the question medical negligence i.
Given her weight and height, the deceased was medically an obese person. In such a case abdominal surgery becomes more difficult/problematic as the operating surgeon has to cut through about four inch layer of fat. Due to this, damage to blood vessels, in the course of laparoscopic adhesiolysis had become a real possibility. But, the OPs did not provide for it. No arrangement for blood was made. Even blood grouping was done after the emergency had already arisen.
ii.
The deceased had history of a previous caesarean delivery. As per expert opinion, this would indicate possible existence of difficult adhesions in the concerned areas. On the fateful day, the OPs admittedly performed not merely diagnostic laparoscopy but also adhesiolysis on her. Therefore, consent of the complainant and the patient had been admittedly obtained not just for laparoscopy but also for possible open abdominal surgery (laparotomy). Yet, no pre-operative tests like MRI or Ultra Sound of the abdomen were done.
iii.
Evidence of the OPs shows that during transfer from OP hospital to SGH, the patient was uncomfortable and even pulled out her endo-tracheal tube. This would show that she was not properly sedated, while being shifted in a state of medical emergency.
iv.
In the pleadings of the OPs it is claimed that the culprit blood vessel was identified and successfully legated. Bleeding was successfully stopped. But, this claim is proved to be wrong in two subsequent ultrasound reports of SGH which showed that abdominal bleeding had continued and increased. So much so, that a second open-abdomen surgery at SGH had to be performed.
v.
Expert opinion brought on behalf of the Ops itself shows that Laparoscopic Adhesiolysis involved the attendant risk of accidental damage to blood vessels. In the case of the deceased, with previous history of caesarean delivery and pelvic inflammatory disease, this attendant risk should have become more of a real possibility. But, expert opinion also shows that the OPs were neither prepared nor equipped to handle the nature of surgery which they eventually performed at Sreenandan Hospital with disastrous results.
vi.
Medical experts examined for the OPs have all opined that the cardiac arrest leading to death of the patient was caused by vaso vagal shock. But, they stop short of giving clear opinion on what could have caused it. On the other hand, medical experts examined for the complainant have categorically opined that it was caused by haemorrhagic shock. There is uncontroverted evidence on record that huge loss of blood had occurred during the surgical process at OP hospital. Also, the record of the anaesthetist at OP hospital also shows that the deceased was given adequate and continuous anaesthesia during the entire surgical procedure before transfer to SGH. In this background, haemorrhagic shock, resulting from uncontrolled bleeding in the course of the surgery at Sreenandan Hospital would clearly suggest itself as the logical cause for cardiac arrest.
21. The above conclusions need to be viewed in the light of the law on the subject of medical negligence. Reliance has been placed by the OPs on the judgment of Honble Supreme Court in State of Punjab Vs. Shiv Ram & Ors. [AIR 2005 SC 3280]. It is contended that a doctor cannot function and apply his creativity if he/she is under threat of being prosecuted or persecuted on allegation of medical negligence. The logic in this contention is unassailable. But, it will not warrant unquestioned application to a case where a healthy young women, seeking solution to her problem of secondary infertility, is subjected to two open-abdomen surgeries within a few hours and loses her life; all in the space of half a day.
The question that must be raised and answered is whether or not the concerned hospital and doctors, who handled her case, have acted with the degree of professional competence and prudence expected by the law.
22. In the context of medical negligence Honble Supreme Court of India has laid down the law in the following landmark decisions.
In Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1, The Apex Court has summed it up in eight conclusions. Of them, the following conclusions will directly apply to the matter now before us :-
1. Negligence is the breach of a duty caused 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.
2. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence.
A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.
3. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
4. The test for determining medical negligence as laid down in Bolams case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
5. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
23. In Martin F DSouza Vs. Mohd. Ishfaq (2009) 3 SCC 1, the above principles for determination of negligence by a medical practitioner were reaffirmed by Honble Apex Court. It was observed that:-
From the principles mentioned herein and decisions relating to medical negligence it is evident that doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions. The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful.
24. The six conclusions reached, after detailed consideration in the foregoing paras of this order, seen on the touchstone of the law as laid in the decisions of Honble Supreme Court of India discussed above, make it out to be a clear case of negligence on the part of the OP Hospital and the treating doctors i.e.OPs-2 and 3. Therefore, the complaint of Mr Neeraj Amarnath Dora is allowed. Late Shalu Dora was a housewife but she also had independent earnings of her own.
However, it is no ones case that she was the bread winner of the family. In this background, we do not deem it necessary to go into the loss of earnings caused by her premature death. In the facts and circumstances of the case, we are of the view that a lump sum compensation of Rupees Ten Lakhs, together with cost of Rupees Two Lakhs, will be just and equitable award in favour of the complainant. We therefore, award accordingly. The entire amount of Rs.12 Lakhs shall be paid by the OPs jointly and severally within a period of three months from the date of this order. Failing this, interest at 9% per year shall be payable on the awarded compensation amount of Rupees Ten Lakhs. The complaint is allowed in the aforesaid terms.
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(J. M. MALIK, J.) PRESIDING MEMBER Sd/-.
(VINAY KUMAR) MEMBER s./-