National Consumer Disputes Redressal
Chl.Apollo Hospital Indore & Ors. vs Ashish Sanyal & Ors. on 15 May, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.215 of 2008 (Against order dated 05.10.2007 in Appeal No.1205/2007 of the State Commission, Madhya Pradesh) Chl.Apollo Hospital Indore & Ors. .......Petitioner(s) Versus Ashish Sanyal & Ors. ...Respondent(s) BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioner : Mr. Amit Tatke, Advocate For the Respondent : Mr.K.G. Kocher, Advocate as amicus curiae Pronounced on 15th May, 2012 ORDER
PER VINEETA RAI, MEMBER CHL Apollo Hospital, Indore and others (hereinafter referred to as the Petitioners) have filed this revision petition being aggrieved by the order of the State Consumer Disputes Redressal Commission, Madhya Pradesh (hereinafter referred to as the State Commission) in Appeal No.1205/2006, which had allowed the complaint of Ashish Sanyal and others, Respondent herein.
Briefly, the facts according to the Respondent is that he had approached the Petitioners for consultation and treatment in respect of his wife, Reena Sanyal (hereinafter referred to as the patient) who was experiencing respiratory problems as also some problems in her chest and difficulty in walking. She was asked to meet Dr.Manish Porwal (Petitioner No.2) who after investigations and tests advised surgery to rectify a defective cardiac valve. Although, Respondent preferred to get this surgery done at Apollo Hospital, Chennai, he was persuaded by Dr.Vinod Somani (Petitioner No.3) that the surgery would be done with the same technique and procedure in the Petitioner/Hospital. Respondent, therefore, got his wife admitted on 19.08.2003 in the Petitioner/Hospital wherein the surgery was performed on 22.08.2003 at 8.30 am and Respondent was told that his wife would be discharged on the fourth day. However, on the night of 22.08.2003 her condition deteriorated and Respondent was asked to arrange blood which was given to her next day. There was no improvement and she passed away on 26.08.2003 at 4.35 am. The cause of death was stated as cardio respiratory arrest. Respondent alleged that death had occurred because Petitioners were negligent in the treatment of his wife and the two doctors also absented themselves when the condition of his wife was very serious. After obtaining the necessary medical papers with some difficulty, Respondent found that as per his wifes Blood Report dated 26.08.2003 her hemoglobin count was only 3.1 gm. and the surgery was conducted even though it is contra-indicated in a patient with such a low hemoglobin count.
Respondent, therefore, filed a complaint on grounds of medical negligence and deficiency in service on the part of the Petitioners in causing the death of his wife aged 37 years who has 3 minor children. Respondent, therefore, requested that Petitioners be directed to give him compensation of Rs.15 lakhs, reimbursement of medical expenses of Rs.1,50,000/- and any other relief which may be deemed appropriate.
The above contentions were contested by the Petitioners who stated that the doctors were professionally qualified and the hospital well equipped to conduct such procedures. The procedure was also successfully conducted on 22.08.2003. All necessary precautions were taken prior to the surgery, e.g. the patient was subjected to detailed pathological and diagnostic tests on 18.08.2003 which confirmed that her hemoglobin count was 11.2 gm. and all other parameters were also satisfactory for conducting such a surgery under local anesthesia. There was no reason to repeat the same procedure since there cannot be a drastic drop in the hemoglobin count within a period of 3-4 days unless there is heavy bleeding etc. However, when the condition of the patient deteriorated post-surgery, her hemoglobin test was done late at night on 22.08.2003 which showed that it was 3.1 gm. and necessary blood transfusion was arranged. Petitioners further stated that in fact Respondent had come to the Petitioner/Hospital for consultations in November, 2002 and although patient was advised for an immediate procedure, Respondent came back only after 9 months by which time the patient had become a high risk case. The surgical procedure was successful as is clear from the ECHO, but the patient continued to have persistent pulmonary hypertension which led to right side heart failure and cardiogenic shock etc. There was, however, no negligence on the part of Petitioners and death occurred in a high risk case despite the best possible medical care that was given to her.
The District Forum after hearing the parties and on the basis of evidence filed before it allowed the complaint and directed the Petitioners to jointly and severally pay the Respondent Rs.2 lakhs with interest @ 6% from the date of order and Rs.1,000/- as litigation cost.
Being aggrieved, Petitioners filed an appeal before the State Commission which dismissed the same. State Commission in its detailed order in support of its findings inter alia observed as follows:
(i) That since the patient was a high risk case careful precautionary measures and utmost prudence including repetition of some important pathological tests like hemoglobin count on the date of the surgery i.e. on 22.08.2003 were necessary especially since this test is simple and not expensive.
This was however, not done.
(ii) The pathological report of 22.08.2003 mentioning the results of various investigations done on that date is not signed by any nurse or technician which indicates a casual attitude on the part of the Petitioner Hospital/its staff.
(iii) No records or reasons were shown by the Petitioners as to why doctors conducted a post-operative hemoglobin test followed by blood transfusion. In the absence of any explanation, it would be reasonable to assume that the hemoglobin test was done prior to the surgical procedure on 22.08.2003 and without waiting for this report which would have indicated the low hemoglobin count, the surgery which proved to be fata was undertaken.
(iv) Instead of being made to fast prior to the surgery as per standard procedure, patient was given tea and biscuits which is not advisable even in cases where local anesthesia is administered. This resulted in post-operative vomiting.
The State Commission finding the Petitioners guilty of medical negligence enhanced the consolidated amount of compensation inclusive of expenses to Rs.4 lakhs to be paid by the Petitioners jointly and severally to Respondent within one month failing which it would carry a simple rate of interest of 6% per annum. Rs.1,000/- were ordered as costs.
Hence, the present revision petition.
Counsel for both parties made oral submissions in which they essentially reiterated the facts as presented before the Fora below.
Counsel for Petitioner again urged that it was proved by documents on record that all necessary precautions were taken prior to the surgical procedure and the hemoglobin count on 18.02.2003 was 11.2 gm. which is satisfactory. Since the surgery/procedure was undertaken 3 days later and since there was no bleeding or any other indication which would require a repeat hemoglobin test, it was not conducted and the procedure was undertaken.
Counsel for Petitioner further contended that in the absence of any bleeding, the hemoglobin count could not have plummeted to 3.1 prior to the surgery as contended by the Respondent and concluded by the State Commission. Further, it is well established as per medical literature on pre-operative fasting that it is not contra-indicated in case of local anesthesia. Respondents wife was admitted to the Petitioner/Hospital as a high risk case and despite all precautions and the best professional care unfortunately her death occurred but this was not attributable to any medical negligence on the part of Petitioners. Further, no medical expert opinion or evidence had been produced by Respondent to prove medical negligence.
Counsel for Respondent on the other stated that as concluded by the Fora below in the detailed orders the patient despite being a high risk case was not professionally and adequately attended to and the surgery was conducted without due care and precaution which resulted in her death.
We have heard learned Counsel for both parties and have carefully gone through the evidence on record. We note that, Respondents wife underwent various pre-operative pathological and diagnostic tests which included hemoglobin examination and it was noted that on 18.08.2003 her hemoglobin count was 11.2 gm.
However, admittedly on 22.08.2003 her hemoglobin count fell to 3.1 gm. We repeatedly requested Counsel for Petitioner to explain the reason for this sudden drop in the hemoglobin count within a period of 3 days which he was unable to do. We then pointedly asked whether there was any evidence that this drop occurred due to either pre-operative or post-operative bleeding and if the Petitioner/Hospital had made any observations about this in the medical case records to which he pleaded total ignorance. In view of the fact that Counsel for Petitioner was unable either to explain the reasons for the drastic drop in the hemoglobin count as noted above and the records produced by the Petitioner also do not shed any light on this issue, we are inclined to agree with the findings of the Fora below which are courts of fact that the Petitioners/Doctors were deficient and negligent in the treatment of this patient. While it is well acknowledged that even with the best of professional care and management by doctors, mishaps including death can occur but in the instant case, we are left with many unanswered questions regarding proper care and treatment of this high risk patient including in respect of her hemoglobin status which was critical in this case. For the above reasons, we agree with the finding of the State Commission and uphold its order. The revision petition is dismissed. The Petitioners are directed to jointly and severally pay the Respondent, Rs.4 lakhs with interest @ 6% from the date of order passed by the District Forum and Rs.1,000/- as litigation cost within 6 weeks from the date of receipt of this order failing which simple interest @ 9% will be applicable on the entire amount from the date of default.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/