State Consumer Disputes Redressal Commission
Shri Naresh Gopal vs Dr. Sodhi Health Care on 24 January, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 5 of 2008
Date of institution:29.1.2008
Date of Decision: 24.1.2014
1. Shri Naresh Gopal, aged about 40 years, son of Late Smt. Bimla
Devi @ Bimla Gopal, resident of H. No. 292, Phase 3B1, Mohali,
Punjab.
2. Mrs. Sunanda Agnihotri, aged about 37 years, daughter of Late
Smt. Bimla Devi @ Bimla Gopal, w/o Shri Rajpal Agnihotri,
resident of H. No. 647, Phase IV, Mohali, Punjab
3. Shri Rajesh Gopal, aged about 34 years, son of Late Smt. Bimla
Gopal Devi @ Bimla Gopal, resident of H. No. 292, Phase 3B1,
Mohali, Punjab.
(All legal heirs of Late Smt. Bimla Devi @ Bimla Gopal widow of Shri
K.L. Gopal).
.....Complainants
Versus
1. Dr. Sodhi's Health Care through its Director/ Proprietor/ Partner,
SCF 16, Phase 3B2, Mohali, Punjab.
2. Dr. Lavleen Kaur Sodhi, MD (Obs. & Gyn.), DNB (Obs. & Gyn.),
Consultant Gynecologist, Dr. Sodhi's Health Care, SCF 16, Phase
3B2, Mohali, Punjab.
3. Fortis Healthcare Limited, through its Managing Director, Sardar
Shivinder Mohan Singh, Corporate Office at :- Piccadily House, 4th
Floor, 275, 276, Captain Gaur Marg, Srinivas Puri, New Delhi - 110
065
4. Fortis Hospital, through its Medical Director Dr. Ashok V. Chordiya,
Sector 62, Phase VIII, Mohali - 160 062, Punjab
5. Dr. G.S. Kalra, Director, Cardiology, Fortis Hospital, Sector 62,
Phase VIII, Mohali - 160 062, Punjab
6. Dr. Navin C. Raina, Senior Consultant, General Surgery, Fortis
Hospital, Sector 62, Phase VIII, Mohali - 160 062, Punjab.
Consumer Complaint No. 5 of 2008 2
7. Dr. N.M. Gupta, Director, General Surgery, Fortis Hospital, Sector
62, Phase VIII, Mohali - 160 062, Punjab.
8. Dr. Amit Trehan, Consultant, Gastro-entology, Fortis Hospital, Sector
62, Phase VIII, Mohali - 160 062, Punjab
9. New India Assurance Company Ltd., SCO No. 463-464, Sector
35-C, Chandigarh.
.....Opposite Parties
Argued By:-
For the complainants : Sh. N.P. Sharma, Advocate
For opposite parties No.1&2: Sh. S.S. Salar, Advocate
For opposite parties No.3,4,5&7:Sh. Arun Kaundal, Advocate for
Sh. Puneet Gupta, Advocate
For opposite parties no.6,8 & 9 :None.
Consumer Complaint under Sections 12 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
ORDER
Gurcharan Singh Saran, Presiding Judicial Member The complainants have filed the present complaint under Section 12 and 17(1)(A)(1) of the Consumer Protection Act, 1986 (in short 'the CP Act') against the opposite parties on the allegations that Smt. Bimla Devi mother of the complainants had an episode of passing of blood in urine in the month of September, 2007 and was taken to OP No. 1. OP No. 1 is renowned health care centre of the Mohali and that Smt. Bimla Devi was taken to that hospital where she was checked by OP No. 2 and advised the complainant to get Consumer Complaint No. 5 of 2008 3 conducted a uterine biopsy and in the said examination it was found that the lining of uterus was abnormally thick and suspecting carcinoma, OP No. 2 advised the complainants to undergo hysterectomy for removal of the uterus to Bimla Devi and for open surgery she quoted charges of Rs. 20,000/- and for open Laparoscopic surgery for Rs. 25,000/-. OP No. 2 further advised that option of laparoscopic hysterectomy although a little costlier was a better option because it was required minimal admission time and before admission of Bimla Devi, OP No. 1 got conducted pre- operative tests on 10.10.2007 and on 13.10.2007, which included Chest X-ray, echocardiography followed by a Tread Mill Test. She was admitted with OP No. 1 on 17.10.2007 and payment of Rs. 25,000/- was deposited in cash with Op No. 1 and operation was conducted on 17.10.2007 under general anesthesia and she was discharged on 19.10.2007 by Op No. 2 with the remarks that her condition was un-eventful. However, within 24 hours of discharge, Bimla Devi started vomiting and distension in the abdomen as well as shortness in the breath and she was again admitted with Op No. 1 and Op No. 2 stated that it is transitory in nature and she will be suitably managed by Op No. 2 and she was kept there till midnight of 21/22.10.2007 despite that her condition was worsening with abdominal signs and respiratory problems increasing in intensity. Past midnight Op No. 2 informed the complainants that their mother is suffering from cardiology ailment, which required her immediate hospitalization in nearby Fortis Hospital for further management and that these system were un-related to the laparoscopic hysterectomy Consumer Complaint No. 5 of 2008 4 and she was shifted to Op No. 4 in the intervening night of 21- 22.10.2007 where initial payment of Rs. 20,000/- was made with Op No. 1. She was taken to CCU where heart rhythm problem was taken care of and it was advised that she was having predominantly abdominal problems and she was attended by General Surgical Staff in the morning of 22.10.2007. Then she was attended by General Surgical Consultant Dr. Navin Chander Raina, Op No. 6, who after physical evaluation and assessment on the basis of investigation advised surgical intervention as soon as possible in order to save her life as she was suffering from large collection in the abdomen possibly due to injury to the intestines while performing laparoscopic hysterectomy and surgical intervention is necessary to clear the collection. However, the complainants being the lay persons reverted back to OP No. 2 for guidance. OP No. 2 on hearing the diagnosis got infuriated and in their presence had verbal dual with OP No. 6 and as such, shifting of Bimla Devi to another Consultant of the same hospital and was transferred to OP No. 7. OP No. 7 did not agree for surgical intervention as advised by Op No. 6 and suggested that his team would ensure her safe recovery by conservative non-surgical management. However, to have a second opinion, OP No. 6 sought consultation from Dr. Amit Trehan OP No. 8, who after evaluation insisted that Bimla Devi required urgent surgical intervention. However, on account of fear psychosis created in the minds of complainants by OP No. 2 and on the basis of assurance advanced by OP No. 7, the complainants immediately permitted transferring the management of their mother with Op No. 7. In the meantime, they Consumer Complaint No. 5 of 2008 5 deposited Rs. 3 lacs with OP No. 4 as required from time to time without any improvement in the condition of Bimla Devi and ultimately, Bimla Devi's breathed her last on 30.1.2007. The complainants could not comprehend as to how the condition of Bimla Devi, who was physically fit, did not suffer from any life threatening condition, who underwent a laparoscopic hysterectomy on 17.10.2007 died within a short period. Then complainant No. 3 required OP No. 4, the Medical Director to provide medical record including the reports of the various tests conducted on their mother. However, OP No. 3 through OP No. 4 provided the complainants the reports of various tests, however, daily progress chart maintained by OP No. 4 was not provided. However, after receiving the medical reports and discharge summary, the complainants have come to know that all required tests were conducted by Op No. 2 before conducting the laparoscopic hysterectomy although she was discharged but within 24 hours, she showed symptoms of distension, vomiting and pain in abdomen and was again admitted with Op No. 1 but Op No. 2 could not manage her and she referred her to Op No. 4. OP No. 4 after various tests, found that she was not suffering from any heart disease but she was suffering from abdominal disease and was referred to OP No.6, who suggested for surgical intervention, however, due to objection of OP No. 2, she was referred to OP No. 7, who advised for conservative treatment whereas opinion was taken from OP No. 8, who also advised for surgical intervention to clear the large collections of fluid in the abdomen and ultimately, the antibiotics given at the instance of OP No. 7 were so heavy had caused harm to Consumer Complaint No. 5 of 2008 6 the other organs of the Bimla Devi and ultimately all vital organs had failed resulting death of Bimla Devi on 30.11.2007, therefore, it is clear that the death of mother of the complainants has been caused due to the negligent, defective conducting of the operation by Ops No. 1 & 2 and then by Ops No. 3, 4 & 7, hence, the complaint with the direction to the Ops No. 1 & 2 to refund a sum of Rs. 50,300/- received from the complainants, to direct Ops No. 3 to 7 to refund a sum of Rs. 3,11,909/-, damages of Rs. 20 lacs, compensation for loss of companionship, loss of economic viability and mental and physical harassment to the extent of Rs. 24 lacs, litigation expenses of Rs. 22,000/- and interest @ 15% per annum.
2. The complaint was contested by the Ops. Ops No. 1 & 2 filed their written statement in which it was admitted that OP Nos. 1 & 2 alongwith Dr. Kuldeep Dhawan from PGI, who is MS in General Surgery had performed surgery upon Bimla Devi and she had recovered in normal course. There was no complication in 48 hours, she remained in the hospital and after that she was discharged. It has also been admitted that necessary tests were done before conducting the surgery. Just Rs. 22,000/- were taken as operation fee from the complainant. After the discharge, on the next day the vomiting and distention in the abdomen as well as shortness of breath had developed after more than 72 hours of the surgery. Further she had passed stool on 19.10.2007 and 20.10.2007 and appropriate treatment was given when she was brought to the hospital. A small amount of free fluid was detected in Morrison's pouch in the flanks and pelvis. The patient was suspected to have ileus and she was put Consumer Complaint No. 5 of 2008 7 on I/V fluids and had shown signs of improvement. The small fluid was likely to be absorbed after some time. However, when she developed symptoms of heart disease she was given an option for referred either to PGI or Fortis Hospital and the complainant opted for Fortis. It has also been stated that she was checked by Dr. Sanjeet Sodhi husband of OP No. 2, who is also Cardiologist accompanied the patient to Fortis being a Heart Specialist and she was treated by Dr. G.S. Kalra and his team. At 4.00 a.m. on 23.10.2007, a Surgeon Dr. Raina checked the patient for post operative patient, who advised X-ray of abdomen as well as Ultrasound. He had also suggested for CT Scan. On the basis of X-ray report, he advised operation of the patient on the basis that there was some air under diaphragm likely due to leakage from the injury to the intestine. However, in the CT Scan a small amount of fluid was seen in the pelvis. A contrast test was also conducted. By this method, a fluid was put in the intestine, if it passes without spilling out of the intestine then it can be said that there is no puncture in the intestine. In the CT Scan, it was observed "Bilateral adrenal glands are unremarkable. Small amount of free fluid is seen in the pelvis. Urinary Bladder appears normal. Bilateral minimal pleural effusion is seen. The impression was given as under:-
"Status post op. Pneumoperitoneum with free fluid in pelvis with no oral contrast extravasation? Sealed bowel perforation? Post operative changes. Dilated Jejunal Loop? Heus. Clinical correlation is suggested." which makes it clear that there was no contrast extravasation i.e. spill was seen and it was thought that it is sealed or it was doubted a case of intestine paralysis. Dr. Raina conducted a Consumer Complaint No. 5 of 2008 8 peritoneal tap, which was also not conclusive and was of the opinion that exploratory laparotomy may be planned to which the attendants of the patient were hesitant. Therefore, they suggested for conservative treatment and for 3rd opinion from renowned Surgeon Dr. N.M. Gupta of Fortis Hospital, who also suggested for conservative management of the patient, therefore, the case was transferred to Dr. N.M. Gupta on 23.10.2007 at noon, who observed some improvement in abdominal signs. The bowel sounds appeared and patient passed flatus, therefore, on the basis of these signs, he was of strong opinion that conservative treatment should be continued and there is no necessity to open the abdomen. On 23.10.2007 at 6.30 p.m., the patient passed stool, which was not possible had the bowel action had not returned. No fever was observed upto 25.10.2007. There was no air under the diaphragm upto 28.10.2007 as it was to disappear in the due course of time. However, on 25.10.2007, the patient developed multiple complications including liver function derangement and low platelet counts, which could be on account of possible side effect of multiple antibiotics. It has been further stated that due to Cardiac problem, she was referred to Fortis Hospital. The patient was more than 60 years. Artrial Fibrillation is a problem of heart rate. In case Dr. Sanjeet Sodhi, who is Cardiologist had accompanied the Fortis hospital, there was nothing bad in it. In case there is collection of abdominal fluid due to the suspected injury of intestine while performing laparoscopic hysterectomy was denied. If the treatment record of their hospital and that of Fortis Hospital is co-related, the Consumer Complaint No. 5 of 2008 9 patient had been passing stool, which are signs of improvement in abdominal problem, therefore, these factors were shown that there was no problem of intestinal injury as alleged nor any perforation observed by the Doctors of the Fortis Hospital and after referred to the Fortis Hospital, if any procedure has been adopted in the Fortis Hospital is not related to Ops No. 1 & 2. In case there would have been any wrong during the operation conducted by Op No. 2 then she should not have referred the patient to the Fortis Hospital and she did not have differed with the advice of Dr. Raina. The complainants were intelligent enough. They also consulted Dr. Trehan on their own, who is not a Surgeon, who is only a Gastro Entereologist. OP No. 2 never declared the advice tended by Dr. Raina to be defective. The death of the patient is very unfortunate incident but the Ops cannot be liable for that, therefore, it was stated that there is no negligence on the part of these Ops and the complaint against them be dismissed.
3. Ops No. 3 to 8 in their written reply have taken the preliminary objections that Smt. Bimla Devi, 60 years old female had undergone hystectomy at the Clinic of OP No. 1 and was discharged on 19.10.2007. She was readmitted in the same Clinic on 20.10.2007 due to restlessness, vomiting, shortness of breath and abdominal distension. She was referred to these Ops on 22.10.2007 at 2.47 a.m. At that time there was no pain in her abdomen. At the time of taking the history, it was found that it was known case of hyper tension. She had undergone laparoscopic assisted Vaginal Hysterectomy with Bilateral Salpinooophrectomy at the hospital of OP No. 1. There was Consumer Complaint No. 5 of 2008 10 no bowel intestinal injury till 20.10.2007 as per the record. In case the patients having bowel injury, she was unable to pass the stool. On readmission she was managed conservatively and showed some improvement and her white blood cell counts was 6500. However, Ultra-sound showed small amounts of free fluid in the abdomen, which is consistent with the post operative status of the patient as most of the patient have some amount of free fluid after surgery. She was also increased in heart and breathe rate. Her BP responded to IV fluid and atrial fibrillation was controlled with Amiodarone. Pulmonary embolism was evaluated by 2-D Echo, which did not show any evidence of large pulmonary embolism. The patient had repeated examinations showed no rigidity on abdomen. Patient was also seen by OP No. 2 as well and then checked by OP No. 6, who advised that the surgery could be undertaken in such cases if the patient was suffering from Peritonitis. The patient and her attendants were not fully satisfied and advised to conduct treatment advised by OP No. 6 and thus, just to take the medical opinion and advice of another senior and seasoned surgeon, Dr. N.M. Gupta and the patient was seen by Dr. N.M. Gupta on 22.10.2007 and was of the considered opinion that in view of the clinical findings, the patient did not have any signs of peritonitis. In his opinion the patient was to manage conservatively pending further investigation. The patient was having normal white blood cells. The abdominal tests done by OP No. 6 did not show any evidence of frank blood or raised leuckocyte counts in the aspirated fluid, which is contrary to the diagnosis of peritonitis or infected ascites. Dr. N.M. Gupta had also advised contrast CT Scan Consumer Complaint No. 5 of 2008 11 of the abdomen to rule out the possibility of peritonitis in the patient. Therefore, there was no evidence of bowel perforation or extravasation of the contrast to indicate any injury to the intestines. The report speaks of the possibility of post operative changes/lleus. These possibilities were duly explained to the family and they showed concurrence with the line of management being followed by Dr. N.M. Gupta. In the coming days, the patient was examined by Dr. N.M. Gupta, thereafter, the patient was also showed to Dr. Amit Trehan, who also advised Surgery if the test for Peritonitis came positive and then the case was referred to Dr. N.M. Gupta, who examined the patient. On 23.10.2007, after CT Scan and other tests, the patient's family agreed to transfer the patient to Dr. Gupta at 11.55 a.m. on 23.10.2007. The family was repeatedly given counselling by Cardiologist referring Doctor, Surgeon and the other Doctors. On 24.10.2007, Dr. N.M. Gupta returned the finding that the patient had improved significantly. On 25.10.2007, the patient had showed increased respiratory rate with pulse at 110 per minute. However, the patient was showing side effect of Drugs and probable extra abdominal infection. The antibiotics were ordered to be changed. On 26.10.2007, it was suspected that the patient was having septicaemia with chest infection. The critical condition of the patient was duly informed to her son Rajesh Gopal and the patient did not show any improvement due to over whelming infection. On 27.10.2007, she was put on various drugs and on 28.10.2007, her general condition remained very poor having features of respiratory failure, cardiovascular failure and signs of septicaemia. On 29.10.2007, the Consumer Complaint No. 5 of 2008 12 patient continued to run fever with increased heart rate. Her blood pressure continued to be supported with drugs and her respiration had to be supported with the help of Ventilator. Her abdominal was found to be distended but soft. She had shown signs of multi organ dysfunction syndrome with derangement in liver functions in addition to signs of acute respiratory distress syndrome. On 30.10.2007, patient was again reviewed by the team of Dr. Vikas Bhutani, Dr. S.K. Gupta, Dr. P.K. Prashar and Dr. G.S. Kalra and they found that the patient had deteriorated further with clinical haematological biochemical and radiological deterioration. The tracheal swab culture obtained later had grown Chryscobacterium Meningosepticum, which is shown uncommon nosocomial infection in adults. Sepsis was the final diagnosis in all adult patients with some feocal infection. On merits, it has been again reiterated that she was admitted in this hospital on 22.10.2007 with complaints of respiratory distress and abdominal distension. She was admitted under Cardiology services with Dr. G.S. Kalra. After patient was treated for the heart condition, the Doctor again examined the patient and it was found that patient's abdomen was unremarkable and was referred to Dr. N.C. Raina, who was of the opinion that the patient might require surgical intervention if the patient was suffering from peritonitis. While the laboratory tests were in progress, patients relatives requested another medical opinion then a CT Scan of the abdomen was conducted and it showed fluid in the pelvis and the patient was referred to medical opinion of OP No. 7, who gave the opinion that he did not see the signs of peritonitis and the patient was to be managed conservatively Consumer Complaint No. 5 of 2008 13 pending further investigation. Even from the contrast CT Scan, there was no evidence of bowel perforation or extravasation of the contrast to indicate any injury to the intestines and there was possibility of post operative changes/ lleus but she could not respond to the treatment and ultimately, breathed last on 30.10.2007 at 10.15 p.m.. The tracheal swab culture obtained had grown chryseobacterium Meningosepticum, which as per the literature is an uncommon nosocomial infection in adults, which is associated with prolonged hospitalization and ultimately, it was stated that there was no negligence in the management of the patient. It is different preposition that they could not save the patient. The Doctor did not give 100% guarantee in case the patient could not respond to the treatment, it does not mean that there was medical negligence on the part of the Ops. Moreover, the medical opinion may differ with one Doctor to another Doctor and in case one type of treatment has been taken up by the Doctor it does not mean that there was medical negligence and ultimately, it was stated that there is no merit in the complaint against these Ops and the same be dismissed.
4. Whereas OP No. 9 in its reply taken the preliminary objections that the complaint is not maintainable as the Ops No. 1 & 2 did not commit any negligence; moreover, the liability of the insurance company is limited as per coverage under the policy of AOY and AOA, if Ops are negligent. Ops No. 2 had purchased the policy of insurance bearing No. 350/00/46/06/35/0000418 from OP No. 9 covering the risk for the period from 25.11.2007 to 24.11.2008. Policy No. 356/00/36/07/1735/00000/112 dated 25.11.2007 covering Consumer Complaint No. 5 of 2008 14 risk from 25.11.2007 to 24.11.2008 was issued in the name of Dr. Sharanjit Singh Sodhi and the liability of the Company will be according to the terms and conditions of the policy so there is plea on merits.
5. The complainants filed rejoinder to the written statement filed by Ops No. 1 & 2 and Ops/respondents No. 3 to 8 in which their averments in the written statement were denied and that of the complaint were reiterated.
6. The parties were allowed to lead their evidence.
7. In support of his allegations, the complainant had tendered into evidence affidavit of Naresh Gopal Ex. C-1/A, urine report Ex. C-1, laboratory report Ex. C-2, X-ray Chest Ex. C-3, Echocardiography & Colour Doppler Study Ex. C-4, Stress Test Report Ex. C-5, Discharge Summary Ex. C-6, report/check up of Dr. S.S. Sodhi Ex. C-6/1, CT Plain Report Ex. C-7, CT Abdomen Whole Abdomen (Contrast) Ex. C-8, case summary of patient Bimla Devi by Dr. Vikram Ex. C-9, death summary of patient Bimla Devi Ex. C-10, death certificate Ex. C-11, detail bill of Fortis Ex. C-12, request for obtaining copy of entire case record Ex. C-13, letter dt. 27.11.06 Ex. C-14, request for obtaining the Daily Treatment & Progress Chart Ex. C-15, notice through Neeraj Sharma, Advocate Ex. C-16, Daily Progress Notes Ex. C-17. On the other hand, Ops No. 1 & 2 had tendered into evidence affidavit of Ms. Loveleen Sodhi Ex. O-1/A, Pneumoperitoneum After Laparoscopic Cholecystectomy Ex. O-1/1, Baseline Characteristics of Patients Ex. O-1/2, Atrial Fibrillation Ex. O-1/3, Textbook of Surgery Ex. O-1/4, insurance policy Ex. O-1/5. Consumer Complaint No. 5 of 2008 15 Ops No. 3 to 5 & 7 had tendered into evidence affidavit of Dr. Ashok V. Chordiya Ex. OP-3/A, affidavit of Dr. Ashish R. Banerjee Ex. OP- 3/B, affidavit of Dr. G.S. Kalra Ex. OP-3/C, affidavit of Dr. Naveen C Raina Ex. OP-3/D, affidavit of Dr. N.M. Gupta Ex. OP-3/E, affidavit of Col. Harinder S. Chahal Exs. OP-3/F & OP (PP)-3/G, affidavit of Dr. G.S. Kalra Ex. OP-3/H, affidavit of Dr. N.M. Gupta Ex. OP-3/I, documents Exs. OP-3/1 to Ex. OP-3/88. OP No. 9 had tendered into evidence affidavit of Sh. M. Dutt, Manager Ex. OP-9/A, insurance policy valid from 25.11.2006 to 24.11.2007 Ex. OP-9/1, insurance policy valid from 25.11.2006 to 24.11.2007 Ex. OP-9/2.
8. We have heard the learned counsel for the parties and have carefully gone through the allegations made in the complaint, written replies filed by the Ops, evidence and documents on the record.
9. With regard to the factum whether the Ops were negligent in performing the operation of the deceased Bimla Gopal @ Bimla Devi and their negligence in post operative care; the facts and treatment can be summarised as under:-
That deceased Bimla Devi was having problem of passing of blood in Urine in the month of September, 2007. She consulted OP No. 2 working with OP No. 1 and after taking uterine biopsy and other tests, she suggested to undergone hysterectomy and further suggested to opt for Laparoscopic Hysterectomy as it is better option to which the complainants agreed and on 17.10.2007 after conducting other tests including echocardiography followed by Albumin (Termina) Test, Sugar Test etc. She was operated and was Consumer Complaint No. 5 of 2008 16 discharged on 19.10.2007. However, after 24 hours she developed complaint of repeated vomiting and distension in the abdomen and shortness of the breath. She was given treatment by OP No. 2 that the things will be normal with the passage of time but on the mid- night of 21/22.10.2007 her condition was worsening abdominal sign and respiratory problem were increasing and accordingly, OP No. 2 give the opinion that she was having Cardiac problem, therefore, she should either be shifted to PGI or Fortis Hospital. As Fortis Hospital was near and that she has acquaintance with the Doctors of the Fortis Hospital, therefore, she can be taken to that hospital. Taking to the advice of OP No. 2, she was taken to Fortis Hospital-OP No. 4. She was firstly referred to Dr. G.S. Kalra and after giving the heart treatment whatever, she was suffering, she was sent back and then it was found that patient was having her abdominal unremarkable and was referred to Dr. N. C. Raina, who suggested that the patient might require surgical intervention if the patient was suffering from Peritonitis. However, in case we go through the day to day notes given by the Fortis Hospital as Ex. C-17. Dr. N.C. Raina on 22.10.2007 referred X-ray of Abdomen and gas under the diaphragm at 9.00 a.m. and at 1.15 p.m. he reviewed with plan CT Abdomen and blood & bile was sent for culture + sensitivity + routine evaluation ---
contrast being orally avoided --- CT plain --- suggestive of large collection in lower abdomen / interloop collection + large amount of gas in abdomen inconsistent with post laparoscopy 5th day gas and he further observed that it is suggestive of Bowel perforation which Consumer Complaint No. 5 of 2008 17 will need exploration after CECT. On 23.10.2007 Dr. Raina observed as under:-
"23.10.07 (9 AM) --- Explained in clear terms to the family + Dr. Lavleen Sodhi yesterday that in view of signs of sepsis & frank peritonitis, patient requires Surgical Intervention.
--- However unwillingness on part of family/Dr. Lavleen Sodhi --- Intervention could not be carried out yesterday.
--- Patient's son requested for second opinion yesterday which was granted & was seen by Dr. NM Gupta who advised conservative measures despite clear signs of peritonitis & evidence of sepsis.
---- Patient reportedly had AF + Hypertension reverted with medication.
--- Currently the TLC is showing rising trend consistent with signs of peritonitis.
---- Patient's son has been explained the septic progression of the disease & explained need to intervene Surgically for drainage.
---- I personally feel this patient is in Sepsis and requires atleast surgical drainage as soon as possible."
and on the same day, it was further mentioned that the patient be reviewed by Dr. Amit Trehan and he was checked by Dr. Amit Trehan at 10 AM observed as under:-
"--- events noted.
--- Patient with perforated viscus, with frank peritonitis, early sepsis with shock requiring xxxx support.
P/E (Per Examination)
--- diffuse tenderness with guarding with (+) rebound.
--- Investigation --- Raised TLC 13.6 Plan Surgical intervention is very much warranted. Patient high risk with conservative management."
But the patient was not given surgical intervention treatment and relied upon conservative treatment recommended by Dr. N.M. Gupta. Conservative treatment was recommended pending investigation and in case in the investigation, it is clearly coming out that it is case of bowel perforation and Peritonitis as the patient was in sepsis then Consumer Complaint No. 5 of 2008 18 surgical intervention was the only treatment requiring drainage of sepsis as soon as possible. There is no denial of the matter that in case there are two options with the Doctor, the Doctor could exercise any option. But the next question is upto which extent. In case the conservative treatment did not yield any results then they should have come to the other method i.e. the surgical intervention, which was suggested by other two Doctors, who were equally qualified Doctors, therefore, decision of OP No. 4 & 7 to stick to conservative treatment till the death of Bimla Devi was not the correct opinion when there was other suggestive method, when there was other clear cut method to clear the sepsis by way of Surgical Intervention. OP No. 7 should have kept in mind that in case heavy antibiotic are given, it may have its side effect and that was in the present case. It affected the vital organs and ultimately, the dose of antibiotic was so high that it affected all the major organs, which ultimately led resulting into the death of Bimla Devi. The cross-examination of Dr. N.C. Raina, who had clearly indicated that it was case of Peritonism. He has further suggested that normally bile is not present in the peritoneal cavity and on 22.10.2007, he had aspirated the sample of blood and bile and sent to the Lab for culture and sensitivity. The cause of death of the Bimla Devi is as under:-
"(a) severe metabolic acidosis;
(b) deranged renal (kidney) functions;
(c) multi-organ failure;
(d) sepsis;
(e) bradycardia.
The perusal of these causes are that the patient was not operated to clear the collection in the abdomen and seal the likely bowel Consumer Complaint No. 5 of 2008 19 perforation, which had been suffering during the course of the conduct of the laparoscopic hysterectomy and lead to development of toxaemia progressing to the known sequelae including kidney and lung complications and that infection and its progression in the blood stream of the patient was not controlled by the strongest available antibiotic. The said toxicity lead to a situation wherein the kidneys of the patient were rendered useless as the toxin levels built up in the body over a period of time unaffected by the medication which ultimately led to multi organ failure and sepsis.
10. So far as the judgments are concerned referred by Ops No. 4 to 8 i.e. "Poonam Verma Vs. Ashwin Patel & Ors.", (1996) 4 SCC 332 held that the negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. In another judgment, "Roe & Woolley v. The Ministry of Health and An Anaesthetist", (1954) 2 ALL ER 131, Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks." In another judgment, "Bolam v. Friern Hospital Management Committee", that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. If a medical man conforms with one of those proper standards then he is not negligent. It was further observed that in case we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think own safety than of the good of their patients." In another Consumer Complaint No. 5 of 2008 20 judgment, "Achutrao Haribhau Khodwa Vs. State of Maharashtra & Ors" (1996) 2 SCC 634 that the Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient." Same view has been held in another judgment by the Hon'ble Supreme Court in "Kusum Sharma & Others Vs Batra Hospital & Medical Research Centre & Others", 2010(2)RCR (Civil)-161(SC).
11. There is no difference with regard to the legal proposition settled in the judgments referred above. When as per the hospital notes the patient was in sepsis or perforated viscus, two of the Doctors are suggesting surgical intervention to clear the sepsis in the abdomen/pelvis, which is further corroborated from the CT Scan then the best way was to go for surgical intervention otherwise in case there is large collection of sepsis in the abdomen that cannot be cleared with the antibiotic and strongest antibiotics were given to the patient, which ultimately affected all the organs failure. The Doctor while suggesting the antibiotics should also keep in mind that ultimately, that in case the antibiotics are not able to clear the sepsis in the abdomen/pelvis, it may have side effect i.e. failure of organs, which ultimately, happened in this case in the death of Bimla Devi @ Bimla Gopal, therefore, surgical intervention was best option, which could have saved the life of deceased Bimla Devi. It happened due to bowel perforation/ Peritonitis, which was found in the deceased was due to some injury at the time of performing the operation by OP No. Consumer Complaint No. 5 of 2008 21
2. On the one side, OP No. 2 is taking plea that after 22.10.2007 she was not concerned with the treatment but the notes of the Fortis Hospital suggest that on 23.10.2007, she had vehemently opposed the surgical intervention of the patient and suggested to go for another opinion. Complainants are laymen, they does not know ABC of medical science. They had gone to OP No. 2 upon which they had faith and they accepted the advice of OP No. 2 and had gone for another opinion of OP No. 7, who suggested for conservative treatment and they agreed to it. It is not the opinion of the complainants but the Ops, who are medical experts, should have opted for the best medical treatment. In case they would have suggested that surgical intervention is the best treatment for the patient and in case the complainants would have objected to that then it could be said that surgical intervention could not happen due to objection of the complainants, therefore, the Ops cannot take the plea that they cannot go for surgical intervention on account of opposition by the complainants. The presence of the Doctor OP No. 2 has also been shown in operation notes of 24 & 25.10.2007.
12. Another plea has been taken by the Ops in their written statement that it was a case of un-common nosocomial infection, which is associated with prolonged hospitalization. But in this case, hospitalization is not prolonged one, she was admitted in the hospital of OP No. 4 on 22.10.2007 and died on 30.10.2007, it cannot be said to be a prolonged hospitalization.
13. So far as expert opinion is concerned, even the hospital notes referred above support sepsis in the abdomen of the patient for Consumer Complaint No. 5 of 2008 22 which surgical intervention was must as suggested by two doctors the no other expert opinion is necessary.
14. In case we analyse the entire facts and circumstances of the case, after the laparoscopic hysterectomy, the patient developed the problem; it cannot be managed by OP No. 2 and then it was referred to OP No. 4 where OP No. 6 and OP No. 8 pointed out that it is a case of peritonitis bowel perforation, therefore, surgical intervention is first but it was not accepted to OP No. 7, who suggested for conservative treatment, which could not be successful. In case the conservative treatment would have shown some progress then to some extent the opinion of OP No. 7 could be reasonable but he continued with this treatment till the death of the patient, which is not the proper management of the patient. Otherwise, in case the Doctors would have opted for surgical intervention then sepsis collected in the pelvis/abdomen could have been cleared and then the patient would have responded to the treatment. Moreover, heavy does of antibiotic was given without keeping in mind that these can affect the other organs, which ultimately the vital organs proving the cause of death of the patient, therefore, there is negligence on part of Ops No. 1 & 2 while performing the laparoscopic hysterectomy because there was injury in the intestines otherwise bile and blood in the Peritonism was not possible and when it was suggested by OP No. 6 that it could be aspirated by way of surgical intervention, the same was again objected by OP No. 2 so that it may not expose her action of causing injury to the intestine while performing the operation. Therefore, Op Consumer Complaint No. 5 of 2008 23 Nos. 1 & 2 as well as OP Nos. 4 & 7 are responsible, due to their medical negligence causing the death of Bimla Devi @ Bimla Gopal.
14. The next question is how much quantum can be given to the complainants on account of negligence on the part of the abovesaid Ops due to their negligence and for not giving the proper treatment to the patient. It has come on the record that the deceased was 60 years of age, household lady. In "Dr. Balram Prasad v. Dr. Kunal Saha and Ors.", MANU/SC/1098/2013 wherein it has been observed by the Hon'ble Supreme Court that a ladies contribution to the family in terms of money can always be worked out. Every housewife makes a contribution to his family. It depends upon her educational qualification, her own upbringing, status and husband's income etc. and in the same judgment estimated life expediency of the healthy person in the present age has been taken as 70 years. In that way, the deceased would have been alive for another 10 years and in case her contribution to the family is taken as Rs. 5,000/- per month, its annual contribution will come to Rs. 60,000/- and for 10 years, it is Rs. 6,00,000/-. Then certainly, the complainants had suffered a lot of pain and intense mental agony on account of untimely death of their mother and also spent a hefty amount on their treatment; therefore, on that account a sum of Rs. 5 lacs is awarded to the complainants. Complainants will further be entitled to Rs. 22,000/- as litigation expenses. They will further be entitled to interest @ 9% per annum from the date of filing of the complaint till payment.
16. The hospital will also be liable due to negligence of their doctors, therefore, liability be fixed for OP Nos. 1 & 2 on the one hand Consumer Complaint No. 5 of 2008 24 and OP No. 3, 4 & 7 on the other hand. OP Nos. 1 & 2 will borne 30% of the amount awarded whereas 70% will be borne by OP Nos. 3, 4 &
7. OPs are directed to comply with the abovesaid direction within 45 days from the receipt of copy of the order, failing which then proceedings under Section 25 & 27 of the C.P. Act can be initiated against them.
17. The complaint is accepted in the above terms.
18. The arguments in this consumer complaint were heard on 13.1.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
19. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
January 24, 2014. (Vinod Kumar Gupta)
as Member