State Consumer Disputes Redressal Commission
Shri Vijay Kumar Khanna, Kolkata-48 vs Dr. Srirup Chatterjee, Cardiac ... on 28 June, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO.SC/46/O/2006 DATE OF FILING:18/12/2006 DATE OF FINAL ORDER:28/06/2012 COMPLAINANTS : 1) Shri Vijay Kumar Khanna 2) Smt. Madhubala Khanna Both residents of VIP Towers, Block-B Flat-3A, 80, Golaghata Road Kolkata-700 048 OPPOSITE PARTIES : 1) Dr. Srirup Chatterjee Cardiac Surgeon At B. M. Birla Heart Research Centre, Kolkata Residing at Dover Court, Flat No.206 22, Dover Road, Kolkata-700 019 2) Dr. Anil Mishra, Cardiologist At B. M. Birla Heart Research Centre, Kolkata Residing at 4/1, Lord Sinha Road Kolkata-700 071 3) B. M. Birla Heart Research Centre, 1/1, National Library Anenue, Kolkata-700 027 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE COMPLAINANTS : In person Ld. Advocate FOR THE OPPOSITE PARTIES : Mr. R. Medora Ld. Advocate Mr. A. K. Sil Ld. Advocate Mr. D. Ghoshal Ld. Advocate Ms. Koyeli Mukhopadhyay Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT
1. The complainants have filed this case praying for compensation and other reliefs on the ground of medical negligence. The facts of the case may be summarized as follows:-
2. Gaurav Khanna, the only son of the complainants, aged about 23 years was working with a mercantile firm earning Rs.1 lakh approximately per annum and was an income tax assessee. On 17/01/05 at about 9.30 a.m. while on way to office, Gaurav Khanna complained of uneasiness and pain in the chest for the first time. The physician treated him for gastric trouble, but as the pain did not subside he was taken to Assembly of God Church Hospital where an ECG was done and the doctor advised admission. But the complainants took him to B.M. Birla Heart Research Centre (hereinafter referred to as B.M.B.H.R.C.). The ECG was done there and Gaurav Khanna was admitted to CCU bed no.225 immediately. Dr. Anil Mishra, Cardiologist Physician (OP No.2) referred the patient to Dr. Srirup Chatterjee on 20/01/05. The investigation was done by the OPs. The OPs diagnosed Gaurav Khanna for Aortic Valve leakage and advised for its replacement on 20th January, 2005 after investigation. Only the pros for surgery were informed and no negative consequences or probabilities were informed at all. The Cardiologist Physician was Dr. Anil Mishra and the Cardio Surgeon was Dr. Srirup Chatterjee. The patient was operated on 22/01/05 by OP No.1 and his team consisting of Dr. Simran Gupta (Anaesthesist) and Dr. Kunal Hazari.
3. It has further been stated in the complaint that Gaurav Khanna was shifted to room on 20/01/05 from CCU on charges of Rs.1400/- per day. The complainants were offered package of Rs.1.35 lakhs for operation. The patient desired T.V. facility and the hospital authorities changed his room with revision in package to Rs.1.75 lakhs. On 22nd January, 2005 the patient was taken to O.T. wherefrom he was never taken back to the room. The operation was done on 22/01/05 at 12.15 noon and it was completed at about 1 a.m. in the night of 22nd 23rd January, 2005, that is, after 13 hours. On 25/01/05 the complainants were told that the kidney of the patient had gone into auto shut and the patient was not passing urine due to acute renal failure.
Dr. Goutam Majumdar, Nephrologist was called to look into the case where he expressed his reservations about the method of treatment. On 1st February, 2005 the ventilator was removed, as a result of which the patient suffered Cardiac Arrest at 11 p.m. on 2nd February, 2005. He was again re-opened/re-explored. But no information was provided to the patient party. The patient party came to understand this fact from the Bed Head Tickets received from the OPs after much protest made after death of the patient.
The patient was again put on ventilator on 2nd February, 2005. On 11 February, 2005 the ventilator was removed but he was again put on ventilator within next 24 hours. On 13/02/05 the OP No.1 took the consent for Tracheostomy (hole in the throat).
The complainant party invited specialist Dr. Lalit Kr. Agarwal on 14/02/05 and lung specialist Dr. Pawan Agarwal on 15/02/05 respectively. They informed that the condition of the patient was deteriorating as pneumonia had attacked the patient and lungs were bleeding. On 15/02/05 the OP No.1 called the complainants at about 6.30 p.m. but never told about the impending death of the patient. The patient expired on 15/02/05 at about 8.30 p.m. as per death certificate issued by the hospital authorities.
4. It has been stated in the complaint that the OP No.1 adopted ROSS method and tissue valve was implanted. But neither any part of the body replaced was shown to them nor any of the OPs met the complainant party immediately after operation. The complainants were informed on 23/01/05 at about 7.30 a.m. that the operation was successful. The OP No.1 experimented for 13 hours. The complainants came to understand that the patient bled profusely in a continuous manner due to gross negligence. The complainants came to learn that the re-exploration was done on the patient around 3 a.m. that is, within two hours of the completion of the operation. The profuse bleeding due to act of negligence of the OP No.1 had a chain effect as it led to damage of kidney and ultimately resulted in the death of the patient. This gross negligence was committed during surgery. The reason for re-exploration within two hours after operation was not conveyed to complainant party, although they remained present in the hospital for the whole of the night. The OP No.1 did not meet the complainants after conducting the operation or after re-exploration. In the next morning the OP No.1 met the complainants and informed that the operation was successful but hid the facts of re-exploration and/or profuse bleeding.
Total 25 units of blood were taken by the hospital for treatment till the death of the patient on 15th February, 2005.
5. It has been stated in the complaint that after four days of surgery and re-exploration, the complainants were told that the kidney had gone into auto shut and there was acute renal failure.
This post operation acute renal failure happened due to gross negligence during and after surgery. It has been stated in the complaint that it was highly unethical that re-exploration was never informed and the fact was kept hidden only with the intention to hide the negligence committed by the OP during operation.
6. The OPs never informed the complainants that the ROSS method of surgery shall be followed. The ROSS method of surgery was done on the patient on experimental basis.
7. It has been stated that the OP No.2 till 20th January, 2005 never explained to the complainants as to the reason for emergent surgery by OP No.1. Before operation the OP s neither showed the 2D Echo CD/Plate or any other report to the complainants nor discussed about the health condition of the patient. The patient was normal and was not complaining of any chest pain prior to operation. The complainants could not understand why OP No.2 recommended surgery for valve replacement on an emergent basis as the only option. The complainants could not understand why any other alternative was not explored. The OPs had taken undue advantage and thus the complainants were emotionally misguided as they were not advised for any other alternative avenues except surgery.
The tests carried out or investigations done were never discussed with the patient party. The patients pre-operative assessment was not done properly. The blood report was also more or less normal and, as such, the patient should have recovered on medication itself.
The complainants were advised for surgery by the OPs with malafide intention to boost their revenues. The complainants were kept in dark about the current day to day health status of the patient. Both OP No.1 and OP No.2 always eluded the complainants. Inspite of asking they did not provide their mobile numbers nor did provide them with their residential address or telephone numbers. The approach of the OP was so negligent that although LVEF was 62% of the patient, even then immediate and emergent surgery was recommended and there was no time to rethink or to obtain second opinion.
8. As against OP No.3 it has been stated that the hospital realized Rs.40,000/- for one day T.V. facility. Haemo dialysis was advised by the Consultant Nephrologist Dr. Goutam Majumdar of the OPs, but this was not performed on the patient and instead the patient was put on peritoneal dialysis which was less effective procedure in a case of acute renal failure. Nephrologist was called for confirmation of the action taken by the doctor which was apparently done only to shift the responsibility of the Surgeon Dr. Srirup Chatterjee. It would appear from the comments of Dr. Goutam Majumdar that the line of treatment adopted was not correct and it should have been treated differently.
The OPs were found lacking in providing proper Haemo dialysis and as they did not have the proper equipment for conducting the same, they did Haemo filtration which equipment also went out of order after working for a day and no recourse was taken to restore which indicates gross negligence on the part of the OPs. The request of the complainants for restoration of machine for Haemo filtration was ignored. The fact of the poor and deteriorating condition of health of the patient was never informed to the complainants. The approach of the OPs was very casual. Inspite of request made verbally and also vide letter dated 14/02/06 and 21/02/06 to the OPs they did not provide the complainants with Echo CD/Plate of Echo screening done on the basis of which the OPs claim to have advised for surgery.
The complainants doubted malafides as they are sure that it will not corroborate the report given.
9. It has been stated in the complaint that the OPs allured the patient mentioning that OP No.3 had assistance/collaboration with the Cleveland Clinic Foundation, Ohio, USA. The complainants had every reason for doubt whether in this case any assistance or consultation was done with the Cleveland Clinic Foundation for the line of treatment to be taken for pre or post surgery including whether ROSS method of surgery should be done on the patient or not. Upon assessing the patient at normal risk, the OPs offered total package of Rs.1.35 lakhs + valve cost of Rs.55,000/- totalling to Rs.1,90,000/-.
Subsequently because of television facility the package was increased to Rs.1,75,000/- + Rs.55,000/- as valve cost totalling to Rs.2,30,000/-. A package is the break up of all costs involved and, as such, no further charges can be levied or demanded, otherwise there is also a violation of provisions of Clinical Establishment Act which amounts to unfair trade practice under the Consumer Protection Act, 1986. The above payment of Rs.2,30,000/- was initially made by the complainants through Gaurav Khannas Mediclaim Policy for Rs.2,50,000/- + accumulated bonus of Rs.67,500/- totalling to Rs.3,17,500/-. Since the TPA on approach by the OPs needed some time to sanction the cashless reimbursement facility, the complainants were compelled by the OPs to deposit the sum of Rs.2,55,000/- in cash on the previous night of the surgery.
This deposit was done on the premise that this amount shall be immediately refunded to them upon receipt of the sanction from TPA. At the time of discharge as per the agreed total package of Rs.2,30,000/- the complainants were to receive the refund of Rs.2,55,000/- deposited in cash on 21/01/05, as in the mean time sanction from TPA had been received by the OPs. But instead the complainants were given a bill for Rs.9,63,000/- revised to Rs.8,75,500/- and they were asked to pay the balance amount after adjusting Rs.2,55,000/- deposited in cash and also the mediclaim amount of Rs.3,17,500/- received from TPA. The complainants had no option but to pay the said amount under duress as the OP would release the dead body only after the receipt of the above amount. There is discrepancy in the letter dated 10/09/05 and the bill issued by B.M.B.H.R.C. The agreement/consent for package was not signed by the complainants. The complainants approached Indian Medical Association, West Bengal Medical Council, Maharashtra Medical Council, Minister-in-Charge, Government of West Bengal, Director of Health, Government of West Bengal, Deputy Director, Health Services, Government of West Bengal and it was not only time consuming and harassment but also no effective response was received till the filing of the complaint. Doctors practising in the state should get themselves registered in that state, but the OP No.1, Dr. Srirup Chatterjee has been practising in the State of West Bengal whereas he got himself registered with the Maharashtra Medical Council. It is a fallacy of the system that a doctor registered in Maharashtra has been practising in West Bengal with the Maharashtra Medical Council having no control over him.
10. The complainants have prayed for the following reliefs:-
a) Compensation of a sum of Rs.89,44,200/- (Eighty Nine Lacs Forty Four Thousand Two Hundred) be awarded against the opposite parties Dr. Srirup Chatterjee, Dr. Anil Mishra and B. M. Birla Heart Research Centre and in favour of the complainants as per calculation thereof in Annexure-34 of this complaint.
b) Refund of excess amount of Rs.6,85,500/- from the Original Package Rs.1,35,000/- plus valve cost Rs.55,000/- = Total Rs.1,90,000/- minus Rs.8,75,500/- actually paid.
c) Cancellation of medical practitioners licence of opposite parties no.1 and 2 for their gross negligence.
d) Directives to State Government to frame law ensuring registration of doctors practicing in the state to register themselves with the State Medical Council.
e) Appointment of government nominees for managing the hospital.
f) Package system should be transparent.
g) Any other reliefs as may be thought fit by this Honble Commission.
11. The complainants have referred to the decisions in the case of Joginder Singh and Others Vs. Dr.Rajeev Kr. Majumdar and Others (NC) 2009 CPJ 9; 2009 (9) SCC 22 [Malay Kr. Ganguli Vs. Dr. Sukumar Mukherjee & Ors.]; Civil Appeal No.1727 of 2007 [Dr. Kunal Saha Vs. Dr. Sukumar Mukherjee & Ors.]; I (2008) CPJ 56 (SC) [Samira Kohli Vs. Dr. Prabha Manchanda & Anr.]; Complaint Case No.C 368/1998, SC Delhi [Sri Md. Aajmal Vs. M/s Apollo Hospital and Anr.]; Civil Appeal No.4119 of 1999 (SC) [Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors.]; 2005 SCCL.COM 456 [Jacob Mathew Vs. State of Punjab and Anr.]; Judis.nic.in [M/s Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia]; First Appeal No.597 of 1995 (NC) [Dr. Sailesh Shah Vs. Aphraim Jayanand Rathod]; 2005 (6) SCC 344 [Salem Advocate Bar Association Vs. Union of India]; 2010 (SCC 1.Com 288) [V. Kishan Rao Vs. Nikhil Superspeciality Hospital and Anr.]; SC Case No.CC/76/2008 (WB) [Smt. Jayasree Chowdhury and Ors. Vs. B.M. Birla Heart Research Centre and Ors.]; IV (2004) CPJ 40 (SC) [Smt. Savita Garg Vs. The Director, National Heart Institute]; Baburao Vithal Lohakpure & Ors. Vs. Smt. Suniti Devi Singhania Hospital Ors. [Consumer Complaint No.44 of 1987 NC]; (1968) SCR (3) 862 [Gopal Kishanji Katkar Vs. Md.
Haji Latif & Ors.]; Ramesh Ch.
Agarwal Vs. Regency Hospital Ltd. & Ors. [Civil Appeal No.5991 of 2002 SC].
12. The OP No.1 has not filed any W.V.
13. The OP No.2 Dr. Anil Mishra has filed W.V. contending, inter alia, that he is an employee of B.M.B.H.R.C. Whatever treatment he had extended to Late Gaurav Khanna, it was so extended by him as an employee of OP No.3. For service rendered to the patient no consideration was paid to him either by the patient or by the complainants. The complainant no.1 is not the legal heir of the patient and has no right to file the present complaint. From the complaint it would appear that for the treatment of the patient Rs.8,75,500/- was paid to the OP No.3 being the value of service. When the patient was admitted on 17/01/05 around 3.50 p.m. as an emergency case to Coronary Care Unit of OP No.3 with two episodes of acute chest pain, each episode lasting for half an hour, he was examined by Dr. Tanuja Dey and diagnosed to have significant Aortic Regurgitation and suspected to have acute Coronary Syndrome. Basic investigations were made and bed side Echocardiographic screening was performed which showed Bicuspid Aortic valve and Grade-3 Aortic Regurgitation with mild dilatation of Left Ventricular Cavity. On the same day in the evening the father of the patient met him and he apprised him of the diagnosis.
14. On 18/01/05 the patient was haemodynamically stable. A Colour Doppler Echocardiogram was conducted for more accurate assessment and it confirmed as severe Aortic Regurgitation (Grade-4) on Bicuspid Aortic valve with dilated ascending aorta and left ventricular volume overload. The father of the patient met in the evening and he was informed of the severity of Aortic Valve leakage and the treatment option was discussed with him. It was explained to him that once symptoms developed in severe Aortic Regurgitation, the outcome was not as good with medical treatment, as with surgical treatment by valve replacement. The complainant no.1 wanted some time to think about it. Medical treatment continued.
15. On 19/01/05 there was no significant change in the condition of the patient awaiting decision of the complainant no.1.
Everything was explained to the complainant no.1 by OP No.2. at length including various types of hospital packages (open or closed etc.) for surgery, cost of valves etc. Complainant No.1 was still not sure about giving consent and wanted some more time to think over it.
16. On 20/01/05 the patient had two more episodes of chest pain at 9.30 a.m. and 3 p.m. Medications were given and it settled. The complainant no.1 agreed to consider Aortic Valve Replacement surgery (AVR) and the patient was referred by OP No.2 to Dr. Srirup Chatterjee, the OP No.1, Sr. Consultant Cardiac Surgeon at B.M.B.H.R.C. for his opinion. Dr. Chatterjee examined the patient on the same day and opined that the patient required AVR and provisionally fixed 22/01/05 as the date of surgery. The complainant no.1 was asked to meet Dr. Chatterjee the same evening to discuss various surgical options. The complainant no.1 had discussed the matter with Dr. Chatterjee and agreed for surgery.
17. On 21/01/05 pre-operative work of the patient was performed. The complainants and patient having agreed for surgery executed the consent form in the evening of 21/01/05. On 22/01/05 surgery was performed by Dr. Chatterjee and his team successfully and the patient was transferred to ITU for post surgical care. The OP No.2 was not present at the time of surgery. The patient was put under ventilation. In the early morning of 23/01/05 the patient had bled up more than usual from his chest drain. Re-exploration was done in OT to look for cause of excessive bleeding post-operatively by Dr. Chatterjee and his team and was again transferred to ITU.
On subsequent dates the patient was referred to Nephrologist, Dr. Goutam Majumdar who diagnosed it as Acute Tubular Necrosis and suggested to start CAVHDF with Haemofilter Cartridge at bed side.
Haemofiltration was done. On 15/02/05 the condition of the patient started deteriorating and became haemodynamically unstable despite full inotropic support.
The details of treatment have been given in the bed head ticket and other treatment papers. The OP No.2 has denied the material allegations as raised in the complaint.
18. During the stay of the patient with the OP No.3 the complainant no.1 used to see OP No.2 regularly in the evening and discussed about the patient, his diagnosis, investigations, treatment options etc. The OP No.2 being a full time consultant of OP No.3 was available in the hospital building all the day from morning to night and in case of emergency he used to get call from the hospital. The OP No.2 has stated in the W.V. that the complaint was filed with malafide intention to harass him and tamper his professional reputation.
19. The OP No.3 has filed W.V. contending, inter alia, that the patient was admitted in the hospital on 17/01/05 and immediately after admission necessary treatments were started. On 20/01/05 the patient was shifted to room from CCU and subsequently on request of the complainants the patient was shifted to a better room with better facilities including T.V. The extra charge which was billed was not for T.V. but such charge was due to spacious room and many other value added services. For the extra facility and care, charges were high in the semi private room. Both Haemo dialysis and Haemo filtration can be effective treatment for kidney auto shut or acute renal failure. The patient was given Haemo filtration taking into consideration the post operative condition of the patient and for the reason that said equipment was readily available with the OP No.3 which was to be applied at the bed side without making any disturbance to the patient. It has been denied that the treatment adopted by the OPs was not correct. The OP No.3 took all possible measures along with service engineer of the equipment company to restore the Haemo filtration equipment.
As soon as there was malfunctioning, the same was set right at the earliest. The said equipment was under
Annual Maintenance Contract and, as such, any break down of the equipment during the period cannot be termed as negligence. It has been denied that no recourse was taken to restore the equipment. The Haemo filtration equipment was repaired and put to use within shortest possible time and it is false to say that the request for restoration of the machine was ignored. The OP No.3 duly informed the patient party of the condition of the patient as and when the same was enquired. The complainant was updated with regard to the day to day condition of the patient. The OP No.3 has duly handed over the Echo report on 28/02/05. At no point of time the interference of the Cleveland Clinic was discussed by the patient party with the OPs. As the complainant never requested for such consultation with Cleveland Clinic, the same was not done by OP No.3.
20. The OP No.3 has annexed with the W.V. a specific schedule of charges under the head Surgery Packages for normal and/or elective CABG/AVR/MVR. The packages were duly explained to the complainant before the surgery and he after going through the schedule of charges accepted the open package for surgery by signing the consent form. The complainant accepted the open package of Rs.2,60,000/- with the break up as :
a) Cost of Surgery = Rs.1,75,000/-
b) Cost of Valve = Rs.
55,000/-
c) Extra cost for ROSS procedure = Rs. 30,000/-
Total = Rs.2,60,000/-
As per the abovementioned package the cost of surgery involved the maximum of eleven days stay, doctors fees for operation, post operative visits of treating cardiologist and surgeon, nursing care, physiotherapy and dietician charges, normal intra-operative drugs and medicines, routine biochemistry/hematology investigations, x-ray and ECG, Cardiac Stabiliser, membrane oxygenarator and CPB machine charges and Blood Bank facilites.
21. The OP No.3 has further averred that the patient underwent surgery on 22/01/05, but the patient could not sufficiently recover after the surgery and remained on ventilatory support for a long time beyond the estimated normal stay. Due to the critical condition of the patient, the stay was beyond the stipulated days as offered in the open package. Therefore, the complainant had to bear the charges outside the packages. The best of critical care treatment was provided to the patient whereby the complainant incurred the cost of Rs.8.75 lakh. The OP No.3 has denied any violation of the provisions of Clinical Establishment Act amounting to unfair trade practice.
The OP No.3 had denied that the OPs released the dead body only on receipt of the payment. The doctors fees and hospital charges are separate for all operations who are admitted in the OP No.3 and, accordingly, necessary charges were made. The OP No.3 has denied that there was any nexus between the OPs in raising the bill.
The condition of the patient was informed on daily basis and further as and when required. The medicines which were administered to the patient were very expensive medicines, the price of which was not controlled by the OPs. Doctors who practise with the OP No.3 have legitimate and proper permission to practise in West Bengal. The complainants were not entitled to get any compensation. The payments have been made with full consent and free will of the complainants and for the legitimate charges of the OPs.
22. The complainant no.1 has argued in person.
He has filed BNA. The complainant no.1 has argued that the principle of res ipsa loquitur is applicable in the facts and circumstances of the instant case.
It is contended that there is not only medical negligence but also deficiency in service in different aspects. It is contended that the patient was recommended for immediate AVR surgery on the basis of 2D Echocardiogram. The OP No.1 conducted the surgery under the ROSS procedure which was non-conventional, much more complicated and technical and highly demanding on the skill of the surgeon and his team. The OP No.1 did not inform the patient party that he would conduct the operation under non-conventional ROSS method. In the consent form there is no mention of the ROSS procedure and at the bottom of the consent form at Page-69 of the annexures to the complaint there is no signature of the surgeon, the OP No.1. The complainant has submitted some medical literature and argued that the surgeon himself ought to have signed the consent form. The OPs did not consider any alternative to AVR surgery and did not apprise the patient party to that effect. It has been contended by the complainant no.1 that the immediate AVR Surgery was not required.
23. The complainant no.1 has submitted that the OP No.2 is a Member of the Governing Body of the Hospital and responsible for boosting the commercial gains of the OP No.3. It has been contended that the patient party was emotionally blackmailed to give consent by recommending immediate surgery for survival. The 2D Echo CD Plate was not provided to the patient party.
24. The complainant no.1 has submitted that the operation was performed on 22/01/05 and it took long 13 hours. There was profuse bleeding immediately after surgery and the patient was re-explored immediately after operation. Re-exploration was again done after 10 days, that is, on 02/02/05.
The patient had an episode of hypotension during and after surgery leading to Anuria and the hospital authority called the Nephrologist Dr. Goutam Majumdar.
25. It has been contended by the complainant no.1 that the surgeon (OP No.1) was not skilled enough to carry out such complicated surgery under ROSS procedure, that is why it took abnormal time of 13 hours instead of normal 3 to 4 hours. The patient was bleeding post-operatively. It has been contended that the surgeon has cut through the scalpel at the wrong place which has led to uncontrollable profuse bleeding. It is contended that the re-explorations were not informed to the patient party and the consent for such re-exploration was not obtained.
26. It has been contended that the patient had suffered cardiac arrest on 02/02/05, that is, 11 days after the operation which was sufficient to prove deficiency in service. The Nephrologist Dr. Goutam Majumdar recommended Haemo dialysis and since the hospital (OP No.3) did not have such facilities Dr. Majumdar recommended the shifting of the patient to CMRI which was within the same compound.
The alternate method of Haemo filtration could not be fruitful because of the malfunctioning of the equipment and even then the patient was not shifted to CMRI for Haemo dialysis, although recommended by Dr. Goutam Majumdar. The patient was left to die till the breakdown was repaired but not shifted to CMRI for Haemo dialysis. The patient party was not informed about the malfunctioning of Haemo filtration equipment. The complainant no.1 has referred to the annexures to the complaint. The bed head tickets were supplied to the patient party about a month after the death of the patient.
27. The complainant no.1 has submitted that the exorbitant amount of Rs.8,75,500/- had to be paid by the complainant no.1, although the package was for Rs.2,60,000/-. The complainant has filed some medical literature in support of his contention namely, Bailey & Loves Short Practice of Surgery, 24th Edition, edited by R.C.G. Russell, Norman S. Williams, Christopher J.K. Bulstrode; Code of Ethics Regulations, 2002; The West Bengal Clinical Establishment Rules, 1951, as modified upto 31/01/01; Cardiothoracic Surgery University of southern California Keck School of Medicine (http://www.cts.usc.edu/hpg-valvesoftheheart.html); Surgical Safety Checklist (WHO) and your total health ( http://yourtotalhealth.ivillage.com/ross-procedure.html?pageNum=8).
28. The OP No.2 has filed B.N.A. The Learned Counsel for the OP No.2 and 3 has submitted that the relief claimed by the complainants has exceeded the pecuniary jurisdiction of this Commission. It has been submitted that under Section 2(1)(b)(v), the complaint by the father of the deceased is not maintainable, in as much as, he is not the class-I heir. It is submitted that OP No.2 is a full time employee in the hospital (OP No.3) and no consideration was paid directly to OP No.2. It is contended that the complaint against OP No.2 is not maintainable. It is contended that Dr. Mishra (OP No.2) is a member of the Trust Board and the treatment done by him had nothing to do with the trusteeship. The Learned Counsel has referred to the treatment sheet and other papers being annexures to the complaint and submitted that after surgery there was improvement in the condition of the patient. It is contended that the alleged emotional blackmail and forcing the patient party to opt for surgery are not acceptable, in as much as, the complainant no.1 had written a letter to the Director of Health Services as appearing in page-30 of the annexures to the complaint, stating that the hospital authorities disclosed that it was a case of normal risk and allowed a time of one month to the complainant, but the complainant party insisted on immediate surgery. It is contended that the OP NO.1 and OP No.2 explained to the patient party at different stages about the surgery to be conducted and the complainant no.1 had taken sufficient time to give consent for the surgery. The Learned Counsel for the OP No.2 has submitted that according to the established norms as evident from the medical literature and the provisions of Clinical Establishment Act the operating surgeon is not required to sign the consent form and it would be sufficient if any member of the team puts signature in the consent form on behalf of the surgeon.
29. It has also been contended that an MA 125/12 has been filed for adducing additional evidence in respect of the opinion of two Nephrologists and the agreement between CCF and CMI. The complainants have filed written objection against the MA 125/12.
30. It has been contended by the Learned Counsel for the OP No.2 that ROSS method is one of the techniques for conducting AVR and it was sufficiently explained to the patient party. The complainant no.1 in a letter written to the Deputy Director mentioned that the operation was conducted by ROSS procedure. It is contended that for conducting re-exploration fresh consent was not necessary in view of provision contained in Clause-5 of the consent form. It is submitted that the West Bengal Medical Council Code has no statutory force and nowhere it was mentioned that the operating surgeon is to sign the consent form. It is contended that the patient and his parents signed the consent form as it appears from the page-70 of the annexures to the complaint.
31. It has been contended by the Learned Counsel for the OP No.2 and 3 that renal failure was taken care of according to standard medical practice. It has been contended that CRRT was better choice than Haemo dialysis (HD). It is contended that surgery was the only way and it was for the surgeon to decide which procedure was to be adopted. It is contended that in respect of person aged 23 years, ROSS procedure was the appropriate method of surgery as per the medical literature submitted by OP No.2. It is submitted that the Expert Committee has submitted report in the form of question answer from which it would appear that there was no negligence on the part of the OPs. The Learned Counsel submits that the report of the Expert Committee cannot be discarded.
32. The Learned Counsel for the OP No.2 and 3 submits that so far as the compensation is concerned there is no document to show that the deceased had a permanent job. It is submitted that the complainants are not entitled to get any compensation. The Learned Counsel has referred to the decisions reported in 2009(1) CPJ 32 (SC) 4 Paragraph-41 [Martin F. DSouza Vs. Mohd. Ishfaq]; 2005 (6) SCCL. COM 456 Paragraph-29 [Jacob Mathew Vs. State of Pubjab and Anr.]; 2009 SCCL.COM 680 Paragraph-12 [C.P. Sreekumar M.S. (Ortho) Vs. S. Ramanujam]; 2007 (II) CPJ 235 (NC) [ Upasana Hospital and Anr. Vs. S. Farook]; (2000) 1 SCC 66 Paragraph-6 [Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines and Anr.]; (1972) 4 SCC 181[Rao Saheb Vs. Rangnath Gopalrao Kawathekar (Dead by L.RS. and Ors.]; III (2002) CPJ 211 (NC) [Dr. S. Gurunathan (Dead) Vs. Viyaya Health Centre]; III (2007) CPJ 61 Paragraph-4 [Kusturi Ultra Sound Clinic Vs. Nikhil Kundu]; Consumer Complaint No.44(NC) [Baburao Vithal Lohakpure Vs. Smt. Suniti Devi Singhania Hospital]; II 1996 CPJ 103 (NC) [Quality Foils India Pvt. Ltd. Vs. Bank of Madura Ltd and Anr.]; 2010 CTJ 241 (SC) [Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre and Ors.]; III 1995 CPJ (I) SC [Indian Medical Association Vs. V.P. Shantha and Ors.]; (I) 2004 CPJ 3 NC [Rabinarayan Sahoo Vs. Dr. B. Jayaram Patra & Ors.]; 2009 CTJ 472 (Supreme Court) 9CP) [Ms. Ins. Malhotra Vs. Dr. A. Kriplani & Ors.]; (1996) 2 Supreme Court Cases 634 [Achutrao Haribhau Khodwa & Ors. Vs. State of Maharashtra & Ors.]; (2009) 6 Supreme Court Cases 121 [Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr.]; IV (2011) CPJ 414 (NC) [Kunal Saha (Dr.) Vs. Sukumar Mukherjee & Ors.]; (1998) 4 Supreme Court Cases 539 [Punjab Urban Planning & Development Authority Vs. Shiv Saraswati Iron and Steel Re-rolling Mills]; Original Petition No.61 of 1996 (NC) [Smt. Saroj Chandhoke Vs. Sir Ganga Ram Hospital]; 2002 CTJ 692 (NC) [Con Dcor Rep. by its Managing Partner Vs. Smt. Smritikana Ghosh & Anr.]; 2006-(003)-CPJ-0414-SCDEL [S.C. Mathur & Ors. Vs. All India Institute of Medical Sciences and Ors.]; II (2006) CPJ 348 (NC) [Saleemuddin & Ors. Vs. Dr. Sunil Malhotra]; II (2009) CPJ 263 (NC) [Master Nitish Sethi & Ors. Vs. Dr. Naresh Trehan & Ors.]; 2008 CTJ 293 (CP) (SCDRC) [Baby Akanksha (Minor) Vs. Kukreja Nursing Home]; 2006 CTJ 571 (CP) (SCDRC) [Mukesh Premchand Gurnani and Anr. Vs. Dr. Pradeep Patil]; IV (2004) CPJ 40 (SC) [Smt. Savita Garg Vs. The Director, National Heart Institute]; III (2005) CPJ 56 (NC) [Sheela Hirba Naik Gaunekar Vs. Apollo Hospitals Ltd. Chennai & Anr.]; I (2006) CPJ 114 [ Krishna Hospital & Ors. Vs. P. Shanti & Ors.].
33. The Learned Counsel for the OP No.1 has submitted that apart from Dr. Srirup Chatterjee there were other doctors in the team who have not been impleaded and, as such, the case is bad for want of necessary parties. It is contended that the complainants have come with unclean hands and on that score the case should be dismissed. It is submitted that the burden of proof lies upon the complainants. It is submitted that there was informed consent and there was no deficiency in service from any standpoint. It is contended that the complainants are not entitled to get any amount of compensation.
34. The Learned Counsel for OP No.1 further submits that when the Expert Committee has submitted its report to the effect that there was no negligence, there is no ground to reject its opinion. It is submitted that following a particular method of surgery, namely, ROSS procedure, would not, ipso facto, suggest that because of that procedure the patient died and that there was negligence on the part of the surgeon. It is submitted that the surgeon is not supposed to give his mobile number to the patient party. The residential address of the surgeon was known to the complainants. It is submitted that there is no legal mandate to get the name of OP No.1 registered in a particular state where he has been practising. It is submitted that the OP No.1 took due care and caution in performing the operation and there was no negligence on his part.
35. The Learned Counsel for the OP no.3 has submitted that it has been wrongly stated in the complaint that Rs.40,000/- was charged as one days charge for the T.V. It is submitted that the T.V.
charge is included in the amount of package.
It is submitted that the advice of the Nephrologist Dr. Goutam Majumdar was followed.
36. The Learned Counsel for the OP No.3 has submitted that nowhere in the bed head ticket or other papers of OP No.3 the word collaboration with Cleveland Clinic was mentioned. It was only mentioned with the assistance of Cleveland Clinic Foundation, Cleveland, Ohio, U.S.A. It is contended that the word assistance does not mean that the patient party would get assistance from that Clinic. It is contended that costly medicines were given and the same have been shown in the detailed bill and it cannot be said that the bill was defective.
It is contended that the patient was withdrawn from ventilation considering his state of health and it cannot be said that for that reason there was cardiac arrest. It is submitted that cardiac arrest can happen at any time.
It is submitted that the complainants contention of getting no opportunity for second opinion is not correct being an after-thought. It is submitted that the patient party called Dr. Lalit Kr. Agarwal and Dr. Pawan Kr. Agarwal for consultation. As regards the malfunctioning of Haemo filtration machine it is contended that the machine was repaired within two hours and the mechanical breakdown cannot be said to be deficiency in service in view of the decision reported in 2006 CPJ 114 [Krishna Hospital & Ors. Vs. P. Shanti & Ors.] (Supra). It is submitted that the initial burden is upon the complainants to prove the case of medical negligence and there is no evidence contrary to the evidence of the Expert Committee.
37. As regards the question of maintainability of the complaint and whether the complainants can be said to be consumers or not, it has been contended by the Learned Counsel that OP No.2 is a full time employee in OP No.3 and he receives salary from OP No.3. It is contended that the complaint against the OP No.2, under such circumstances, is not maintainable. It is the contention of OP No.2 as appearing from the answer to question no.25 that it was open special semi private package which was accepted by Mr. V. Khanna and he declined to accept the closed package. It is the case of the OP No.2 and 3 that it was a case of open package accepted by the complainants. As against the answer to question no.27 the OP No.2 has stated in reply that the open package includes three days in ITU and eight days in room bed, OT charges, consumable and medicines used, investigations during these eleven days and professional fees for the doctor. The final bill as appearing in the annexure to complaint also shows fees for the doctors. It is, therefore, clear that the complainants having paid fees for the doctors including OP No.2 in connection with the treatment of their son, are consumers.
38. It has been contended by the Learned Counsel for the OP No.2 that the patient expired and the complainants being the parents of the deceased filed this complaint. In this connection the Learned Counsel has drawn our attention to the provision contained in Section-2(1)(b)(v) as to the definition of complainant wherein it has been provided that in case of death of consumer, his/her legal heir or representative; who or which may make a complaint. The Learned Counsel further submits that according to Hindu Succession Act, father is not included as class-I heir and, as such, the complaint filed by the complainant no.1, the father of the deceased, is not maintainable. It appears from the evidence on record that the parents took their son to the OP No.3 for treatment and deposited the fees for AVR surgery. The patient expired. But the parents who deposited the money and hired the services of the OPs for treatment of their son are consumers within the meaning of Section-2(d)(ii) of the Consumer Protection Act. The case, therefore, filed by the complainants being the parents of the deceased is maintainable. The objection raised by the Learned Counsel for the OP No.2 in this regard, is not acceptable.
39. As to the question of informed consent, it is the contention of the complainants that the operating surgeon, that is, OP No.1 ought to have signed the consent form, otherwise it would be a case of deficiency in service. In this connection the complainants have referred to the Code of Ethics Regulations, 2002 (published in Part-3, Section-4 of Gazette of India dated 6th April, 2002), Medical Council of India, notification dated 11th March, 2002. The complainants have referred to the provision contained in Point No.7.16 which runs thus:- Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of minor, or the parent himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed.
40. On this point the Learned Counsel for the OP No.2 and 3 has referred to the decision of the Honble Apex Court in the case of Samira Kohli Vs. Dr. Prabha Manchanda and Anr. [Appeal (civil) 1949 of 2004 Paragraph-32] wherein it has been held that the adequate information is required to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he would submit himself to the particular treatment or not. It is contended by the Learned Counsel for the OP No.2 that there is no specific law to the effect that the surgeon performing the operation should himself sign the consent form. It is contended by the Learned Counsel relying on the decision in the case of Samira Kohli that if any member of the team of surgery puts signature in the consent form on behalf of surgeon, it would be sufficient. It is also contended that for the purpose of re-exploration fresh consent is also not necessary.
41. The complainants in this connection have submitted that re-exploration was done a few hours after the operation without informing the complainants. It is contended by the complainants that for the purpose of re-exploration fresh consent is necessary. Surgery/Anesthesia Consent Form is at Page-69 of the annexures to the complaint, wherefrom it appears that both the complainants and the patient signed the consent form on 21/01/05 at 5.12 p.m. Someone had also signed on behalf of Dr. Srirup Chatterjee, the surgeon who performed the AVR surgery. Clause-3 of the consent form contains a clause that during the course of operation unforeseen conditions may be encountered which may necessitate surgery or other procedure in addition to or different from those contemplated and the consent has been given to perform any such additional surgery or other procedures as may be deemed necessary. Clause-5 of the consent form shows that the consent has been given in case the patient may develop bleeding complications for which a re-operation may be necessary.
The consent form has been written in English and the complainants and the patient had put their signatures in English. Having heard both sides and on perusal of the papers and evidence adduced by both sides we are of the considered view that the consent form was duly signed by the patient and his parents and somebody signed on behalf of the OP No.1. Moreover in the Operation Note at page-2 of the annexures to the complaint it has been stated that AVR surgery was done by ROSS procedure. The re-exploration has also been authorized by the complainant party and, therefore, there is no deficiency in service or negligence on the part of the OPs in obtaining the informed consent.
42. It is the contention of the complainants that the OPs emotionally blackmailed the complainants and without discussing anything about any alternative to surgery, they compelled the complainants to opt for surgery. The complainants have also argued on the point of non-supply of 2D Echo CD and submitted that it was the basis of the diagnosis. In this connection the Learned Counsel for the OP No.2 has referred to page-30 of the annexures to the complaint being the letter dated 02/01/06 addressed to the Director of Health, Government of West Bengal. The complainant no.1 mentioned in Paragraph-1 and 2 of that letter that his son was admitted to B.M.B.H.R.C. under Dr. Anil Mishra for check up on 17/01/05 and thereafter the case was referred to Dr. Srirup Chatterjee as operable one. It has further been stated that the hospital authorities decided to discharge his son from the hospital on 20th January, 2005 and advised that the patient might be operated within a month as the patient had a case of normal risk. The complainant no.1 further stated therein that on that date in lieu of discharging his son he along with other members of his family decided for operation without waiting a month and on 22nd January, 2005 his son was taken to OT for AVR surgery at 10.30 a.m. and released therefrom at 1 a.m. on 23rd January, 2005. This statement of the complainant no.1 in the letter dated 02/01/06 addressed to the Director of Health Services that the hospital authorities decided to discharge his son on 20/01/05 and advised that the patient might be operated within a month being a case of normal risk, is completely different from the averment made in the complaint. Such being the position, we are of the considered view that the contention of the complainants as to emotional blackmailing by the OPs and without discussing about the alternative to surgery the AVR was done or that the diagnosis was done on the basis of 2D Echo CD, is not acceptable. Under the aforesaid circumstances, the diagnosis and the decision for AVR surgery cannot be called in question.
43. The Learned Counsel for the OP No.2 has submitted that the complainants have prayed for compensation of Rs.89,44,200/-, refund of excess amount of Rs.6,85,500/-.
It is contended that the amount of compensation and the value of the services availed, if taken together, would exceed Rs.1 crore and in that case the complaint before this Commission is not maintainable. We are of the considered view that the package was for Rs.2.60 lakhs and this amount if added with the amount of compensation claimed, would not exceed Rs.1 crore.
The complaint is, therefore, within the pecuniary jurisdiction of this Commission.
44. It is the contention of the complainants as appearing in the complaint and in the evidence and BNA that ROSS procedure is more risky than the conventional mode of AVR surgery. The complainants have submitted some medical literature, namely, Bailey & Loves Short Practice of Surgery 24th edition, edited by R.C.G. Russell, Norman S. Williams, Cristopher J.K. Bulstrode, from which it would appear that in case of ROSS procedure, there would be excessive bleeding and possibility of renal failure. The complainant further contends that in case of ROSS procedure pulmonary valve is also affected for which no consent was obtained. It is contended that AVR surgery relates to Aortic Valve only.
45. On the point of ROSS procedure the Learned Counsel for the OP No.2 has produced some medical literature and submitted that since the age of the patient was 23 years the ROSS procedure was the best method of surgery.
46. The complainants have contended that ROSS procedure was not mentioned in the surgery/anesthesia form and he has referred to the evidence of the OPs. We have gone through the papers submitted by both sides and evidence on record. ROSS procedure is an accepted mode of AVR as appearing from page-3 of the medical literature submitted by the Learned Counsel for the OP No.2 under the heading Heart Surgery Aortic Valve Surgery (Current URL: http://my.clevelandclinic.org/heart/disorders/valve/aortiacvalvesurgery.aspx). At page-3 the types of AVR surgery have been enumerated as follows:
Aortic Valve Repair Aortic Valve Replacement Mechanical Valve Biological Valve Homograft Valve ROSS procedure (also called the Switch operation)
47. In the case of Kusum Sharma and Ors. Vs. Batra Hospital and Medical Research Centre and Ors. reported in 2010 CTJ 241 (SC) (CP) it has been held in Paragraph-94/(V) as follows:-
In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
48. The complainants have referred to the report of the Expert Committee and submitted that none of the doctors of the Expert Committee had any experience of performing surgery by ROSS procedure.
The Expert Committee in this case was formed vide order no.30 dated 09/11/09 of this Commission and under the direction of the Honble National Commission in connection with Revision Petition No.2705/09. The Expert Committee initially submitted its opinion stating that there was no negligence.
Thereafter parties were allowed to send their questionnaires to the Expert Committee vide order dated 09/07/10 in connection with MA 158/10 and the Expert Committee had submitted its answers as against the questionnaires submitted by the parties. It would appear from the report of the Expert Committee as against the question put by OP no.1 that there was no negligence on the basis of available records as against OP No.1.
49. As regards the efficacy of ROSS procedure, the complainants have put a number of questions to the OP No.1. In question no.9 the complainants have put to the OP No.1 that ROSS method was more risky than the conventional AVR. In answer the OP No.1 did not agree. In question no.5 the complainants have put to the OP No.1 that he was not skilled enough to operate under ROSS method as ROSS method particularly required specialized skills. The complainants further asked him to provide data to substantiate his specialized skills for ROSS method of AVR surgery. The OP No.1 disagreed to the first part of the question. He stated further that surgical skill could be demonstrated in the Operation Theatre and documents could not show surgical skill; records of the operations performed by him were available with different hospitals and not with him. The OP No.1 further stated that he had excellent and successful results with the ROSS method, both before and after the operation of the deceased patient.
He has stated that he learnt operation from Dr. Ronald Ross when he worked under him at National Heart Hospital in London;
subsequently he also attended workshops and Wetlabs on Aortic Route Surgery and Pulmonary Autograft Surgery. He has further stated that he kept his knowledge of the same updated by frequent attendance at National and International Conference on cardiac surgery; he has also presented papers in National and State Conference on Pulmonary Autograft Surgery and conducted workshops on the same.
He has also given the details of his original papers presented at National and State Conference.
50. The Expert Committee was formed comprising of Prof. Santanu Guha, Head of the Department of Cardiology, Medical College, Kolkata Chairman, Prof. Amit Banerjee, Head Department of Medicine, Medical College, Kolkata Member and Prof. Ashis Mondal, Head, Department of Cardio Thoracic and Vascular Surgery, Medical College, Kolkata, Member.
As against question no.20 put by the complainants the Expert Committee opined that there was mention of ROSS procedure in the package price offer and as against question no.22 it has been stated by the Expert Committee that they were not sure whether it was mandatory to write the method of surgery in the consent form, however, it appeared that the patient party were aware of the ROSS procedure from the package price offer form. As against question no.23 the Expert Committee said it was customary for the concerned surgeon to sign in the consent form.
51. As regards the contention of the complainants for non-mentioning of ROSS procedure in the consent form at page-69 of the annexures to the complaint it is found that ROSS procedure was not mentioned therein.
Only AVR surgery was mentioned.
But in page-72, that is, Package Price Offer Screening Form it has been mentioned as against surgical procedure AVR (ROSS procedure). Since ROSS procedure is one of the accepted modes of AVR surgery and in view of the observation of the Honble Apex Court as mentioned above in the case of Kusum Sharma and Ors. with regard to the diagnosis and treatment, we are of the considered view that it was for the surgeon to decide which procedure was to be followed. Since ROSS procedure is an accepted mode of AVR it cannot be said that non-mentioning of ROSS procedure in the Surgery/Anesthesia Form was deficiency in service. The contention of the complainant that since the ROSS procedure was a complicated mode of AVR surgery involving pulmonary valve as well, the OP No.1 ought not to have followed the ROSS procedure of surgery and that because of following this procedure the patient died, is therefore, not acceptable. The contention of the complainants about the acceptability of the report of the Expert Committee due to the lack of experience of the doctors of the Expert Committee with regard to ROSS procedure, is also not acceptable.
52. The contention of the complainants is that immediately after operation the patient was subjected to re-exploration and when there was profuse bleeding coupled with renal failure, the opinion of Nephrologist was sought for. It is further contended by the complainants that when the Nephrologist, Dr. Goutam Majumdar opined that haemo dialysis should be done at CMRI, the OPs instead of shifting the patient to CMRI for haemo dialysis took recourse of haemo filtration CVVHD as an alternative arrangement. It is contended by the complainants that haemo filtration being the alternative arrangement was not successful and, as a result, there was cardiac arrest resulting in the death of the patient.
53. The Learned Counsel for the OP No.2 on this point submitted that CRRT/CVVHD was a better choice than haemo dialysis and as the condition of the patient was serious, he could not be shifted to CMRI.
The Learned Counsel for the OP No.2 and 3 further submitted that with the haemo filtration the creatinine level improved as it would appear from the entries made in the treatment sheet.
54. From the treatment sheet dated 23/01/05 (3 a.m.) it appears that the patient was bleeding post operatively, immediately after surgery and he was taken to OT. On 25/01/05 the case was referred to Nephrologist who recorded that the patient had gone into Anuria for last 12 hours after an episode of hypotension lasting nearly 12 hours during and after surgery was done on 22/01/05. Thereafter the Nephrologist recorded as follows:- Ideally he should have H.D. which is not possible here. P.D. will not be possible .. He, however, opined that CAVHDF with a haemo filter cartridge at the bed side should be started. On 01/02/05 the Nephrologist recorded as follows:
- Can be taken up for H.D. on daily basis. Pt needs to be shifted to ICCU at CMRI if Dr. Chatterjee kindly agrees to supervise his surgical management there. On 02/02/05 the Nephrologist Dr. Goutam Majumdar recorded as follows:- Pt suddenly deteriorated due to bleeding problems . On 03/02/05 Dr. Goutam Majumdar, the Nephrologist recorded that the patient will be taken up for HD only when he was stable for at least 72 hours without support. On 07/02/05 the Nephrologist recommended that haemo dialysis be started after discussing with him. On 09/02/05 it was recorded by Dr. Majumdar that the Prisma CRRT machine started malfunctioning around 12 mid night, Pt was taken off from machine and cartridge CVVHDF has been started at 2 a.m.
55. On the point of recommendation of shifting of the patient as per the advice of Nephrologist, the complainants have submitted that the OPs ought to have shifted the patient to CMRI, a sister concern of OP No.3 and because of the abstinence of OP No.1 from shifting the patient to CMRI, the condition of the patient deteriorated and ultimately expired.
On the point of shifting the complainants have put a number of questions to the OP No.1. As against question no.72 the OP No.1 has answered as follows:-
Q. 72: It is understood from the Bed Head Tickets (BHT) dated 01/02/05 that a recommendation was made by your colleague doctor to you shift the patient for haemo dialysis to CMRI. You did not agree to supervise the patient over there. As such, the patient was not shifted. The patient could have been saved if he would have been shifted to CMRI for haemo dialysis. What do you say to this?
Ans. A conditional comment has been made with the phrase can be which is not necessarily a recommendation. Please also see my answer to question no.46 and 47.
Q. 46: Is it correct that recommendation was made by your colleague doctor on 01/02/05 to shift the patient to Calcutta Medical Research Institute (CMRI) for haemo dialysis as BMBHRC does not have this facility.
Ans. I disagree.
Q. 47: I put it to you that you erred in not allowing the patient to be shifted to Calcutta Medical Research Insititure (CMRI) for haemo dialysis as recommended on 01/02/05. You were aware that surgical management along with haemo dialysis both could have been done over there. Kindly state the reasons of your not agreeing to shift the patient for haemo dialysis.
Ans. I disagree. The decision taken was that the best management of the patient could be done at B.M. B.H.R.C.
56. As regards the question of the complainants in question no.57 as to whether the profuse bleeding led to hypotension, the OP No.1 stated that fall in blood pressure could occur in many situations, and it could not be stated with certainty that any bleeding directly caused a fall in blood pressure. As to the question of the complainants as to why re-explorations were needed, the OP No.1 answered that in the first instance, because the drainage was more than acceptable and in the second instance, for the purpose of resuscitation.
As regards the question of the complainants in question no.75 as to why cardiac arrest took place on 02/02/05, the OP No.1 answered that it was a sudden occurrence and the reason could not be ascertained. On being asked as to whether the cardiac arrest was preventable, the OP No.1 answered no. In question no.81 as to the break down of haemo filtration equipment there was a need for alternate arrangement, the OP No.1 disagreed. As against question no.79 put by the complainants the OP No.1 answered as follows:-
Q. 79: I put it to you that you have failed and remained silent in making adequate and/or alternate arrangements required to meet the emergency situation e.g. haemo dialysis, profuse bleeding, break down of haemo filtration equipments. What do you say to this?
Ans. I disagree.
57. In question no.45 the complainant asked the OP No.1 that profuse bleeding which took place during and post operation period has been the reason for the renal failure and whether it was preventable.
In answer the OP No.1 disagreed and said that it was not preventable. In question no.75(c) the complainants asked the OP No.1 whether the cardiac arrest was preventable. The OP No.1 answered No.
58. The OP No.1 put some questions to the Expert Committee and in question no.5 the OP No.1 asked the Committee that the OP No.1 Dr. Srirup Chatterjee was not negligent during the surgery or at all.
The Expert Committee opined that from the available records there was nothing to suggest that Dr. Srirup Chatterjee was negligent in treating the patient. As against question no.10 put by OP No.1 the Committee opined that from the available records they did not find evidence of any obvious deficiency on the part of Dr. Srirup Chatterjee. In question no.8 the OP No.1 suggested that he all along acted in accordance with the practice accepted and proved as proper by a reasonable body of men skilled in the art of medicine including cardiology. The Committee answered that available records did not show any deviation. In question no.9 the OP No.1 has put it to the Committee that he had not done something or failed to do something which in the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do.
The Committee answered that the available records did not show any obvious deviation. The Learned Counsel for the OP No.1 and OP No.2 and 3 submitted that in view of such specific opinion given by the Expert Committee there is no reason to disagree or reject the report given by the Committee.
59. In the case of Moloy Kr. Ganguly Vs. Dr. Sukumar Mukherjee and Ors. (2009) 9 SCC 22 the Honble Apex Court observed as follows:-
A court is not bound by the evidence of the experts which is to a large extent advisory in nature. The court must derive its own conclusion upon considering the opinion of the experts which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point on which he deposes. In the aforesaid case a reference has been made to another case of the State of H.P. Vs. Jailal & Orts (1999) 7 SCC 280 wherein it was observed as follows:- 18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the judge with necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.
60. We have considered the submission made by both sides and also the evidence on record, documents and the report of the Expert Committee. On the point of shifting of the patient to CMRI on the recommendation of the nephrologist the complainants have put question no.62 to the Expert Committee and the Committee has given answer to that question as follows:-
Q.62: Have you gone through the progress note dated 01/02/05 that wherein it was stated by the Dr./Consultant to whom the patient was referred, mentioned that patient needs to be shifted to ICCU at CMRI if Dr. Chatterjee kindly agrees to supervise his surgical management there? Whether there is any mention in the progress note that Dr. S. Chatterjee, CTV Surgeon in charge went through this abovementioned advice of the referred Consultant Doctor and made necessary arrangement for shifting the patient to ICCU of CMRI or discussed with the relatives about this issue?
Ans. From the available documents there is no mention of any plan of shifting the pt to CMRI ICCU. It is, therefore, clear that inspite of the recommendation of the Nephrologist there was no plan of shifting the patient to CMRI. Learned Counsel for the OP No.2 has relied on the decision reported in II (2009) CPJ 263 (NC) [Master Nitish Sethi & Ors. Vs. Dr. Naresh Trehan & Ors.]. But on the point of shifting, the said decision having different factual aspect will not come in the aid of the contention of the Learned Counsel of the OP No.2.
61. From the treatment sheet it is clear that when Anuria started, the OP No.1 referred the patient to Nephrologist Dr. Goutam Majumdar.
It further appears that Dr. Goutam Majumdar specifically recorded on 01/02/05 as follows:- Can be taken up for H.D. on a daily basis. Pt needs to be shifted to ICCU at CMRI if Dr. Chatterjee kindly agrees to supervise his surgical management there. From this specific recommendation of the Nephrologist, the OP No.1 was required to record his views as to his difference of opinion for which the patient was not shifted to CMRI for H.D. The treatment sheet is conspicuously silent as to the views of OP No.1 on the point of shifting to CMRI. Not only that from the answers given by OP no.1 in reply to the questions put by the complainants we find that the OP No.1 did not specifically assign any reason for having difference of opinion with Dr. Goutam Majumdar, Nephrologist. We lay much stress on the words pt needs as recorded by the Nephrologist. It signifies that shifting to CMRI for H.D. was the urgent need of the hour. From the evidence on record it is clear that CRRT/HVVHDF although done could not prove to be fruitful and as a result the patient suffered cardiac arrest and ultimately expired. From the answers given by the OP No.1 against the questions put by the complainants and the answers given by the Expert Committee as against the questions put by complainants, we find no reasonable explanation on the point of abstaining from shifting the patient to CMRI for H.D. The OPs failed to prove that they took due care and caution and rendered the professional skill as it was required at that critical juncture. When the hospital authorities decided to refer the patient to Nephrologist as Anuria started, the OPs could have accepted and carried out the specific recommendation made by the Nephrologist and the abstinence from doing that without recording the reasons for difference of opinion, speaks of the lack of due care and caution amounting to negligence.
62. It is also evident from the treatment sheet that the Prisma CRRT machine started malfunctioning on 09/02/05. On this point OP No.3 has put question no.4 to the Expert Committee which runs as follows:- 4. Please go through the warranty card and the bill of the machine used for the dialysis of the patient, do you agree that the hospital authority had done all that could be done for managing the patient and there is no negligence on the part of the management just for the reason a new dialysis machine suffered a mechanical failure during the dialysis and could not be made operational within a short period?
Ans. 4. Warranty card and the bill of machine used for dialysis of the patient are not available.
Hence no comment can be made.
However the expert opinion of Nephrologist is desirable.
63. We are of the considered view that at this critical juncture when haemo dialysis was recommended by the Nephrologist and the Prisma CRRT machine started malfunctioning, even then the OPs abstained from shifting the patient to CMRI and this omission on the part of the OPs speaks volume. Malfunctioning of the machine when the patient was in a very critical condition, speaks of negligence on the part of the OPs. The contention of the Learned Counsel for the OP No.2 and 3 that the machine was set right within 2 hours and that it was under AMC, is not acceptable because of the priceless moments that passed by at that crucial stage which ultimately led to the death of the patient.
64. It is in evidence that OP No.2 is a Member of the Governing Body and he referred the patient to OP No.1. The OP No.3 in his evidence in reply has stated as against question no.73 put by the complainants that the patients who require haemo dialysis are referred to CMRI which is adjoining the centre and is well equipped.
From the reply of OP No.3 it is, therefore, evident that patients in case of necessity are shifted to CMRI for haemo dialysis and in this case inspite of the specific recommendation of the Nephrologist the OPs refrained from shifting the patient to CMRI even when the CRRT machine started malfunctioning. Under such circumstances and on this aspect, we are of the considered view that the doctrine of res ipsa loquitur will apply. Absence of due care and caution amounting to negligence is, therefore, clear on the face of the record. We, therefore, find that all the OPs are responsible for not shifting the patient to CMRI and for the malfunctioning of the Prisma CRRT machine. The OPs are jointly and severally responsible in this regard. They are liable to pay compensation to the complainants.
65. As regards the preparation of bills it is the contention of the complainant that as per the package, the amount specified was Rs.2.60 lakhs and upto the time of release of the dead body the complainants had to pay Rs.8.75 lakhs. On this point it is the contention of the OP No.3 that it was an open package for which the complainant had to pay the additional charges as per the actual cost.
The Learned Counsel for the OP No.3 has also submitted that the detailed list of medicines supplied has also been given to the complainants. On this point it is the evidence on record from the side of the OP No.2 and 3 that the price offered in the package was for 11 days only and beyond that period the patient party had to pay the additional charges.
66. On the point of package OP No.2 has replied as against question no.23, 25 and 27 put by the complainants as follows:-
Q. 23: What package was offered to the patient.
Kindly substantiate with full details.
Ans. After detailed explanation to the patients father about various categories and open and closed package with additional charges for special procedure (ROSS procedure), by myself, Dr. S. Chatterjee and his Secretary at different times, he finally took the open package with additional cost of valve/conduit and extra charges for ROSS procedure.
Q. 25: Do you agree that a package was offered to the patient party and the same was accepted by the patient party.
Ans. Yes, Open Special Semi-private Package was accepted by Mr. V. Khanna, who declined to take closed package.
Q. 27: What is the difference between an open package and a closed package.
Ans. Open package includes 3 days in ITU and 8 days in room bed, OT charges, consumable and medicines used, investigations during these 11 days and professional fee for doctor. Any stay or costs (for everything) beyond 11 days (3 days in ITU, 8 days in room bed) is chargeable in any open package on actual basis. Closed package initially costs more but then patient does not have to pay any charges even if his stay extends beyond 11 days.
67. The OP No.3 has stated in the evidence in reply as against question no.36, 37, 38 and 39 as follows:-
Q. 36: What was the package that was offered to the patient party.
Ans. Open and closed, both the packages were offered to the patient party.
Q. 37: Who offered the package to the patient party.
Ans. Dr. Chatterjee, Dr. Mishra, Secretary of Dr. Chatterjee.
Q. 38: Kindly provide the documentary evidence of the package accepted by the patient party.
Ans. It was offered and accepted verbally.
As against question No.39 OP No.3 has stated that two types of packages are offered open and closed.
68. According to OP No.3 as discussed above the package was offered and accepted verbally. There is, therefore, no document to show that the complainants accepted the open package. The OP No.3 in its letter dated 10/09/05 addressed to the complainant no.1 stated that the complainant had agreed to pay the price as an open package for the surgery and the costs of surgery were as follows:
a) Cost of Surgery = Rs.1,75,000/-
b) Cost of Valve = Rs.
55,000/-
c) Extra cost for ROSS procedure = Rs.
30,000/-
Total = Rs.2,60,000/-
69. At Page-72 of the annexures to the complaint, that is, Package Price Offer Screening Form, there is no mention about the open package accepted by the complainants. At Page-73 of the letter to Heritage Health Services Pvt. Ltd. it was mentioned as Rs.3 lakh approximately as against budgeted expenses.
The deceased had a mediclaim policy, the amount of which was paid by the Insurance Company to the hospital. At Page-189 of the annexure to the complaint there is final bill. It was mentioned in the final bill that the sum of Rs.3,17,500/- was received from Heritage Health Services Pvt. Ltd. and it was deducted from the final amount.
The OP no.3 in its W.V. has enclosed the details of surgery packages and the costs thereof. Nowhere it has been mentioned in the schedule of charges marked A being annexure to the W.V. of OP No.3 that two types of packages are there open and closed. Charges outside the packages included the heart valves for which the sum of Rs.30,000/- was claimed as per letter dated 10/09/05. Having considered the evidence of both sides and on hearing the arguments we find that the total package was Rs.2.60 lakhs and the OP No.3 received Rs.3,17,500/- from the Heritage Health Services Private Ltd. The complainants in all paid Rs.8.75 lakhs. The complainants, therefore, are entitled to get refund of Rs.6,15,000/- from the OP No.3.
70. The Learned Counsel for the OP No.1 has submitted that there were other doctors in the team of OP No.1 and they have not been impleaded in this case. It is contended that in the absence of other doctors of the team the complaint is not maintainable. It is clear from the evidence on record that OP No.1 was the Head of the Surgery Team and he performed the operation with the help of the other doctors of the team.
Under such circumstances, we find that the other doctors of the team are not necessary parties and the present complaint is maintainable.
71. As regards the contention of the complainant regarding the assistance with The Cleveland Clinic Foundation, Cleveland, Ohio, U.S.A. a reference has been made to the decision in the case of Smt. Jaysree Chowdhury & Ors. Vs. B.M. Birla Heart Research Centre & Ors. in case no.CC 76/08 decided on 16/08/10 by this Commission wherein it has been held that the OP B.M. Birla Heart Research Centre was directed to pay compensation on the ground of unfair trade practice. The same point having been decided in case no.76/08 against the OP No.3 herein and the Learned Counsel for the OP No.3 having submitted that an appeal has been preferred, the complainants contention in the instant case as to unfair trade practice against the OP No.3 herein needs no discussion.
72. The OP No.3 has filed MA bearing no.125 of 2012 with a prayer for adducing additional evidence. The complainant has filed a written objection against the said MA application. It has been contended by the complainants in the written objection that another application bearing no.MA 10 of 2012 for adducing additional evidence regarding the contract between OP No.3 and The Cleveland Clinic Foundation, Ohio and the said application was dismissed by this Commission on 01/02/12 and against the said order FA No.125/2012 was preferred which was disposed of with the observation that the said petition was withdrawn with liberty to file application under Order-41, Rule-27 CPC. It has also been observed by the Honble National Commission that the permission should not be taken as an expression of an opinion and if such application is filed, the same shall be decided on its own merits.
73. The MA applicant/OP No.3 has stated that for better adjudication they obtained opinion from Dr. Lalit Kr. Agarwal and Dr. Dayanand Mishra, Nephrologists and they have also filed the copy of the agreement between CMI and CCF. We have considered the contentions raised in this MA and the objection thereto. The present MA has been filed when the argument was being heard. There is no merit in this MA bearing no.125 of 2012 and the same stands dismissed.
74. As regards the point of compensation, the complainants in their written reply on point of law against the argument advanced by the Learned Counsel for the OPs has relied on the judgment in the case of Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and submitted that the Multiplier Method in assessing the compensation was not followed. The complainants have contended that mental pain, agony and harassment should be taken into consideration in awarding compensation.
75. The Learned Counsel for the OP No.2 and 3 has submitted that the Honble Apex Court in the case of Sarala Verma has clearly laid down that Multiplier Method should be adopted. The Learned Counsel has further relied on the decision in the case of Kunal Saha (Dr.) Vs. Sukumar Mukherjee & Ors. [IV (2011) CPJ 414 (NC) para 16.4] wherein it has been held that Multiplier Method provided under Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the case of death of the patient due to medical negligence/deficiency in service.
76. We have perused the decisions cited by both sides.
In the case of Sarala Verma and Ors. [(2009) 6 SCC 121] it has been held that the proper method of computation is Multiplier Method. We, therefore, follow the Multiplier Method in assessing the quantum of compensation.
The complainants have filed the Form-16 issued in the name of the deceased for the period from 01/04/04 to 31/03/05. The salary received was Rs.80,000/-. At page-194 of the annexures to the complaint there is one certificate that Rs.24,222/- was payable to Gaurav Khanna. At page-195 there is a certificate that Rs.1,14,073/- was paid to Gaurav Khanna towards salaries and bonus for the financial year 2003-04. There are other IT Returns submitted in the form 2D in the name of Gaurav Khanna. Gaurav Khanna died at the age of 23 years. The complainants have filed Annexure-34 to the complaint stating the income of Gaurav Khanna from the year 2002 to 2005. Having regard to the papers filed by the complainant regarding the income of Gaurav Khanna we are of the view that his monthly income was Rs.11,000/-. Out of that amount it is reasonable to hold that he used to spend Rs.2,000/- for his personal expenses. He, therefore, used to contribute Rs.9,000/- per month towards his family. The annual dependency value comes to Rs.9,000/- X 12 = 1,08,000/-. Now this amount has to be capitalized with a suitable multiplier. The determination of multiplier depends upon the age of the deceased, his status and other surrounding circumstances. The normal life expectancy can reasonably be said to be 70 years. The Learned Counsel for the OP No.2 and 3 has submitted that the life expectancy of Gaurav Khanna can be said to be four years after that operation. But we are not inclined to accept that contention.
It is in evidence that Gaurav Khanna died at the age of 23 years. Having regard to the age, status and the circumstances of the case we are of the considered view that the multiplier of 18 would be reasonable. The amount, therefore, comes to Rs.1,08,000/- X 18 = Rs.19,44,000/-. Now there should be deductions from that amount having regard to further increase or decrease in dependency value, contingency of life etc. We are of the view that a deduction of Rs.1,94,000/- would be reasonable. The amount, therefore, comes to Rs.18 lakh. The OP No.1, 2 and 3 are jointly and severally liable to pay the sum of Rs. 18 lakh to the complainants as compensation. They are also liable to pay Rs.5 lakh as cost of litigation to the complainants.
77. We, therefore, allow the complaint in part.
The OPs are directed jointly and severally to pay compensation of Rs.18 lakh and cost of litigation of Rs.5 lakh to the complainants within 45 days from the date of passing this order failing which the amount will carry interest @ 9% per annum till realization.
78. The OP No.3 is directed to refund Rs.6,15,000/- to the complainants being the excess amount of the final bill paid by the complainants. Such amount be paid by the OP No.3 within 45 days from the date of passing this order failing which the amount will carry interest @ 9% per annum till realization.
The other prayers made by the complainants in the prayer portion of the complaint at point no.(c), (d), (e), (f) and (g) are refused. The MA No.125/2012 stands dismissed.
MEMBER(SC) MEMBER(L) PRESIDENT