State Consumer Disputes Redressal Commission
Mrs. Fatima M. Shaikh vs The Dean, Department Of Maxillofacial ... on 24 April, 2012
C.C.No.137/1995 1/16
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/95/137
1. MRS. FATIMA M. SHAIKH,
SALAUDDIN RADIO SHOP, JUHU
LANE, ANDHERI (W), MUMBAI-058 ...........Complainant(s)
Versus
1. THE DEAN, DEPARTMENT OF
MAXILLOFACIAL ORAL SURGERY,
NAIR HOSPITAL DENTAL COLLEGE,
DR.A.L.NAIR RD., MUMBAI-08
2. THE DEAN, B.Y.L. NAIR CH.
HOSPITAL,
MUMBAI-08 ............Opp.Party(s)
BEFORE:
Hon'ble Mr. S.R. Khanzode PRESIDING MEMBER
Hon'ble Mr. Narendra Kawde MEMBER
PRESENT: Dr.M.S. Kamath, Amicus Curiae for the complainant.
Mr.N.D. Jaywant, Advocate for the opponents.
ORDER
Per Shri S.R. Khanzode, Hon'ble Presiding Judicial Member This consumer complaint pertains to alleged deficiency in service of the treating doctors of Nair Hospital Dental College and B.Y.L. Nair Ch. Hospital, both hospitals run by Brihanmumbai Municipal Corporation ('BMC' in short); when Late Ms.Kamrunnisa M. Shaikh, daughter of complainant-Mrs.Fatimabi M. Shaikh, was given anesthesia while undergoing operation for Osteotomy surgery. The operating surgeon at that time was Dr.J.N. Khanna and Anesthetist was Dr.Bhagatwala assisted Dr.L.Savla and Dr.P. Ramaswamiu. Late Kamrunnisa Shaikh, a female, aged 30 years at that time. The consumer complaint is filed as per the record against opponent No.1-The Dean, Department of Maxillofacial Oral Surgery of Nair Hospital Dental College and against opponent No.2-The Dean, BY.L. C.C.No.137/1995 2/16 Nair Ch. Hospital.
2. At the outset, it may be mentioned that this consumer complaint stood dismissed as per the order dated 19/06/1997 and an appeal was preferred before the National Consumer Disputes Redressal Commission bearing No.353/1997. It appears that in the appeal before the National Commission, supra, treating doctors viz. Dr.J.N. Khanna and Dr.Bhagatwala, Dr.Vandana Laheri were impleaded as one of the respondents, they have filed their affidavits opposing their inclusion as respondents and the case tried to be made out against them. Setting aside the order then passed by the State Consumer Commission dismissing the consumer complaint, the matter was remanded back with observations to give an opportunity for cross examination of both treating doctors on remand. Both these treating doctors were also subjected to cross-examination before the Commissioner appointed for that purpose. On receipt of Commission Report, both the parties were heard. It may also be mentioned that though treating doctors, supra, were impleaded as one of the respondents (in an appeal before the National Commission) as could be inferred from the record, they are not impleaded as one of the opponents before us.
3. According to the complainant her daughter Late Kamrunnisa was admitted in the hospital, namely, Nair Hospital Dental College for her planned surgery of Osteotomy on 11/10/1993. She had undergone the pre- operation tests and assessment and after having declared fit for surgery, she was taken for operation on 19/10/1993 around 10.00 a.m. Around 3.00 p.m. on that day, doctor in-charge Dr.Khanna came out and informed the relatives including complainant that Late Kamrunnisa could not be operated due to the breathing pipe being narrow and that due to her breathlessness they had to do Trachostomy. He then asked the relatives whether they had any money to arrange for any private ambulance and when seeing that it was not possible, C.C.No.137/1995 3/16 hospital ambulance was arranged and late Kamrunnisa was shifted to B.Y.L. Nair Hospital. She was at that time accompanied by Mrs.Bhagatwala and other doctors. After Late Kamrunnisa was admitted in B.Y.L. Nair Hospital in Trauma Ward, she died there on 08/11/1993. Late Kamrunnisa's case was regarded as 'Respiratory Arrest with Hypoxic damage' under the surgical case during the surgery. It is further alleged by the complainant that Dr.Khanna who was In-charge of the operation was rash and negligent in asking Dr.(Mrs.) Bhagatwala, Anesthetist to proceed with the operation due to which the patient suffered breathlessness and without brining those facts to the notice of complainant and to cover up their own wrongs, they performed Trachostomy for making a way for breathing. As far as treatment of Late Kamrunnisa at the Trauma Ward at B.Y.L. Nair Hospital is concerned, it is stated by the complainant that after about six days Late Kamrunnisa for the first time opened her eyes. The doctors present told the relatives of Late Kamrunnisa to keep her talking and calling out her name so that she could recollect from the lapse and could gain consciousness. Dr.Khanna had gone for leave for 21 days. When her name could be called, she could open her eyes and even when the doctor would come to give her injection, she would pull her hand. After a week or so, senior doctors advised 20 sittings of HBOT at Kasturba Gandhi Hospital, but only 6 sittings were given and the relatives were told that patient did not respond to HBOT treatment. The case was regarded as 'Respiratory Arrest with Hyposix damage' under the surgical case of Dr.J.V. Hardikar. Chest physiotherapy was continued. However, on 08/11/1993 i.e. the fateful day, Late Kamrunnisa started crying and opened her eyes and she wanted to speak but could not speak because of Trachostomy. Doctor came to examine her, her brother who was attending her, was asked to wait outside and thereafter, doctor returned within five minutes and declared that Late Kamrunnisa was dead. Therefore, consumer complaint was filed claiming compensation to the tune of `15 Lakhs.
C.C.No.137/1995 4/164. The opponents opposed this consumer complaint denying the allegations of alleged negligence on the part of treating doctors or the hospitals in toto. At the first instance, it is submitted on their behalf that they are officers of the BMC which run the Nair Hospital Dental College and B.Y.L. Nair Ch. Hospital. These hospitals are run by the BMC as per the provisions of the Bombay Municipal Corporation Act. They being officers of the BMC and the complaint against them is filed in their personal capacity as a dean of respective hospitals, the same is not maintainable. Further, they had not personally given any treatment to Late Kamrunnisa. They are merely administrative heads, In-charge of their respective hospitals. Therefore, the complaint deserves to be dismissed.
5. Based upon the information gathered from the record and their knowledge about the treatment/surgery given to Late Kamrunnisa, it is submitted on their behalf that Late Kamrunnisa had a lower jaw which was small in size, but she could open the mouth wide due to Temporomandibular joint release operation carried out in the year 1991. She was continuously visiting the Nair Dental Hospital and was registered for advancement of hypoplastic mandible surgery. She was referred for pre-anaesthetic assessment as she was to be posted for above referred surgery of her lower jaw after carrying out pre-operative check-up. She was admitted for operation on 11/10/1993. On the day prior to operation which was scheduled on 18/10/1993 she was explained the procedure of nasal intubation. However, on the day of operation it was observed that since the patient was apprehensive and un-cooperative about the technique of intubation to be used and since the patient could not open her mouth widely, it was decided that intubation could be carried out under general anaesthesia using inhalation technique only after confirming that the patient could be ventilated under the bag and mask as and when her consciousness is partly lost. For that purpose, C.C.No.137/1995 5/16 50 mg. pentothal was injected and it was discovered that the technique was not suitable for her and therefore, after the patient became fully conscious, explaining her an alternate method of an awake intubation technique (i.e. passing the endotracheal tube through nose while the patient is fully awake), the same was adopted. Before starting said procedure, the patient was given Injection Atropine as pre-medication. The patient started holding breath during the attempt of passing the tube through her nostril. The technique was soon abandoned. Despite maximal external efforts of jaw thrust, mask seal and airway, her chest could not be visibly ventilated. However, oxygen was given under the mask by switching over emergency oxygen knob which allowed 40 liters of oxygen to flow per minute and simultaneously, attempt was made to puncture her trachea with 18G needle so as to ventilate her by using jet-ventilation technique. When it did not work, the surgeon was asked to go ahead with surgical Tracheostomy immediately, and till then the patient was given 100% oxygen through face mask by keeping emergency oxygen switch in "on" position all the time. During the procedure of Tracheostomy, patient's heart stopped (E.C.G. showed flat line) at 11.00 a.m. and therefore, external cardiac massage, intra-cardiac adrenaline and emergency oxygen under mask were given. Thereafter, patient's heart started beating at 11.04 a.m. onwards. Simultaneously, measures were taken to protect her brain with drugs like I.V. Mannitol, I.V. Sodabicarb, I.V. Effcorline as mentioned in the case papers. In spite of these measures, it was found that though the patient's heart started beating regularly and having spontaneous respiratory rhythm, she was not responding to verbal orders and only responding to painful stimuli. The patient was kept under observation on the operation table till 3.15 p.m. and later on she was shifted to Trauma Ward of Nair Hospital for better management wherein 24 hours services were available. They also referred to the further treatment given at B.Y.L. Nair Hospital. However, since that part of treatment is not relevant in view of submissions made before us which confined to the procedure followed during the surgery C.C.No.137/1995 6/16 only for the alleged negligence, we prefer not to refer those details.
6. The complainant also filed rejoinder after the written version filed by the opponents. In the said rejoinder, it is submitted that at 10.40 a.m. Tracheostomy was asked for during the operation. There is no record available as to when the Tracheostomy was started. However, it is mentioned that at 11.04 a.m. Tracheostomy was completed. For the clarity, we prefer to reproduce said part of rejoinder, which read as under :-
"There is no record thereafter when the tracheostomy was started but at 11.04 it is mentioned "Tracheostomy completed". This clearly indicates that the tracheostomy was performed over a period of 24 minutes during which period by the O.Ps. own admission, no oxygen could be given to the patient. This delay in performing the tracheostomy is the main cause for brain damage in to Ms.Kamrunissa Shaikh, which ultimately caused her to suffer a miserable existence for 21 more days before she died. Doctors knew she had a problem in breathing from her previous history which they noted, they knew she had a problem on the Operation Theatre itself on the day of the Operation, when they could not ventilate her by putting in the tube. In spite of this, they did not have the equipment or the skill to perform a tracheostomy which could have saved the life of the patient."
7. There is no evidence adduced on behalf of the complainant-Fatimabai M. Shaikh. However, after remand, she offered herself for cross- examination and accordingly she was cross-examined by the opponents before the Commissioner. The opponents relied upon the affidavits of Dr.(Mrs.)K.D. Nihalani and Dr.S.G. Damle, respective Deans of opponent Nos.1&2. These opponents also placed on record case papers of earlier operation of Late Kamrunissa, besides relevant case papers of operation in question. In addition to it, opponents also relied upon the expert opinion in C.C.No.137/1995 7/16 the form of their respective affidavits of Dr.Vasumathi Divekar, Dr.D.B. Deval and Dr.D. Dasgupta. The other evidence available on record is of Dr.Vandana Laheri and Dr.J.N. Khanna, who are subjected to extensive cross examination by Authorised Representative of the complainant who himself is a qualified doctor. Case papers placed on record are not in dispute. On behalf of the opponents typed copy of the case papers for convenience is also made available.
8. Since the complainant tried to focus herself on those crucial period in between 10.40 a.m. to 11.04 a.m. and tried to submit that before Tracheostomy could be completed, for about 24 minutes Late Kamrunissa (hereinbefore and after also referred as 'patient') was without any oxygen. This fact is categorically disputed by the opponents. According to them the patient was given oxygen through out under mask with emergency knob on and thus, it cannot be stated that the patient was without oxygen as alleged by the complainant. At 10.40 a.m., as per Operation Notes, seeing that an attempt made to puncture her trachea with 18G needle so as to ventilate the patient by using jet-ventilation technique, failed due to scar, the tracheostomy was asked for. Thereafter also emergency oxygen mask continued, the patient was found recorded pink indicating that she is not deprived of oxygen. At 11.00 a.m. during the procedure of tracheostomy, a further complication of cardiac arrest arose. At that juncture only since due to such situation, for the first time, it was recorded that the patient turned blue. All the respiratory measures were taken, emergency oxygen mask was continued and the efforts bear the fruits and at 11.04 a.m. the patient was revived. At that time, it was recorded that the tracheostomy was completed. 7.5mm Rusch ET tube passed through tracheostomy. Patient was ventilated with 100% oxygen and the patient turned pink. Thus, only during the period cardiac arrest between 11.00 a.m. to 11.04 a.m. though the oxygen was given and available, perhaps due to failure of the heart, blood supply to the organs C.C.No.137/1995 8/16 might have got reduced. But for these four minutes, oxygen was given as stated earlier and the patient was not deprived of the oxygen and therefore, summerisation tried to be made on behalf of the complainant, much more pressing on these 24 minutes events, supra, cannot be accepted. For clarity, we produce below, operation notes from 10.40 a.m. to 11.04 a.m. :-
"10.40 a.m. Pt. stopped communicating started holding breath pulse fell to 50/min (ECG : HR 50 / min) BP : 80 mm Hg Procedure for Blind intubation abandoned O2 ↓ mask C emergency switch on I.V. atropine 0.6 mg given Difficult to give IPPR ↓ mask, pt. still holding breath Tracheal puncture with 18 G needle attempted to give jet ventilation However it failed due to scar Tracheostomy asked for 10.45 a.m. Radial pulse not felt, pt. pink ECG showing qrs complex H.R. 100 / min Femorals palpable Fluids given fast (I.V.R.L. O i) I.V.Effcorlin 100 mg.
Emergency O 2 ↓ mask continued.
11.00 a.m. H.R. started falling & ECG Flat CPR started Ext. Cardiac massage (+) Emergency O2 through mask Difficult to give IPPR. Pt. turned blue Intracardiac adrenaline 2cc of 1:10000 given Ext. cardiac massage continued Emergency O2 ↓ mask continued C.C.No.137/1995 9/16 11.04 a.m. ECG showed qrs complex H.R. 170 / min Tracheostomy completed 7.5 mm Rusch ET Tube passed through T'tomy Pt. ventilated with 100% O2 using Magill's O With Ambu valve Pt. turned pink I.V. effcorlin 100 mg + Sodabicarb 20cc given I.V. Mannitol 150 ccs. Started."
9. We also find it advantageous to reproduce here breath holding and obstructed airways diagram and how situation is out when the emergency oxygen with emergency knob turned on given through mask release the situation. Said diagram as supplied on behalf of the opponents at the time of arguments and is being incorporated as part of this order :-
C.C.No.137/1995 10/1610. After the patient was revived from the complication of cardiac arrest which is not very unfamiliar and known complication at the time of tracheostomy, the patient might have suffered hypoxia of brain due to cardiac arrest. What damage is caused on permanent basis to the brain is not assessed but, certainly, this particular condition could not be attributed to any medical negligence on the part of treating doctors, particularly, the Anaesthetist. At 11.15 a.m. it was recorded that patient started breathing spontaneously and responded to the deep painful stimuli and thereafter, patient was kept under observations at the operation table itself till 3.15 p.m. and thereafter, accompanied by the doctors, supra, was transferred to Trauma Ward of Nair Hospital for further observations and treatment. As submitted by the complainant herself, after patient was shifted to Nair Hospital Trauma C.C.No.137/1995 11/16 Ward, doctors present told the relatives of the patient to keep talking and calling out her name so that she could recollect from the lapse and can gain consciousness and when her name would be called she would open her eyes. Treatment of HBOT recommended proved futile and patient was regarded as suffered from respiratory arrest with Hypoxic damage. Then on 08/11/1993, as further alleged, the patient's brother as usual when called on to the patient, she started crying and opened her eyes. She wanted to speak but could not speak due to tracheostomy. This speaks for conscious condition of the patient even according to the complainant and thereafter, patient died.
11. The other question raised on behalf of complainant as to why tracheostomy was not completed at early point of time and as to why it was not tried at the first instance. In their affidavits, both the Deans, namely, opponent-Dr.K.D. Nihalani and Dr.S.G. Damle explained this. Their such opinions find support from the expert opinion of doctors placed on record and to which a reference is made earlier. Their evidence also speaks for resuscitative measures taken by the attending/treating doctors in order of preference, namely, administering 100% oxygen by face mask, puncturing cricothyroid membrane with a wide bore needle (for transtracheal jet ventilation) and tracheostomy as a last resort. The protocol which followed by the Anesthetist and the treating doctors more particularly, the Anesthetist, in the given circumstances, cannot be said as the one which ought not to have been followed or that they failed to take necessary steps which ought to have been taken. It is also stated by Dr.(Mrs.)K.D. Nihalani and Dr.S.G. Damle that cricothyroidotomy to which a reference is made on behalf of the complainant as the one ought to have been tried in emergency, explained by these doctors and it is submitted on their behalf that it is altogether a different procedure and requires special equipment kit which was not available at the relevant time (it is to be noted that such kits in the year 1993 were available in the Hospital) and at that time it was also not sure as to C.C.No.137/1995 12/16 whether it could be performed safely without proper equipment in her case who was previously tracheotomised and had a tracheostomy scar in the cricothyroid region itself. There is no reason to discard their such opinion based upon the facts and circumstances.
12. Referring to the cross-examination of Dr.Vandana Vinodchandra Laheri and Dr.Vandana Bhagatwala and Dr.J.M. Khanna, it could be seen that they were not cross-examined on the alleged crucial 24 minutes and the procedure followed by them step-by-step. Therefore, opinions expressed by both the respective then Deans (Dr.K.D. Nihalani and Dr.S.G. Damle) of the B.Y.L. Nair Ch. Hospital and Nair Hospital Dental College and as confirmed/corroborated by affidavits of Dr.Vasumathi Divekar and Dr.D. Dasgupta; we find no negligence on the part of treating doctors could be established for the acts as confined to the events of fateful day when Late Ms.Kamrunnisa M. Shaikh undergone the operation and for that purpose was given anesthesia to insert tube for the ventilisation.
13. Much hue and cry is tried to be made about consent of Late Ms.Kamrunnisa M. Shaikh obtained and particularly, referring to other methods adopted once test with IV Panthothal 50 mg. was abandoned considering the chest retraction noticed, further on failure of Blind Awake Nasal Intubation procedure, an attempt was made to puncture her trachea with 18 G needle so as to ventilate her by using jet-ventilation technique and further finding that it also failed, then tracheostomy as an ultimate remaining choice was asked for. It may be pointed out that on the case papers, as per the Operation Notes, after I.P. Penthothal 50 mg. was given and the chest retraction was noticed, the patient was allowed to come out of effects of Penthothal and thereafter, at 10.40 a.m. a procedure of Blind Intubation was re-explained to the patient. The word "re-explain" is also invited comment of the complainant. As per the endorsement made on the consent obtained C.C.No.137/1995 13/16 from Late Ms.Kamrunnisa who was well conversant with the English, Dr.Vandana Laheri did explain everything about it during her examination about this endorsement and particularly, she affirmed that though it was not recorded in her presence, by her assistant, the same was recorded within her knowledge and she had seen it before starting the operation. Therefore, possibility of interpolation or making of such remarks can be safely ruled out. Said consent also mention, "In view of Tracheostomy done in past, the risk of intubation & the alternative procedure chosen for intubation explained to the patient. ..........I also consent to such further or alternative operative measures as may be found to be necessary during the course of such operation and to the administration of a local or other anaesthetic for any of the foregoing purposes"[Underlined portion is written in the handwriting]. The complainant who is mother of Late Ms.Kamrunnisa asked about doctor explaining all these procedures to her daughter Late Ms.Kamrunnisa and she did affirm the talk between doctor and Late Ms.Kamrunnisa, but submitted that since they were talking in English, she failed to understand the same. Therefore, in this background, there is no reason to disbelieve evidence of Dr.Vandana Laheri on this point which finds corroboration from the operation notes and from the consent form. There was proper consent obtained from Late Ms.Kamrunnisa. The treating doctors responded to the situation as developed from time to time in a legitimate manner exhibiting their professional skills. It may be noted sadly that their efforts ultimately did not bear the fruits and could not save life of Late Ms.Kamrunnisa. However, it does not mean that they were negligent in performing their duties. Thus, no deficiency in service on the part of treating doctors is established within meaning of Section 2(1)(g) of the Act.
14. A useful reference on the point can be made to the observations of the Apex Court in the matter of Jacob Mathew V/s. State of Punjab and Anr., (2005) 6 Supreme Court Cases 1 and Martin F. D'Souza V/s. Mohd. Ishfaq, C.C.No.137/1995 14/16 1(2009) CPJ 32 (SC).
15. In the instant case, 'Bolam' test', 'But for' test, and 'substantial factor' test; all failed to establish any breach in standard of care for which treating doctors could be held responsible for medical negligence.
16. In the written version, opponents categorically stated and raised objection to the fact that consumer complaint is neither against treating doctors nor against the respective Hospitals i.e. Nair Hospital Dental College or BY.L. Nair Ch. Hospital. As earlier pointed out there is no case of negligence against B.Y.L. Nair Ch. Hospital. Opponent No.1 is the "Dean", Department of Maxillofacial Oral Surgery of Nair Hospital Dental College. Thus, opponent No.1 is perhaps a Dean of a particular department of Nair Hospital Dental College. He is not even the hospital or Dean of Hospital or Dental College as a whole. Admittedly, B.Y.L. Nair Hospital and Nair Hospital Dental College are run by Brihanmumbai Municipal Corporation (in short 'BMC') to discharge its statutory obligations. Thus, Nair Hospital Dental College and B.Y.L. Nair Ch. Hospital are separate, distinct and independent jurisdic person and on the other part, Dean of the Department of Maxillofacial Oral Surgery of Nair Hospital Dental College and the Dean, BY.L. Nair Ch. Hospital, considering the respective responsibilities and the duties attached to the office of Dean of these Institutions are separate, independent and distinct jurisdic person than their respective Hospitals. In spite of specific objection taken to this effect by these opponents, which is also not confronted in a rejoinder filed after the written version of the opponents, by the complainant, we find the deficiency in service at the most which could be alleged against the Nair Hospital Dental College is not made party to the present consumer complaint. Present description of the opponents cannot be held as mis-description.
17. Admittedly, since both, Nair Hospital Dental College and B.Y.L. Nair C.C.No.137/1995 15/16 Ch. Hospital are run by the BMC, the staff and doctors working there are employed by the BMC. Honorary doctors called which is in a case before us were employed by the Hospital may come in the category of "contract for service". In either of the case for negligence of such staff/employees or treating doctors, Hospital can be held vicariously liable and therefore, even those treating doctors are not made party and action is brought only against the Hospital. Such consumer complaint would not fail for want of necessary parties as held by the Apex Court in the matter of Savita Garg V/s. The Director, National Heart Institute, SC&NC Consumer Law Cases (1996- 2005) P-849. But in the instant case, even the employer or the Hospitals are not made parties. Therefore, by no stretch of imagination any vicarious liability can be fastened on the opponents as described who are as earlier stated separate and distinct jurisdic person than the Hospital or Dental College.
18. Description of the party is not a technical flaw. It raised a substantial question of fastening liability. Section 2(1)(g) of the Act, which defines, "deficiency" reads as under :-
"(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."[Underline provided] Therefore, deficiency which is to be established is always in respect of person as defined under Section 2(1)(m) of the Act. Duties and obligations refers to a particular person makes him a "jurisdic or a legal person". Such duties and obligations differ from each person to person. In the background of the present case, duties and obligations of the Hospitals or treating doctors are different than those of Dean of respective Hospitals or Dental College.C.C.No.137/1995 16/16
Hence, each one of them is a separate and distinct legal entity and as such their respective deficiency in service is to be assessed accordingly.
19. Under the circumstances, the objection taken by the opponents as per their written version that complaint filed in their individual capacity is not maintainable since they are not responsible for any alleged negligence vis-à- vis medical negligence vis-à-vis deficiency in service within meaning of the Act; is to be upheld and accepted.
20. Before parting with the order, we record our appreciation for the help rendered to settle this dispute by the Learned Authorised Representative for the complainant Dr.M.S. Kamath as well as Learned Counsel appearing for the opponents Advocate Mr.N.D. Jaywant.
21. For the reasons stated above, we hold accordingly and pass the following order :-
-: ORDER :-
1. Complaint stands dismissed.
2. However, in the given circumstances, both the parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 24th April 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER dd