State Consumer Disputes Redressal Commission
Dr. Ajay Kumar & Anr. vs Lotus Hospitals (Hi-Tech Super ... on 27 January, 2022
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IN THE TAMIL NADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, CHENNAI.
Present: Hon'ble Thiru Justice R.SUBBIAH ... PRESIDENT
Tmt. Dr. S.M.LATHA MAHESWARI ... MEMBER
C.C. No.19 of 2006
Orders pronounced on:27.01.2022
1.Dr.Ajay Kumar
2.Dr.Indira Ajay
Both at Flat No.504, Garden Manor,
6-3-1097/98B, Rajbhavan Road,
Somajiguda Hyderabad 500 082. ... Complainants
Vs.
1.Lotus Hospitals (Hi-tech
Super Speciality Hospital),
by its Managing Director.
2. Dr.E.K.Sagadhevan, Managing Director,
Lotus Hospitals (Hi-tech
Super Speciality Hospital).
3.Dr.Manoharan, Cardio-Thoracic Surgeon,
Lotus Hospitals (Hi-tech
Super Speciality Hospital).
4. Dr.Yoganathan, Orthopaedician,
Lotus Hospitals (Hi-tech
Super Speciality Hospital).
5.Dr.Easwara Moorthy, General Surgeon,
Lotus Hospitals (Hi-tech
Super Speciality Hospital).
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6.Dr.Ganesh Babu, Anaesthetist
Lotus Hospitals (Hi-tech
Super Speciality Hospital),
1 to 6 at No.90, Thayumanava Sundaram Street,
Poondurai Main Road, Erode 638 002. ...Opposite Parties
Counsel for Complainants : Mr.V.Balaji
Counsel for Opposite Parties :M/s.Anand, Abdul
& Vinodh Associates.
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This complaint came up for final hearing on
21.12.2021 and, after hearing the arguments of both sides
and perusing the materials on record and having stood over
for consideration till this day, this Commission passes the
following:-
ORDER
R.Subbiah, J. - President The complainant herein, by alleging negligence, carelessness and deficiency of service & failure on the part of the Opposite parties/Hospital in giving required medical care to their son resulting in his death on 11.04.2004 at 2.10 PM., seeks this Commission to pass an Award holding Opposite Party Nos.1 to 6 jointly and severally liable to, 3
i) Pay Rs.9,648/- for the hospitalization, treatment, medicines etc.
ii) pay Rs.25,000/- for transportation of the body to Hyderabad from Erode;
iii) pay Rs.50,000/- funeral expenses and other ceremonies connected thereon for 10 days;
iv) pay Rs.21,000/- for travel expenses of parents and relatives;
v) pay Rs.30,00,000/- for the negligence in failing to treat an accident victim proper and neglecting to bestow the basic primary, essential medical care for the victim at the much needed golden hour;
vi) pay Rs.30,00,000/- for the resultant mental agony and pain caused by such deficiency of service;
vii) pay Rs.10,00,000/- as damages for the posing of opposite parties as franchisee of Apollo Hospital giving advertisements as to availability of accident and trauma care facilities when they totally lack such facilities;
viii) pay Rs.25,000/- towards costs of the complaint, and to pass such or other orders.
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2. To put in nut-shell, the case of the complainants is as follows:-
Complainants herein are Doctors by profession and their 19 year old son Akshay Kumar was a brilliant student in school and he got admission in Guntur Government Medical College. On 11.04.2004, Akshay Kumar was travelling with his Aunt/Smt.R.Sudha Rao and her two children in a Maruti Car from Salem to Ooty via Coimbatore to attend a Birthday party. The said Maruti Car was followed by a Toyota Qualis Vehicle in which other relatives including his Grandfather/Mr.KSN.Murthy and Uncle/K.Ramakrishna were travelling. At 8.50 AM., while the vehicles were going on National Highway No.47 towards Coimbatore, the Maruti Car in which Akshay Kumar was travelling, met with an accident when a rider on a Bajaj 50 Moped came across, resulting in a collision. Akshay Kumar, who was sitting in the front seat next to the Driver, sustained injuries with a cut on the forehead. His Aunt and her two minor children were also injured, resulting in 5 registration of an FIR by the Inspector of Police, Komarapalayam.
Immediately within the golden hour of the occurrence, Akshay Kumar and the other two injured children were taken by Mr.K.Ramakrishna (Akshay Kumar's uncle) to the Opposite Party/Hospital at Erode which was about 15 kms away from the spot. They were told that the Opposite Party/Hospital belonged to Apollo Group and it had accident and emergency facilities in addition to other trauma care facilities.
At the time of admission, Akshay Kumar was conscious and talking. The 1st complainant/father, who was then in Hyderabad, was informed about the accident over mobile phone by the Grandfather. The 2nd complainant/mother, who was travelling from Hyderabad to Coimbatore by Train hoping to join others and proceed to Ooty, was informed by the 1st complainant and immediately after reaching Coimbatore, she rushed by Road to Erode. The complainants were in constant touch with the Opposite Party/Hospital through mobile phones available with 6 KSN.Murthy and Ramakrishna, requesting the Doctors to keep their injured son in a stable condition. It was informed by the Doctors that the injured was in a stable condition and that he had no head injury but only a laceration on the forehead, a close chest injury and a limb fracture. At 10.20 AM., the 1st complainant was told over phone by the 4th Opposite Party/Doctor that the injured was on Endotracheal Tube and that they were going to put an Intercostal Chest Drainage Tube (ICD).
Mr.KSN.Murthy/Grandfather pleaded the Doctors to provide all necessary treatment and he even gave his consent to any high risk surgery. He was asked to deposit Rs.25,000/- immediately and although he did so, no surgery was performed till then. At 2.10 PM., the 2nd complainant/mother had reached the Hospital and found that the injured had been shifted from the Trauma Section to the Intensive Care unit (ICU). She was told that the Opposite Parties intended to shift the injured to KG Hospital in Coimbatore, where better facilities are available. While the Ambulance of KG Hospital with medical transport team 7 reached the Opposite Party/Hospital just a few minutes before her arrival, to the shock and dismay of the 2 nd complainant, the Opposite Parties declared that Akshay Kumar was no more on the ground that there was a sudden cardio vascular collapse.
When the Opposite Parties/Doctors were repeatedly assuring the complainants/parents that their son was in a stable condition, the announcement that he was no more came as a bolt from the blue. Struck by such terrible tragedy, the 2nd complainant, herself being a Doctor, asked the Duty Doctors at the ICU/Accident & Emergency Units as to why ICD Tube was not placed, as to why blood transfusion was not given and as to when haemorrhage was detected, but, the Duty Doctors were unable to answer those queries. Thus, it is obvious that the Duty Doctors manning the accident/Emergency/Intensive Care Units were not fully qualified to deal with emergency situations.
In fact, Akshay Kumar's Grandfather, Uncle and many other employees of Salem Steel Plant, who had arrived there on hearing about the accident, had offered to donate 8 blood, but those offers were not at all accepted. The 1 st complainant had caught a flight at Hyderabad and reached Bangalore and before he could take a taxi to Erode, he was informed of the demise of his son and told not to come over to Erode. Though the Opposite Parties are duty-bound to make available a copy of the case sheet, despite requests, they did not come forward to provide a copy of the same to the relatives of the deceased. Non-furnishing a copy thereof is another negligent act of the Opposite Parties.
The body of the deceased was sent for postmortem examination. Dr.M.Chandramohan, M.D., Civil Assistant Surgeon at the Headquarters Government Hospital, Erode, conducted post mortem and he noted in his report that there was 'one litre of blood in the thoracic cavity, left side heart 100 gms. chambers empty. Lungs: Rt. 450 gm. Lt. 150 gm. shrunken pale'. The said Doctor had opined that the deceased would have died of shock and haemorrhage. The postmortem report makes it clear that the blood collected in the thoracic cavity was not drained out by inserting an Intercostal Chest Drainage (ICD) Tube. It is also clear there- 9 from that had blood transfusion been given, the heart would not have been empty and would have had blood. Thus, there would not have been haemorrhagic shock. Therefore, life saving basic treatment was not rendered at the golden hour, resulting in the death of Akshay Kumar.
On 11.05.2004, the complainants wrote a letter to the Opposite Party Hospital Authorities, requesting them to provide the case sheet and also the reports of investigations that were carried on Akshay Kumar. Although the said letter was received by the Hospital on 17.05.2004, they did not comply with the said request. When the 1st complainant wrote another letter on 17.06.2004, instead of providing a copy of the original handwritten case sheet and the investigations carried on the deceased, the 2nd Opposite Party, by reply dated 30.06.2004, made a claim that they provided the best services to the deceased, yet, neither a copy of the original case sheet nor a summary thereof was provided even two months after the death of Akshay Kumar. Thereafter, the complainant wrote two more letters on 23.07.2004 and 19.08.2004, for which, the 1st Opposite 10 Party sent a letter, dated 23.08.2004, enclosing some typed papers said to be a summary of the treatment provided. A copy of the exact case sheet was still not forthcoming. As there was no proper response from the Opposite Parties, the 1st complainant had travelled all the way from Hyderabad to Erode, to obtain a copy of the reports, however, the 1st Opposite Party refused to provide any material.
Thereafter, the 1st complainant called on the Inspector General of Police, Coimbatore, and the Superintendent of Police, Erode, and lodged a complaint, whereupon, the 1st Opposite Party furnished some typed papers said to be extracts of the case sheet and reports of the deceased. A perusal of those papers clearly revealed many defects in rendering primary/basic life saving service to the victim. As such, the claim of the Hospital that they are rendering best services is absolutely false. They make it appear as if the Opposite Party Hospital is a Franchisee of Apollo Hospital at Chennai and the same is evident from the signboards and some of the stationery they used. Similarly, though the Hospital claims that they have several accident 11 and emergency facilities, the fact is not so. It is a clear case of misleading the public only with a view to make large pecuniary gains which amounts to cheating. Having collected all necessary medical charges, the Hospital utterly failed to provide necessary timely treatment and the negligence and deficiency of service on their part ultimately led to the death of Akshay Kumar. Hence, they are jointly and severally liable to pay compensation/damages to the complainants for such acts of gross medical negligence and deficiency. The complainants have thus come forward with the present Complaint for grant of the prayer, as stated supra.
3. Resisting the same, Opposite Party Nos.1 to 5 have filed a Version, wherein, among other things, it is stated as follows:-
The 1st Opposite Party Hospital had a tie up with the Apollo Hospital at Chennai. Inaugurated on 10.09.2000, it was originally known as Lotus Apollo Hospital, a Hitech Multi Speciality Facility, first of its kind in Erode. At the end 12 of 2002, the tie up between Apollo Hospital and the 1 st Opposite Party Hospital came to an end, however, there was no significant change in the functioning of the Hospital other than in the nomenclature since Apollo Hospital was only guiding the Opposite Party Hospital in terms of administration. As soon as their association with the Apollo Hospital came to an end in 2002, the 1st Opposite Party Hospital changed the logo, letter style and started promoting it as 'Lotus Hospital' only, in all media, signboards and stationeries.
At the time of admission, the patient was brought seriously injured and severely breathless, not able to talk due to damage to his windpipe. Therefore, to protect the airway, the doctors, who examined him, initially did intubation. The 2nd complainant was in constant touch with the Opposite Parties through the patient's grandfather and aunt, who were, on a regular basis, being briefed about the condition of the patient that he was ventilated and that though the blood pressure was around 200/100, all other vitals were stabilized. The critical nature of the patient's 13 condition was time and again well explained to his attender and aunt, who was in the next bed. As the patient had, at the time of admission, difficulty in breathing, Naso-Tracheal intubation was done. It was obvious that the patient had indeed suffered mediastinal injury, as there was a presence of expanding neck swelling. Also, there was no femoral pulse on both limbs and the X-ray of the chest showed white lung (lung collapse) and mediastinal widening. At that juncture itself, four Units of blood were ordered as a measure of abundant caution. However, as the breathing difficulty persisted, the patient was paralysed and connected to Ventilator. His saturation level had improved and breath sounds were heard on both sides and the BP was 200/100 and the pulse rate was 138/min (Upper Limb). The clinical diagnosis indicated transection of the aorta below the left subclavian artery with mediastinal haematoma. As mediastinal injury was suspected, urgent cardio thoracic opinion was sought for.
When the patient was brought to the Hospital at around 9.30 AM., he was seen and examined by the duty 14 Anaesthetist, General Surgeon, Neuro Surgeon and Orthopaedician respectively. The General Surgeon had made a clinical diagnosis of impending rupture of the thoracic aorta. This was based on the salient findings on the patient and the finding from the chest X-ray. Immediately following this, the Opposite Parties decided to cautiously administer fluids to avoid any undue raise in blood pressure. The patient was assessed as per Advanced Trauma Life Support Protocol. Primary survey of Airway, Breathing and Circulation was done by the duty Anaesthetist. The patient was found restless and had breathing difficulty. He had large neck swelling compromising the air way, hence, immediate naso-tracheal intubation was done and the patient was connected to the Ventilator. Although he had strong pulse in both upper arms, there was no pulse in both femorals. The chest X-ray showed significant mediastinal widening. Shift of trachea to the right and left white lung was also noticed. As there were no indications for Intercostal Chest Drainage (ICD) at that 15 time, it is vehemently denied that the same was suggested by the Orthopaedician.
After careful diagnosis, when the need for cardio thoracic intervention was told to the patient's attendees, Mrs.Sudha/aunt of the patient immediately took her mobile and spoke to the Chairman of KG Hospital/Dr.Bakthavatchalam directly. She consulted with him regarding the management and transfer of the patient and then she handed over the phone to the Opposite Party/Consultants, who clearly briefed the condition of the patient. Thereafter, it was decided by the relatives of the patient that he would be transferred to KG Hospital in Coimbatore as they had made arrangements for an Ambulance to come to the first Opposite Party Hospital. Thus, the decision to transfer the patient was entirely due to the firm request from the relatives, who, in fact, had already arranged the transfer ambulance as also a Cardiac Team at the other end. Hence, the allegation that consent was given for a high-risk surgery by the victim's relatives and the payment of Rs.25,000/- as advance is denied and the same 16 is fabricated and mischievous. It is a fiction to say that the consent form had been signed by the relatives for performing a high-risk surgery as the relatives had already decided to shift the patient and more over, they had, in fact, made arrangements to shift the patient to KG Hospital at Coimbatore. Further, the relatives of the patient had already signed the 'Discharge at request Form" and repeatedly informed the Opposite Parties to only stabilize the patient for transport as an ambulance from KG Hospital at Coimbatore had been sought for. However, the Medical Team of the Opposite Party were continuously monitoring the vital condition of the critically ill-patient and continuously keeping the relatives and complainants updated of the happenings. The requirement of Cardio Thoracic Intervention and the critical nature of the patient were clearly explained to the second complainant. In fact, two Units of blood were kept ready in the Hospital Blood Bank and it was made sure that outside Blood Bank also had adequate stock.17
With regard to the allegation that neither copy of the original case sheet nor summary of the same was provided to the complainants, it is stated that, when a patient expires, only the Death Certificate and a Dead Body Carrying Certificate are issued. It is not the usual procedure to hand over the case sheet to the patient's attender as those records are the property of the Hospital. The case sheet was retained by the Hospital and the extracts have in fact been handed over to the parents so that they can get an idea of the treatment given.
It is reiterated by the Opposite Parties that the patient did not have any evidence of shock till the last few minutes of sudden collapse at 1 PM. Actually, he was having high blood pressure along with good oxygen saturation. There was a minimal amount of blood in the left thoracic cavity at the initial presentation. Moreover, with the absence of both femoral pulse, there was no blood flow to the legs meaning that there could not be any significant blood collection at the site of fracture i.e., right femur. The death could have been thus due to sudden gush of blood 18 into left thoracic cavity as a result of complete rupture of thoracic aorta, minutes before the cardiac arrest that happened around 1 pm. The bleeding of vital organ is aorta, as suggested in the post mortem by the obvious haematoma around the thoracic spine. Unless one opens the mediastinum carefully, the site of rupture in the aorta cannot be identified during the post-mortem examination. Hence, the death was instantaneous and not due to gradual loss of blood as alleged.
ICD is normally done when there are fractured ribs with large collection of air in the pleural cavity (tension Pneumothorax) or if there is an open wound in the chest wall (Open Pneumothorax). ICD is done for hemothorax only when it is massive and compromising saturation. But, in respect of the deceased, there was no fracture in the ribs nor pneumothorax. Initially, the patient was breathless due to tracheal injury, however, after connecting him to the ventilator, his breathing got stabilized and clinically, the breathing was satisfactory.19
The Opposite Parties received the unfortunate patient with rather serious fatal injuries. Clinical and radiological findings clearly showed the fatal nature of injury namely, the transection of aorta in the chest. The patient was diagnosed and was treated to the best of the abilities by the Opposite Parties. In spite of close monitoring and the best treatment given, the patient succumbed to the fatal injuries prior to his transfer to KG Hospital for any surgical intervention, as requested by them. The Opposite Parties had stayed all throughout the time in the emergency ward, managing the patient hoping for his safe transfer to the higher center, as requested by the patient's attender, but, the worst-feared happened. The Opposite Parties took all the steps medically and ethically to save the precious life of the patient, but, it became futile due to the fatal injuries sustained by him.
Opposite Party No.6, in his separate Version, has reiterated the above stand taken by the other Opposite Parties.20
Accordingly, they sought for dismissal of the complaint as devoid of any merit.
4. In order to substantiate their case and claim, the 1st complainant has filed Proof Affidavit and marked Exs.A1 to A24. On the side of the Opposite Parties, proof affidavit has been filed and Exs.B1 to B7 documents have been marked. The 1st Opposite Party was examined by the complainant through questionnaire on the basis of Exs.B1 to B7. After the cross-examination of RW1, Inpatient Case- sheet under Ex.B8 came to be marked. That apart, Dr. Vanitha Mani, Medical Expert was examined as RW-2 on the side of the Opposite Parties and she was cross-examined by the complainants through questionnaire.
5. Learned counsel for the complainant, in an endeavour to demonstrate that this is a clear case of medical negligence and deficiency in service, at the first instance, would cull out the main points of arguments to the effect that the Opposite Parties had miserably failed to give to the 21 injured the golden hour treatment from 10 AM. to 1.30 PM. on 11.04.2004; that failure to place the ICD Tube in spite of advice and failure to transfuse blood in much needed time are clear instances of deficiency in service; that using the name of Apollo Hospital and collecting charges for CT-Scan, which was not taken at all, would amount to unfair trade practice; that non-furnishing of case sheet despite several pleas & appeals would amount to deficiency in service; and that the evidence of Expert/RW2 is inadmissible.
While elaborating the submissions, learned counsel would first point out that, when it is the admitted case of the Opposite Parties that there was an injury in the chest and there was minimal amount of blood in the left thoracic cavity, had ICD Tube been placed to drain out the blood from the said cavity and had blood transfusion been given, the haemorrhagic shock could have been avoided. By referring to the following question (Q. No.49) put by the complainants to RW-1, 22 " Doctor your statement in paragraph 13 regarding the collection of blood and need of ICD in paragraph 15 are self contradictory?", and to the following answer, "Minimal amount of blood in the pleural cavity does not always require ICD....", learned counsel would submit that such version of the Opposite Parties clearly shows that there was blood clot in the chest, however, they did not take any step to place the ICD on the ground that such insertion could be hazardous. According to him, the said perception of the Opposite Parties is totally wrong in the light of the following Noting found in Ex.B8:-
"10 AM. Seen by Dr.Sem and Dr.Yoganath C&R seen Dr.Sem advised for USG abdomen and advised to keep ready for ICD and to arrange 2 more units of blood....."
On the face of the above Noting, according to the learned counsel, also the opinion of RW-2/Medical Expert to the effect that, in the case of small pneumothorax or minimal 23 hemothorax with satisfactory oxygen saturation, there is no need for urgent placement of ICD, stands falsified. At any rate, in spite of the suggestion for placement of the ICD Tube, the Opposite Parties miserably failed to proceed in that line, which failure turned out to be fatal. Inasmuch as the Opposite Parties have overlooked the advice for placement of the ICD Tube, which advice is evident from the Notings in Ex.B8, the stand of the Opposite Parties in their version that there was no need to place the ICD is rendered absolutely wrong, hence, this is a clear case of deficiency in service.
Next, learned counsel took us through the contents of Ex.B8 to suggest that there was no effective treatment given after 10.35 AM. and, in parallel, referred to the answer given by RW-1 for question No.48 to the effect that there was no need for immediate blood transfusion as the patient had high blood pressure and haemoglobin was satisfactory, but, arrangements were made for immediate availability of blood. According to the learned counsel, the above answer would reveal that despite necessity, blood transmission which 24 might have saved the patient was not done, for, the post- mortem report under Ex.A8 is categoric that the cause of death is shock and haemorrhage. In other words, the shock developed because blood was not flown to artery. Since there is a glaring failure on the above aspects, the Opposite Parties must be held accountable for the loss of life.
In an effort to discredit the opinion given by RW-2, learned counsel would term the said expert's evidence as inadmissible in toto for the reason that her opinion solely revolves around the post mortem report rather than the in- patient case sheet. By referring to a decision rendered by the Apex Court in Maharaja Agrasen Hospital & Others vs. Master Rishabh Sharma and others (2020 (1) CPJ 3 (SC)), learned counsel would highlight the principles laid down therein to the effect that it is well-settled that a Court is not bound by the evidence of an Expert, which is advisory in nature; that the court must derive its own conclusion after carefully sifting through the medical records, and whether the standard protocol was followed in the treatment of the patient; and that the duty of an Expert Witness is to 25 furnish the Court with necessary scientific criteria for testing the accuracy of the conclusions, so as to enable the Court to form an independent opinion by application of such criteria to the facts proved by evidence. He would urge the point that whether such evidence would be accepted or how much weight should be attached to, it is for the court to decide. He would repeat that since the opinion of RW-2 Expert not seemed to have been derived from the case sheet and it fully revolves around the post-mortem report, no weightage need to be given there-for.
As regards non-furnishing copies of the in-patient case-sheet, learned counsel would refer to the letters under Exs.A12, A13, A15 and A16, dated 11.05.2004, 17.06.2004, 23.07.2004 and 19.08.2004 respectively, addressed by the complainants to the Opposite Parties Hospital, seeking to furnish the in-patient case records and submit that, since those requests did not evoke any positive outcome, under Ex.A18, dated 05.11.2004, the complainants had lodged a complaint before the Inspector General of Police, Coimbatore, and that only thereafter, on 06.11.2004, the 26 Opposite Parties had come forward to furnish only the case sheet extract and not the case sheet itself, which would amount to deficiency in service. In fact, when RW-1 was cross-examined, he stated that there was no inpatient case sheet but there is only outpatient case sheet. By adverting to question No.18 put to RW-1 'I put it you since you have not produced the case sheet that court has to have adverse inference against all of you?', and to the answer given therefor, viz., 'As we have already produced the case sheet extract and in view of the fact that we are ready and willing to produce the same, adverse inference cannot be drawn', learned counsel would urge upon this Commission to take adverse note of the indifferent attitude of the Opposite Parties in wantonly withholding the documents concerned despite repeated fervent pleas and in producing the same after a long lapse of time that too after the cross- examination of RW-1 by marking it as Ex.B8, as such 27 inaction is not a mere instance of deficiency in service but would also amount to grave professional misconduct.
Ultimately, by stating that all the above aspects would amply depict clear instances of negligence, deficiency in service and beyond that, grave professional misconduct on the part of the Opposite Parties, learned counsel would plead that the prayer of the complainant deserves all acceptance by this Commission.
6. Sharply resisting the realm of submissions advanced above, learned counsel for the Opposite Parties would, at the first instance, comment that all the points raised by the complainants have no edifice to stand, for, the line of arguments are apparently built upon by reading the portions out of context and the adverse inference sought to be drawn is nothing but conception of wrong perceptions from a biased & feeble understanding.
Firstly, he would point out by referring to Ex.B8 that, on 11.04.2004, when the complainants' son was brought to the Hospital at 9.30 AM., he was severely injured, 28 not even able to talk due to damage to the wind-pipe. He was drowsy, oriented, had pain in the entire chest wall region, severe breathing difficulty, laryngeal edema in the neck, pain in the left thigh, laceration on the right side forehead, an abrasion on the left forearm posterior aspect, an abrasion on the left forearm and absent femoral pulse. Hence, intubations were done immediately by the Doctors to protect the airway. The 2nd complainant/mother was in constant touch with the Opposite Parties through the grandfather and the aunt of the patient, who were on a regular basis, being briefed about the critical condition of the patient. At 9.30 AM., the patient was examined by the Duty Medical Officer, who, on examination, found him dyspenic (out of breath), BP level 150/100 mm Hg, Pulse 149/min and SPO2-80%, whereupon, immediately IV fluids were started, blood was taken and sent for routine investigations. Also X-ray Chest PA and USG abdomen were ordered. Various Specialists including the Neurosurgeon, Orthopaedician, General Surgeon and Anaesthetist were immediately informed by the Duty Doctor present. At 9.35 29 AM., the Anaesthetist intubated the patient and connected him to Ventilator, catheterized the patient and advised to arrange 2 units of blood. At that time, the patient was also examined by General Surgeon/Dr.Easwaramoorthy and Anaesthetist/Dr.Ganesh Babu. As the X-ray report had suggested left white lung (lung collapse) and mediastinal widening (indicative of a life threatening condition such as dissection and oesophageal rupture), the General Surgeon suspected transection of the aorta. In view of tearing of the aorta, which is the main blood vessel that travels from the heart, the General Surgeon immediately advised performance of thoracotomy. At 10 AM., the patient was seen by Dr.S.Vijay, who had suggested that a CT brain be taken only if the patient was stable/fit for transportation. In the meantime, Dr.Yoganathan/Orthopaedician did a Thomas Splint to immobilize the fracture in the leg and advised X-ray pelvis and right femur. At 10.20 AM., the USG abdomen and chest suggested minimal fluid collection in the chest and also lung collapse. The patient was again seen by the Anaesthetist and his condition was explained to his 30 Grandfather. At 10.35 AM., the patient's attender informed the Opposite Parties that they wanted to shift the patient to KG Hospital in Coimbatore. It was further informed that the relatives of the patient had arranged for an Ambulance. Importantly, the discharge at request was signed by the grandfather of the patient at around 10.30 AM itself, and it is quite evident from Ex.B5. At 10.45 AM., the patient's attenders had refused to give consent to perform any procedure on the patient and they kept on instructing the Opposite Parties to only stabilize the patient, as they wanted to shift the patient to KG Hospital at Coimbatore, since the Chairman of the said Hospital was well known to the family of the patient. Despite that, the opposite parties were closely monitoring and providing necessary treatment to the patient. Ex.B8 would clearly show that various Specialists like Neurosurgeon, Orthopaedician, General Surgeon, Anaesthetist, etc. were monitoring the patient closely and carefully. Although the relatives of the patient were only keen in shifting him to KG Hospital and also were consistently reluctant to give consent to perform any 31 procedure suggested by the Opposite Parties, the Hospital did their level-best till the last minute, but, in spite of that, at 1 PM., suddenly, the patient developed cardio vascular collapse and immediately, cardio pulmonary resuscitation was started, IV fluids were rushed, inj.adrenaline and atropine were administered. Cardiac massage was given to the patient and he was shifted to the ICU. Sudden deterioration of pulse was explained to the patient's attenders. As evident from Ex.B8, at 1.10 pm., the patient was reviewed in the ICU and his BP was not recordable, heart beat was absent and pulse was not felt. Cardio Pulmonary resuscitation was performed till 2 PM. As the ECG monitor showed a flat line, the patient was declared dead due to cardiovascular collapse at 2.10 PM. When the above details available in the form of records would self- speak that, at every moment, there was close monitoring and proper follow-up to the best extent possible by the Medical Team in the Hospital to save the life of the deceased, it is highly deplorable now to say that there was no treatment much less golden hour treatment given to the 32 victim. At any rate, the Opposite Parties, while adopting the course of treatment, in their professional wisdom, had well appreciated all the risk factors involved and given preference to the course which is safer than other options involving more risk. In this regard, he would reply upon a decision of the Apex Court in Arun Kumar Manglik v. Chirayu Medical Health and Medicare Private Ltd. (2009-7-SCC-
130), wherein, it has been held as under:-
"53. In the practice of medicine, there could be varying approaches to treatment. There can be a genuine difference of opinion.
However, while adopting a course of
treatment, the medical professional must
ensure that it is not unreasonable. The
threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function."
Inasmuch as the Opposite Parties handled the case of the injured with all diligence, extreme medical care and 33 reasonableness, the allegation that proper treatment was not given during the golden hour has to be just brushed aside, he pleaded.
Regarding the submission made by the learned counsel for the complainants that ICD Tube was not placed, after taking us through the contents of Ex.B8, learned counsel appearing for the Opposite Parties would point out that thoracic cavity or chest cavity is the chamber of the human body that is protected by rib cage & associated skin, muscle and fascia, limited by the costa and the diaphragm and would submit that, after perusing the USG and X-ray, the Opposite Parties had advised for a thoracotomy, which is a surgical procedure performed on the right or left side of the chest by making a cut between the ribs to see and reach the lungs or other organs in the chest or thorax, so as to diagnose or treat a disease and allow Doctors to visualize, do biopsy or remove tissue as needed; however, such procedure viz., thoracotomy, a major surgery which will take 3 to 4 hours to complete, could not be pursued by the medical team owing to the reason and fact that the family members 34 did not give consent for the same. The relatives were constant and consistent in just ensuring that the patient is stabilized so that they could shift him to KG Hospital, Coimbatore, and that is why they had already signed the discharge request even while requisite medical follow-up was being seriously pursued by the Opposite Parties. Though it is now alleged that had ICD been done immediately, the chances of the patient's survival would have been bright, such allegation has no material basis for the reason that USG indicated white left lung or lung collapse. In other words, when the left lung shrunk in size and collapsed due to trauma and when the patient had no fluid accumulation, there was no need at all to perform the ICD. That is why the General Surgeon had suggested thoracotomy at 10 AM. itself, however, the Grandfather was very particular about discharge at that time, as evident from Ex.B5. The said stand of the Opposite Parties in not opting for ICD came to be later endorsed by the Post Mortem Report, wherein, there is no finding about any fluid in the lung. Thus, when there was no fluid in the lung, ICD was not necessitated/pursued. 35 The allegation of deficiency in service on the part of the Opposite Parties for not placing the ICD is highly ill- conceived, for, such decision was based on professional wisdom which cannot be found fault with.
With regard to the submission made on behalf of the complainants that the Opposite Parties misused the name of Apollo Hospitals, it is replied that the Opposite Parties had a tie-up with Apollo Hospitals and it is evident from Ex.B1, however, later on, the tie-up came to be dissolved. Hence, there is no need for the Opposite Parties to mislead the public to attract patients in the name of Apollo. As such, the allegation that the Opposite Party/Hospital is misleading the public by putting up signboard is an utter falsehood. Thus, the entire gamut of allegations and arguments of the complainants being bald and baseless as well as contrary to facts, the complaint has to be dismissed in threshold, learned counsel pleaded ultimately.
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7. We have given our thoughtful consideration to the materials available on record. Having regard to the rival submissions advanced on either side, the following questions need to be answered:-
a) Whether non-placement of ICD Tube would amount to negligence on the part of the Opposite Parties, particularly when one of their Doctors in the Medical Team has suggested for the same?
b) Whether the Opposite Parties failed to give golden hour treatment from 10 AM.
to 1.30 PM. on 11.04.2004 ?
c) Whether the Opposite Parties adopted Unfair Trade Practice in using the name of Apollo Hospital and in collecting charges towards CT Scan, which was not taken at any point of time ?
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d) Whether non-furnishing of case sheet within a reasonable time would amount to deficiency in service ?
8. Before delving into the exercise of answering the questions framed above, it would be apt and proper, in a case of this nature, to advert to certain core aspects below.
This is a pathetic instance where a Doctor Couple/complainants had lost their beloved son/Medical Student as destiny is dominant always. Like the right of a patient to receive required correct treatment is apodictic, the liberty of a medical professional who cautiously acts based on his professional wisdom and judgment in diagnosing/treating patients is equally inviolable. If the available records would show that the medical professionals had acted with diligence and care in saving a patient's life and that adoption and bypassing of certain procedures were based on professional wisdom and judgment, then, the element or allegation of negligence or deficiency in service 38 would lose its vigour. When nature had the last word and patient breathed his last, the family not able to cope with the loss of their beloved one may come up with claims and accusations and it is the duty of the Court/Forum to find out whether or not such claims are borne out by records so as either to blame the medical team or to discredit the complaint. Indisputably, the ultimate fact is no doctor can assure life to his patient but can only attempt to treat his patient to the best of his ability. Hence, the main endeavour would be to find out first whether such honest attempt to treat the patient to the best of ability was made or not.
9. In that backdrop, coming to the first question relating to failure on the part of the Hospital in placing the ICD Tube, the complainants strongly derive basis for the same from the Notings in Ex.B8, wherein, it is stated that Dr.Sem advised for USG abdomen and advised to keep ready for ICD. According to the complainants, had the ICD Tube been placed, the patient might have survived and since the Opposite Parties have conveniently overlooked such vital 39 medical advice, they are liable for the consequences resulted from such negligence. On the contrary, it is the emphatic stand of the Opposite Parties that the need for ICD Tube though initially advised, from further diagnosis, ICD was found to be absolutely unnecessary owing to the rupture of thoracic aorta, in which condition, insertion of the ICD tube could be hazardous. In other words, since aorta, which is the main blood vessel that travels from the heart got ruptured, ICD Tube placement was not the right choice, rather, 'thoracotomy', a surgical procedure in which a cut is made between the ribs could be done so as to take up further diagnosis/treatment. Now, in between these two segments, for reaching a definite finding, this Commission has to carefully sift through the records as to whether the opinion under Ex.B8 to make ready for ICD placement was conveniently ignored by the Opposite Parties, attracting the element of negligence or the said opinion was bypassed due to any impending complication.
It is seen from Ex.B8 that the suggestion to keep ready for ICD was made at 10 AM. But thereafter, when the 40 results of USG Abdomen came at 10.20 AM indicating lung collapse, the Opposite Parties decided that there was no need to perform ICD. It is apparent that although initially, there was a suggestion to go for ICD Tube insertion, after further diagnosis, on coming to know the lung collapse, in their professional wisdom, the Opposite Parties had decided to skip the ICD Tube Insertion and instead, they advised for thoracotomy, a major surgery that will take 3 to 4 Hours and which required the consent of the family members. But unfortunately, it seems, the relatives of the patient were not coming forward to give consent for doing thoracotomy. The version of the Opposite Parties is quite categoric that the chest ultrasound showed some fluid in both pleural cavities and, at the left side, it was more probably due to initial leak from the impending rupture of thoracic aorta; as such, placing the ICD could risk sudden collapse of the victim, who was waiting for transfer to KG Hospital as per the request and plan of the complainants and their relatives. It is explained that ICD is advisable only if there is any compromise in patient breathing and oxygen saturation, 41 which was not so in the case of the victim. It could be seen that the amount of blood in the left pleural cavity as noted in the post mortem report was because of bleeding just before the patient collapsed at 1 PM. due to complete rupture of thoracic aorta and also due to the efforts of cardiopulmonary resuscitation initiated by the Opposite Parties during the last minutes of management of the victim. In the light of the same, there is no difficulty for this Commission to derive the conclusion that skipping of ICD was based on medical reasoning and not a result of any negligence or inexperience. This Commission is mindful of the settled law that if there are two or more choices of treatment available for the Medical Professional and if he chooses one such mode in his professional wisdom, he cannot be found fault with for not choosing the other mode of treatment retrospectively. To put it otherwise, a Doctor cannot be held as such liable under medical negligence, just because the patient has not favourably responded to a treatment given by him or a surgery has failed. Obviously, a professional may be held liable for negligence on one of the two findings viz., either he 42 was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise with reasonable competence in a given case, the skill which he did possess. When those two factors are apparently absent here and it is very much apparent that the medical team in this case acted in accordance with their professional wisdom and judgment, we fail to see any justification or good reasoning whatsoever in the claim that non-placement of ICD Tube was a negligent act and deficiency in service.
10. Coming to the 2nd question, it is the assertive stand of the complainants that the case sheet would show that there was no medication given after 10.35 AM. At 10.45 AM, there was an entry that pulse not palpable in both femorals - High Blood Pressure was present, heart rate was also high. On the contrary, it is the stand of the Opposite Parties that they left no stone unturned in their cautious attempts to save the injured and the Notings available in Ex.B8/case sheet are rather exhaustive in 43 nature and would throw sufficient light about the veracity in their version.
It is but proper to add here that the 'golden hour' is the term often used in trauma or emergency care to suggest than an injured or sick person must receive definite treatment within the first one hour from the time of injury or appearance of symptoms. It is the general notion that once this time has lapsed, the risk of death or long-term complications will significantly increase or inevitable.
On a perusal of the records, we find that the injured, immediately after the accident that took place at 9 AM on 11.04.2004, was brought to the Hospital of the Opposite Parties at about 9.30 AM. In Ex.B8 containing the Accident Register recorded at 9.50 AM., the condition of the patient was noted as drowsy, oriented, pain in entire chest region, complained of severe breathing, laryngeal edema present in neck, pain swelling deformity - Rt. thigh, pain in Lt. Thigh, a laceration 4 x 0.5 x 0.5 cm. rt. side of forehead, an abrasion 1 x 2 cm. Left forearm - posterior aspect, an abrasion 1 x 0.5 cm. Left forearm and femoral pulse absent. 44 Under Ex.B8, the papers captioned as 'History and Findings on Admission' recorded at 9.40 AM. would show that the patient had complained of breathing difficulty and pain in the central chest with pulse rate at 149/min and BP reading 150/100, whereupon, diagnosis-cum-treatment was taken up by starting IV fluids, taking blood for routine investigation and ordering X-ray Chest PA and USG Abdomen. As the patient developed difficulty in breathing, at 10 AM., Naso-tracheal intubation was done and he was in parallel connected to Ventilator Support. Further investigations done in the meantime as well as the X-ray and USG Abdomen indicated significant mediastinal widening and more importantly a fatal injury viz., rupture of aorta, which is the main blood vessel that travels from the heart and also lung collapse. It is at that critical time, when the Opposite Parties informed the relatives of the patient at the Hospital that a procedure called 'thoracotomy' was to be done, for which, their consent is necessary, it seems, the relatives were not coming forward to offer consent since Ex.B5 "Discharge on Request" shows that 45 Mr.KSN.Moorthy/Grandfather of the Patient had requested for discharge against medical advice on his request and at own risk. The timing shown in the request signed by Mr.KSN.Moorthy is 10.35 AM., dated 11.04.2004. Further, a close reading of the entire case sheet would reveal that, till the last minute, the Hospital Authorities, despite the request for discharge, took all necessary medical follow-ups in treating the patient to the best of their ability. Hence, we absolutely find no merit whatsoever in the contention of the complainants that golden hour treatment was denied to the victim at the hands of the Hospital Authorities, as it is contrary to the facts and records. Accordingly, such contention is repelled and rejected in toto.
11. Coming to the 3rd question relating to unfair trade practice as alleged by the complainants, the materials available in the form of Ex.B1 would show that the Opposite Parties had a tie-up with the Apollo Hospital. However, it is the emphatic stand of the Opposite Parties that such tie-up had been later dissolved during 2002; thereupon, all the 46 documents including the logo/stationery/displays were meticulously changed so as to discard the symbol of Apollo and that the sign boards on road-side, trauma helpline and the Ambulance carrying the patient, all displayed the Hospital's name as Lotus Hospital. Of all the documents provided to the patient, only one document under Ex.A21/Dead Body Carrying Certificate bore the name 'Lotus Apollo" at the signature space, which was due to clerical oversight and not a purposeful one. In our view, the said explanation given by the Opposite Parties seems to be bona fide particularly when there is no strong material to suggest otherwise.
As regards another segment of unfair trade practice alleged in collecting charges towards CT Scan, which was admittedly not taken by the Hospital, straight away, we may hold that such allegation is ill-conceived for the reason that although Dr.S.Vijay had suggested for a CT Scan only if the patient is stable, it seems that that the relatives of the complainant were insisting upon discharge and seemingly, they did not give consent for further procedure that would 47 require after CT Scan. Since CT was not done, even according to the complainants, on 08.11.2004, the Opposite Parties had refunded the amount. In such circumstances, the said contention has to be discarded as such.
12. In regard to the 4th question over failure of the Opposite Parties in timely furnishing the in-patient case records, it is seen that the complainants wrote letters under Exs.A12, A13, A15 and A16, dated 11.05.2004, 17.06.2004, 23.07.2004 and 19.08.2004, requesting the Hospital for supply of copies of the treatment records but in vain, which prompted them to lodge the complaint under Ex.P18, dated 05.11.2004, with the Inspector of Police, West Zone, Coimbatore, and thereafter only, on 06.11.2004, the Opposite Parties had come forward to furnish the cash sheet extract along with 5 other reports. It would be of much relevance to examine the above conduct of the Opposite Parties in the light of the answers given by RW-1/1st Opposite Party, who would answer in the following terms to 48 the first question posed to him, viz., 'Did you file the inpatient case sheet before this Commission', "There is no inpatient case sheet there is only outpatient case'.... "
Citing such answer, when the complainants confronted him with a suggestion as to whether the Court would draw adverse inference for non-production of the in-patient case sheet, RW-1 would deviate from the above answer that there was no inpatient case sheet at all and would now say that, in view of the fact that they are ready and willing to produce the same, adverse inference cannot be drawn. The above contradictory versions would indicate that the Opposite Parties, although had all requisite materials available with them, were not serious and benevolent enough to spare the records as requested by the complainants. The said attitude further complicated the matter, in that, had those materials been timely supplied to the complainants, after perusal, even they might have had a good idea about the treatment given to their son and thereby, it was also likely that the present proceedings might not have been set in 49 motion. On the contrary, by the indifferent and callous attitude of the Opposite Parties in wantonly withholding the treatment details, they not only invited the lis but also exhibited a sort of professional misconduct. It is of much relevance to extract below the following portion, which is a warning issued by the Delhi Medical Council over delay in supplying the medical records, as highlighted in the decision of the Apex Court in Maharaja Agrasen Hospital (cited supra), " We find that withholding the medical records of Respondent No.1, who was a premature baby, for a period of over 2 years, would constitute grave professional misconduct under Regulation 7, apart from being a gross deficiency in service on the part of the Appellant No.1-Hospital and its management."
In the case on hand, the complainants, who lost their beloved son, could only see the exhaustive records relating to the treatment given, only after it came to be produced before this Commission in July, 2014, about 10 long years after the first request made by the complainants on 11.05.2004, seeking 50 supply of copies. In this regard, it would be apt to cite below Regulation 1.3.2. of the Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002, "1.3. 2. If any request is made for medical records either by the patients / authorised attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours."
In Maharaja Agrasen Hospital's case (cited supra), the Apex Court highly disapproved the act of belated furnishing of medical records and categorically held that such act would not only amount to gross deficiency in service but also grave professional misconduct. In the case on hand, the Opposite Parties abruptly failed to comply with the obligation to furnish the medical records to the complainants in spite of several requests. Therefore, deficiency in service by the Opposite Parties is glaringly apparent with regard to non-supply of copies of the medical records, as sought for by the complainants. By such act, the parents of the deceased were 51 driven from pillar to post for a very long period to see/find the entire details of treatment provided to their son. As such, we see much substance and force in the claim of the complainants, therefore, for such deficiency in service, interests of justice would be served if a compensation of Rs.5,00,000/- (Rupees five lakh only) is ordered to be paid by the Opposite Parties to the complainant.
13. In the result, the complaint stands allowed in part to the extent that the 1st Opposite Party/Hospital shall pay a sum of Rs.5,00,000/- (Rupees five lakh only) as compensation to the complainants for deficiency of service/failure in timely furnishing copy of the medical records, within a period of two months from the date of receipt of a copy of this order, in default, to pay the said sum along with interest @ 7.5% p.a. from the date of complaint till the date of payment. No costs.
S.M.LATHA MAHESWARI R.SUBBIAH, J.
MEMBER PRESIDENT.
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LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANTS.
Sl.No. Date Description of Documents Ex.A1 22.10.2003 Medical College Admission Card Ex.A2 Student ID Card Ex.A3 24.09.2003 Admission to self financing seat Ex.A4 26.09.2003 Payments to Guntur Medical College Ex.A5 04.11.2003 Bonafide Student Certificate Ex.A6 11.04.2004 FIR Ex.A7 11.04.2004 Treatment Summary Ex.A8 11.04.2004 Postmortem Certificate Ex.A9 11.04.2004 Accident Report with insertion Ex.A10 11.04.2004 Hospital Bills Ex.A11 06.05.2004 Death Certificate
Ex.A12 11.05.2004 1st complainant's letter with Ack. Ex.A13 17.06.2004 1st complainant's letter with Ack. Ex.A14 30.06.2004 1st OP's Reply Ex.A15 23.07.2004 1st complainant's letter with Ack Ex.A16 19.08.2004 1st complainant's letter with Ack Ex.A17 23.08.2004 1st OP's letter Ex.A18 05.11.2004 Complaint to Police Ex.A19 11.04.2004 Case Sheet Extract Ex.A20 Claims of services offered Ex.A21 11.04.2004 Deadbody Carrying Certificate Ex.A22 08.11.2004 Refund for wrong billing Ex.A23 20.12.2004 Legal Notice Ex.A24 27.03.2004 Letter by Consumer Care Center LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTIES Sl.No. Date Description of Documents Ex.B1 10.09.2000 Invitation for inauguration of Lotus Apollo Hospital Ex.B2 Equipment List pertaining to ICU and the emergency Departments of Lotus Hospital 53 Ex.B3 Photographs (Free Camps) Ex.B4 11.04.2004 FIR Registered by the Inspector of Police, Kumarapalyam Ex.B5 11.04.2004 Copy of Discharge on request Ex.B6 11.04.2004 Blood Component Therapy Record Ex.B7 Apr., 2004 Blood Collection Register Ex.B8 Original Case Sheet.
S.M.LATHA MAHESWARI R.SUBBIAH, J. MEMBER PRESIDENT Index : Yes / No. ISM/SCDRC/Chennai/Jan/2022.