State Consumer Disputes Redressal Commission
Deepak Gupta vs Smt Roshan Ara on 23 March, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2009/2128 ( Date of Filing : 07 Dec 2009 ) (Arisen out of Order Dated in Case No. of District State Commission) 1. Deepak Gupta a ...........Appellant(s) Versus 1. Smt Roshan Ara A ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 23 Mar 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. 1- Appeal No. 2120 of 2009 Dr. Sharad Chandra, 95, Civil Lines, Jhansi. ...Appellant. Versus 1- Smt. Roshan Ara, aged about 36 years, W/o Late Shri Abdul Zakhir Khan, House No.12/16, Abbot Compound, Civil Lines, Jhansi. 2- Maa Sherawali Hospital through its Proprietor & Director, Dr. R.C. Arora, Kanpur Road, Jhansi. 3- Dr. Deepak Gupta, Surgeon through Maa Sherawali Hospital, Kanpur Road, Jhansi. 4- Dr. Anupam Singh, Anesthetist through Maa Sherawali Hospital, Kanpur Road, Jhansi. 5- Dr. R.C. Arora, Proprietor/Owner & Manager, Maa Sherawali Hospital, Kanpur Road, Jhansi. 6- National Insurance Company, Jhansi through Branch Manager. 7- Oriental Insurance Company, Jhansi through Branch Manager .......Respondents. 2- Appeal No. 2264 of 2009 1- Maa Sherawali Hospital, Kanpur Road, Jhansi through its Director, Dr. R.C. Arora, 2- Dr. R.C. Arora C/o Maa Sherawali Hospital, Kanpur Road, Jhansi. .... Appellants. Versus 1- Smt. Roshan Ara, House No.12/16, Abbot Compound, Civil Lines, Jhansi. 2- Dr. Sharad Chandra, 95, Civil Lines, Jhansi. 3- Dr. Deepak Gupta, near University Campus, Medical College, Kanpur Road, Jhansi. 4- Dr. Anupam Singh, Kanpur Road, Jhansi .....Respondents. 3- Appeal No. 2128 of 2009 Dr. Deepak Gupta s/o Sri Shankar Lal Gupta, R/o Kalmasan Nagar, Kanpur Road, Jhansi (Arrayed as OP no.3 Surgeon through Maa Sherawali Hospital, Kanpur Road, Jhansi) ...Appellant. Versus 1- Smt. Roshan Ara Widow of Late Abdul Shakir Khan, R/o H. No.12/16, Abot Compound, Civil Lines, Jhansi. 2- Maa Sherawali Hospital through its Proprietor & Director, Dr. R.C. Arora, Kanpur Road, Jhansi. 3- Dr. Sharad Chandra, 95, Civil Lines, Jhansi. 4- Dr. Anupam Singh, Anesthetist through Maa Sherawali Hospital, Kanpur Road, Jhansi. 5- Dr. R.C. Arora, Proprietor/Owner & Manager, Maa Sherawali Hospital, Kanpur Road, Jhansi. 6- National Insurance Co., Jhansi through Branch Manager. 7- Oriental Insurance Co., Jhansi through Branch Manager .......Respondents. 4- Appeal No. 280of 2010 Smt. Roshan Ara, aged about 38 years, Widow of Late Shri Abdul Shakir Khan, R/o H.No.12/16, Abbut Compound, Civil Lines, Jhansi. ...Appellant. Versus 1- Dr. Deepak Gupta, aged about 50 years S/o Shir Shanker Lal Gupta, R/o Kemasan Nagar, Kanpur Road, Jhansi through Maa Sherawali Hospital, Kanpur Road, Jhansi. 2- Maa Sherawali Hospital through its Proprietor & Director, Dr. R.C. Arora, Kanpur Road,Jhansi. 3- Dr. Sharad Chandra, 95, Civil Lines, Jhansi. 4- Dr. Anupam Singh, Anesthetist through Maa Sherawali Hospital, Kanpur Road, Jhansi. 5- Dr. R.C. Arora, Proprietor/Owner & Manager, Maa Sherawali Hospital, Kanpur Road, Jhansi. 6- National Insurance Company, Jhansi 7- Oriental Insurance Company, Jhansi .......Respondents. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Alok Ranjan, Advocate for Dr. Deepak Gupta. Sri M.H. Khan, Advocate for complainant Smt. Roshan Ara. Sri Shivendu Tripathi, Advocate for Dr. Sharad Chandra. None appeared for the other parties. Date : 21 .04.2022 JUDGMENT
Per Mr. Rajendra Singh, Member: All these four appeals are related to the same impugned judgment and same facts, hence, these are being decided by a common judgment.
Appeal no.2120 of 2009 has been filed by Dr. Sharad Chandra with a prayer to set aside the impugned judgment and order dated 4.11.2009 passed by the Ld. District Consumer Commission, Jhansi in complaint case no.137 of 2006 (Smt. Roshan Ara vs. Maa Sherawali Hospital and 6 others) and to dismiss the complaint of the complainant with cost in favour of the appellant.
The grounds of appeal are that, that the appellant is a highly qualified and well experienced doctor having vast experience of gastroenterology. The condition of the patient arising out of perforation peritonitis was a serious condition and it required immediate surgery. Being the treatment of choice which was well advised by the appellant. The complainant throughout was under a misconception that her husband did not suffer from any serious illness, medically speaking the case of the appellant was duly supported by the medical literature to show that the "gold standard" for diagnosis of perforation of intestine is examination by X-ray. The other investigations such as C.T. Scan and water soluble contrast enema is required only in equivocal cases where there exists any doubt. As X-ray was diagnostic no further investigation was required or done. The endoscopy is never done in suspected perforation, it is a medically known fact.
After the initial diagnosis and advice by the appellant doctor if any need was further felt for investigation it was the discretion of the surgeon before the surgery. The alleged x-ray report of Dr. Madhusudan Gupta is sketchy and inadequate because the said doctor has only a diploma/degree in paediatrics and not an expert or qualified radiologist. There was no question of having prescribed any other tests as has been wrongly asserted by the complainant in her complaint petition and strongly refuted by the appellant in his written objection before the Ld. District Consumer Forum.The Ld. District Forum completely failed to appreciate the true facts and also failed to weigh the evidences in a proper manner and has thus passed an erroneous judgment and order dated 4.11.2009. On examination the patient was found to have tenderness guarding and abnormal rigidity with complain of severe pain the abdominal distension. The complainant did not approach the Ld. District Forum, Jhansi with clean hands and on the contrary deliberately concealed the X-ray plate which clearly demonstrated correct diagnosis made by the appellant.
It is also relevant to mention that on 13.8.2005 after the appellant had advised X-ray the patient had returned to the appellant only with X-ray film and there was no report given. In any case the appellant was duly authorized and equipped to evaluate the X-ray plate itself. The finding of the Ld. District Forum against the appellant that a hurried diagnosis was made by him in the case of the patient is totally incorrect and unsustainable in as much as the appellant has been consistently maintaining that he rightly diagnosed the patient as a case of intestinal perforation. The complainant has admittedly failed to produce any expert evidence contrary to the diagnosis made by the appellant and hence, therefore, there was no material on record before the Ld. District Consumer Forum to have recorded any finding against the appellant doctor.
The judgment and order dated 4.11.2009 passed by the Ld. District Forum in complaint case no.137 of 2006 suffers from manifest error of law and facts both and hence, liable to be set aside by this Hon'ble Commission.
In appeal no.2264 of 2009, the appellants, Maa Sherawali Hospital and Dr. R.C. Arora have prayed that the records of the case be summoned and appeal be allowed.
The grounds of the appeal are that, that the complainant has raised false and contradictory allegations in her complaint that conservative line of treatment should have been adopted for the treatment of peptic ulcer and further wrongly alleged hat treating doctor rendered wrong medical treatment, which factum is not proved by any iota of evidence, nor there is any expert evidence under the provisions of Section 13 of the Act, nor learned District Forum considered to call for the medical expert report which was absolutely necessary in the circumstances of the case. In this regard ld. Forum failed to consider the judgments of the Hon'ble Supreme Court cited before it in light of which it was incumbent to call for the expert report.
It is relevant to state that patient late Shri Abdul Shakir Khan aged about 50 years had come to Dr. Sharad Chandra, respondent no.2 with the complaint of severe pain with abdominal distension and as per his prescription it is clear that in order to ascertain cause he advised x-ray and thereafter diagnosed the case of perforation peritonitis. Dr. Sharad is gastroenterologist, who thereafter referred him to surgeon Dr. Deepak Gupta at his clinic. On 13.8.2005 itself patient visited Dr. Deepak Gupta, respondent no.3 who is a surgeon and who on examining he patient and the x-ray plate diagnosed the case of distension of abdomen, tenderness and abdominal rigidity and perforation peritonitis and advised for operation on 14.8.2005 at 6.00 a.m. and asked to admit in appellants hospital for conducting surgery and also on his prescription advised certain tests and medicines which required prior to operation. The doctor wanted to have the surgery by way of laprotomy. The patient got admitted in the hospital of the appellants in the night at 11 p.m. on 13.8.2005 for which only sum of Rs.500.00 was charged and nothing more than that was ever paid by the patient or his attendants/relatives. Appellants hospital is one of the best of hospitals in the city of Jhansi and Bundelkhandares having deluxe wards, general wards, Mahila wards, private rooms, ICU, OT fully equipped with all medical facilities and instruments and has also employed several paramedical staff, nursing staff, house keeping ward boys etc. and various doctors to look after the patients to conduct the treatment to them. The patient's BHT/case sheet and nursing records was duly maintained and as advised by the Dr. Deepak Gupta various tests as mentioned in his prescription dated 13.8.2005 required prior to conducting the operations was done at the hospital as mentioned in the case sheet and Dr. Gupta conducted the operation and Dr. Anupam Singh, respondent no.4 was the anesthetist who gave spinal anesthesia. Dr. Gupta made the operation notes who conducted the surgery of duodenal perforation and repaired and drainage of duodenal perforation was performed and appendix was also removed as it is clear from his operation notes and prescribed medicines and its intake time for the patient in the said notes. Appellants hospital is fully equipped with all medical gadgets and staff is fully trained with doctors on duty and thus it is wrong to allege that hospital is not equipped with the equipments and staff is not trained as alleged by complainant. In hospital , the patient was looked and every hourly/half hourly was seen, his pulse, BP etc. was recorded as it is crystal clear from the case sheet and as advised by Dr. Gupta the medicines were given to patient. The patient was duly under constant treatment of Dr. Gupta who was got admitted in appellants hospital for surgery. Dr. Gupta is not a part-time doctor employed with the hospital as alleged by complainant, but is a private practitioner and surgeon. Since patient surgery had to take place, hence, he was got admitted in the hospital of appellant on the advice of Dr. Gupta. The complete satisfaction and on the basis of treatment prescribed of medicines upon surgery as advised by Dr. Gupta was given in the hospital to the patient and the patient was time to time looked after by Dr. Gupta and medical staff/doctor on duty of the hospital, hence, appellants rendered best of medical services for caring the patient which is clear from the BHT/case sheet and as such there is no rendering of deficient services on the part of the hospital who have unnecessarily made part to the case, thus rendering the alleged case bad in law for mis-joinder of parties. It was the decision and diagnosis of the doctors viz. respondent no.2 and 3 and thereafter respondent no.3 conducted the surgery as was necessary required for which he took the decision in the circumstances of the conditions of the patient who was constantly under his treatment, and thus the hospital provided facility for conducting the operation in the OT of the hospital and also provided all medical care required by medical and nursing staff of the hospital. Merely patient is being operated in the appellant hospital on advice of admission by Dr. Gupta for conducting surgery, will not mean and infer that hospital has committed any medical negligence which has not been proved by any iota of evidence by the complainant who has raised bald allegations just to extract illegal gains by way of illegal means and since no case made out nor any cause of action accrued and as such the alleged complaint ought to have been dismissed being frivolous and vexatious under section 26 of the Act with cost.The role of the appellant hospital was to provide and render para medical nursing facility and to look after the patient, to record his pulse/BP etc. and to monitor his condition after surgery and togive medicines as advised by treating doctor Dr. Gupta from time to time and thus, rendering such facility no negligence committed by the appellants, hence, appellants discharged their duty with utmost care, sincerity and dedication which required to render during the ordinary course as well. It is wrong to allege that blood pressure was recorded by the ward boy. It is pertinent to state that multi parameter monitoring machine was installed that was recording pulse, blood pressure, oxygen saturation etc. round the clock which shows that with great dedication and punctuality the medical facility as advised was rendered at the hospital. Experienced and qualified doctor, the duty doctor was always present and besides the multi-parameter monitoring machine, the said doctor was regularly, practically at every half an hour, was seeing and examining the patient with is clear from the BHT. Blood transfusion was not necessary as alleged and for which surgeon Dr. Gupta as observed in his written statement also that even pathological report dated 13.8.2005 shows that the Haemoglobin level of the patient was 13.63 which is within normal limits and therefore, there was no need for transfusion of blood as alleged. BHT shows in which it was recorded at 6.30 a.m. on 15.8.2005 the general condition of the patient was poor which further deteriorated by 7.30 a.m. when his general condition was reported very poor, however, patient was constantly under the supervision of the doctor and postoperative care was given, however at 8 a.m. the BP and pulse became not recordable and at 8.20 a.m. patient was declared dead by Dr. Gupta who was present as well at that time. The death of the patient occurred cannot be infer that appellant rendered medical negligence which fact has been not considered by the District Forum rendering impugned judgment liable to be set aside. The deceased was the patient of Dr. Gupta, respondent no.3 who had admitted in the hospital and had called Dr. Anupam Singh, respondent tno.4 the anesthetist to give his services as anesthetist, and the appellant hospital provided complete medical services to the patient treated and guided by the surgeon doctor, by the consulting in charge, including postoperative care as it is clear from the BHT. The deceased was operated by Dr. Gupta and Dr. Anupam had given spinal anesthesia meaning thereby patient was conscious throughout the operation and thereafter and this fact is clearly mentioned in the BHT and operation notes by Dr. Gupta, thus it is wrong to allege that patient was in deep coma immediately after the operation and never gained consciousness till his death. This allegation is proved by the BHT which shows that patient was fully conscious even after the operation and had complained of thirst at 3 a.m. on 14.8.2005 which also suggests that he was conscious at that time. Oxygen was given at 6.30 a.m. as is clear from the BHT, which shows further that the hospital staff was taking all postoperative care of the patient with due diligence and thus, allegations made in para-6 of complaint are false with ulterior motive and malafide intention. As far as allegation of shifting the patient to other hospital is concerned, the hospital staff was not competent to make such suggestion as it was beyond their authority, only the consultant treating surgeon could make such suggestions. However, fully treatment post operative was given at the appellant hospital under the aegis of surgeon. There was no need for ventilator and when the condition of the patient worsened, all life saving efforts were taken including artificial respiration by Ambu Bag at 8.00 a.m. as mentioned in the BHT and thus, it is wrong to allege that the attending doctor did not take care to save the life of the patient. Even at this critical stage treating surgeon was present all along at that time. In the circumstances of the case, it is clear that the complainant has filed the alleged complaint in order to black mail the appellants and opposite parties is not entitled for any of the reliefs as prayed for and the District Forum erred in granting reliefs which in view of no case of medical negligence can not be granted under Section 14 of the Act. The ld. District Forum exercised the jurisdiction not vested in it with material irregularity and illegality and the impugned judgement is based on surmises and conjectures and further based on presumptions , without any medical expert report is unjust, perverse and illegal and impugned judgment thus is liable to be set aside. The entire findings recorded in the impugned judgment are wholly erroneous, based on whims and fancies and is against the record and medical practice and literature is not sustainable and is liable to be reversed.
Appeal no.2128 of 2009 has been filed by Dr. Deepak Gupta to set aside the impugned judgment and order dated 4.11.22009 passed by the Ld. District Consumer Commission, Jhansi in complaint case no.137 of 2006 (Smt. Roshan Ara vs. Maa Sherawali Hospital and 6 others) and to allow the appeal.
The brief facts of this appeal are that, that the respondent no.2 is a private hospital owned by respondent no.5 Dr. R.C. Arora and appellant and other two doctors respondent no.3 and 4 render their services as part time doctors to the said hospital. It is said that on 13.8.2005 complainant's husband developed some mild abdominal pain so he went to respondent no.3 Dr. Sharad Chandra, who examined him and advised him to get his abdomen x-rayed. Complainant's husband then got his abdomen x-rayed on 13/08/2005 in Gupta Diagnostic centre which gave to him x-ray plate, which he showed to respondent no.3 Dr. Sharad Chandra, who on examining the x-ray plate found that several perforations are visible in his intestine and then told him that surgery of intestine was urgently required to save his life. It is said that Dr. Sharad Chandra advised the relatives of complainant's husband to admit him in O.P. no.1 hospital where his operation would be performed by appellant. Complainant's husband was then admitted in O.P. no. 1 hospital on 13.08.2005 where he was examined by appellant, who also diagnosed it to be a case of perforations of intestine. Then complainant admitted her deceased husband in the hospital where her husband's operation was performed by appellant on 14.08.2005 through laparoscopic method and anesthesia was administered by respondent no 4. It is alleged that due to wrong diagnosis, lack of necessary medical facilities and lack of technically qualified staff and deficiency in rendering medical services complainant's husband died in the morning of 15/08/2005, hence complainant's filed this complaint for claiming a sum of Rs. 12,00,000/- as compensation.
The case of appellant is that he is a qualified, experienced and reputed surgeon. He has obtained his M.B.B.S degree in 1981 and M.S (Surgery) degree in 1985 from a highly reputed Gwalior Medical College. He was posted as Senior Resident as Rohtak Medical College for one year in 1987 and after that he was appointed in Railway Hospital, Igatpuri in 1988 and thereafter in Railway Hospital, Jhansi from 1989 to 1992 and since 1993 he is doing his private practice at Jhansi and during this period he has treated and operated thousands of patients to their full satisfaction. It is denied that appellant works as part time doctor in Respondent's no.2 hospital. The appellant being a specialist and experienced surgeon visits various hospitals and nursing homes when called as specialist consultant surgeon. It is said that in the complainant's case , deceased was having very mild abdominal pain when he consulted respondent no.3 Dr. Sharad Chandra is a totally false and concocted story for making out this false case. Dr. Sharad Chandra is a specialist Gastroenterologist and deceased a class IV employee of Railway could not have gone to consult Dr. Sharad Chandra if he had a mild abdominal pain as any normal physician or any doctor or Railway Hospital would have treated him. The very fact that deceased preferred to consult Dr. Sharad Chandra a reputed Gastroenterologist of Jhansi clearly suggests that deceased had some serious abdominal problem.The true facts are that deceased who himself had stated his age as 50 years had gone to Dr. Sharad Chandra with complaints of severe pain with abdominal distension and on examination Dr. Sharad Chandra found that patient had tenderness, guarding and abdominal rigidity, hence in order to ascertain the real cause he advised him for urgent abdominal x-ray done and after going through the x-ray plate of deceased Dr. Sharad Chandra found that x-ray plate shows gas under diaphiragm indicating perforation in intestine which needed immediate surgery, hence on asking of complainant and the deceased Dr. Chandra referred him to respondent no.2 hospital for being operated upon by the appellant. It is said that after seeing and examining the deceased and his x-ray plate, as no x-ray report was in existence till then, the appellant came to the same conclusion to which Dr. Sharad Chandra had arrived and he advised him foroperation and some blood tests as no other test was needed to diagnose the cause of severe abdominal pain which was perforation peritonitis and needed urgent surgery to save the life of the patient. All the necessary tests as required in medical science were done and allegations of complainant to the contrary are completely false. According to complaint petition itself after x-ray Dr. Madhusudan Gupta gave only x-ray plate to the deceased and only x-ray plate was first shown to Dr. Sharad Chandra and then to appellant as no x-ray report was in existence till then. The deceased died on 15.8.2005 and nine days after his death x-ray report was subsequently procured on 24.8.2005 by complainant only for the purpose of fabricating an evidence and for the purpose of filing this false complaint case as an after thought strategy to blackmail the appellant and others. Admittedly the x-ray report was got prepared nine days after the death of complainant's husband obviously to fabricate an evidence for filing this case. The x-ray report marked annexure 1 to the complaint is not only perfunctory and sketchy but it is devoid of all necessary details which are essentially required in an x-ray report. It does not mention as to on which basis it was prepared. It also does not show that the x-ray plate of the x-ray of the deceased done by Dr. Madhusudan Gupta was available before him when he prepared this report. The x-ray report of any x-ray done by any radiologist in fact must accompany the x-ray plate but in the case of deceased it was not prepared. It is not clear that when at the time of x-ray the report was not prepared, what was the reason for preparing report of x-ray done nine days earlier and that too when the patient had already died. It is not clear as to whether this report was prepared by Dr. Madhusudan Gupta on the basis of his memory or after seeing any x-ray plate and if it was prepared after seeing any x-ray plate then whose x-ray pate was this, who had done the x-ray and on which date and who was the person whose x-ray plate was taken, what was his name, age and parentage and to which place he belonged and as to whether it was the x-ray report of the deceased husband of the complainant and if so then who had identified the x-ray plate before the doctor who prepared it. The affidavit of Dr. Madhu Sudan Gupta had not been filed by complainant to show as to why he did not prepare the report alongwith the x-ray plate and what was the reason for him to prepare a sketchy x-ray report devoid of even essential details only fabricate a document subsequently after the death of the patient to create an evidence to favour the complainant. It is also not clear as to whether this report was prepared by Dr. Madhusudan Gupta or by some one else on his pad. Apart from these discrepancies it is also significant to point out that Dr. Madhusudan Gupta is simply a MBBS doctor and he is not a qualified Radiologist and does not possess any specialization in radiology, hence the x-ray report brought in existence by him nine days after the death of patient is nothing but a scrap of paper as it has no legal or medical sanctity.
The District Forum did not consider all these vital circumstances, which alone were sufficient to dismiss the complaint case. It also did not consider at all that complainant did not produce any expert or medical evidence to prove that there was no perforations peritonitis in the intestine of the deceased, operation was not urgently required and the diagnosis of appellant and Dr. Sharad Chandra were wrong. The complainant didn't file any evidence that the Hospital lacked necessary medical facilities, the staff of the hospital were not technically qualified to handle such types of cases and render proper post operational care to such patients. The District Forum committed a serious error of law in rejecting the expert medical evidence of specialist Gastroenterologist and surgeons and allowing the complaint case only on accepting the lay man's evidence of complainant and a fabricated x-ray report brought in existence subsequently nine days after the death of the deceased. The District Forum grossly erred in believing the unauthenticated layman's evidence of complainant and delivering an erroneous, arbitrary and illegal judgment.
The appellant has stated that the impugned judgment and order is illegal, arbitrary, erroneous, based on conjecture and surmises and not based on any legal and admissible authentic medical or expert evidence. The ld. Forum failed to consider that Dr. Sharad Chandra, specialist of Gastroenterology and appellant is a qualified and experienced surgeon on examining the X-ray place of the deceased, came to conclusion that there was perforation peritonitis in the intestine and immediate surgery is needed. Dr. Madhusudan Gupta X-rayed the deceased, has provided only X-ray plate and after 9 days of the death of the deceased, he prepared a sketchy X-ray report. Only X-ray plate was shown to Dr. Sharad Chandra and at that time no X-ray report was in existence. What was the reason of preparing the X-ray report after 9 days of X-ray ? Dr. Mdhusudan Gupta is simply an MBBS doctor and not qualified Radiologist. There was no expert medical evidence to show that the diagnosis of ailment of deceased arrived at by the appellant and Dr. Sharad Chandra was wrong. Dr. Sharad Chandra is a reputed and specialist Gastroenterologist. The age of the deceased was wrongly stated as 38 years but he was 50 years. Ld. District Forum did not consider at all that the complainant failed to produce medical history sheet of the deceased.
The ld. District Forum even failed to go through and consider the extract of various pronounced medical books. The ld. District Forum failed to consider that the deceased's condition required immediate surgery and in spite of advices of Dr. Sharad Chandra and this appellant, the complainant delayed the matter and admitted the deceased in OP no.1 hospital at 11 p.m. on 13.8.2005, as a result of which his surgery could be performed on 14.8.2005 and probably due to this delay in spite of best skill and performance of surgery by laprotomy (and not by laparoscopic method as alleged by the complainant) with best possible care and caution by the appellant a most experienced an expert surgeon, the patient died at 8.20 a.m. on 15.8.2005. The ld. District Forum committed a error in accepting the false pleaof complainant that OP no.1 hospital gave her the prescription of appellant, operation sheet of deceased prepared by appellant but did not give him the copy of BHT. Operation sheet is an integral part of the BHT and all other sheets subsequent to the operation are attached to it. Not only the copy of prescription of deceased as prepared by appellant, but also the complete BHT containing the operation sheet were given to complainant but it appears that complainant with an ulterior motive removedother sheets from the first sheet and leveled false allegation that BHT was not given to her. The District Forum failed to consider that operation of deceased was done by Laprotomyand not by laparoscopic method as alleged and patient was conscious throughout the whole of operation.
The District Forum is not a medical expert, hence it ought to have got the x-ray plate of deceased patient taken by Dr. Madhusudan Gupta on 13.8.2005 examined by any other reputed and qualified Radiologist to find out as to whether there was any perforation in the intestine of deceased needing immediate operation or not, but the District Forum did not do so and instead the District Forum itself assumed itself as an expert Radiologist and determined that the diagnosis of Dr. Sharad Chandra and the appellant that there were perforations in the intestine of the deceased was not correct as it was against the x-ray plate. The District Forum was badly misled by the fabricated x-ray report which was got prepared by Dr. Madhusudan Gupta in collusion with complainant nine days after the death of the deceased. On the basis of this fabricated and fake x-ray report the District Forum further conjectured that this shows only presence of some bowel or gas in the intestine and except this there was no irregularity. Such conjectures and surmises have no role to play in judicial or semi judicial decisions. The District Forum did not go through and consider the guidelines of diagnosis given in medical text Book Master of Surgery, Fifth Edition written by Josef E. Fischer, page 892 part vi, The Gastrointestinal tract under the heading diagnosis which in para two "The gold standard for diagnosisremains the finding of pneumoperitoneum which can be seen on an upright posteroanterior rediograph of the chest". It is further mentioned in the same paragraph that "if free air is seen, there is probably there is not great deal of advantage diagnostic studies, although ultrasound will also demonstrate the free air and occasionally fisheye sign when the anterior wall of the deuodenumis perforated. Computed tomography (CT) is not often necessary, although it can be used when free air is not detected. In the heading under treatment on the same page it mentioned that treatment is principally the surgical Laprotomy preferred usually. "Similar diagnosis is given in 24th edition of Short Practice of Surgery written by Bailey and Love's under the sub heading investigations under heading perforated peptic ulcer at page 1045. The extracts of these textbooks were filed by appellant in the District Forum but did not take care to see them and thus the District Forum committed an illegality and instead of giving judgment in accordance with the settled medical principles delivered judgment on the basis of their whimsical conjectures and surmises.
The District Forum miserably failed to consider that there was absolutely no medical or technical evidence worth the name available on the record of the case to show that original x-ray plate of deceased taken on 13.8.2005 and produced before Dr. Sharad Chandra and this appellantdid not reveal perforations in the intestine of the deceased, diagnosis of Dr. Sharad Chandra or this appellant was wrong, there was any error or negligence in performance of operation of perforations in the intestine and removal of appendix of the deceased by the appellant, there was any error or negligence in administration of anesthesia to deceased, there was any error or negligence in post operation treatment or care of patient, there was any lack of required medical facility or trained and qualified nursing and other staff in the concerned hospital. The multi-parameter monitoring machine was installed and it was recording pulse, blood pressure, oxygen saturation etc. of the deceased round the clock. The BHT clearly shows that Dr. Anupam Singh had given spinal anesthesia meaning thereby that the patient was conscious throughout and thereafter operation and conditions of patient was regularly been told to complainant and her relatives who were present there. It is wholly wrong to say that complainant and her relatives were kept in dark about the conditions of the patient. The serious condition of patient was never suppressed from complainant or her relatives who were present there. The condition of the patient had not become critical just after the operation as alleged by complainant. An experienced and qualified doctor, the duty doctor was always present and besides the multi monitoring machine, the said doctor was regularly, practically at every half an hour was seeing and examining the patient which is clear from the BHT. The appellant was called from time to time to see the patient when need arose. The patient was constantly under watch of the duty doctor and post operative treatment and was being given. At 8 a.m. the beat and the pulse became recordable and it at 8.20 a.m. that the patient died and appellant was present there at time.
In Malay Kumar Ganguly vs. Sukumar Mukherjee (Dr.), Hon'ble Supreme Court reported in III(2009) CPJ page 17 has observed in para 158 that "(A doctor) is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular at ..... Putting it the other way round, a (doctor) is not negligent, if he (has acted) in accordance with such practice, merely because there is a body of opinion which (takes) a contrary view."The Hon'ble Supreme Court in the same case has referred about some guidelines and has stated in para 160(c)that a doctor should not merely go by the version of the patient regarding his symptoms, but should also make his own analysis including tests and investigations where necessary. Further the Hon'ble Supreme Court in that very case stated in para 177 that there cannot be, however, by any doubt or dispute that for establishing medical negligence or deficiency in service, the courts would determine the following:
No guarantee is given by any doctor or surgeon that the patient would be cured.
The doctor, however, must undertake a fair, reasonable and competent degree of skill, which may not be the highest skill.
Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.
Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.
In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to be best of his ability.
In appeal no. 280 of 2010, the appellant Smt. Roshan Ara has prayed that the quantum of compensation may kindly be enhanced from Rs.6 lacs to Rs.10 lacs and interest @ 12% p.a. from the date of judgment and order of the ld. District Forum.
The brief facts of the appeal are that, thatthe amount of compensation awarded by Ld. District Forum is grossly inadequate to compensate the loss suffered by the complainant. The assessment of compensation made by Ld. District Forum is prima-facie arbitrary and contrary to the sound principle of quantifying damages. Ld. District Froum completely over looked the gravity of the sufferings which had be fallen on the complainant on account of the premature, sudden tragic death of the husband of the complainant due to gross medical negligence committed by opposite parties no.1 to 5. The complainant had lost the only bread earner of the family. He was serving the railway administration as class IV employee and was drawing handsome salary which would have been considerably enhanced by now on the recommendation of the pay commission. He was merely 38 years old at the time of his death and a major span of his life was cutshort due to the fatal result of medical negligence of opposite parties no.1 to 5. Ld. District Forum did not take into consideration this material aspects into consideration and fell into error in awarding the compensation which is merely 6 lacs in all and is apparently inadequate.
The opposite parties no.2 & 3 were also held equally guilty of committing gross medical negligence alongwith opposite party no.1. The gravity of the medical negligence committed by opposite parties no.2 & 3 was not in any manner less responsible than the medical negligence committed by opposite party no.1, hence opposite parties no.2 & 3 should also have been imposed more penalty of compensation to adequately compensate the suffering of the complainant. The ld. District Forum completely side tracked the factual circumstances relevant for the purpose of assessment of the compensation. The complainant suffered mental agony, anxiety, worries and disappointedness in her life. The entire future has been thrown into the darkness which required to be adequately compensated, but the approach of the Ld. District Forum has been contrary to the principle of the assessment of damages. Compensation as envisaged in section 14(1)(d) of the Consumer Protection Act is of very wide connotation which constitutes actual loss and expected loss and may extend to compensation for physical, mental or even emotional suffering. The proper compensation should be assessed in consonance with loss and suffering suffered by complainant which should be monetary equivalent for the loss and damages suffered by complainant. The ld. District Forum has completely deviated in following the golden rules of assessment of compensation. Hence, the judgment and order of the ld. District Forum should be modified to this extent.
We have heard ld. Counsel for the appellant (Dr. Deepak Gupta),Sri Alok Ranjan, Ld. Counsel for the appellant/complainant (Smt. Roshan Ara), Sri M.H. Khan and Ld. Counsel for the appellant (Dr. Sharad Chandra), Sri Shivendu Tripathi. None appeared for the other parties. We have also perused the documents available on record.
First of all we will take the matter of Dr. Sharad Chandra. Dr had stated that he has diagnosed the patient is a case of perforation of intestine on the basis of a standard investigation by x-ray. So in this case the only method to diagnose the intestine perforation was x-ray plate. Whether is it sufficient to reach a conclusion affirmatively that the patient is suffering from the said disease. To ascertain this disease , CT scan and ultrasound were necessary.After you consult your doctor, they will examine you to diagnose your condition. Diagnosing gastrointestinal perforation mainly involves a physical examination and imaging tests.
These tests include the following: X-ray. A chest or abdominal x-ray is done to establish the presence of gas in the stomach cavity. A perforation is responsible for letting air into the stomach cavity.
CT scan. Abdominal CT scans may help your doctor check where the gastrointestinal perforation is.
Endoscopy or colonoscopy. Procedures like upper endoscopy may also help to locate the gastrointestinal perforation.
Blood sample. Blood samples are taken to check for indications of infections and blood loss.
Why any of the above mentioned tests were are not asked to perform? If you're a doctor and radiologist, before reaching to confirm the diagnosis all the available methods should have been done. You have given direct opinion to undergo surgery by Dr Deepak Gupta. The appellant has said that as per the chance of the complainant himself the case was advised for surgery . What was his choice? Whether he knew what the disease was an whether he knew that the operation is ultimate procedure? It clearly shows that the Appellant Dr has himself advised to him to undergo surgery that too by Dr Deepak Gupta. It is also clear from the averments of Dr Sharad Chandra that on 13.8.2005 ,after the appellant had advised X-ray& CT Scan, but the patient had returned to the appellant only with X-ray film and there was no report given. In any case the appellant was duly authorized and equipped to evaluate the X-ray plate itself. When he had advised the patient to get x-ray and CT scan, why did he give his report only on the basis of x-ray plate when there was no written report accompanying with the x-ray plate. This report has been filed on 24 August 2005 in which it has been written "bony skeleton is normal. Bowel gas are seen in...... No radio opaque shadow seen." According to radiologist there was no perforation of intestine as told by Dr Sharad Chandra. Now according to Dr Sharad Chadra the radiologist Dr Madhusudan Gupta has only a diploma/degree in paediatrics and not an expert or qualified radiologist and the said report is sketchy and inadequate. Is there any written report of Dr Sharad Chandra? On the pad ofDr Madhusudan Gupta, his degree has a as MBBS, DCH , MIMUS , founder fellow: Indian College of Medical Ultrasound Ultrasound Specialist formerly at Apollo Hospital Madras, Children Specialist. On the one way it is said that MBBS degree includes medicines and surgery. No reason has been shown by Dr Sharad Chandra about saying that the said report is sketchy and Dr Madhusudan Gupta was not competent to give report about x-ray. No expert Dr has been produced by the appellant to prove his version that the said report is sketchy and could not be believed. Only the said report is given on a later date does not exclude its veracity. To prove that this report is not according to x-ray plate, was on Dr Sharad Chandra because he believed this report fake and sketchy so the burden lies on him which he could not shift on Dr Madhusudan Gupta .Therefore all these cock and bull story cannot be believed at this stage. What was the scientific base to say that the said x-ray report dated 24.08.05 was sketchy? For the sake of saying such thing by Dr Sharad Chandra without any concrete evidence cannot be accepted. It is better to see oneself than to blame other person. From all the facts and circumstances the case it is clear that thatDr Sharad Chandra did not perform his duty with due care and caution and according to the oath taken by him while entering into the noble profession of Medical World.
Before going into the facts of other cases it is better to see the oath taken be a doctor before entering the nobleprofession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
Keeping in mind the above oath taken by each and every doctor before entering into this noble profession, we will discuss the other appeals. Appeal number 2264 / 2009 has been filed by Maa Sherawali Hospital and the other appeal no 2128 of 2009 has been filed by Dr Deepak Gupta who performed the operation inMaa Sherawali Hospital. It has been established that Dr Sharad Chandra referred the patient to the said hospital where he was examined by Dr Deepak Gupta and the patient was under the constant treatment of Dr Gupta in the said hospital and he was advised for surgery. The hospital has said that the said hospital is fully equipped with all medical gadgets and staff is fully trained with doctors on duty. It is said that the patient got himself admitted in the said hospital on 13.08.2005 and the operation was performed on 14.08.2005 by Dr Deepk Gupta in the said hospital through laparoscopic method and anaesthesia was administered by respondent no 4 Dr Anupam Singh. The appellant Dr Deepak Gupta has said that he has obtained his MBBS degree in 1981 and MS (Surgery) in 1985 from Gwalior Medical College. He worked in various places and at last since 1993 he was doing private practice at Jhansi.
It is said or it is presumed by the appellant that the patient visited Dr Sharad Chandra ,a specialist gastroenterologist ,establishes the fact that deceased had some serious abdominal problem. This inference is totally wrong. If any person believes a cardiologist, it does not mean that he has a serious heart problem. Dr Deepak Gupta has stated that the x-ray plate of the patient showed gas under - diaphragm indicating perforation in intestine which needed immediate surgery, hence Dr Sharad Chandra referred the patient to respondent no 2 hospital for being operated upon by the appellant i.e, Dr Deepak Gupta . So one thing is now clear that the patient has been referred to this hospital by Dr Sharad Chandra . Why Dr Sharad Chandra referred the patient to Maa Sherawali Hospital only? After examining the x-ray plate which was brought by the patient, the appellant Dr Deepak Gupta also came to same conclusion as that of Dr Sharad Chandra . Now it is strange that Dr Deepak Gupta also did not think proper to ask the patient for CT scan and he also arrived on the same conclusion without any supportive and solid evidence as Dr Sharad Chandra did .
Now the x-ray report in writing has been given later on that is on 24 August 2005. It said that there is bowel gases seen . The x-ray film of bowel gases looks like the x-ray film as here in below Plain abdominal X-ray reveal multiple linear intraluminal gas shadow along small bowel.
Normal abdominal x-ray X-ray showing abdomen bowel gas stock It looks like that there is some perforation in the intestine or abdominal area. The appellant Dr Deepak Gupta has stated that there is no dispute about this fact that patient Mr Abdul Shakir was initially examined by Dr Sharad Chandra and on whose advice he was admitted at Maa Sherawali hospital where his stomach was operated upon on 14 August 2005 by appellantDr Deepak Gupta. It is also indisputed that the patient succumbed to his death at 6:30 AM on 15 August 2008 ( printing mistake it should be 15 August 2008). It is stated in the appeal that the appellant also diagnosed it to be a case of perforations of intestine. The appellant has also stated in his appeal that the very fact that deceased preferred to consult Dr Sharad Chandra , a reputed gastroenterologist of Jhansi clearly suggests the that deceased had some serious abdominal problem. Whether in view of the appellant is it not a serious problem?. Dr Deepak Gupta has also stated in his appeal that nine days after the death of the patient, his x-ray report was subsequently procured on 24 August 2005 by complainant only for the purpose of fabricating evidence for the purpose of filing this false complaint case as an afterthought strategy to blackmail the appellant and others.Dr Deepak Gupta has further stated that the x-ray report is not only perfunctory and sketchy but it is devoid of all necessary details which are essentially required in an x-ray report. The question arises here that if there was no x-ray report accompanying the x-ray plate why did both the doctors not ask the patient to bring the x-ray report so that they may reach a perfect conclusion. Without x-ray report, both the doctors have arrived at the same conclusion and where is this conclusion written in black-and-white? Again Dr Deepak Gupta has stated in his appeal that the complainant delayed the matter and admitted the deceased in opposite party no 1 hospital at 11 PM on 13 August 2005, as a result his surgery could be performed on 14th August 2005 and probably due to this delay , despite of best skill and performance of surgery by laparotomy (and not by the laparoscopic method as alleged by complainant) with best possible care and caution by appellant a most experienced and expert surgeon, the patient died at 8:20 AM on 15 August 2005. Now here again one question arises that if a delay has been caused by the patient, why did respondent no 1 admitted the patient in his hospital for operation ? Why Dr Deepak Gupta took the case after knowing the fact that a delay has already been caused and now the matter is very serious? Whether it was not better to refer him to any higher specialty hospital or AIMS etc ?
What was the cause of death? When the patient was conscious throughout the operation, what happened which caused the death of the patient after operation? If all that pathological tests and prior history regarding any type of disease would have been taken into cognizance, the death may be avoided . What was the reason for the failure of the operation? In appeal Dr Deepak Gupta has said nothing about these aspects instead he tried to draw attention towards the age of the patient, towards the x-ray report prepared later on, towards the book written by Bailey . He did not tell about the real cause of death when the hospital has fully equipped with all the necessary life-saving equipments . Is it so? If any operation is performed by a nursing home or hospital there should be all the proper and necessary elements regarding preoperation, operation and postoperation care. All the doctors should be present at the bedside of the patient during operation mainly anaesthesist, cardiologist , physician and surgeon. If the patient was suffering from any gastro problem, agastroenterologist .
Now we see that what is perforations of intestine ?
Overview Peritonitis is inflammation of the peritoneum -- a silk-like membrane that lines your inner abdominal wall and covers the organs within your abdomen -- that is usually due to a bacterial or fungal infection. There are two types of peritonitis:
Spontaneous bacterial peritonitis. Sometimes, peritonitis develops as a complication of liver disease, such as cirrhosis, or of kidney disease.
Secondary peritonitis. Peritonitis can result from rupture (perforation) in your abdomen, or as a complication of other medical conditions.
Peritonitis requires prompt medical attention to fight the infection and, if necessary, to treat any underlying medical conditions. Peritonitis treatment usually involves antibiotics and, in some cases, surgery. Left untreated, peritonitis can lead to severe, potentially life-threatening infection throughout your body.
A common cause of peritonitis is peritoneal dialysis therapy. If you're receiving peritoneal dialysis therapy, you can help prevent peritonitis by following good hygiene before, during and after dialysis.
Symptoms Signs and symptoms of peritonitis include:
Abdominal pain or tenderness Bloating or a feeling of fullness in your abdomen Fever Nausea and vomiting Loss of appetite Diarrhea Low urine output Thirst Inability to pass stool or gas Fatigue Confusion If you're receiving peritoneal dialysis, peritonitis symptoms may also include:
Cloudy dialysis fluid White flecks, strands or clumps (fibrin) in the dialysis fluid When to see a doctor Peritonitis can be life-threatening if it's not treated promptly. Contact your doctor immediately if you have severe pain or tenderness of your abdomen, abdominal bloating, or a feeling of fullness associated with:
Fever Nausea and vomiting Low urine output Thirst Inability to pass stool or gas If you're receiving peritoneal dialysis, contact your health care provider immediately if your dialysis fluid:
Is cloudy or has an unusual color Contains white flecks Contains strands or clumps (fibrin) Has an unusual odor, especially if the area around your tube (catheter) is red or painful.
Peritonitis may result from a burst appendix or trauma-related abdominal injury.
Causes Infection of the peritoneum can happen for a variety of reasons. In most cases, the cause is a rupture (perforation) within the abdominal wall. Though it's rare, the condition can develop without an abdominal rupture.
Common causes of ruptures that lead to peritonitis include:
Medical procedures, such as peritoneal dialysis. Peritoneal dialysis uses tubes (catheters) to remove waste products from your blood when your kidneys can no longer adequately do so. An infection may occur during peritoneal dialysis due to unclean surroundings, poor hygiene or contaminated equipment. Peritonitis may also develop as a complication of gastrointestinal surgery, the use of feeding tubes, or a procedure to withdraw fluid from your abdomen, and rarely as a complication of a colonoscopy or endoscopy.
A ruptured appendix, stomach ulcer or perforated colon. Any of these conditions can allow bacteria to get into the peritoneum through a hole in your gastrointestinal tract.
Pancreatitis. Inflammation of your pancreas (pancreatitis) complicated by infection may lead to peritonitis if the bacteria spreads outside the pancreas.
Diverticulitis. Infection of small, bulging pouches in your digestive tract (diverticulosis) may cause peritonitis if one of the pouches ruptures, spilling intestinal waste into your abdominal cavity.
Trauma. Injury or trauma may cause peritonitis by allowing bacteria or chemicals from other parts of your body to enter the peritoneum.
Peritonitis that develops without an abdominal rupture (spontaneous bacterial peritonitis) is usually a complication of liver disease, such as cirrhosis. Advanced cirrhosis causes a large amount of fluid buildup in your abdominal cavity. That fluid buildup is susceptible to bacterial infection.
Risk factors Factors that increase your risk of peritonitis include:
Peritoneal dialysis. Peritonitis can occur in people undergoing peritoneal dialysis therapy.
Other medical conditions. The following medical conditions, among others, increase your risk of developing peritonitis: liver cirrhosis, appendicitis, Crohn's disease, stomach ulcers, diverticulitis and pancreatitis.
History of peritonitis. Once you've had peritonitis, your risk of developing it again may be higher than it is for someone who has never had peritonitis.
Complications Left untreated, peritonitis can extend beyond your peritoneum, where it may cause:
An infection throughout your body (sepsis). Sepsis is a rapidly progressing, life-threatening condition that can cause shock, organ failure and death.
Prevention Often, peritonitis associated with peritoneal dialysis is caused by germs around the tube (catheter). If you're receiving peritoneal dialysis, take the following steps to prevent peritonitis:
Wash your hands, including underneath your fingernails and between your fingers, before touching the catheter.
Clean the skin around the catheter with an antiseptic every day.
Store your supplies in a sanitary area.
Wear a surgical mask during your dialysis fluid exchanges.
Talk with your dialysis care team about proper care for your peritoneal dialysis catheter.
If you've had peritonitis before or if you have peritoneal fluid buildup due to a medical condition such as liver cirrhosis, your doctor may prescribe antibiotics to prevent peritonitis. If you're taking a proton pump inhibitor, your doctor may ask you to stop taking it.
Gastrointestinal perforation A perforation can cause the contents of the stomach, small intestine, or large bowel to seep into the abdominal cavity. Bacteria will also be able to enter, potentially leading to a condition called peritonitis, which is life-threatening and requires immediate treatment.
Peritonitis is caused by an infection. Bacteria can enter the lining of your belly from a hole in your GI (gastrointestinal) tract. This can happen if you have a hole in your colon or a burst appendix.
Peritonitis requires prompt medical attention to fight the infection and, if necessary, to treat any underlying medical conditions. Peritonitis treatment usually involves antibiotics and, in some cases, surgery. Left untreated, peritonitis can lead to severe, potentially life-threatening infection throughout your body.
Abstract Introduction: Perforation peritonitis mostly results from the perforation of a diseased viscus. Other causes of perforation include abdominal trauma, ingestion of sharp foreign body and iatrogenic perforation. The diagnosis is mainly based on clinical grounds. Plain abdominal X-rays (erect) may reveal dilated and oedematous intestines with pneumoperitoneum. Ultrasound and CT scan may diagnose up to 72% and 82% of perforation respectively. The present study was carried out to study various etiological factors, modes of clinical presentation, morbidity and mortality patterns of perforation peritonitis presented in the RIMS hospital, Imphal, India.
Material and Methods: The study was conducted from September 2010 to August 2012 on 490 cases of perforation peritonitis admitted and treated in the Department of Surgery. Initial diagnosis was made on the basis of detailed history, clinical examination and presence of pneumoperitoneum on erect abdominal X-ray.
Results: A total of 490 patients of perforation peritonitis were included in the study, with mean age of 48.28 years. 54.29% patients were below 50 years and 45.71% patients were above 50 years. There were 54.29% male patients and 45.71% female patients. Only 30% patients presented within 24 hours of onset of symptoms, 31.43% patients presented between 24 to 72 hours and 38.57% patients presented 72 hours after the onset of symptoms. Mean duration of presentation was 54.7 hours. Overall 469 patients were treated surgically and 21 patients were managed conservatively. Overall morbidity and mortality recorded in this study were 52.24% and 10% respectively.
Introduction Perforation peritonitis is one of the commonest surgical emergencies in our country as well as in the RIMS hospital. Despite advancements in surgical techniques, anti-microbial therapy and intensive care, management of peritonitis continues to be highly demanding, difficult and complex.
Peritonitis usually presents as an acute abdomen. Local findings include abdominal tenderness, guarding or rigidity, distension, diminished bowel sounds. Systemic findings include fever, chills or rigor, tachycardia, sweating, tachypnea, restlessness, dehydration, oliguria, disorientation and ultimately shock.
To diagnose GP, your doctor will likely take X-rays of your chest or abdomen to check for air in the abdominal cavity. They may also perform a CT scanto get a better idea where the perforation might be. They'll also order lab work to:
look for signs of infection, such as a high white blood cell count evaluate your hemoglobin level, which can indicate if you have blood loss evaluate electrolytes evaluate acid level in the blood assess kidney function assess liver function The diagnosis is based mainly on clinical grounds. Plain X-ray, ultrasound and CT scan are the tools that can ascertain the diagnosis. However diagnostic laparoscopy can be helpful in some cases. The study has been carried out to evaluate various etiological factors, modes of clinical presentation, morbidity and mortality pattern of different types of perforation peritonitis presented in RIMS Hospital.
Material and Methods The study was conducted from September 2010 to August 2012. A total of 490 cases of perforation peritonitis were treated in the Department of Surgery, RIMS hospital Imphal, India were included in the study. The cases due to anastomotic dehiscence or those patients who were not willing to participate have been excluded. In all patients of suspected perforation peritonitis, resuscitation was given first and initial diagnosis was made on the basis of detailed history, physical finding and presence of pneumoperitoneum on erect abdominal X-ray. Emergency investigations were done that included Hb%, serum urea and electrolytes, random blood sugar and urine albumin and sugar. Ultrasound of abdomen was done in selected patients. In all cases nasogastric tube was put for gastric aspiration. Urinary catheterization was done for monitoring urine output. After proper hydration, all the patients who were fit for anaesthesia underwent emergency exploratory laparotomy. Control and repair source of contamination, generous irrigation of peritoneum and drain insertion was done during surgery. Abdomen was closed with continuous non-absorbable suture. The patients who were not fit for surgery were managed conservatively and ultrasound guided vacuum suction drain inserted when possible.
Results The male to female ratio was 1.18: 1. Majority of patients presented late to the hospital after the onset of symptoms. Only 147(30%) patients were presented within 24 hours of onset of symptoms, 154 (31.43%) patients presented between 24 to 72 hours and 189 (38.57%) patients presented 72 hours after the onset of symptoms. Highest number (17.15%) of patients belongs to the age group of 51 to 60 years [Table/Fig-1].
[Table/Fig-1]:
Age Distribution Abdominal tenderness was the commonest clinical finding and was present in all patients. Abdominal guarding was present in 97.14% patients followed by diminished or absent bowel sound (57.14%), shock (54.29%). tachycardia (54.28%), dehydration (52.85%) and obliteration of liver dullness (48.57%) .
Aetiology of perforation Types of perforation No. of cases Percentage (%) Duodenal ulcer 266 54.29 Typhoid ulcer 105 21.43 Appendicular 55 11.22 Traumatic 42 8.57 Gastric ulcer 14 2.86 Tubercular 7 1.43 Idiopathic 1 0.2 Total 490 100 Total 469 patients were treated surgically and 21 patients were managed conservatively as these patients were not fit for anaesthesia. Graham's omental patch repair was done in 56.72% of the cases, primary closure 31.34%, appendicectomy 11.65%. A proximal colostomy was added in 8 cases of primary closure of colon.
Overall morbidity and mortality recorded in this study were 52.24% and 10% respectively. Morbidity and mortality was higher among those who presented late to the hospital and those who were in advanced age group with associated co-morbidities .
Complications of perforation LOCAL Name of complications No. of cases (%) Wound infection 175 37.31 Paralytic ileus 56 12.43 Abdominal dehiscence 7 1.49 Intra-abdominal abscess 24 5.97 Fecal fistula 0 0 Intestinal obstruction 0 0 SYSTEMIC Respiratory 84 17.91 Renal 35 7.46 Cardiovascular 14 2.98 MOSF 14 2.98 Septicemia 21 4.48 Discussion Mean age was 48.28 years in the study and it ranged from 36.8 to 60 years in various studies [4-7]. It was almost equivalent to the mean age of 49 years found by Singh G et al., [7] The incidence of perforation was slightly higher in female population as compared to other studies [4,5,8]. In majority of the cases, the presentation to the hospital was late with well established generalized peritonitis with purulent/faecal contamination and varying degrees of septicaemia.
The perforations of proximal gastro-intestinal tract were approximately 7 times as common as distal tract which is in sharp contrast to developed countries where distal perforations are more common [9]. Duodenal ulcer perforation was the most common (54.29%) and same result was shown by other studies [4,6]. Gastric ulcer perforation accounted for 2.86% of all cases and the incidence was slightly higher than shown by Afridi SP et al., in their study. Peptic ulcer perforation was noticed in increased frequency among the older age group in this study and same was noticed by Strang C et el., Peptic ulcer perforation was more common in males than in females with male to female ratio of 2.6:1. But the incidence of peptic perforation in females was higher in comparison to the study by Kozoll DD et al., and DeBakeyM .
In various studies, it has been observed that there is an association between peptic perforation and use of NSAIDS, steroids and alcohol ingestion. In this study 36.84% of patients of duodenal ulcer perforation had positive history of NSAID ingestion, 2.63% had history of steroid and 18.42% had history of alcohol consumption. Seven patients of gastric ulcer perforation had history of alcohol consumption. Mortality rate of peptic ulcer perforation in this study was 7.5% and it varies from 4-11% in other studies. Twenty one patients of peptic ulcer perforation were died and 14 of them were treated conservatively as they were not fit for surgery due to moribund condition and associated co-morbidities. Seven patients died due to MOSF and 7 died due to renal failure with respiratory complications. Seven patients died post-operatively due to septicaemia.
Primary closure was done in all cases of typhoid ileal perforation and mortality rate was 6.67%. Reported mortality of other studies ranges from 7.9% to 31% .
Appendicular perforations were seen in 55(11.22%) patients comparable to other studies that showed an incidence of 5% to 13.7% . Seven patients died post-operatively due to late presentation, faecal peritonitis and sepsis. There were 34 male and 21 female patients, age ranged from 27 to 70 years with mean age 44 years. Appendectomy, peritoneal toileting and systemic antibiotics were used in all cases.
Traumatic perforations accounted for 8.57% of all causes and it is comparable with the 9% incidence shown by Jhobta RS et al.,. Road traffic accidents were major cause (50%) of traumatic perforations in this study and Mukhopadhyay M found 55.31% of traumatic perforations were due to road traffic accidents, 33.33% patients with traumatic perforation died post-operatively.
Rare causes of perforation were tuberculosis and idiopathic perforation. Only 7 cases (1.43%) of ileal perforation due to tuberculosis were found. Various studies showed tuberculosis as one of the least common cause of perforation and incidence ranged from 4% to 21%.Idiopathic perforation of colon is a rare condition. Only 1 case was found in this study. Age of the patient was 61 years and mean age of idiopathic colon perforation is 60 years reported by Yang B et al.,.
The higher incidence of wound infection may be because majority (38.51%) of patients presented late (>72hours) to the hospital with well-established peritonitis and majority were older group. Moreover 91(19.40%) patients had pre-operative co-morbidities and morbidity was higher among them. Overall morbidity of 50.24% was comparable with the study by Jhobta RS et al.,.
Overall mortality in this study was 10% and similar mortality were reported by various studies varying from 6% to 38%.
Conclusion The majority of perforation peritonitis cases in the study comprised of peptic ulcer perforations followed by typhoid ileal, appendicular and traumatic perforations. Tuberculous and idiopathic perforations were rare. Overall morbidity and mortality were acceptable. However, with conservative treatment, moribund patients and in cases of extremely delayed presentation, worse outcomes were noted. The basic principles of early diagnosis, prompt resuscitation and urgent surgical intervention still form the cornerstones of management in these cases. It is once again confirmed that the spectrum of peritonitis in our part of the world is markedly different from that of the western world.
Aims & Objectives: Intestinal Perforations are most common surgical emergencies seen worldwide. Despite improvement in diagnosis, antibiotics, surgical treatments and intensive care support, it is still an important cause of mortality in surgical patients. This study was done to know the spectrum of etiology, clinical presentation, management and treatment outcomes of patients admitted with perforation peritonitis in our hospital. Methods: A prospective study was done over a period of 3 years from January 2011 to December 2013 in SMS medical college and hospital, Jaipur, Rajasthan which included 1400 patients diagnosed with perforation peritonitis. All patients admitted with perforation of gastrointestinal tract were included in this study. All cases of primary peritonitis and anastamotic leaks were excluded from this study. Results: Total of 1400 cases were included with 74.28% being males. The time taken for resuscitation, diagnosis and preparation of patient for surgery was less than 12 hours in 83.4% of cases.
From the book anatomy volume 2 - page 743( Indebeer Singh) "under certain conditions are there may be great increase in the quantity of peritoneal fluid. This condition is called ascites. However, because of the size of the peritoneum cavity, almost a litre and half of fluid may collect before it's presence can be recognised on clinical examination. Recognition of ascites is more difficult in an obese person. Fluid that has accumulated in the peritoneal cavity can be removed through a cannula introduced through to the abdominal wall. The process called para-sentences. It may be done through the linea alba or on one flank. The large absorptive area of the peritoneum poses a serious danger when infection develops in the peritoneal cavity (peritonitis). Toxins are rapidly absorbed into blood leading to toxaemia. Because of this reason generalised peritonitis can be a life-threatening condition. However, the peritoneum itself tries to combat the spread of infection in various ways. The peritoneal fluid is rich in antibodies and in cellular elements (like lymphocytes) that counteract infection. When infection develops in an area (usually by spread from an inflamed viscus like the appendix) the peritoneum tries to localise the infection by formation of adhesions.
An operation that opens the peritoneal cavity is called laparotomy. The procedure may be preliminary to surgeon on any organ or may be used to inspect the interior of the abdominal cavity in cases where diagnosis is otherwise difficult. However, it is now possible to inspect the interior of the peritoneal cavity by introducing an instrument called a laparoscope through a small opening in the abdominal wall. The procedure is called liberals. Several abdominal surgical procedures are now being carried out through such instruments.
In laparotomy , before the operation, a person can expect the following:
a doctor will ask them not to eat for a certain number of hours before the operation a doctor may give them an enema beforehand, which empties the bowels the person may shower first with a surgical lotion, before putting on a theater gown a healthcare professional will shave any hair in the abdominal area an anesthetist will ensure that everything is ready for the operation and note any allergies that the person may have During the operation, people will be under general anesthetic. A surgeon will make one incision to cut through the abdominal skin and muscle to reveal the organs in the abdomen.
They will then examine the organs to diagnose any issues. If they can make a diagnosis, surgeons may be able to treat the condition straight away.
For conditions that surgeons cannot immediately treat, people may require repeat surgery.
After the diagnosis and the completion of any possible treatment, the surgeon will sew up, or suture, the incision.
Following the operation, the person will slowly wake up from the anesthetic. They will remain in the hospital for immediate aftercare.
This aftercare may include:
careful monitoring of temperature, pulse, breathing, and blood pressure assessment of the wound site and wound care, possibly including drainage a tube through the nose into the stomach to drain the stomach for a day or two, if necessary, to help the digestive tract recover the insertion of a urinary catheter to drain urine, if necessary intravenous fluids, as people may have to avoid eating and drinking for a few days regular pain relief medication to ease discomfort deep breathing, leg exercises, and walking the day after the operation to help reduce the risk of chest infections and blood clots Some people feel nauseated after receiving an anesthetic. A doctor may be able to provide medication to relieve nausea.
Once the person is well enough to leave the hospital, a doctor will provide details of how to care for the abdominal wound at home.
The doctor will also provide any necessary medication and advice on how to rest and recover.
Now it is better to see the mortality after surgery. The following is an article which is worth to mention here.
Predictors of Morbidity and Mortality After Surgery for Intestinal Perforation Rumi Shin, Sang Mok Lee, Beonghoon Sohn, Dong Woon Lee,1 Inho Song,1 Young Jun Chai, Hae Won Lee, Hye SeongAhn, In Mok Jung, Jung Kee Chung, and Seung ChulHeo Purpose An intestinal perforation is a rare condition, but has a high mortality rate, even after immediate surgical intervention. The clinical predictors of postoperative morbidity and mortality are still not well established, so this study attempted to identify risk factors for postoperative morbidity and mortality after surgery for an intestinal perforation.
Methods We retrospectively analyzed the cases of 117 patients who underwent surgery for an intestinal perforation at a single institution in Korea from November 2008 to June 2014. Factors related with postoperative mortality at 1 month and other postoperative complications were investigated.
Results The mean age of enrolled patients was 66.0 ± 15.8 years and 66% of the patients were male. Fifteen patients (13%) died within 1 month after surgical treatment. Univariate analysis indicated that patient-related factors associated with mortality were low systolic and diastolic blood pressure, low serum albumin, low serum protein, low total cholesterol, and high blood urea nitrogen; the surgery-related factor associated with mortality was feculent ascites. Multivariate analysis using a logistic regression indicated that low systolic blood pressure and feculent ascites independently increased the risk for mortality; postoperative complications were more likely in both females and those with low estimated glomerular filtration rates and elevated serum C-reactive protein levels.
Conclusion Various factors were associated with postoperative clinical outcomes of patients with an intestinal perforation. Morbidity and mortality following an intestinal perforation were greater in patients with unstable initial vital signs, poor nutritional status, and feculent ascites.
Keywords: Intestinal perforations, Postoperative mortality, Postoperative complications, Ascites INTRODUCTION An intestinal perforation is a major life-threatening condition with high morbidity and mortality that requires emergency surgery. Despite improvements in surgical and medical treatments, the overall mortality rate is 30% and the mortality rate of cases that also have diffuse peritonitis is up to 70% . The rate of postoperative complications, such as complicated fluid collection, leakage, surgical site infection, and other systemic infections, is higher than for patients receiving elective abdominal surgeries. Various factors can cause intestinal perforation, including ischemic colitis, intestinal obstruction, stercoral perforation, infection, cancer, diverticulitis, trauma, and colonoscopy . Perforations due to cancer and infection have high mortality rates [7,8], but iatrogenic perforation during colonoscopy has a low mortality rate [9]. Several studies have identified prognostic factors associated with morbidity and mortality for patients with an intestinal perforation , and several scoring systems are available . However, these risk factors and scoring systems have only been validated in small study populations and are not clinically useful in emergency situations. Thus, the aim of the present study was to identify simple and intuitive patient-related and surgery-related prognostic factors associated with postoperative morbidity and mortality for patients with an intestinal perforation.
METHODS This retrospective study was performed at the Seoul Metropolitan Government-Seoul National University Boramae Medical Center. From November 2008 to June 2014, 123 consecutive patients underwent an exploratory laparotomy due to a suspected intestinal perforation. Of those, the 117 patients who were over 18 years of age and who had confirmed intestinal perforations were included in this study. Clinical data, laboratory data, and operative findings were collected by reviewing their medical records. Postoperative complications were defined as complicated fluid collection, anastomosis leakage, surgical site infection, ileus, pneumonia, entero-cutaneous fistula, cardiovascular events, multiorgan failure, and septic shock. The study protocol was approved by the Institutional Review Board of Seoul Metropolitan Government-Seoul National University Boramae Medical Center (approval number: 26-2016-115).
The chi-square test or Fisher exact test was used to compare survivors and nonsurvivors. A multivariable logistic regression model was used to the calculate odds ratios (ORs) and the 95% confidence intervals (95% CIs) and to identify factors independently associated with postoperative mortality. The multivariable model was constructed using a forward Wald test, with adjustment for age, sex, body mass index (BMI), surgical procedure, feculent ascites, fever, time from symptom onset to surgery, time from admission to surgery, length of surgery, initial systolic and diastolic blood pressure, heart rate, and comorbidities. The 1-month postoperative survival curve was estimated using the Kaplan-Meier method, and the log-rank test was used to determine the significance of differences according to the presence of feculent ascites. For all analyses, a two-tailed P-value of 0.05 or less was considered significant. All statistical analyses were performed using IBM SPSS Statistics ver. 19.0 (IBM Co., Armonk, NY, USA).
RESULTS The mean age of enrolled patients was 66.0 ± 15.8 years, and 66% were male. The most common causes of intestinal perforation were complications from endoscopy (15.4%) and complicated diverticulitis (12.0%) (Table 1). Resection and anastomosis (R&A) was the most common operation (Fig. 1). The mean time from symptom onset to surgery was 2.1 ± 1.7 days, and that from admission to surgery was 35.9 ± 92.0 hours.
Fig. 1 Surgical methods used to treat patients with intestinal perforations (n = 117). R&A, resection and anastomosis.
Table 1 Etiology of the intestinal perforation in the study population (n = 117) Fifteen patients (12.8%) died within 1 month after the index surgery. Table 2 shows the factors associated with postoperative mortality. Analysis of patient-related factors indicated that de-ceased patients had lower initial systolic blood pressure (121.6 ± 26.2 mmHg vs. 100.8 ± 28.1 mmHg, P = 0.005) and diastolic blood pressure (73.7 ± 15.2 mmHg vs. 53.5 ± 17.1 mmHg, P < 0.001), and lower levels of serum albumin (3.3 ± 0.6 g/dL vs. 3.0 ± 0.5 g/dL, P = 0.048), serum protein (5.6 ± 1.2 g/dL vs. 4.9 ± 1.5 g/dL, P = 0.032), and total cholesterol (124.6 ± 4.97 mg/dL vs. 97.0 ± 50.0 mg/dL, P = 0.047), but a higher level of blood urea nitrogen (25.3 ± 20.6 mg/dL vs. 40.1 ± 33.4 mg/dL, P = 0.020). Analysis of surgery-related factors indicated that feculent ascites (19.6% vs. 53.3%, P = 0.008) was significantly more common in deceased patients. The multivariate analysis using a logistic regression model indicated that feculent ascites (OR, 4.948; P = 0.007; 95% CI, 1.564-15.654) and systolic blood pressure less than 100 mmHg (OR, 4.399; P = 0.013; 95% CI, 1.367-14.156) were inde-pendent and significant risk factors for postoperative mortality (Table 3). In agreement, the Kaplan-Meier survival analysis showed that the 1-month mortality was greater for patients with feculent ascites than those with non-feculent ascites (29.6% vs. 8.2%, Log-rank test: P = 0.003) (Fig. 2).
Fig. 2 Kaplan-Meier analysis of 30-day mortality in patients with feculent ascites and nonfeculent ascites after surgery for an intestinal perforation. A log-rank test indicated significantly greater mortality in patients with feculent ascites.
Table 2 Univariate analysis of patient-related and operation-related factors associated with mortality within one month after surgery for an intestinal perforation Values are presented as mean ± standard deviation or number (%) unless otherwise indicated.
eGFR, estimated glomerular filtration rate; PT INR, prothrombin time international normalized ratio; aPTT, activated partial thromboplastin time; R&A, resection and anastomosis.
*P < 0.05, statistically significant.
Table 3 Multivariable analysis of factors associated with mortality within one month after surgery for an intestinal perforation OR, odds ratio; CI, confidence interval; sBP, systolic blood pressure.
*P < 0.05, statistically significant.
Postoperative complications occurred in 70 patients (60%) (Fig. 3). The most common complications were surgical site infection (n = 21), pneumonia (n = 18), and complicated fluid collection (n = 18). The highest mortality rates occurred in patients with multiorgan failure (100%), cardiovascular events (50%), and septic shock (42%). Table 4 shows the results of the univariate analysis of factors associated with postoperative complications. The results show that advanced age (P = 0.012), female sex (P = 0.017), hypertension (P = 0.004), feculent ascites (P = 0.016), low white blood cell count (P = 0.012), low serum albumin (P = 0.001), and low estimated glomerular filtration rate (eGFR) (P < 0.001) were significantly associated with complications. The multivariate analysis (Table 5) indicated that low eGFR (P = 0.021), female sex (P = 0.045), and elevated C-reactive protein level (CRP) (P = 0.017) were significantly and independently associated with complications. Feculent ascites was a marginally significant factor (P = 0.051).
Fig. 3 Incidences and mortality rates of postoperative complications after surgery for an intestinal perforation.
Table 4 Univariate analysis of patient-related and surgery-related factors associated with postoperative complications within 1 month after surgery for an intestinal perforationa Values are presented as number (%).
eGFR, estimated glomerular filtration rate.
aComplications are in Fig. 3. *P < 0.05, statistically significant.
Table 5 Multivariable analysis of factors associated with postoperative complications within one month after an intestinal perforation OR, odds ratio; CI, confidence interval; eGFR, estimated glomerular filtration rate; CRP, C-reactive protein.
*P < 0.05, statistically significant.
DISCUSSION The purpose of this study was to identify the major predictors of morbidity and mortality after surgery for an intestinal perforation. Previous researchers reported that general colorectal surgery had an overall mortality rate of 3%-7% and a morbidity rate of 20%-30% . In the case of surgery for an intestinal perforation, however, the reported mortality rate is 10%-15% and the morbidity rate is 30%-50% . In our study, the mortality rate was 13%, and the morbidity rate was 60%, in agreement with previous reports. The main results of this study are that low systolic blood pressure and feculent ascites are independent predictors of postoperative mortality, and that low eGRF, female sex, and high CRP are independent predictors of postoperative complications.
A previous study of patients with a stercoral perforation of the colon indicated that intra-abdominal infection was the second most common cause of septic shock after pulmonary infection . Preoperative shock, usually septic shock, is a well-established risk factor for mortality following intestinal perforation. Septic shock caused by an intestinal perforation results from direct spillage of intestinal contents into the peritoneum (feculent ascites). This leads to entry of gram-negative and anaerobic bacteria, including Escherichia coli, Klebsiella pneumoniae, and Enterococcus faecalis, into the peritoneal cavity . These bacteria produce endotoxins that activate inflammatory cascades, leading to the release of cytokines, such as tumor necrosis factor-alpha, interleukin (IL)-1, and IL-6, resulting in septic shock. Shinkawaet al. .previously reported that the in-hospital mortality from colonic perforation was 8 times higher in patients with septic shock than in those without septic shock. Several scoring systems that consider a patient's initial status to predict prognosis, such as the Acute Physiology and Chronic Health Evaluation II score and the Simplified Acute Physiology Score, are available. These scoring systems can be used to predict the prognosis of patients with intestinal perforations; however, they do not consider disease-specific conditions . In this study, low initial systolic blood pressure and feculent ascites were significant and independent predictors of postoperative mortality. This means that pre-operative sepsis is the most important factor associated with postoperative mortality.
Other research has established that malnutrition is independently associated with poor clinical outcomes among hospitalized patients, including longer hospital stay, increased costs, increased morbidity, and increased mortality, regardless of the underlying disease . Nutritional status can be evaluated by using tools such as the Subjective Global Assessment , the Mini Nutritional Assessment , and the Malnutrition Clinical Characteristics tools. Previous research has validated these scoring systems, but these tools typically cannot be used in patients un-dergoing emergency operations. Serum albumin is a widely accepted indicator of nutritional status , although some controversy exists because albumin is a negative acute-phase reactant and hypoalbuminemia is a sign of systemic inflammation . However, serum albumin is a better prognostic indicator than other scoring systems because it indicates protein-energy malnu-trition resulting from the stress of illness, injury, or infection, all of which are associated with significantly increased risk of morbidity and mortality . Serum albumin is also well known to be associated with surgical outcomes. For example, Gibbs et al. reported that serum albumin concentration was a better predictor of surgical outcomes than many other preoperative factors in patients undergoing noncardiac surgery. Truong et al. reported a linear relationship between hypoalbuminemia and morbidity and mortality following colorectal surgery. The present study also indicated that hypoalbuminemia was associated with poor surgical outcomes in patients with an intestinal perforation, although it was not a statistically independent risk factor for poor outcome.
We also identified factors related to complications following surgery for an intestinal perforation. Age, low BMI, chronic kidney disease, poor American Society of Anesthesiologists physical status, large blood loss, and long operation time are generally known to be risk factors for postoperative complications . In the present study, feculent ascites and high CRP (indicators of severe intra-abdominal infection and inflammation) and impaired renal function were independently and significantly associated with complications. We were surprised to find that female sex increased the risk for complications. This may be due to the females in this study being older than the males (68.4 ± 15.4 years vs. 64.8 ± 16.0 years) or to postoperative pneumonia being more common in the females in this study than the males (28.2% vs. 9.0%, P = 0.012).
This study has some limitations that need to be emphasized. First, it was a retrospective study, so some variables that could be related with outcomes, such as pH from atrial blood gas analysis and the results of blood cultures, were not evaluated. Second, this was a single center study, so the results may not be applicable to other populations. Finally, because intestinal perforation is a rare condition, the study population was relatively small. This made estimating the prognostic values of some variables, such as age or time from admission to surgery, impossible.
In conclusion, the postoperative mortality of patients with an intestinal perforation was greater for those with low systolic blood pressure and feculent ascites. Females, as well as patients with low eGFR or high CRP, had increased risk of postoperative complications. Patients with any of these prognostic factors should be given more meticulous intraoperative and postoperative care to improve their outcomes.
If Dr Deepak Gupta knew that in the above-mentioned cases, problem may arise during postoperation care, he should have collected all the data of the patient before going into operation theatre. If the patient was well and his all the reports were normal, the only cause of death may be due to septicaemia or by any other known factor which the Dr could tell better but they did not disclose it. It also shows that the said hospital was not equipped with all the lifesaving instruments are/equipments for the post-operative care. It has not been disclosed that what was the cause of perforation of interest and in the patient. Whether he was an alcoholic or not, or whether he was suffering from liver cirrhosis. None of the opposite parties have said about the carelessness of the anaesthesist so as foreign is concerned we don't find any lacuna on the part of the anaesthesia Dr four.
Now we see the x-ray plate of the images of gases and perforation of the intestine as shown hereinabove. There are much similarities between both the images. So it was better to be confirmed through CT scan or endoscopy . When the patient did not follow the advice of the doctor and he did not bring his CT scan report, is there any pressure on the said Dr for immediate operation? Both the doctors are well-known as per their version, why did they not ask the patient to go for CT scan? Whatever has been happened inside the operation theatre, nobody outside could know. But the simple thing and appealable is that something wrong has happened inside the operation theatre and the complications developed a which could not be managed by the doctor and his team present beside the bed of the patient.
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. SanthaIII(1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim .
The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In AchutraoHaribhauKhodwa and Others vs State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.
The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant , Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal &Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth ₹ 12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligenceleads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
"Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998. "
"Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary. "
"The complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC."
"The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment."
"Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs."
"Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Honble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Honble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence."
"We remit the case back to the Commission only for the purpose of determination of the quantum of compensation.We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary."
"The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission."
"Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity."
" The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court. "
"There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals. "
"On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- ( roundedofto Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr.Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them."
"In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings. The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:
(i). Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation] .
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation .
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default. "
In the present case the complete file of learned District Forum has been summoned and is available. We have seen this file too .Dr Sharad Chandra has stated in his written statement that after examining the X-RAY , the answering opposite party found that it showed gas under diaphragm indicating perforation in intestine. In support of it, the answering opposite party is filing the extract from Bailey and Love's short practice of surgery. Further the answering opposite party has stated that the x-ray report should have accompanied the x-ray plate, meaning thereby, that that the report should also have been prepared on that very day and at that very time, but it was prepared on 24 August 2005. Now again the question arises if there was no x-ray report with the x-ray plate why the answering opposite party did not ask the patient to bring the x-ray report. It may be gaseous perforation or gaseous condition. How did the answering opposite party come to conclusion that it is perforation in intestine in all respect and he was 100% sure that it is nothing but the perforation in intestine. He may ask the patient to bring the CT scan report but he did not ask the patient for CT scan . Even he did not ask the patient to bring the x-ray report and now saying that there was no x-ray report and despite of it he reached the judgement on its own.
In this case in the file of learned DCF, Dr Sharad Chandrahas written on his prescription in Hindi " Ma Sherawali Hospital". Why is it written in Hindi? If the patient himself asked him to go that particular hospital, it should have been mentioned in clear language that the patient has desired to be referred to the said hospital. But the hospital name is written in Hindi and it is for the purpose that the patient should know where to go. So it is worse is to say that the patient himself desired to go to the above mentioned hospital. If the patient had such knowledge, he may directly go to that hospital and did not come to DrDr Sharad Chandra. So this version is not believable.
We have also seen the case sheet of the patient. From 14th August 2005 the entry regarding the patient condition is stereotyped. Who was the doctor on duty at the time? Whether the Dr was MBBS or simply resident Dr nothing has made written in this the sheet. In this sheet there is no signature of the staff in the prescribed column but from 14 August 2005 from 7 PM there is regular signature of the staff in the column of the staff signature. This circumstance show that these entry has been made to convince the medico legal case. Surprisingly of the entries are in the same handwriting and same character and if it has been entered later on in haste. Before it there was no signature of the duty staff in the column of staff signature. There is no entry in the treatment column and the last entry in that column is regarding the death of the patient. On 15 August 2005 the case sheet at 6 AM shows poor condition of the patient and there is entry " inform to Dr Deepak Gupta "but it is not clear when did Dr come. Why the condition deteriorated within such a short time has not been mentioned at any place. Even Dr Deepak Gupta did not mention all the facts regarding the poor condition or deteriorating health condition of the patient in his written statement. The original case sheet has not been filed by the appellants. All these documents are secondary evidence and very hard to read the writings. No typed copy has also been filed to ease the things. The appellants did not file any senior radiologist's report in relation to this x-ray plate of the patient so that it may be clear that what the x-ray plate says. Whether there may be two opinions regarding gaseous exchange and perforation of intestine or only one opinion.
Inside the operation theatre what happened, nobody knows except the doctors and staff present inside the operation theatre. Who was on duty accepted Dr Deepak Gupta and who was present for night duty on 14 August 2005 and did duty on 15 August 2005.Who were the supporting staff during the operation? Whether the patient was put on ventilator are not ? If his condition also serious he should have been kept in ICU or CCU or on ventilator. But no such papers have been filed showing these aspects. Why did the patient not refer to higher hospital when the staff of the Maa Sherawali Hospital failed to control the condition of the patient.It is said that the staff could not sue motu refer the patient to any hospital, if it is so, who stop and then to consult the surgeon for referring the patient to some under super speciality Hospital. Further These are the circumstances we show that grave negligence has been committed in the treatment of the patient by all the doctors and hospital. The hospital was not equipped with modern facilities . The opinion of the learned Forum is perfect. Principle of res ipsa loquitur fully applies in this case. From the very beginning till the death of the patient everything was in disorder and now they are putting one or other excuses to safeguard themselves. What was the cause of action during surgery? The whole condition of the patient indicates that during the laparotomy something untoward happened which could not be controlled by the doctors present inside the option theatre. On the course of action has been adopted during operation for the treatment of perforation of intestine and how was it controlled or checked or treated . Neither the hospital nor Dr Deepak Gupta has said anything in their written statement .
So after the discussion of the different case laws and the principle of res ipsa loquitur and also to compare the x-ray plate of both the conditions as shown in the images here in above it is clear that the patient was not suffering for such an acute problem and he was misguided by the opposite parties. So the appeals of Dr Deepak Gupta and Maa Sherawali Hospital have no ground sufficient to set aside the impugned judgement and order of the learned District Forum.
Now we come to discuss the appeal no 280 of 2010 which has been filed by the widow of late Mr Abdul Shakir who died in the hospital of the opposite parties. The complainant, it is complaint, has claimed the following relief:
That the opposite parties be ordered to pay ₹ 10 lakhs as compensation to complainant within a stipulated period of time as this Hon'ble Forum deems fit and proper in the circumstances of the case.
The opposite parties be ordered to pay ₹ 2 lakhs to complainant to compensate the expenses incurred by her in the treatment of her husband.
The cost of the proceedings be awarded to the complainant.
Any other relief which this Hon'ble Forum deems fit and proper in the circumstances of the case.
The learned Forum vide its judgement dated 04.11.2009 , has directed the opposite party no 2 , Dr Sharad Chandra to pay rupees one lakh, opposite party no 3 to pay ₹ 4 lakhs and directed the opposite parties no 1 to 5 to pay rupees one lakh with ₹ 10,000 as cost of the case. The appellant's counsel has stated that the learned Forum has awarded minimum cost to the complainant while the husband of the complainant expired due to negligence and carelessness of the opposite parties. Maximum compensation should have been granted by the Learned District Forum but the learned District Forum did not grant therefore it is prayed by this Hon'ble State Commission to compensate properly and adequately the appellant/complainant whatever this Hon'ble Commission may deem fit.
We have perused all the pleadings, evidence is, allegations and counter allegations and also went through the different articles regarding perforated intestine and gastrointestinal perforation. Hurried is buried. From all the circumstances of the case it is clear that the opposite parties were in very haste in doing the operation and they did not wait or did not ask the patient to bring the written x-ray report or to go for CT scan for the confirmation of perforation of intestine. The appellant/complainant has valid ground for the enhancement of the compensation as the patient died due to negligence and carelessness of the opposite parties. A life ended due to carelessness of the doctors and hospital. Whether it can be compensated in money? Money cannot compensate the death of a person and whatever will be granted that will be a drop in ocean. So we have taken consideration of the relief clauses of the complaint and also considered the relief which the complainant has requested the Hon'ble Forum for any other relief which Hon'ble Forum deems fit .
So after all the situations, facts, circumstances and the tragedy we come to following conclusion in respect of all the appeals.
Appeal number 2128 of 2009 , Appeal number 2264 of 2009 and Appeal number 2121 of 2009 are liable to be dismissed with cost . Appeal number 280 of 2010 is liable to be allowed .
ORDER Appeal no 2120 of 2009, Dr Sharad Chandra Vs Smt Roshan Ara &Ors is dismissed with cost.
Appeal no 2264 of 2009, Maa Sherawali Hospital Vs Smt Roshan Ara &Ors is dismissed with cost.
Appeal no 2128 of 2009, Dr Deepak Gupta Vs Smt Roshan Ara &Ors is dismissed with cost.
Appeal no 280 of 2010, Smt Roshan Ara Vs Dr Deepak Gupta &Ors is allowed with cost and the impugned judgement and order is set aside and fresh orders passed as follows :
The opposite parties Dr Sharad Chandra is directed to pay ₹ 3 lakhs as compensation to the complainant with interest at a rate of 10% from 15.08.2005 till the date of actual paymentand if this amount has not been paid within 30 days from the date of this judgement the rate of interest shall be 15% per annum.
The opposite party Dr Deepak Gupta is directed to pay ₹ 5 lakhs as compensation to the complainant with interest at a rate of 10% from 15.08.2005 till the date of actual payment and if this amount has not been paid within 30 days from the date of this judgement the rate of interest shall be 15% per annum.
The opposite parties nos 1,2,3 & 5 ( MaaSherawali Hospital ,Dr Sharad Chandra , Dr Deeepak Gupta and Dr RC Arora )are directed to pay jointly ₹ 10 lakhs as compensation and ₹ 2 lakhs towards treatment and ₹ 50,000 as cost of the case, to the complainant with interest at a rate of 10% from 15.08.2005 till the date of actual payment and if this amount has not been paid within 30 days from the date of this judgement the rate of interest shall be 15% per annum.
The opposite parties The The opposite parties number 1,2,3 & 5 ( MaaSherawali Hospital ,Dr Sharad Chandra , Dr Deeepak Gupta and Dr RC Arora )are directed to pay jointly ₹ 30 lakhs as compensation for mental agony, anxiety, harassment to the complainant with interest at a rate of 10% from 15.08.2005 till the date of actual payment and if this amount has not been paid within 30 days from the date of this judgement the rate of interest shall be 15% per annum.
The opposite parties no 6 & 7, The Insurance Company and the Oriental Insurance Co shall indemnify the opposite parties to the extent they are insured, after the payment of the above mentioned amount to the complainant .
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member
Judgment dated/typed signed by us and pronounced in the open court.Consign to the Record Room.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member DATE: APRIL 21 ,2022 Jafri, PA II , Court no 2 सुरक्षित राज्य उपभोक्ता विवाद प्रतितोष आयोग, उ0प्र0, लखनऊ। अपील संख्या-2120/2009 Dr. Sharad Chandra, 95, Civil Lines, Jhansi. अपीलार्थी Versus 1- Smt. Roshan Ara, aged about 36 years, W/o Late Shri Abdul Zakhir Khan, House No.12/16, Abbot Compound, Civil Lines, Jhansi. 2- Maa Sherawali Hospital through its Proprietor & Director, Dr. R.C. Arora, Kanpur Road, Jhansi. 3- Dr. Deepak Gupta, Surgeon through Maa Sherawali Hospital, Kanpur Road, Jhansi. 4- Dr. Anupam Singh, Anesthetist through Maa Sherawali Hospital, Kanpur Road, Jhansi. 5- Dr. R.C. Arora, Proprietor/Owner & Manager, Maa Sherawali Hospital, Kanpur Road, Jhansi. 6- National Insurance Company, Jhansi through Branch Manager. 7- Oriental Insurance Company, Jhansi through Branch Manager प्रत्यर्थीगण अपील संख्या-2264/2009 1- Maa Sherawali Hospital, Kanpur Road, Jhansi through its Director, Dr. R.C. Arora, 2- Dr. R.C. Arora C/o Maa Sherawali Hospital, Kanpur Road, Jhansi. अपीलार्थीगण Versus 1- Smt. Roshan Ara, House No.12/16, Abbot Compound, Civil Lines, Jhansi. 2- Dr. Sharad Chandra, 95, Civil Lines, Jhansi. 3- Dr. Deepak Gupta, near University Campus, Medical College, Kanpur Road, Jhansi. 4- Dr. Anupam Singh, Kanpur Road, Jhansi प्रत्यर्थीगण अपील संख्या-2128/2009 Dr. Deepak Gupta s/o Sri Shankar Lal Gupta, R/o Kalmasan Nagar, Kanpur Road, Jhansi (Arrayed as OP no.3 Surgeon through Maa Sherawali Hospital, Kanpur Road, Jhansi) अपीलार्थी Versus 1- Smt. Roshan Ara Widow of Late Abdul Shakir Khan, R/o H. No.12/16, Abot Compound, Civil Lines, Jhansi. 2- Maa Sherawali Hospital through its Proprietor & Director, Dr. R.C. Arora, Kanpur Road, Jhansi. 3- Dr. Sharad Chandra, 95, Civil Lines, Jhansi. 4- Dr. Anupam Singh, Anesthetist through Maa Sherawali Hospital, Kanpur Road, Jhansi. 5- Dr. R.C. Arora, Proprietor/Owner & Manager, Maa Sherawali Hospital, Kanpur Road, Jhansi. 6- National Insurance Co., Jhansi through Branch Manager. 7- Oriental Insurance Co., Jhansi through Branch Manager प्रत्यर्थीगण अपील संख्या-280/2010 Smt. Roshan Ara, aged about 38 years, Widow of Late Shri Abdul Shakir Khan, R/o H.No.12/16, Abbut Compound, Civil Lines, Jhansi. अपीलार्थी Versus 1- Dr. Deepak Gupta, aged about 50 years S/o Shir Shanker Lal Gupta, R/o Kemasan Nagar, Kanpur Road, Jhansi through Maa Sherawali Hospital, Kanpur Road, Jhansi. 2- Maa Sherawali Hospital through its Proprietor & Director, Dr. R.C. Arora, Kanpur Road,Jhansi. 3- Dr. Sharad Chandra, 95, Civil Lines, Jhansi. 4- Dr. Anupam Singh, Anesthetist through Maa Sherawali Hospital, Kanpur Road, Jhansi. 5- Dr. R.C. Arora, Proprietor/Owner & Manager, Maa Sherawali Hospital, Kanpur Road, Jhansi. 6- National Insurance Company, Jhansi 7- Oriental Insurance Company, Jhansi प्रत्यर्थीगण समक्ष :- 1. माननीय श्री राजेन्द्र सिंह, सदस्य। 2. माननीय श्री सुशील कुमार, सदस्य। डा0 दीपक गुप्ता की ओर से : श्री आलोक रंजन, विद्वान अधिवक्ता। परिवादिनी रोशन आरा की ओर से : श्री एम0एच0 खान, विद्वान अधिवक्ता। डा0 शरद चन्द्र की ओर से : श्री शिवेन्दु त्रिपाठी, विद्वान अधिवक्ता। शेष पक्ष की ओर से : कोई नहीं। दिनांक 21.04.2022 मा0 श्री सुशील कुमार , सदस्य द्वारा उदघोषित निर्णय
अपील संख्या-2120/2009, अपील संख्या-2264/2009 तथा अपील संख्या-2128/2009 को खारिज करने के निष्कर्ष पर, जो सदस्य श्री राजेन्द्र सिंह द्वारा दिया गया है, से मैं सहमत हूँ, परन्तु अपील संख्या-280/2010 श्रीमती रोशन आरा बनाम डा0 दीपक गुप्ता तथा अन्य पर जो निष्कर्ष दिया गया है, उस निष्कर्ष से असहमति दर्शित करते हुए इस अपील के संबंध में मेरै द्वारा निम्न निष्कर्ष पारित किया जा रहा है :-
परिवादिनी ने अपने परिवाद पत्र में अंकन 10 लाख रूपये की क्षतिपूर्ति की मांग की थी तथा अंकन 2 लाख रूपये इलाज के दौरान हुए खर्च के रूप में मांगे गए थे और साथ ही परिवाद व्यय के रूप में एक अनिश्िचित राशि की मांग की गई थी। विद्वान जिला उपभोक्ता आयोग ने अपने निर्णय एवं आदेश में क्षतिपूर्ति सुनिश्चित करने के बिन्दु पर कोई निष्कर्ष नहीं दिया है। क्षति का कोई आंकलन नहीं किया गया है, केवल यह तथ्य लिख दिया गया कि विपक्षी संख्या-2 डा0 शरद चन्द्र के विरूद्ध अंकन 01 लाख की क्षतिपूर्ति के लिए तथा विपक्षी संख्या-3, डा0 दीपक गुप्ता के विरूद्ध अंकन 04 लाख रूपये की क्षतिपूर्ति के लिए तथा विपक्षी संख्या-1 व 5 के विरूद्ध अंकन 01 लाख रूपये की क्षतिपूर्ति के लिए कुल 06 लाख रूपये के प्रतिकर के लिए आदेशित किया गया है, परन्तु इस प्रतिकर का निर्धारण करने का कोई आधार दर्शित नहीं किया गया है। परिवाद व्यय के रूप में अंकन 10,000/- रूपये अदा करने का आदेश दिया गया है। इस आदेश पर किसी टिप्पणी की आवश्यकता नहीं है, क्योंकि परिवाद व्यय के रूप में अंकन 10,000/- रूपये अदा करने का आदेश विधिसम्मत है।
परिवाद पत्र के पैरा संख्या-16 में उल्लेख है कि श्री अब्दुल साकिर खान परिवार के भरण-पोषण के लिए एक मात्र उत्तरदायी व्यक्ति थ्ो, उनकी असमय मृत्यु के कारण परिवार भुखमरि की कगार पर पहुँच गया है, जिसके कारण परिवादिनी को अत्यधिक मानसिक पीड़ा एवं प्रताड़ना कारित हुई है, वह परित्यग जीवन जीने के लिए बाध्य हो गई है। इस पीड़ा एवं प्रताड़ना की मद में स्वंय परिवादिनी द्वारा अंकन 5 लाख रूपये की क्षति का आंकलन किया गया है। परिवार के एक मात्र सदस्य की मृत्यु पर अंकन 5 लाख रूपये की क्षतिपूर्ति प्रदान किया जाना विधिसम्मत प्रतीत होता है।
परिवादिनी द्वारा आर्थिक हानि की मद में अंकन 5 लाख रूपये की क्षति प्राप्त करने का उल्लेख किया गया है, परन्तु अंकन 5 लाख रूपये की क्षति का कोई विवरण प्रस्तुत नहीं किया है। परिवादी की आय का कोई स्रोत नहीं बताया गया, इसलिए अंकन 5 लाख रूपये का जो मूल्यांकन किया गया है, इस राशि से सहमत नहीं हुआ जा सकता। मानसिक कष्ट एवं प्रताड़ना की मद में अंकन 5 लाख रूपये की राशि दिए जाने का अनुरोध पुष्ट करने के बाद आर्थिक मद में अंकन 5 लाख रूपये की राशि प्रदत्त किए जाने का कोई औचित्य नहीं है।
इलाज में हुए खर्च की मद में अंकन 2 लाख रूपये की मांग की गई है। शपथपत्र द्वारा इस तथ्य की पुष्टि की गई है कि इलाज में अंकन 2 लाख रूपये खर्च हुए हैं। अत: परिवादिनी अंकन 2 लाख रूपये का खर्च भी प्राप्त करने के लिए अधिकृत है। यह राशि विपक्षी संख्या-1, 2, 3 एवं 5 से संयुक्त रूप से प्राप्त करने के लिए अधिकृत है। विद्वान जिला उपभोक्ता आयोग द्वारा इस मद में केवल एक लाख रूपये अदा करने का आदेश दिया है, जबकि इस मद में यथार्थ में दो लाख रूपये अदा करने का आदेश दिया जाना चाहिए था। तदनुसार अपील संख्या-280/2010 आंशिक रूप से स्वीकार होने योग्य है।
आदेश अपील संख्या-280/2010, रोशन आरा बनाम डा0 दीपक गुप्ता तथा अन्य आंशिक रूप से स्वीकार की जाती है। विद्वान जिला उपभोक्ता आयोग द्वारा पारित निर्णय एवं आदेश 04.11.2009 इस प्रकार परिवर्तित किया जाता है कि विपक्षी संख्या-1 मां शेरावाली हॉस्पिटल तथा इसके प्रोपराइटर डा0 आर.सी. अरोरा परिवादिनी को एक लाख रूपये के स्थान पर दो लाख रूपये की राशि अदा करेंगे।
इस अतिरिक्त एक लाख रूपये की राशि के साथ विद्वान जिला उपभोक्ता आयोग द्वारा प्रतिकर की जिस राशि को अदा करने का आदेश दिया गया है, उस राशि पर परिवाद प्रस्तुत करने की तिथि से अंतिम भुगतान की तिथि तक 09 प्रतिशत प्रतिवर्ष की दर से साधारण ब्याज भी देय होगा। शेष निर्णय/आदेश पुष्ट किया जाता है।
आशुलिपिक से अपेक्षा की जाती है कि वह इस आदेश को आयोग की वेबसाइट पर नियमानुसार यथाशीघ्र अपलोड कर दे।
(सुशील कुमार) सदस्य लक्ष्मन, आशु0, कोर्ट-2 RESERVED A/280/2010 Smt. Roshan Ara V/s Dr. Deepak Gupta and others 15-07-2022 This appeal has been filed against the judgment and order dated 04-11-2009 of learned District Consumer Commission, Jhansi in Complaint Case No. 137/2006 Smt. Roshan Ara V/s Maa Sheravali Hospital and others by which the learned District Consumer Commission has dismissed the complaint.
The appeal was entrusted me by the Hon'ble President of this Commission when the Division Bench comprising Hon'ble Sri Rajendra Singh, Member (Judicial) and Sri Sushil Kumar, Member (Judicial) differed in opinion on the point of quantum of compensation to be given to the complainants. The judgment in the appeal was pronounced by the Presiding Member Sri Rajendra Singh, the other Member Sri Sushil Kumar agreed with the findings on merit passed by his colleague Sri Rajendra Singh but differed on the matter of quantum of compensation not agreeing with the compensation awarded by the Presiding Member Sri Rajendra Singh, Sri Sushil Kumar pronounced that in Appeal No. 280/2010 Smt. Roshan Ara V/s Dr. Deepak Gupta and others he is not agreeing with the compensation awarded to the complainant and passed another judgment only in Appeal No. 280/2010.
In the matter of disagreement among the member of a bench in State Commission it is provided in Section-16 (1B)(iii) of the Consumer Protection Act 1986 (applicable to this matter) that "If the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more or the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it.":2:
In the aforesaid Section it is provided that at the instance of disagreement of the opinion among the members of a bench of State Commission, the members shall state the points of disagreement and make a reference to President of the Commission who may refer the case for hearing on such points to other member/members on such points and give his opinion on those points.
In this matter neither the members of appellate bench have made any reference with respect to any point of difference to the President; nor the Hon'ble President has also referred any specific point to give my opinion on that point, however, on perusal of the judgment dated 21-04-2022 of Sri Sushil Kumar, Member (Judicial) it is revealed that he has not agreed with opinion of the member passing the whole judgment on the matter of compensation awarded to the complainant in Appeal No. 280/2010 Smt. Roshan Ara V/s Dr. Deepak Gupta and others. Therefore, I have heard learned Counsel for the parties on the point of compensation awarded in the appeal.
In the clause of relief claimed in the complaint the complainant has prayed for Rs.10,00,000/- compensation from the opposite parties and Rs.2,00,000/- compensation towards expenses incurred by her in treatment of her husband.
The learned District Consumer Commission, Jhansi in impugned judgment dated 04-11-2009 has awarded Rs.1,00,000/- compensation against opposite party No.2 Dr. Sharad Chandra, Rs.4,00,000/- against proprietor of the hospital and the hospital itself and Rs.1,00,000/- against opposite party No.3 Dr. Deepak Gupta.
While passing the whole judgment on merit Sri Rajendra Singh, Presiding Member has awarded Rs.3,00,000/- as compensation against opposite party No.3 Dr. Sharad Chandra, Rs.5,00,000/- against opposite party No.01 Dr. Deepak Gupta, Rs.12,00,000/- jointly against opposite party Nos. 01, 02, 03 and 05 towards treatment, Rs.50,000/- as costs of the case and Rs.30,00,000/- against opposite party Nos. 01, 02, 03 and 05 towards compensation for mental agony and harassment etc. In this way total Rs.50,50,000/- has been awarded by the Presiding Member Sri Rajendra Singh.:3:
Disagreeing with this compensation Sri Sushil Kumar, Member (Judicial) enhanced the compensation awarded by the learned District Consumer Commission against hospital and its proprietor from Rs.1,00,000/- to Rs.2,00,000/- and also awarded interest at the rate of 9% from the date institution of the complaint till the actual realization.
It can be seen from the complaint itself that the complainant has sought a compensation of Rs.10,00,000/- in all and Rs.2,00,000/- as expenses incurred in the treatment of her husband besides costs of the proceedings. In this way the complainant sought only Rs.12,00,000/- as compensation whereas in the main judgment by Sri Rajendra Singh, Member (Judicial) Rs.50,50,000/- has been awarded which is much more than sought by the complainant in her complaint itself.
In this regard, the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Punjab Small Industries and Export Corporation Limited V/s Gurjeet Singh and others 1(2015) CPJ Page 489(NC) can give guidelines to this Commission in the matter of compensation. In this judgment the Hon'ble National Commission has given verdict that a compensation beyond the prayer made in the complaint cannot be allowed by any Consumer Forum as per the scheme provided under the Consumer Protection Act, 1986. The Hon'ble National Commission has observed as under:-
".................under the Consumer Protection Act law has provided three Forums for filing complaints subject to pecuniary jurisdiction. In such circumstances, compensation beyond prayer made in the complaint cannot be allowed by any Forum and learned State Commission has committed error in enhancing compensation to tune of Rs.6.00 lakh from Rs.1.00 lakh awarded by Distirct Forum whereas complainant claimed only Rs.2.00 lakh as compensation in the complaint. "
The Hon'ble National Commission has expressed its view that compensation cannot be enhanced without any evidence led by the party on this behalf. The aforesaid observation of the Hon'ble National Commission is applicable to this case also. In this case the complainant has sought Rs.10,00,000/- as compensation for damages and Rs.2,00,000/- as expenses :4: incurred in treatment of the patient. The complainant has also not led any evidence which can be a basis for enhancement of the compensation sought from Rs.12,00,000/- to Rs.50,50,000/-. Although I also find that the compensation awarded by Sri Sushil Kumar, Member (Judicial) is also on lower side but as per Section-16 of the Consumer Protection Act, 1986 I have no option but to agree with the opinion expressed by one of the members, therefore, in my opinion the compensation awarded by Sri Sushil Kumar, Memsber (Judicial) is appropriate in the facts and circumstances of this matter.
In view of the above, I am in agreement with the opinion of Sri Sushil Kumar, Member (Judicial) in the matter of compensation awarded to the complainant.
Let copy of this order be made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission at the earliest.
( VIKAS SAXENA ) MEMBER Pnt.
[HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER